L. O'S v Minister for Health and Children

CourtSupreme Court
JudgeMr. Justice Clarke
Judgment Date09 July 2015
Neutral Citation[2015] IESC 61
Docket Number[Appeal No: 204/2008]
Date09 July 2015

In the Matter of an Appeal Pursuant to Section 5(15) of the Hepatitis C Compensation Tribunal Acts 1997 and 2002

L. O'S.
The Minister for Health and Children

[2015] IESC 61

[Appeal No: 204/2008]


S 5(19) Hepatitis C Compensation Tribunal Acts 1997 – Wording of legislation – Right of Appeal – Specified question of law – Clear and unambiguous wording

The Court in this case examined the wording of s 5(19) of the Hepatitis C Compensation Tribunal Acts 1997, on whether the appeal made to the Court was confined to the question of law as specified by the trial judge.

The applicant ‘Mr. O”S’ brought a claim under s 5(15) of the Hepatitis C Compensation Tribunal Acts 1997, which was followed by an appeal to the High Court addressing Mr O”S entitlement to recover damages for nervous shock. The respondent ‘Minister’ asserted that the tribunal was to ‘have regard to any decisions of the High Court or the Supreme Court enunciating principles of law relating to the award of damages.’ A further leave to appeal was granted, specifying a particular question of law. A motion was therefore brought before this Court to clarify the scope of the appeal permitted to the Minister.

Mr Justice Clarke reviewed the position under the Constitution, which stated that any exception to the right of appeal to this Court requires clear and unambiguous wording. Following Geoghegan of DB v Minister for Health and Children and anor [2003] 3 IR 12, Mr Justice Clark was satisfied that the wording of s 5(19) was clear and unambiguous to confine any appeal to the question of law specified by the High Court giving leave. However, there were circumstances where the Court may be required to consider wider issues, where it was essential to the Court”s determination on the specified question of law.

Judgment of Mr. Justice Clarke delivered the 9th July, 2015.
1. Introduction

The Hepatitis C Compensation Tribunal was set up, as its name implies, to provide compensation arising out of the consequences of a series of scandals involving the contamination of blood products. The applicant/respondent (‘Mr. O'S’) brought a claim under the provisions of the legislation referred to in the title of these proceedings. Thereafter, an appeal was brought, again in accordance with the terms of that legislation, to the High Court. One of the issues which arose before the High Court was the extent of the entitlement of Mr. O'S to recover damages in respect of nervous shock. In that context, the respondent/appellant (‘the Minister’) asserted before the High Court that s.5(3A) of the Hepatitis C Compensation Tribunal Act 1997 (as inserted by the 2002 amending legislation) (‘the 1997 Act’) required the tribunal (and, on appeal, the High Court) to ‘have regard to any decisions of the High Court or the Supreme Court enunciating principles of law relating to the award of damages for post-traumatic stress disorder or nervous shock’. On that basis, it was argued that the Court was required, in the context of hearing the appeal insofar as it related to the nervous shock issue, to have regard to the principles set out by Hamilton C.J. in Kelly v. Hennessy [1995].3 I.R. 253. The trial judge, Hanna J., took the view that those principles, while fully applicable in the context of an action claiming damages for negligence, necessarily had to be adapted in the context of the statutory scheme for compensation with which he was concerned.


After the appeal had been decided, the Minister applied to the trial judge for leave under s.5(19) of the 1997 Act to appeal to this Court. It will be necessary to refer to the precise terms of that subsection in due course. For present purposes, it is sufficient to note that Hanna J. gave leave and specified, in accordance with the section, the following question of law:

‘Given the provisions of Section 5 (3A) (a) and Section 5 (3A) (b) of the legislation, does Sub-Section S.7 of S.4 of the Act obviate addressing the issue identified and enumerated at number 5, at page 259 of Kelly v Hennessy [1993] IR 253 ?’


Mr. O'S was advised that the appeal actually filed on behalf of the Minister sought to go beyond an appeal confined to the specified question of law referred to by the trial judge in his order. In that context, a motion was brought before this Court, the object of which was to seek to clarify the scope of appeal permitted to the Minister in the context of this case. An oral hearing ensued, and this judgment is directed to the issues which thereby arose.


In substance, the net issue which this Court has to consider is as to whether, as a matter of law, the Minister is confined on his appeal to the question of law specified by the trial judge in his order. As there is a constitutional backdrop to that question, I propose to start by reviewing the position under the Constitution.

2. The Constitution

I should start by noting that this appeal was brought prior to the 33rd Amendment to the Constitution coming into force. The appeal is, therefore, concerned with the regime which was in place prior to the Court of Appeal coming into existence. However, similar considerations would be likely to arise in respect of the current regime, although there will, necessarily, be some points of difference.


In its previous form, Article 34.4.3 of the Constitution provided that this Court should have appellate jurisdiction from all decisions of the High Court ‘with such exceptions and subject to such regulations as may be prescribed by law’. I had recent occasion to consider this provision in Christian Brothers High School v. Mary Stokes (on behalf of John Stokes, a minor) and the Equality Authority [2015] I.E.S.C. 13 at para. 6.13 where, having reviewed the relevant jurisprudence in the area, I noted that it was clear from the authorities to which I had referred that ‘ the constitutional status of the right of appeal to this Court is such that an exception to that right requires clear and unambiguous wording.’


Counsel for Mr. O'S did not disagree with that broad proposition, and accepted that the standard by reference to which a statute which excludes or regulates the right of appeal to this Court from the High Court should be judged is one which leans in favour of there being an appeal, and, in the context of a limitation on the appeal, leans in favour of conferring the broadest right of appeal. For the latter point, see again the recent judgment of this Court in Governey v. Financial Services Ombudsman [2015] I.E.S.C. 38.


Counsel did, however, argue that the question of whether an exclusion or limitation on a constitutional right of appeal has been validly created can be assessed by reference to whether it is clear and unambiguous from the Act concerned taken as a whole that the legislative intention was to exclude or regulate the appeal entitlement in a particular way.


I am satisfied that counsel was correct in that submission. Obviously, the principal focus of any consideration as to whether there has been a proper exclusion or limitation on an otherwise constitutionally guaranteed right of appeal must be on the specific legislative provision which is said to create the exclusion or limitation concerned. However, that is not to say that a court cannot or should not consider the legislation as a whole for the purposes of ascertaining whether it can truly be said that there has been an exclusion or limitation which is sufficiently clear to meet the constitutional test to which I have referred. I propose to apply those principles to an analysis of the legislation, with which the Court is concerned in this case.

3. Subsection (19)

As noted earlier, the limitation on the entitlement of either party to appeal to this Court is specified in s.5(19) of the 1997 Act. That section is in the following terms:-

‘A decision of the High Court on an appeal under this section shall be final, save that, by leave of the Court, an appeal from the decision shall lie to the Supreme Court on a specified question of law’.


It is the extent to which that subsection, taken in the context of the legislation as a whole, can be said to limit any appeal to this Court to the ‘specified question of law’, on which this issue turns.


Before addressing the specific wording of subs.(19), it is worth noting that attempts to restrict or exclude a right of appeal to this Court from the High Court have been expressed by the legislature in differing formulas over the years. The Constitution clearly confers on the Oireachtas the right to exclude or regulate an appeal from the High Court to this Court or, under the new regime in place since the 33rd Amendment came into effect, to the Court of Appeal. Obviously, there are different ways in which it might be considered appropriate to bring about such exclusions or restrictions. In some cases it may be considered appropriate to exclude the right entirely. In other cases some limited form of appeal may be considered to be appropriate. On that basis, it could not be suggested that only one formula of words should be used, for the desired legislative result may itself be different from case to case. However, it does have to be said that use of different language in different legislative measures designed to achieve the same end is a recipe for confusion. In that context, it is worth taking a brief trip through some of the relevant legislative provisions. I will start with s.29 of the Courts of Justice Act 1924, (‘the 1924 Act’) which is in the following terms:-

‘The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final, and no appeal shall lie from that court to the Supreme Court,...

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