Russell (a minor) -v- Health Service Executive [2015] IECA 236 (05 November 2015)

Russell (a minor) -v- Health Service Executive [2015] IECA 236 (05 November 2015)

The appropriate real rate of return (discount rate) for calculating future pecuniary loss in catastrophic injury cases should be based on a risk-averse investment strategy, such as ILGS or a low-equity mixed portfolio, and not on the assumption that the plaintiff is an ordinary prudent investor. The obligation to mitigate loss does not extend to the investment of damages. The court must award full compensation regardless of the impact on the defendant or public finances. The High Court's approach in applying a 1.5% real rate of return (discount rate) was correct in law and principle.

Citation
[2015] IECA 236
Parties
Plaintiff/respondent: Gill Russell (a minor) suing by his mother and next friend Karen Russell; Defendant/appellant: Health Service Executive
Jurisdiction
Ireland
Judgment Date
05 November 2015
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Quantum of Damages
Outcome
Appeal dismissed
Legal Topics
Assessment of Damages, Future Pecuniary Loss, Discount Rate, Catastrophic Injury, Periodic Payment Orders, Mitigation of Loss
Tort Law Personal Injury Law Medical Negligence Assessment of Damages Future Pecuniary Loss Discount Rate Catastrophic Injury Periodic Payment Orders +1 more

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Parties

Gill Russell (a minor) suing by his mother and next friend Karen Russell

Plaintiff/respondent

Health Service Executive

Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Quantum of Damages

Legal Issues

  1. 1 What is the appropriate real rate of return (discount rate) to be applied in calculating the lump sum for future pecuniary loss in catastrophic injury cases?
  2. 2 Should the court consider the defendant's interests or public policy when assessing damages for future pecuniary loss?
  3. 3 Is the plaintiff obliged to mitigate loss by adopting a particular investment strategy for the damages awarded?

Ratio Decidendi

The appropriate real rate of return (discount rate) for calculating future pecuniary loss in catastrophic injury cases should be based on a risk-averse investment strategy, such as ILGS or a low-equity mixed portfolio, and not on the assumption that the plaintiff is an ordinary prudent investor. The obligation to mitigate loss does not extend to the investment of damages. The court must award full compensation regardless of the impact on the defendant or public finances. The High Court's approach in applying a 1.5% real rate of return (discount rate) was correct in law and principle.

Court Disposition

Appeal dismissed

Orders

  • The appeal is dismissed. The High Court's approach to the discount rate and assessment of damages is affirmed.