B.D. v The Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 19 January 2019
• Neutral Citation: [2019] IEHC 173
• Court: High Court
• Docket Number: [2017 No. 1 C.T.]
• Date: 19 January 2019

[2019] IEHC 173

THE HIGH COURT

Barton J.

[2017 No. 1 C.T.]

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5 (15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT, 1997, AS AMENDED AND IN THE MATTER OF AN APPEAL BY B. D. AND IN THE MATTER OF A DECISION OF THE HEPATITIS C AND HIV COMPENSATION TRIBUNAL OF THE 30TH MARCH, 2017, REFERENCE 1685/97

BETWEEN

B. D.

APPELLANT

AND

THE MINISTER FOR HEALTH AND CHILDREN

RESPONDENT

General compensation – Pecuniary loss – Decompensated cirrhosis – Appellant seeking a variation of the order of the Hepatitis C and HIV Compensation Tribunal – Whether the order failed to fairly and reasonably reflect the devastating consequences which decompensated cirrhosis has had and will continue to have on every aspect of the appellant’s life

Facts: The appellant appealed to the High Court from a decision of the Hepatitis C and HIV Compensation Tribunal delivered on the 30th March, 2017, whereby the appellant was awarded €150,000 in general compensation and €50,000 in respect of pecuniary loss for the consequences of decompensated cirrhosis of the liver caused by the Hepatitis C Virus. The appeal was brought pursuant to s. 5(15) of the Hepatitis C Compensation Tribunal Acts 1997-2006. The grounds on which the appellant sought a variation of the award were that it failed to fairly and reasonably reflect the devastating consequences which decompensated cirrhosis has had and will continue to have on every aspect of his life, including the foreshortening of life itself and the probability that he will develop Hepatocellular Carcinoma. He also sought a variation of the pecuniary loss award on the grounds that the amount thereof was perverse and was founded on an erroneous understanding and application of the law by the Tribunal.

Held by Barton J that he would make an order varying the order of the Tribunal by substituting for the sum of €150,000 general compensation the sum of €220,000 and by substituting for the sum of €50,000, the aggregate sum for pecuniary loss of €400,642. Otherwise, Barton J held that he would affirm the terms of the award of the Tribunal which, as to general compensation, would be provisional on the events identified in the award.

Barton J held that he would allow the appeal.

Appeal allowed.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 19th day of January, 2019

1 These proceedings come before the Court by way of an appeal from a decision of the Hepatitis C and HIV Compensation Tribunal (‘the Tribunal’) delivered on the 30th March, 2017, whereby the Appellant was awarded €150,000 in general compensation and €50,000 in respect of pecuniary loss for the consequences of decompensated cirrhosis of the liver caused by the Hepatitis C Virus. (HCV). The Appeal is brought pursuant to s. 5 (15) of the Hepatitis C Compensation Tribunal Acts 1997-2006 (‘the Acts’).

2 The grounds on which the Appellant, B.D, seeks a variation of the award are that it fails to fairly and reasonably reflect the devastating consequences which decompensated cirrhosis has had and will continue to have on every aspect of his life, including the foreshortening of life itself and the probability that he will develop Hepatocellular Carcinoma. He also seeks a variation of the pecuniary loss award on the grounds that the amount thereof was perverse and was founded on an erroneous understanding and application of the law by the Tribunal. The Court will allow the appeal for the reasons that follow.

3 It is accepted by the Minister that B.D is entitled to an award for his pecuniary and non-pecuniary loss; in controversy, however, is the quantification of the loss. The Appeal raises important matters of principle and law regarding the assessment of compensation. In the interest of a comprehensive understanding of the issues it is necessary that these are placed in the factual context on foot of which they arise.

Background

4 B.D. was born on the 22nd October, 1978 and resides with his wife and family in the midlands. The couple married in 1990 and have three children, a boy and two girls. The boy was born in August 2006, the eldest girl in April 2009 and their younger sister in December 2012. The two girls were born with Down Syndrome and have special needs. In October 1978, the Appellant was diagnosed with Crohn's disease, a condition which was successfully treated by the late Professor Fielding; the Court is satisfied that the consequences of this condition have no implications for the issues which fall for determination on the appeal.

5 On the 17th March, 1981, B.D. was admitted to Portlaoise Hospital suffering from complications associated with his Crohn's disease. In the course of treatment, he was transfused with three units of blood and subsequently, in January 1982, he was re admitted to hospital where he underwent a right hemicolectomy. Very unfortunately for the Appellant one or more of the transfused units was contaminated with the Hepatitis C Virus (HCV), genotype 3. At all times after the introduction of Polymerase Chain Reaction testing (PCR), his samples were found to be positive for the virus. As a consequence of the infection he developed serious liver disease which was progressive and in 2014 he was diagnosed with decompensated cirrhosis; he was by then a very ill man in need of urgent medical treatment.

Vocational Background

6 The Appellant left school in 1976 with a good Leaving Certificate. He commenced employment almost immediately with Zetor Ireland, processing guarantee claims. He subsequently secured the position of credit controller with Lombard and Ulster Bank before moving two years later to the Leinster Express newspaper where he remained employed until 1983. Following a short period of unemployment, he joined Avonmore Foods as a credit control and sales manager where he became intimately involved in the expansion of the creameries division of the business; the company ultimately merged with Waterford Foods to form the Avonmore group of companies.

7 Had it not been for the consequences of the infection, B.D. would almost certainly have been promoted to the position of group National Sales and Distribution Manager; his illness began to impact on his ability to function in the late 1980's. Although the limiting effects of the disease were gradual he came to accept that he would not be able to cope with the additional demands which come with promotion and when offered the position of National Sales Co-Ordinator for the Liquid Milk Division of the group in 1990, he declined on health grounds. The corresponding worsening of symptoms, particularly fatigue, as the disease progressed resulted in a gradual reduction of working hours, initially to three days a week, until the deterioration in his health forced the Appellant to retire in January 1998, shortly before the first tribunal hearing.

8 Had he been able to take up promotion in 1990, it is clear from the evidence that the new position would have involved an increase in the number of meetings he would have had to attend at different plants and sites throughout the country with a consequential impact on the amount of time spent away from home. As will be seen later this has an implication for the future child care claim, particularly in circumstances where his spouse is a full time career civil servant. Mrs D holds a master's degree in governance and holds a senior position in a government department. Circumstances require her to leave the family home between 6.30 and 7 am on weekdays. She works long hours and on those evenings when she returns home it is rarely much before 8pm; her duties often require her to work late and stay overnight in Dublin, when this occurs she stays with her sister. Now 51, she is not due to retire until she reaches the age of 65.

Implications of Vocational Commitments on Childcare

9 Had it not been for the awful consequences which his illness has had on every aspect of the Appellant's life, it appears highly likely he would have enjoyed a stellar career in one of the country's largest corporate entities, a path along which his wife has already travelled in her own career. Although they now have three children the couple experienced difficulty starting a family; their first child was not conceived until 2005, following IVF treatment. Having regard to the impact promotion would likely have had on the time available to look after his children, as it has had on the time available to his spouse, in circumstances where both parents were pursuing their respective careers full time, it is probable that the Appellant and his wife would have had to retain carers to meet the bulk of their children's care needs, particularly during the working week.

10 In this regard I consider it to be of some significance in relation to the claim for pecuniary loss that there was no convincing evidence one or other of the parents would have abandoned or modified their careers to look after their children either on a full time or part time basis, particularly after the birth of the children with special needs. Taken at its height the only direct evidence in relation to this matter was B.D.'s assertion he would have done whatever was necessary to look after his children while working and in that regard, had he secured promotion, he believed he would most likely have been facilitated by his employer.

11 Mrs. D did not give evidence to the Tribunal or the Court nor was she interviewed by Nurse Kirby for the purposes of the report which she prepared and on foot of which the capitalised claim for the cost of future child care was based. In all the circumstances the only reasonable conclusion which the Court can reach on the evidence is that but for the Appellant's illness both parents would most likely have remained in full time employment.

First Application to the Tribunal

12 The Appellant made an application to the Tribunal for pecuniary and non-pecuniary...