Periodic Payment Orders: Index has to Change to Meet Future Care Needs ith the rst Periodic Payment rder (PP ) made ust over a year ago, Daragh Bur e reviews the legal position and highlights a recent High Court udgment which dealt further with indexation of awards
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he rst PP was awarded by an Irish Court in ebruary 2019. The 1 year old plainti su ered brain damage at birth and was awarded an annual payment of 610,000 for the remainder of her life. The plainti s case against the otunda Hospital was settled in 2012 without an admission of liability on behalf of the hospital. Interim settlement payments of 2.94 million had already been awarded to the plainti . The commencement of the Civil iability (Amendment) Act 2017 by the Minister for ustice and uality in ctober 201 , allowed the court to award a PP which Mr. ustice Peter Kelly described as being in the best interests of the plainti .
Lump Sum Payments Prior to the commencement of the 2017 Act, the courts were only able to award lump sum payments in catastrophic in ury cases with interim payments schemes also being utilised in recent years in cases where the parties were waiting for the legislation to be enacted. However, lump sum payments were not always t for purpose and could leave a plainti in a precarious position should they outlive the life expectancy used to calculate the amount of future care that they may re uire. rom a defendant s perspective it was also possible that a lump sum payment could over compensate a plainti .
The 2017 Act The 2017 Act de nes catastrophic in ury as a personal in ury of such severity that it results in a permanent disability re uiring the person to receive life-long care and assistance in daily living or a substantial part thereof. Where a court awards damages for personal in uries to a plainti who has su ered a catastrophic in ury, the court may order that the whole or part of the damages be paid by the defendant in the form of a PPO in such amounts as the court may determine. An award of damages by PPO can be made under the Act where the damages relate to; 52 the Parchment
• the future medical treatment of the plainti • the future care of the plainti • the provision of assistive technology or other aids and appliances associated with the medical treatment and care of the plainti • future loss of earnings where both parties consent in writing The court has discretion to decide whether to award a PPO whether both parties consent or not and will consider whether it is in the best interest of the plainti and the particular circumstances of the case. nder subsection (2) of section 51I of the Act, the court shall take into consideration inter alia the form of award preferred by the plainti and the defendant and the reasons for same and any nancial advice received by the plainti . nder subsection ( ) of section 51I, where both parties agree to the payment of all or part of the damages by PPO, the court has discretion to either make a PPO in accordance with the agreed terms, refuse the application or refuse the application and ma e a PP under subsection (1) of section 51I of the Act. A PPO will specify the annual amount awarded to the plainti , the fre uency and method of the payments and the amount of damages awarded in respect of the future medical treatment, future care and provision of assistive technology/aids and appliances associated with the medical treatment and care of the plainti and the amount awarded for loss of earnings if applicable. Any award made by way of PPO is exempt from tax under section 1 9B of the Taxes Consolidation Act (TCA) 1997.
Stepped Payments The 2017 Act also provides for stepped payments where it is anticipated that there will be changes in the plainti s circumstances during their lifetime that are li ely to have an e ect on their needs. In such circumstances the court can make provision in the PP that from a speci ed date a payment