F (J) v Minister for Health and Children
| Jurisdiction | Ireland |
| Judge | In |
| Judgment Date | 10 April 2008 |
| Docket Number | [S.C. No: 287 of 2005] |
| Court | Supreme Court |
| Date | 10 April 2008 |
THE SUPREME COURT
Denham J.
Macken J.
Finnegan J.
[S.C. No: 287 of 2005]
Practice and Procedure - Appeal on a point of law - Hepatitis C Tribunal Award made - Husband and wife - Loss of earnings - Deterioration in condition of wife
Claim made - Loss of consortium - Second loss of earnings claim rejected - First claim as bar to second claim for loss of earnings - Statutory Interpretation - Hepatitis C Compensation Tribunal Act 1997
Facts: The appellant sought to appeal a question of law to the High Court and then to the Supreme Court as to a claim made before the Hepatitis C Compensation Tribunal.The appellant in 1997 was awarded E5000 for loss of earnings incurred on account of the illness of his wife. Her condition subsequently deteriorated and the appellant made a subsequent claim, alleging again loss of earnings. In 2004, he was awarded E10000 for loss of consortium but the second loss of earnings claim was dismissed on account of his inability to succeed on a second claim for loss of earnings. The issue arose as to the interpretation of the jurisdiction for awards. The applicant alleged that the award made was provisional.
Held by the Supreme Court, that the Act did not provide for the provisional awards of the type claimed by the appellant. There was no such jurisdiction for a court to exercise. The High Court was correct in finding that a bar to a future claim then existed.
Reporter: E.F.
Judgment delivered the 10th day of April, 2008 by Denham J.
1. This is an appeal by Mr. F., the appellant, on specified questions of law from the High Court, pursuant to s.5(19) Hepatitis C Compensation Tribunal Act, 1997.
2. In 1997 the appellant brought a claim before the Hepatitis C Compensation Tribunal, hereinafter referred to as 'the Tribunal', pursuant to s.4(1)(d) of the Hepatitis C Compensation Tribunal Act, 1997. His wife brought an application under s.4(1)(a) of the Act of 1997. Both applications were heard by the Tribunal on the 18th December, 1997.
3. The Tribunal made an award to the appellant, stating:
"We are satisfied that as a result of the necessity for [the appellant] to take his wife, who has contracted hepatitis C to and from various doctors for medical consultations arising directly as a result of her hepatic condition that he has incurred and will in the future incur loss of earnings. Accordingly, we allow the sum of £5,000 to [the appellant] and this is a final award."
The sum of £5,000 included £3,500 loss to date and £1,500 for future loss.
4. The appellant submits that because of his wife's deteriorating health he had to leave his job in 1999 and to care for her full time from 2000.
5. On the 12th March, 2003 the appellant made a claim pursuant to s.4(1) of the Hepatitis C Compensation Tribunal Act, 1997, as amended, under two headings; (a) as someone responsible for the care of a person who was diagnosed positive for Hepatitis C, i.e. under s.4(1)(d); and, (b) as someone married to a person who was diagnosed with Hepatitis C, i.e. under s.4(1)(h).
The claim under s.4(1)(d) was for the loss of earnings he claimed he suffered to that date, and into the future, by reason of his need to care for his wife on a full time basis. He informed the Tribunal that he had made a previous claim and referred to the hearing of 18th December, 1997.
6. On the 27th October, 2004 the appellant's claim was heard by the Tribunal. The Tribunal awarded the appellant EUR100,000 in respect of loss of consortium. However, the Tribunal dismissed the appellant's claim for loss of earnings, holding that because of the earlier award to the appellant in December, 1997 he was not entitled to succeed on a second claim for loss of earnings.
7. The Tribunal stated:
"The [appellant] claiMS. pursuant to the provisions
of Section 4(1)(d) of the principle (sic) Act, as amended, for financial loss or expenses incurred as a direct result of providing care for his wife who had contracted Hepatitis C and for who's (sic) care he was responsible for.
Section 5.1 provides that an award is to be made on the same basis as an award of the High Court calculated by reference to the same principles which govern the measure of damages in the Law of Tort.
In this case on 18th December 1997 the [appellant] through his counsel opted to have his personal losses dealt with at that time, see question 149, page 69 of the transcript.
The matter was further discussed by counsel and the Tribunal at pages five, six and seven of the transcript [and] it is quite clear that the [appellant] determined at that time to have the Tribunal compensate him for loss and expenses past and future.
There appears to have been some reluctance on the part of the Tribunal to do so but it complied with the [appellant's] request. A sum of approximately, £3,500 for past losses and £1,500 for future losses was awarded. The Tribunal stated at page 79 that the award was final. The award was not appealed.
We are satisfied that the Tribunal at the time of making that award acted within its power and had power to make an award which would cover future loss."
8. The appellant appealed this ruling to the High Court. The High Court (Hanna J.) held that the appellant had claimed and had been compensated for future loss of earnings in 1997 and that he could not make a second claim. The High Court held that the Act did not provide for provisional awards to carers, that the amendment did not create a new cause of action, and that the appellant had already made a successful claim for future loss and that he could not make a second such claim. The learned High Court judge stated:
"The scheme provides for provisional awards for sufferers, such awards not being available in personal [injuries] actions. These awards are limited to direct sufferers. No such provision is made for carers. This is unfortunate and is highlighted by the tragic circumstances in which [the appellant] finds himself, yet even the most purposive interpretation of the legislation cannot put into it what is not there. With regard to the amendment of Section 4 (1) (d) of the act, I am of the view that this does not create a new and discrete cause of action but rather clarifies what in fact was already clarified by O'Neill J in [R] unreported, 19 January 2001, namely that the
provisions for carers encompassed future loss. In any event, it is apparent from the transcript from 1997 that the Tribunal and [the appellant] proceeded on the basis that the Tribunal had jurisdiction to award compensation for future loss. With very great regret I must dismiss the appellant's appeal."
9. On the 20th May, 2005, the High Court granted leave to appeal the decision, pursuant to s.5(19) of the Hepatitis C Compensation Tribunal Act, 1997, on the following questions of law:
1. Was the High Court correct in refusing the appellant financial loss and expense incurred as a direct result of providing care pursuant to Section 4 (1) (d) of the 1997 Act as amended by the 2002 Act?
2. If a claimant has recovered financial loss and expense under section 4 (1) (d) of the 1997 Act, is he entitled to pursue a claim for financial loss and expense under section 4(1)(d) of the 1997 Act (as amended) in respect of financial loss and expense which was not contemplated in the previous application?
3. Was the High Court correct in finding that the Tribunal's award of special damages to the appellant in 1997, acts as a bar to a future claim for special damages despite the Court's acceptance that there was a significant transformation in the appellant's circumstances?
4. Was the High Court entitled to exercise its discretion pursuant to the Supreme Court decision of Fitzgerald v. Kenny [1994] 2 I.R. 383 and award the appellant financial loss and expense pursuant to Section 4 (1) (d) of the 1997 Act as amended by the 2002 Act?
10 . Law
The relevant law is to be found in the Hepatitis C Compensation Tribunal Acts, 1997 to 2006.
The first issue relates to the Act of 1997 and its subsequent amendment. In 1997 the Act provided in s.4(1):
"The following persons may make a claim for compensation to the Tribunal
(d) any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c) and who has incurred financial loss or expense as a direct result of providing such care arising out of the person being cared for
having contracted Hepatitis C"
D. R. v. Minister for Health and Children
(Unreported, High Court, O'Neill J., 19th January, 2001) it was held that s.4(1)(d) of the Act of 1997 permitted the Tribunal to award future damages as well as past. O'Neill J. stated:
"The issue boils down to, in my view, a proper construction of section 4(1)(d). There the words used are: '… and who has incurred loss …' And it was these words that appeared to have impressed upon the Tribunal and the only loss which could be compensated for was a past loss or a loss which had accrued up to that point in time. I must respectfully disagree with the Tribunal in its construction because, for this reason, if one reads on in the Section it goes on to say: '… who has incurred financial loss or expense as a direct result of providing such care arising from the person being cared for having contracted Hepatitis C'. In other words the care and respect which the loss incurs is an on-going care. It is not a past care and then it "http://seeMS.to"seeMS. to me to be quite explicit in the Statutory Provision that the care is one which is on-going. That being so it must in my view necessarily follow that the Section ought to be construed as including loss in respect of that...
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