Judge urges lawmakers to witness ‘procession of misery’ in courts

Legislators should witness the “procession of misery” in the courts resulting from their continuing failure over years to enact laws necessary to address the lifetime care needs of the catastrophically injured, the president of the High Court has said.

If legislators could see this misery, they might enact the necessary and uncontroversial legislation as a matter of urgency, Mr Justice Peter Kelly said.

He made the comments after approving a further interim payment of some €1m to meet care needs of a severely disabled boy, bringing to some €5m the payments received to date under a settlement of his case.

The boy’s mother earlier become upset when telling the judge how “exhausted and drained” she is due both to caring for her son and preparing, due to absence of the necessary legislation, for successive court hearings over costs of his care.

She is constantly worried whether there will be enough money to meet her son’s very great care needs as a previous interim payment was not sufficient.

She hoped this almost €1m payment, which includes a higher sum for his care over the next three years, would be adequate to pay for sufficient carers and mean she would not have to rely on what the judge described as the kindness of unpaid others to help her.

Becoming upset, she said her son’s life had been robbed, but despite his severe disabilities he is a happy and bright child and she was determined he would get the care he required.

A lone parent, her own life has also been ruined but she was not seeking sympathy and just wanted her son “to be happy”.

She would love if the court process was over as all she wanted was “a happy, healthy child”. “I’m a better person for having him but am worried about money.”

Mr Justice Kelly told her she would take no comfort from the fact he had seen many other mothers in the courts in a similar position.

He wished legislators could see the “procession of misery” resulting fron their failure over almost seven years to legislate and hoped, by the time this case returned to court in 2020, the necessary laws would be enacted. There is at least a Bill before the Oireachtas, although counsel had identified some deficiencies in that, he added.

He told the woman he appreciated the burden cast upon her and thanked her on behalf of her son, who cannot verbalise, for the exemplary way she is discharging that.

Because the boy is a ward of court, his case was brought before the judge by his counsel Denis McCullough SC for approval of the latest interim payment of €1m. The settlement offer was some €42,000 less than was sought but they were recommending it for approval, and were particulary happy it provides a greater sum to address care needs over the coming three years than previous interim paymnents had provided for, counsel said.

Mr Justice Kelly approved the settlement but urged the legislature to urgently end the misery of such plaintiffs and their families. The failure to do so also means a huge expenditure of costs and time, he added.

The child, who cannot be identified by court order, sued over the circumstances of his birth at a regional hospital in 2006. He has cerebral palsy seriously affecting his mobility and requires 24-hour care. He sued the HSE and a consultant obstetricia,n alleging negligence in the circumstances of his birth. Liability was previously admitted by both defendants.

Previously the court was told by his counsel that had the boy been delivered earlier, he would have been spared his injuries.