A.C. v The Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Mr. Justice Bernard J. Barton
• Judgment Date: 13 May 2019
• Neutral Citation: [2019] IEHC 431
• Court: High Court
• Docket Number: [2018 No. 4 C.T.]
• Date: 13 May 2019

[2019] IEHC 431

THE HIGH COURT

Barton J.

[2018 No. 4 C.T.]

IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNALS ACTS, 1997 TO 2006

AND IN THE MATTER OF AN APPEALPURSUANT TO SECTION 5 (15)

BETWEEN

A.C.

DEFENDANT

AND

THE MINISTER FOR HEALTH AND CHILDREN

RESPONDENT

Compensation – Statutory interpretation – Hepatitis C Compensation Tribunal Acts 1997 to 2006 s. 5 (3B) (b) – Appellant seeking compensation – Whether the appellant was a ‘child’ within the meaning of s. 5 (3B) (b) of the Hepatitis C Compensation Tribunal Acts 1997 to 2006

Facts: The appellant appealed from a decision of the Hepatitis C and HIV Compensation Tribunal made on the 23rd March, 2018, whereby the appellant’s application for compensation was dismissed on the grounds that she was not a ‘child’ within the meaning of s. 5 (3B) (b) of the Hepatitis C Compensation Tribunal Acts 1997 to 2006. A net issue fell for determination on the appeal, namely, whether the appellant, a ‘step-child’ of a deceased person whose death was caused by Hepatitis C or where Hepatitis C was a significant factor in the cause of the death, was a ‘child’ within the meaning of s. 5 (3B) (b) of the 1997-2006 Acts.

Held by the High Court (Barton J) that, on a literal interpretation, it accepted the submissions made on behalf of the respondent, the Minister for Health and Children, and found that the wording of the provision was clear and unambiguous, namely, that the child of the person who died as a consequence of or where HCV or HIV was a substantial factor in the cause of death is the natural or adopted child of the deceased or a child to whom the deceased was in loco parentis. In circumstances where the legislature had identified a class of individuals by reference to a relationship with a deceased person upon whom to confer a right to bring a claim for loss of society and in that context had recognised by express distinction the difference in meaning between a ‘child’, ‘grandchild’ and ‘step-child’, a construction of the word ‘child’ to include a ‘step-child’ would, in Barton J’s judgment, be so expansive as to render such interpretation contra-regem.

Barton J held that he would dismiss the appeal and affirm the decision of the Tribunal.

Appeal dismissed.

Judgement of Mr. Justice Bernard J. Barton delivered the 13th day of May, 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) made on the 23rd March, 2018, whereby the Appellant's application for compensation was dismissed on the grounds that she was not a “child” within the meaning of s.5 (3B) (b) of the Hepatitis C Compensation Tribunal Acts 1997 to 2006 (the 1997-2006 Acts).

2 A net issue falls for determination on the Appeal, namely, whether the Appellant, a “step-child” of a deceased person whose death was caused by Hepatitis C or where Hepatitis C was a significant factor in the cause of the death, is a “child” within the meaning of s. 5 (3B) (b) of the 1997-2006 Acts. Consequently, the resolution of the issue which has arisen necessarily involves a statutory interpretation of the subsection.

Consequences for the Appellant

3 If a “step-child” is a “child” within the meaning of s. 5 (3B) (b) the Appellant would meet the criteria set out in s.4 (1) of the 1997-2006 Acts to qualify as a “claimant” to whom an award of compensation could be made. The issue under appeal was first raised by the Tribunal as a preliminary point at the hearing of the application for compensation. The approach adopted to the interpretation of the sub-section was to construe the provision strictly in accordance with its terms such being necessary as the scheme of compensation established by the 1997-2006 Acts was a creature of statute.

4 As the Court is tasked with ascertaining the meaning of “child” within the terms of the subsection and thus with a construction of the provision the text of the subsection will be set out in full.

Section 5 (3B) (b) provides:

‘Where a dependent referred to in paragraph (e) or (j) of section 4(1) is the child, spouse or parent of the person who died(“the deceased”) as a result of having contracted Hepatitis C or HIV, or where Hepatitis C or HIV was a significant contributory factor in the cause of death, the Tribunal may make an award to that dependant in respect of loss of society of the deceased including the loss of the care, companionship and affection of the deceased as a result of the death.’[emphasis added]

Appeal Hearing

5 The hearing of an appeal from a decision of the Tribunal proceeds as a rehearing of the application de novo but limited to the issue under appeal unless it is an appeal from the whole of the decision. An appeal from an “award” is an appeal from ‘an award of compensation’ per s.1 of the 1997-2006 Acts, and is not an appeal from other findings of the Tribunal, for example, a finding on causation. The Court is not concerned with the legal correctness of the approach taken by the Tribunal to the issue under appeal, rather the hearing proceeds and the relevant legal principles are applied de novo. Before turning to the task in hand it may be found useful if the background to the case was set out.

Background

6 The Appellant was born on the 28th January, 1969, and lives in New South Wales, Australia. She has a sister D. Their parents married and emigrated to Australia. The Appellant's father, D.K., remarried in January, 1996. His 2nd wife, B.McC had lived in Ireland before her marriage to D.K. The children of his previous marriage became her step daughters and developed a social relationship with their stepmother. On the 8th June, 2016, the year before her death, B. McC made a will in which, inter alia, she bequeathed an apartment to her step-daughters in equal shares. In 1987, while living in Ireland B.McC underwent a hysterectomy during which a blood transfusion became necessary; three units of blood were transfused one or more of which were infected by the Hepatitis C virus (HCV).

7 B.Mc C brought an application for compensation to the non-statutory Tribunal. The application was heard and determined in May, 1996. She subsequently appealed the award under the terms of the Hepatitis C Compensation Tribunal Act 1997. The appeal was heard by O'Neil J. on the 23rd October, 2000. The court allowed the appeal and made an award provisional on two conditions, Cirrhosis and Hepatocellulular Carcinoma in the event of the occurrence of either of which liberty was given to return to the tribunal. Unfortunately for B.McC's her liver disease progressed to Cirrhosis as a result of which she returned to the tribunal on foot of the provisional award.

8 The application was heard on the 4th November, 2008 and a further award of compensation made in respect of that condition. B.McC's health continued to deteriorate during the years that followed until the 31st January, 2017, when she died from the complications of HCV infection. As a consequence of her death D.K. brought a number of applications for compensation under the scheme, including an application for “loss of society”. The Tribunal was satisfied that HCV was a significant contributory factor in the cause of his wife's death and made awards.

9 The Appellant was 27 years old when her father remarried, accordingly the question of adoption never arose, moreover, it is accepted that B. McC. was not at any time in loco parentis to her, facts which are potentially significant in relation to the issue. The essence of the case urged on the Court by counsel for the Appellant, Mr. Craven S.C., is that the provision in quo must be construed in accordance with the principles set out in C.M. v The Minister for Health and Children [2017] IESC 76, accordingly, the wording is to receive a broad and liberal construction the consequence of which is that “child” includes a “stepchild”, moreover, such is necessary if the rights of the Appellant under Article 8 of the European Convention of Human Rights (ECHR) are not to be infringed. A more detailed summary of the Appellants submissions follows later; vide infra para 34 et seq.

10 The Minister, as Respondent, takes an entirely different view. Accepting the subsection fell to be given as generous and liberal interpretation as the wording will permit it was submitted by Mr. Dignam S.C., that the plain difference in meaning between the terms “child” and “step-child” was well understood by the Oireachtas, as evidenced by the express distinction made between the two terms not only in the definition of “dependant” in s. 47 of the 1961 Act but also in s. 5 of the 1997-2006 Acts; a “child” differs from a “step-child” in material respects. The use of these terms in the context of relationships connotes distinct and different meanings, one from the other, accordingly, in no sense could “child” be understood to mean “step-child”. The Respondent” submissions are summarised in greater detail later; vide infra para 45 et seq.

The Compensation Scheme; Provisions Relevant to the Issue

11 Having regard to the approach which the Court is required to take to the interpretation of the provision in quo it is appropriate that other provisions of the 1997-2006 Acts which may bear upon the task of construction, particularly provisions where the same wording or phraseology is used, should be set out and considered as appropriate but before doing so brief mention will be made of jurisdiction.

Jurisdiction;

12 Apart altogether from other matters which it may need to address in the course of adjudicating upon any claim the tribunal, and on appeal the court, must address what may be classified as a jurisdictional question, namely, whether the applicant satisfies the requirements to qualify as a “claimant” to whom an award of compensation may be made. The consequence of a failure to meet these requirements, as happened in this case, is a refusal to admit the applicant to...