The Government recently published new legislation on 13 January 2017, in the form of the Civil Liability (Amendment) Bill 2017, which for the first time empowers the Courts to make consensual and non-consensual Periodic Payment Orders (PPOs) to compensate injured parties in cases of catastrophic injury where long term permanent care is required. To date, the Judiciary has been able only to make lump sum awards of damages in such cases.

The legislation largely reflects the recommendations made by the Working Group on Medical Negligence and Periodic Payments (Working Group) which published its report in 2010. The Government had agreed to examine the recommendations made by the Working Group in view of the on-going concerns expressed by all parties as to the inadequacy of the lump sum system to cater properly for catastrophically injured parties requiring on-going care and medical treatment.

It is a common complaint of the current regime that it is almost impossible for a lump payment, however carefully calculated, to accurately compensate an injured party. In almost all cases the injury party will either be overcompensated or undercompensated and the new legislation is therefore to be welcomed.

Definition of a “catastrophic injury”

“A catastrophic injury” is defined under the legislation as “a personal injury which is of such severity that it results in a permanent disability requiring the person to receive life-long care and assistance in all activities of daily living or a substantial part thereof”. “Activities of daily living” include activities such as dressing, eating, walking, washing and bathing.

Heads of Claim

The heads of claim under which a PPO may be ordered by the Court are as follows:

  1. Future medical treatment.
  2. Future care of the Plaintiff.
  3. Provision of assistive technology.

In addition, where all parties are in agreement, damages in respect of future loss of earnings may also be paid by PPO.

Issues to be considered by Court

In deciding whether to make a periodic PPO the Court must:

  1. Have regard to the best interests of the Plaintiff.
  2. Take into account the nature of the injury suffered by the Plaintiff.
  3. Take into account preferences of all of the parties regarding the form of award which would best meet the needs of the Plaintiff.

Stepped PPOs

The Courts can now also make provision for “Stepped” payments where it is anticipated that the Plaintiff’s circumstances will change during his/her life. The PPO can be increased or decreased on a specific date to take into account important foreseeable milestones in the Plaintiff’s life such as entry into further education, moving out of the family home or admittance to residential nursing care.

Indexing

Indexation is undoubtedly a key issue which will have significant implications on the success of PPO’s going forward. The Working Group originally recommended that a specific index rate should be developed which would be an Irish equivalent of the index used in the UK (ASHE 6615). Ultimately it was decided that the appropriate indexation measure would be the Irish harmonised index of consumer prices (HICP).

The HICP does not measure increases in the cost of medical appliances or care workers earnings which would likely form the major components of most PPOs. This is in contrast to the ASHE 6115 index which is an annual earning survey that is helpfully applicable to both care assistants and home carers. Unfortunately there are is no Irish equivalent Index to ASHE.

To ensure that the index rate keeps pace with increases in care costs the Government will review the rate every 5 years and adjust appropriately.

At the time of writing no date has been set for enactment of the Bill but we will provide further updates on this important piece of legislation as they occur.