A.D.L.R v The Minister for Health

JurisdictionIreland
JudgeMr. Justice Bernard Barton
Judgment Date23 February 2021
Neutral Citation[2021] IEHC 130
Date23 February 2021
Docket Number[2019/6 CT]
CourtHigh Court
BETWEEN
A.D.L.R.
APPELLANT
AND
THE MINISTER FOR HEALTH
RESPONDENT

[2021] IEHC 130

IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT, 19971997 TO 2006

AND

IN THE MATTER OF AN APPEAL PURSUANT TO THE PROVISIONS OF SECTION 5 (15)

[2019/6 CT]

THE HIGH COURT

Compensation – Qualification criteria – Hepatitis C and HIV Compensation Tribunal Acts 1997 to 2006 – Appellant seeking compensation – Whether the appellant met the qualification criteria to bring a claim

Facts: The appellant appealed to the High Court against the decision of the Hepatitis C and HIV Compensation Tribunal, dated the 29th November 2019, whereby her application for compensation under s. 4 (1) (h) of the Hepatitis C and HIV Compensation Tribunal Acts 1997 to 2006 was dismissed. The net issue which fell for determination by the Tribunal, and which fell for determination by the Court on appeal, was whether or not the appellant met the qualification criteria to bring a claim as set out in s. 4 (1) (h) of the Acts. The question was whether the uninfected ‘partner’ or ‘spouse’ of an adult ‘child’ whose Hepatitis C and/or HIV infection was contracted indirectly from his or her mother qualifies to make a claim for ‘loss of consortium’. The Tribunal decided that she did not do so as she was not the ‘partner’ or ‘spouse’ of an infected person who fell within the provisions of s. 4 (1) (a), (b) or (f) of the Acts.

Held by Barton J that to construe s. 4 (1) (a) by giving it the meaning urged on the Court by the appellant would not only be contra legem but would also lead to an absurd result which is as follows: the ‘spouse’ or ‘partner’ of the child of a person who contracted Hepatitis C from his or her mother as a result of the mother’s having been infected directly through contaminated Anti-D would have a right to make a claim because the ‘child’ could elect to bring its claim under s. 4 (1) (a) instead of s. 4 para. (c), whereas the ‘partner’ or ‘spouse’ of a child of a person who contracted Hepatitis C infection from his or her mother as a result of the ‘receipt’ of a contaminated blood transfusion or blood product would have no right to elect and make a claim under s. 4 (1) (b). Barton J held that the Oireachtas did not intend to confer a right to make a claim for ‘loss of consortium’ on the uninfected ‘partner’ or ‘spouse’ of an adult child whose Hepatitis C and/or HIV infection was contracted indirectly from his or her mother.

Barton J held that the appeal would be dismissed.

Appeal dismissed.

Judgment of Mr. Justice Bernard Barton delivered on the 23rd day of February, 2021.
1

This is the judgment of the Court on the Appellant's appeal against the decision of the Hepatitis C and HIV Compensation Tribunal (the Tribunal), dated the 29th November 2019, whereby her application for compensation under s.4 (1) (h) of the Hepatitis C and HIV Compensation Tribunal Acts 1997 to 2006 (the Acts) was dismissed.

Claims for Compensation; Qualification Requirements
2

Together with the causes of action in respect of which claims may be brought, Section 4 (1) makes provision for the categories of persons who may bring claims under the scheme established by the Acts. While claimants are not required to prove liability whether in tort, contract or otherwise, certain qualifying requirements must be met before the claim can be admitted. On admission of the claim, causation, injury and/ or financial loss must be established to the satisfaction of the Tribunal and, if so satisfied, an award may then be made in accordance with the provisions of s. 5 of the Acts. Subject to certain statutory modifications contained therein, the assessment of compensation is governed by and carried out in accordance with the principles of the law of tort and any relevant statutory provisions.

Claims for Compensation; Onus of Proof
3

In many cases, however, the Tribunal or the High Court on appeal, will be satisfied from the documentation accompanying the form prescribed by regulations for making the relevant claim, or from documentation furnished subsequently, that the applicant qualifies for admission and that causation is established, in which event injury and/or pecuniary loss must be proved. The onus of proof rests with the Claimant; the burden of proof is to establish the case made on the balance of probabilities. If an applicant does not come within a category of claimant upon whom a cause of action is conferred, there is no entitlement to compensation within the terms of the scheme, notwithstanding that the applicant may have suffered injury and/or loss. In that event the applicant is left to pursue whatever cause of action they may have, if any, through the courts in the ordinary way.

The Issue
4

The net issue which fell for determination by the Tribunal, and which falls for determination by the Court on this appeal, is whether or not the Appellant meets the qualification criteria to bring a claim as set out in s.4 (1) (h) of the Acts. Put another way, the question is whether the uninfected ‘partner’ or ‘spouse’ of an adult ‘child’ whose Hepatitis C and/or HIV infection was contracted indirectly from his or her mother qualifies to make a claim for ‘loss of consortium’. The Tribunal decided that she did not do so as she was not the ‘partner’ or ‘spouse’ of an infected person who fell within the provisions of s 4 (1) (a), (b) or (f) of the Acts. In the circumstances it is appropriate and convenient at this juncture to set out the relevant statutory provisions.

Relevant Statutory Provisions
5

Section 4 (1) (a), (b) and (f) provide as follows:

“4.(1) The following persons may make a claim for compensation to the Tribunal—

(a) a person who has been diagnosed positive for Hepatitis C resulting from the use of Human Immunoglobulin Anti-D within the State,

(b) a person who has been diagnosed positive for Hepatitis C as a result of receiving a blood transfusion or blood product within the State,

(d) …

(e) …

(f) a person who has been diagnosed positive for HIV as a result of receiving a relevant product within the State.” (Emphasis added.)

Section 5 (3) (3B) (a) provides that an award may be made by the Tribunal

“…to a person referred to in section 4 (1) (h) in respect of the loss of consortium of a person referred to in paragraph (a), (b) and (f) of section 4 (1), including the impairment of sexual relations with the person, if the tribunal is satisfied that there has been such impairment arising from the risk of transmission of Hepatitis C or HIV.”

It is clear from these provisions that no provision is made for the bringing of a claim for loss of consortium by, nor for the making of an award to, the uninfected ‘spouse’ or ‘partner’ of a ‘child’ or ‘spouse’ of a person referred to in s 4 (1) paragraphs (a), (b) and (f) above.

6

The provisions of the principal Act of 1997 have been extensively amended. For present purposes the relevant amendments were enacted by the Hepatitis C Compensation Tribunal (Amendment) Act, 2002 and the Hepatitis C Compensation Tribunal (Amendment) Act, 2006. Section 4 (1) of the 1997 Act was amended in 2002 by the addition, inter alia, of paragraphs (e), (f), (g), (i), (j) and (k) and was further amended in 2006 by the introduction of an additional paragraph, (h).

7

Paragraph (h) created a statutory right to bring a claim for ‘loss of consortium’, including interference with sexual relations, arising from the risk of transmission of Hepatitis C. The provision specified the claimants upon whom the right of action was conferred, namely, subject to certain qualifications, the ‘spouses’ and ‘partners’ of persons infected with Hepatitis C and/or HIV identified in s.4 (1) sub paras (a), (b) and (f). To qualify for admission the claimant must have been ‘married’ to the person falling into paras (a), (b) or (f) before the commencement of para.(h) or was married to a person who fell into paras (a), (b) or (f) on or after the commencement of para.(h) and was so married before that person so fell into that paragraph. Apart from a requirement that they must have been living together continuously for not less than three years, the same qualification applies to partners.

8

The Acts provide for the making of regulations to implement the provisions thereof by statutory instrument, of which there have been several. The regulations provide, inter alia, for the mode of making a claim, which is by way of a designated form appropriate to the nature of the claim being brought. Applications for compensation for loss of consortium under s.4 (1) of the Acts, including applications pursuant to s.4 (1) (h) are provided for by Form 111. Every claimant is required to use the designated form appropriate to the nature of the claim.

9

Section 2 of Form 111 provides that it is to be used by an applicant who is

“married to or has for a continuous period of not less than three years lived with the person who has been diagnosed positive for Hepatitis C resulting from the use of Human Immunoglobulin Anti-D, a blood transfusion or blood product and/or HIV resulting from the use of a relevant blood product, in respect of the loss of consortium of the person, including impairment of sexual relations with the person arising from the risk of transmission of Hepatitis C or HIV (Sections 4. 1.h of the Act).”

The Appellant completed Form 111 on the 17th April 2018 qua ‘partner’ of a person diagnosed positive for Hepatitis C, identified in para.(c), and with whom she has lived continuously for more than three years. Her partner, P.A. brought a successful claim for compensation to the Tribunal pursuant thereto. (Emphasis added.)

Background
10

Central to the case advanced on the Appellant's behalf is the proposition that her ‘partner’ qualified and could also have brought his claim for compensation under s. 4 (1) para.(a). I consider it appropriate to place the subject issue in context by setting out the...

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