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15/11/2010

Report of the Working Group on Medical Negligence and Periodic Payments (Module 1) is published

Medical negligence ….. Catastrophic Injuries …… Periodic payments .…. Shortcomings in current system of awards ….. Recommendations for change made by Working Group chaired by a Judge of the High Court …..


The current system of awarding lump sum payments for damages for future care needs in medical negligence, and all other cases where catastrophic injuries are awarded damages, has been found to be inadequate and inappropriate. The findings are contained in a report of an expert working group on medical negligence litigation - comprised of all relevant interested groups in the area and chaired by High Court Judge, Mr Justice John Quirke.

The report was presented by the President of the High Court, Mr Justice Nicholas Kearns to the Minister for Justice Mr Dermot Ahern T.D. on Monday November 15th.

The report goes on to say that the seriously or catastrophically injured should not be deprived of the right to claim that damages intended for their future care should be paid periodically. New legislation needs to confirm and clarify the availability to the courts of the power to make interim and provisional awards of damages.

The changes recommended would not affect the right of a plaintiff to be paid damages for pain and suffering in the form of a lump sum.  

The Working Group has submitted a proposed Draft Bill as part of the changes recommended in the report.

The report also says that it should be open to defendants in such cases to claim that such damages and expenses - rather than be paid in a lump sum - be paid at the approximate time the care, treatment and equipment is actually required. The group believes the two sets of shortcomings should be addressed in the interests of justice.

A key recommendation of the report is that legislation be enacted to empower the courts to order consensual and non consensual periodic payments where long term permanent care is needed - taking into account the nature of the injuries and the circumstances of the person awarded the damages. These payments would be exempt from taxation or for use in paying off creditors in the event of bankruptcy.

The courts should also be allowed under this new law to order periodic payments for loss of earnings, but only by agreement between the parties.

All periodic payments would only be ordered where the court is satisfied that there exists a secure means of the continuity of such payments into the future.

Periodic payments should be index linked and levels set at the realistic cost of the provision of medical services at a given time - as determined by an independent agency such as the Central Statistics Office.

Account shall be taken of the levels of payment needed in relation to the age of the claimant and the likelihood of major improvement or deterioration in their condition.

The NTMA should be utilised to provide the necessary security of periodic payments through the provision of annuities to insurers or others as appropriate / or a statutory scheme of protection be established.

Periodic payments would not extend to the plaintiffs dependants after their death - outside of any agreement reached between the parties to do so. 

Working Group on Medical Negligence and Periodic Payments Report (Module 1)