B.O'K. v The Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 24 May 2019
• Neutral Citation: [2019] IEHC 457
• Court: High Court
• Docket Number: [2017/10 C.T.]
• Date: 24 May 2019

[2019] IEHC 457

THE HIGH COURT

Barton J.

[2017/10 C.T.]

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5 (15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACTS 1997-2006

AND

IN THE MATTER OF A DECISION OF THE HEPATITIS C COMPENSATION TRIBUNAL TO THE CLAIMANT, B. O'K. ON THE 27TH NOVEMBER 2017 REFERENCE 4120/08

AND

IN THE MATTER OF AN APPEAL BY B. O'K.

BETWEEN

B. O'K.

APPELLANT

AND

THE MINISTER FOR HEALTH AND CHILDREN

RESPONDENT

Compensation – Hepatitis C infection – Reasonableness – Appellant seeking to appeal from a decision of the Hepatitis C Compensation Tribunal – Whether an award of €150,000 was fair and reasonable compensation

Facts: The appellant appealed to the High Court from a decision of the Hepatitis C Compensation Tribunal given on the 27th November, 2017, whereby the appellant was awarded €150,000 general compensation on a return application having developed Hepatocellular Carcinoma and Cirrhosis of the liver. Those life-threatening conditions arose as a consequence of Hepatitis C infection contracted in 1977 through the administration of an infected batch of Anti-D immunoglobulin which the appellant received following the birth of her daughter. In issue was whether or not an award of €150,000 compensation for the development and consequences of those conditions, including the foreshortening of her life, was fair and reasonable compensation. The appellant contended that the amount was wholly insufficient and that it was manifest from the award that the foreshortening of life in particular had not been taken into account by the Tribunal at all or if it had been, insufficient provision had been made. The case advanced by the respondent, the Minister for Health and Children, was that the award should not be disturbed as it represented fair and reasonable compensation for the conditions which had unfortunately developed.

Held by Barton J that where one of the fundamental features and attributes of the scheme is to remove questions of legal liability it would be wholly contrary to the policy underlying the scheme as well as the object for which it was established and the mischief which it seeks to redress, were s. 5 (1) of the Hepatitis C Compensation Tribunal Acts 1997 to 2006 to be construed as a back door through which the Minister or the Tribunal could introduce questions of legal liability to reduce awards to the victims of HCV or HIV infection. Barton J held that to construe the section in the way suggested would offend against the approach to construction of the provision, contained as it is in a ‘redress statute’, mandated by the Supreme Court in CM v Minister for Health [2017] IESC 76, and applied by the Court in AC v Minister for Health [2019] IEHC 431. Barton J held that it would be contrary to the manifest legislative intention apparent from the express provisions of the 1997 to 2006 Acts that claimants would not have to concern themselves with questions of legal liability or with the apportionment of fault which would necessarily arise from issues of contributory negligence.

Barton J held that, applying the principles set out in L’OS v The Minister for Health [2017] IECA 7, the appellant was entitled to be compensated in full for the development of Cirrhosis and Hepatocellular Carcinoma; the compensation awarded in 2010 had to be assessed on the premise that those conditions would not occur. Barton J held that as the foreshortening of life was a consequence of the development of those conditions the compensation to be assessed on the application must make provision for that fact and in that regard he accepted the appellant’s submissions. Barton J held that, having regard to the totality of the injuries sustained, the compensation previously awarded for pain and suffering to date and into the future in respect of injuries which had or which were likely to arise at the time, on all the evidence adduced a fair and reasonable sum to compensate the appellant commensurate with the development of Cirrhosis and Hepatocellular Carcinoma and for the consequences of those conditions, including the foreshortening of her life expectancy, was €225.000, from which he considered €25.000 to be a reasonable sum which fell to be deducted in order to take account of the average life expectancy element comprised in the 2010 award, leaving a final net amount for general compensation on this application in the sum of €200,000. Barton J held that the Court would so order.

Appeal allowed.

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 24th day of May, 2019

1 This case comes before the Court by way of an appeal from a decision of the Tribunal given on the 27th November, 2017, whereby the Appellant was awarded €150,000 general compensation on a return application having developed Hepatocellular Carcinoma and Cirrhosis of the liver. These life-threatening conditions arose as a consequence of Hepatitis C infection contracted in 1977 through the administration of an infected batch of Anti-D immunoglobulin which the Appellant received following the birth of her daughter, O.

Background

2 The Appellant was born on the 14th August, 1948, and was married in 1973. Her husband died after a long illness in 1995. There were six children of the marriage, five daughters and one son. Four of the children have learning difficulties and attended a special school where they received remedial education. They remain partially dependant and continue to reside in the family home. When the Appellant reached fifteen years of age she left school and commenced a training course in nursing. She contracted pneumonia shortly afterwards and was hospitalised. On recovery she did not return to the course but instead took up full time employment in the vintner's trade working in a series of public houses until she got married. Her intention was to return to the workforce after she had had her family.

Diagnosis for Hepatitis C

3 B. O'K. first tested positive for the Hepatitis C virus (HCV) by polymerase chain reaction test (PCR) in 2007. She brought an application to the Tribunal for compensation under the statutory scheme established by the Hepatitis C Compensation Tribunal Acts, 1997 to 2006 (the 1997 to 2006 Acts). Her application was determined on the 1st November, 2010. The Tribunal made an award of €275,000 which included travelling expenses and what was described as a ‘small amount’ in respect of a claim for loss of opportunity. Given the home circumstances, where the children were highly dependent on their mother for their care, the Tribunal was not entirely satisfied that there was a reality to the Appellant's stated attempts to return to the workforce in 2002.

4 At the Appellant's election and having due regard to the medical evidence the Tribunal made the award provisional on certain terms. As required by the provisions of s. 5 subs. 7(a) of the 1997-2006 Acts, the award identified the serious consequences which would entitle the Appellant to return to the Tribunal for additional compensation, namely, Cirrhosis and/ or Hepatocellular Carcinoma. In the years that followed the Appellant's liver disease continued to deteriorate and in 2016 she was informed that not only had her disease progressed to Cirrhosis but she had also developed Hepatocellular Carcinoma. Accordingly, she became entitled to return to the Tribunal on foot of the provisional award. The return application was heard and determined the 21st of December 2017; an award of €150.000 was made. The award was made provisional on the terms set out in the Tribunal's decision.

Treatments; Delay; Failure to Mitigate Loss

5 Subsequent to diagnosis the Appellant had initially declined to undergo biopsies or the antiviral therapy treatments available at the time, however, as a result of the seriousness of her deteriorating condition and having regard to the advances in treatments for the virus in 2015, she decided to undergo directly acting antiviral (DAA) therapy in 2015. The treatment was a success and she cleared the virus. On the 2nd December, 2016 she underwent a thermal ablation of the liver tumour which had been idntified. A subsequent CT scan in February 2019 demonstrated a complete response to the treated lesion and this was confirmed on repeat scanning.

6 The Appellant's...