P.B. v Hepatitis C and HIV Compensation Tribunal and Another

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 02 March 2005
• Neutral Citation: [2005] IEHC 57
• Docket Number: [No. 33CT/2004]
• Court: High Court
• Date: 02 March 2005

[2005] IEHC 57

THE HIGH COURT

[No. 33CT/2004]

B (P) v HEPATITIS C & HIV COMPENSATION TRIBUNAL & MIN FOR HEALTH

IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 (AS AMENDED) AND

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

BETWEEN

P.B.

APPELLANT

AND

THE HEPATITIS C AND HIV COMPENSATION TRIBUNAL AND THE MINISTER FOR HEALTH AND CHILDREN

RESPONDENTS

HEPATITIS C COMPENSATION TRIBUNAL (AMDT) ACT 2002

CIVIL LIABILITY ACT 1961

B (L) v MIN FOR HEALTH UNREP O'NEILL 26.3.2004

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(15)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(18)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S3(11)

RSC O.84

PRACTICE AND PROCEDURE

Tribunal

Hepatitis C compensation tribunal - Compensation - Preliminary issue - Fair procedures - Res judicata - Whether judgment of High Court on cause of death in related proceedings rendered issue res judicata for purposes of compensation tribunal - Whether question of whether issue of cause of death res judicata within statutory competence of tribunal - Appropriate jurisdiction - Whether judicial review more appropriate jurisdiction for litigation of dispute raised - Hepatitis C Compensation Tribunal Act 1997 (No 34), s 5(15) - Appeal dismissed - (2005/33CT - O'Neill J - 2/3/2005) [2005] IEHC 57- B (P) v Hepatitis C and HIV Compensation Tribunal

JUDGMENT of

O'Neill J.

1 delivered the 2nd day of March, 2005.

2 The appellant in this case is the widow of L.B. who died on 9^th April, 2002. L.B. suffered from Hepatitis C and made a claim through the non-statutory Hepatitis C Tribunal and an award was made to him on 29^th October, 1996. This award was appealed after L.B.'s death to this court and on 27^th May, 2004. This court awarded a larger sum to P.B. into whose name the appeal had been reconstituted.

3 In my judgment in that appeal I determined that Hepatitis C was a significant contributory factor in the death of L.B.

4 Since then the appellant has made a claim to the Tribunal for compensation in respect of loss of consortium and for loss of society as provided for in the Hepatitis C Compensation Tribunal Act 2002 and for loss of dependency under the provisions of the Civil Liability Act 1961(as amended).

5 The hearing of the application before the Tribunal has become stalled, the Tribunal having adjourned the applicationssine die in the following circumstances.

6 The Tribunal requested a report from Dr. John Hegarty a hepathologist as to the cause or causes of death of L.B. and to what extent if any Hepatitis C was a factor in his death. In response to this the appellant took the position that the cause of death had been determined by the High Court and that the matter wasres judicata and that the appellant/applicant was proceeding on the basis that she did not have to prove the cause of death or the extent to which Hepatitis C was a contributory factor, it having been determined by the High Court.

7 The Tribunal clearly were not in agreement with this and requested that Dr. Hegarty be called as a witness to which the applicant/appellant objected. When it was made clear to the Tribunal that the applicant/appellant would not be calling Dr. Hegarty as a witness the Tribunal then indicated that it proposed to appoint Dr. Hegarty for the purpose of assisting the Tribunal. The applicant/appellant responded to this by indicating that Dr. Hegarty did not have the authority of the applicant/appellant to assist the Tribunal in this way. The Tribunal replied to this by indicating that in their view, under the certificate of authority dated 30^th June, 2004 signed by the applicant/appellant, that the Tribunal was entitled to seek a report from the Dr....