C.M. v Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 12 December 2017
• Neutral Citation: [2017] IESC 76
• Date: 12 December 2017
• Court: Supreme Court
• Docket Number: [Appeal No. 260/2011] [Record No. 2009/5CT]

In the Matter of an Appeal pursuant to Section 5(15) of the Hepatitis C Compensation Tribunal Act 1997, as amended by the Hepatitis C Compensation Tribunal (Amendment) Act 2002

And in the Matter of a Claim by C.M.

And in the Matter of a Hearing and Decision made by the Hepatitis C Compensation Tribunal to the Claimant, C.M., dated the 14th May, 2009, and in the Matter of an Appeal of the Claimant, C.M.

Between /

C.M.

Applicant/Respondent

-and-

THE MINISTER FOR HEALTH AND CHILDREN

Respondent/Appellant

[2017] IESC 76

McKechnie J.

Clarke C.J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

[Appeal No. 260/2011]

[Record No. 2009/5CT]

THE SUPREME COURT

Administrative & constitutional law – Statutory interpretation – Health – Hepatitis C Compensation Tribunal – S 5 Hepatitis C Compensation Tribunal Act 1997

Facts: The respondent had given birth to a daughter in 1977, and was thought to have contracted Hepatitis C as a result of a contaminated blood product administered to her. A finding of causation was made by the Hepatitis C Compensation Tribunal set up by the Hepatitis C Compensation Tribunal Act 1997. The respondent sought to appeal the amount of award made by the Tribunal, and the appellant also sought to cross-appeal on the causation finding. The High Court had refused the appellant permission to cross-appeal but specified two questions on a point of law for resolution by the Supreme Court on the appeal mechanism.

Held by McKechnie J, the other Justices concurring, that the appeal would be allowed in part. The Court considered the provisions of the 1997 Act, specifically s 5, and the Rules of the Superior Courts 1986. Having done so, the Court was persuaded that the appellant was only permitted to cross-appeal the subject matter of the appeal brought by the respondent as to the amount of award. However, the appellant did not need to formally cross-appeal where he was content to stand over the decision made at first instance by the Tribunal.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 12th day of December, 2017

Introduction

1 This appeal concerns a relatively net point of statutory interpretation relating to section 5(15) of the Hepatitis C Compensation Tribunal Acts 1997-2006 (‘the 1997 Act’). The proceedings arose out of a claim for compensation brought before the Hepatitis C Compensation Tribunal (‘the Tribunal’) by Ms. C.M., the respondent to the within appeal (also referred to as ‘the claimant’ or ‘the respondent’). The Tribunal was established on the 1st November, 1997, in order to compensate persons who had contracted Hepatitis C from the use of certain blood products supplied within the State; it replaced a non-statutory tribunal which had previously existed for the same purpose. In May, 2009, Ms. C.M. was awarded €400,480 in compensation by the Tribunal, which had found as a matter of probability that she had contracted Hepatitis C as a result of the administration of Anti D (batch 244) following the birth of her daughter in 1977.

2 In June, 2009, Ms. C.M. sought to use the statutory process provided for under the 1997 Act to appeal the award to the High Court. In April, 2010, the Minister for Health and Children (‘the Minister’ or ‘the appellant’) responded by issuing a motion to enlarge the time for the bringing of a cross-appeal, by which the Minister intended to challenge the above stated ‘causation finding’ of the Tribunal. By judgment delivered on the 18th February, 2011 ( [2011] I.E.H.C. 132), the High Court (Irvine J.) found that the Minister had no legal entitlement to maintain a cross-appeal in respect of that issue in circumstances where the claimant's own appeal related only to the amount of damages awarded to her.

3 On application made under section 5(19) of the 1997 Act, the High Court certified two specified questions of law for consideration by this Court. Those questions ask, first, whether the Minister may cross-appeal or appeal a finding of the Tribunal as to causation or quantum pursuant to section 5(15) or any other provision of the 1997 Act, and, second, whether the Minister must formally cross-appeal in every appeal brought by a claimant where the Minister only wishes to uphold the decision taken by the Tribunal. This judgment is concerned solely with determining these said questions.

4 Prior to addressing such questions directly, it may be helpful to set the scene by referring to the background to the statutory compensation scheme established in 1997, the relevant provisions of the Act, the findings made by the Tribunal in respect of Ms. C.M., and the challenge which the Minister seeks to make in relation to those findings.

Background

The Hepatitis Scandal

Background

5 The background to the enactment of the 1997 Act can perhaps best be understood by reference to the Report of the Tribunal of Inquiry into the Blood Transfusion Service Board (‘the BTSB’), published in March, 1997; however, as that is a very lengthy and detailed document, only a brief reference is possible in this judgment.

6 The Tribunal's Report identified the primary source for the infection of Anti-D produced by the BTSB as being the taking of plasma from a Patient X in 1976 and 1977, and the use of that plasma to form pools from which the product was manufactured. The use of this plasma was in breach of the BTSB's own standards for donor selection, which prohibit the use of blood or plasma from a person with a history of jaundice or Hepatitis, or a person who was recently transfused. The Report found that the BTSB failed properly to react to reports that recipients of the Anti-D made from Patient X's plasma had suffered jaundice and/or Hepatitis. Whilst the manufacture of existing Anti-D was terminated, existing batches continued to be issued. A further contribution to the infection of Anti-D subsequently arose from the use of blood from a Donor Y. This blood was taken in 1989 and issued between 1991 and 1994, notwithstanding that the stored plasma had by that time tested positive for Hepatitis C.

7 The Report was also critical of the response of the National Drugs Advisory Board (‘the NDAB’) in carrying out its functions in advising on the grant of a manufacturing licence for Anti-D and in failing to carry out adequate inspections. It further stated that successive Ministers for Health and Departments of Health had failed to adequately supervise the NDAB in exercising these functions, and had failed to provide it with appropriate resources.

The Non-Statutory Scheme

8 On the 15th December, 1995, the Minister for Health established a non-statutory tribunal to compensate certain persons who had contracted Hepatitis C within the State from Anti-D Immunoglobulin, whole blood or other blood products. The establishment of this tribunal (‘the non-statutory tribunal’) was generally seen a positive step by all parties. As explained by Geoghegan J. in his judgment in D.B. v Minister for Health [2003] 3 I.R. 12 at p. 62:

‘Before the non-statutory scheme came in, an unfortunate victim of Hepatitis C, such as the claimant, could not have recovered compensation except by an action for negligence in the courts and in such an action negligence would have had to be proved. That right has never been removed from these victims. But the Minister for Health decided by way of an additional remedy to introduce an executive scheme under which claimants could obtain compensation without the necessary proofs and they could then decide whether they wanted to take the award or not. If they decided to take the award they had to waive their right of action in the courts. If they did not like the amount of the award they could reject it and go to the courts in the ordinary way.’

9 By May, 1997 this tribunal had received 1,686 applications. It made 326 lump sum and provisional awards, amounting to approximately £38 million, excluding administrative and legal costs. No award of that tribunal had ever been rejected. However, certain factors limited the effectiveness of its operation and this led to agitation for structural and other changes to the scheme. Foremost amongst these deficiencies were the fact that the non-statutory tribunal had no power to award aggravated or exemplary damages; the fact that it was obliged to take into account, in calculating an award, any statutory benefit which a claimant had received or would receive or become entitled to; and the fact that there was no right of appeal from any award made by it.

The Statutory Tribunal

10 As a consequence of public dissatisfaction with these elements of the scheme, the 1997 Act was enacted and became law on the 21st May, 1997. Its basic purpose, per sections 2 and 3 of the Act, was to set up a statutory tribunal to replace its non-statutory predecessor. The establishment day for the Hepatitis C Compensation Tribunal was the 1st November, 1997, on which day the non-statutory version was dissolved (section 6(1) of the 1997 Act). Claims pending before the non-statutory tribunal as of that date were to be heard and determined by the statutory Tribunal in the same way as any other claim made under the 1997 Act (section 6(2)). A right to appeal an existing award was provided for, but in terms quite different from that applying to a claim first initiated under the new scheme (section 6(3)(e) of the Act; see para. 90, infra).

11 According to the Introduction to the Tribunal's 2016 Annual Report, there were 33 new claims submitted to it that year, making a total of 4,816 to the end of 2016. While the Tribunal paid awards in 28 cases in 2016, approximately 458 initial claims were still awaiting hearing. The Tribunal paid a total of €15,027,384 in respect of awards during 2016. To the end of 2016, the total awards of the Tribunal amount to €719,685,501. A further €84,835,704 has been paid following High Court appeals, and the...