B (P) v Min for Health

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 31 May 2013
• Neutral Citation: [2013] IEHC 336
• Court: High Court
• Date: 31 May 2013

[2013] IEHC 336

THE HIGH COURT

[No. 5 C.T./2012]

B (P) v Min for Health

IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACTS 1997 - 2006

BETWEEN

P.B.

APPELLANT

AND

MINISTER FOR HEALTH AND CHILDREN

RESPONDENT

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(15)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(14)

(O'B) J v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP O'KEEFE 24.6.2009 2009/43/10809 2009 IEHC 284

G (M) v RESIDENTIAL INSTITUTIONS ADDRESS BOARD UNREP KEARNS 9.8.2011 2011/22/5833 2011 IEHC 332

A G v RESIDENTIAL INSTITUTIONS REDRESS BOARD UNREP HOGAN 6.11.2012 2012/16/ 4476 2012 IEHC 492

RESIDENTIAL INSTITUTIONS REDRESS ACT 2002 S8(2)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(1)(D)

Practice and procedure- Time limits- Hepatitis C- Compensation Tribunal- Exceptional circumstances - S. 4(15) Compensation Tribunal Act 1997

Facts: The appellant sought to extend time pursuant to s. 4(15) Compensation Tribunal Act 1997 for a claim before the Hepatitis Compensation Tribunal on the basis of exceptional circumstances so as to justify his lack of knowledge for applying within the requisite time limits. The appellant had experienced deprivation, mental health problems, social isolation and disabilities. The respondents argued that he had had on-going contact with medical professionals.

Held by Irvine J. in dismissing the appeal. The lack of knowledge was not as a result of his physical or mental condition. The fact that he had psychiatric problems was a separate matter. He had not established exceptional circumstances to justify the Court extending time.

Introduction

1 This is an application pursuant to s. 4(15) of the Hepatitis C Compensation Tribunal Act 1997 ("the Act of 1997"), to extend the time within which the appellant may make a claim for compensation to the Hepatitis C Compensation Tribunal ("the Tribunal"). The matter comes before this Court by way of an appeal against a decision of the Tribunal dated the 24 ^th May, 2012, which refused such relief.

Background

2 It is common case that the appellant was born in November, 1960 and that he currently lives at North Great Charles Street, Dublin. Tragically, he appears to have contracted Hepatitis C before he was ten years of age as a result of a blood transfusion in the course of medical treatment which he received following an accident.

3 The appellant was informed of having contracted Hepatitis C on the 16 ^th June, 1999. Under s. 4 (14) of the Act of 1997, he was obliged to make his application for compensation within three years of that date.

Proceedings before the Tribunal

4 The appellant was not aware of the government's scheme to compensate those infected with Hepatitis C until October, 2002 and as a result he did not make his application until the 2 ^nd December of that year.

5 The appellant applied to the Tribunal to extend the time to make his application claiming that there were "exceptional circumstances" which would justify the Tribunal extending the statutory period. However the Tribunal in its decision of the 24 ^th May, 2012 refused that application.

The appellant's claim

6 The appellant now, by way of an appeal, seeks to invoke the High Court's discretion under the provisions of s. 4(15) of the Act of 1997, as amended by the Hepatitis C Compensation Tribunal (Amendment) Act 2002, which provides as follows:-

"The Tribunal may, at its discretion and where it considers there are exceptional circumstances, extend the periods referred to in subsection (14) and in subsection (14A)."

7 For the purposes of this appeal, the Court had the benefit of the affidavits sworn in support of the appeal and the exhibits therein referred to. It also heard oral evidence from the appellant himself and it received into evidence, by agreement with the respondent, the report of Dr. Mona Kilduff, consultant psychiatrist, dated the 1 ^st February, 2013.

8 Based upon the evidence received by the Court, the appellant submits that there are exceptional circumstances within the meaning of s. 4(15) which would justify the Court extending the three year statutory time limit provided for in the section.

Facts

9 I do not intend to set out all of the evidence heard by the Court on the present appeal. However, the following are some of the undisputed facts which I consider most material to my decision and for this reason I will refer to them at this juncture.

10 The appellant was born in 1960 and lived with his mother in the Regina Coeli Hostel, North Brunswick Street, until he was approximately thirteen years of age. The appellant remained in formal education until he was sixteen or seventeen years of age but did not complete any formal State examinations. At some stage after he left school, the appellant took up employment with Dublin City Council where he worked as a general operative in the cleaning department for approximately thirteen or fourteen years.

11 The appellant's life has been complicated by a range of psychiatric problems which have been apparent since he first attended the North Strand Outpatient Psychiatric Services in September, 1991. His problems include manic depression, bipolar disorder, panic attacks, and agoraphobia. These conditions have required the appellant to take significant amounts of medication over the years. Dr. Kilduff in her report dated the 1 ^st February, 2013, records in some detail the difficulties encountered by the appellant arising from the death by suicide of a very close friend in December, 1999 which triggered unresolved grief over the deaths of his brother, nephew and parents. She believes that this provoked an escalation in his anxiety and panic attacks. These symptoms, she contends, were compounded by alcohol abuse and benzodiazepine dependence and provoked the appellant's admission to hospital for four days on a crisis basis in February, 2000.

12 Dr. Kilduff's evidence as to the significance of the appellant's psychological problems, particularly throughout the year 2000, appears to be borne out to a certain extent by his work records. These show that he was out of work between September, 1999 and March, 2001. He was then back at work between March, 2001 and May, 2001 after which he was again out on sick leave until he was ultimately retired on health grounds in June, 2003. Accordingly, it appears to be the case that for the greater part of the three year statutory timeframe within which the appellant was obliged by statute to maintain his claim for compensation under the Act of 1997, he was in fact unfit for work. The records exhibited within the proceedings establish that the grounds for his being out of work over this period of time include the effects of Hepatitis C and psychological disturbances of one type or another.

13 The appellant in his own evidence told the Court that he was of modest intellect and quite disorganised. He also stated that he lived a relatively isolated existence. He does not buy newspapers and his television viewing is limited to soap operas. Neither does he have any interest in politics or current affairs.

14 The appellant told the Court that he was only advised of the existence of the compensation scheme by a senior member of the nursing staff at St. Vincent's Hospital in Fairview, some time in October, 2002. The nurse in question gave him the name of Mr. Tom Hayes, of Arthur McLean Solicitors and as a result he made his application to the Tribunal in December, 2002, albeit that the same was then outside the statutory time limit.

Submissions on behalf of the appellant

15 Dr. Craven, B.L., on the appellant's behalf, submitted that there were "exceptional circumstances" which would justify the Court extending the time under section 4(15). As a matter of law, he submitted that the appellant's lack of knowledge of the scheme itself could in the circumstances of the present case amount to "exceptional circumstances" within the meaning of the section. However, he submitted that if the Court was against him on that point, he was satisfied that the appellant's other difficulties such as his social isolation, educational disability, long standing mental health difficulties would be sufficient to justify the Court exercising its discretion in the appellant's favour and in this regard, he relied upon a number of decisions of the High Court including J.O'B v. Residential Institutions Redress Board [2009] IEHC 284 (Unreported, High Court, O'Keeffe J., 24 ^th June, 2009); M.G v. Residential Institutions Redress Board [2011] IEHC 332 (Unreported, High Court, Kearns P., 9 ^th August, 2011), A.G. v. Residential Institutions Redress Board 2012 IEHC 492 (Unreported, High Court, Hogan J., 6 ^th November, 201 l)and Mc G v. Minister for Health and Children & Anor (Unreported, ex tempore, Hanna J., 28 July, 2005).

Submissions on behalf of the respondent

16 Mr. Carson, S.C., counsel for the respondent submitted that on the evidence in the case the appellant had not proved that there were any "exceptional circumstances" which would justify the Court exercising its discretion. On the facts, he submitted that the appellant was not particularly isolated from a social prospective having regard to his ongoing engagement with a range of doctors pertaining to his Hepatitis C infection and with other doctors concerned with his employment status. He relied upon the fact that the appellant appeared to be capable of looking after himself...