R.C. v Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] IEHC 204
• Court: High Court
• Date: 30 March 2012

[2012] IEHC 204

THE HIGH COURT

[No. 4 C.T./2011]

C (R) v Min for Health

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5 (15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT 1997, AS AMENDED, AND

IN THE MATTER OF A CLAIM BY R.C. AND

IN THE MATTER OF A DECISION OF THE HEPATITIS C AND HIV COMPENSATION TRIBUNAL ON 9 TH MARCH, 2011 AND

IN THE MATTER OF AN APPEAL BY R.C.

BETWEEN

R.C.

APPELLANT

AND

THE MINISTER FOR HEALTH AND CHILDREN

RESPONDENT

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(15)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(1)(G)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S1

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(1)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(8A)

CIVIL PARTNERSHIP & CERTAIN RIGHTS & OBLIGATIONS OF COHABITANTS ACT 2010 S172

INTERPRETATION ACT 2005 S5

INTERPRETATION ACT 2005 S6

HUXTABLE v HUXTABLE 1899 68 LJP 83

LAW REFORM CMSN REPORT ON THE RIGHTS & DUTIES OF COHABITANTS (82-2006) 26

LAW REFORM CMSN REPORT ON THE RIGHTS & DUTIES OF COHABITANTS (82-2006) 27

CIVIL PARTNERSHIP & CERTAIN RIGHTS & OBLIGATIONS OF COHABITANTS ACT 2010 S172(5)

CIVIL PARTNERSHIP & CERTAIN RIGHTS & OBLIGATIONS OF COHABITANTS ACT 2010 S172(6)

CIVIL PARTNERSHIP & CERTAIN RIGHTS & OBLIGATIONS OF COHABITANTS ACT 2010 S172(1)

CIVIL PARTNERSHIP & CERTAIN RIGHTS & OBLIGATIONS OF COHABITANTS ACT 2010 S172(2)

CIVIL PARTNERSHIP & CERTAIN RIGHTS & OBLIGATIONS OF COHABITANTS ACT 2010 S172(3)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(8A)(A)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(8A)(B)

B (D) v MIN FOR HEALTH & HEPATITIS C COMPENSATION TRIBUNAL 2003 3 IR 12 2003/4/812

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S5(9)(A)

M (C) v MIN FOR HEALTH UNREP IRVINE 18.2.2011 2011/33/9174 2011 IEHC 132

INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13

CIVIL LIABILITY ACT 1961 S47(1)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S4(1)(H)

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S3C

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S3A

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S3B

HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 S3

Medical law - Hepatitis C Compensation - Cohabitation - Statutory Interpretation - Whether applicant came within meaning of "spouse" - Hepatitis C and HIV Compensation Tribunal - The Hepatitis C Compensation Act 1997 - Interpretation Act, 2005.

Facts The applicant (R.C.) had cohabited with A.F. (who had contracted Hepatitis C and HIV from contaminated blood products). The applicant subsequently contracted HIV from A.F. and applied to the Hepatitis C and HIV Tribunal for compensation pursuant to the Hepatitis C Compensation Act, 1997 and was refused on the basis that she not come within the definition of "spouse" as defined by s. 1 of the Act and was thus not entitled to compensation. The applicant appealed to the High Court. The parties had originally moved into an apartment which A.F. had purchased and had cohabitated as a couple. Ultimately A.F. felt could no longer cope without the support of his family (at the time the infection count was increasing) and he moved back to live with his parents. The parties continued to see each other after this. On behalf of the respondent is was contended that the fact that the A.F. and R.C. moved out of the apartment when A.F, felt he was unable to cope but otherwise continued their relationship demonstrated that any degree of cohabitation was due to A.F. having received compensation in respect of his infection and not due to the level of commitment in the relationship.

Held by Irvine J in allowing the appeal: The court was satisfied that from the earliest of times R.C. and A.F were a committed couple who rarely if at all socialised separately and enjoyed a close and loving relationship. From the time that they moved in to live together until such a time as their relationship ended they were each committed to each other in the hope that they would support each other indefinitely into the future. The court was satisfied that R.C. was, on the balance of probabilities, infected while the parties were living together. In assessing the relationship against the backdrop of the criteria advised by the Law Reform Commission, it would seem that for the period of time when the parties were living together, that they were cohabiting. It was relevant that the 1997 Act did not include a qualifying period of cohabitation for the purposes of s. 1. The court was satisfied that A.F. and R.C. were clearly cohabiting within the ordinary meaning of the term and that the applicant was therefore entitled to compensation under s.4(1)(g) of the 1997 Act.

1 1. This is an appeal from a decision of the Hepatitis C and HIV Tribunal ("the Tribunal") made on 9 ^th March, 2011.

2 2. R.C. had applied to the Tribunal for compensation pursuant to s. 4(1)(g) of the Hepatitis C Compensation Act 1997 (hereafter referred to as "the 1997 Act"). That is the section that permits the children or spouse of a person who contracted HIV from contaminated blood products within the State to themselves claim compensation if they have been diagnosed positive for HIV. Her application was rejected by the Tribunal which concluded that she did not come within the definition of "spouse" as defined by s. I of the Act and was thus not entitled to compensation. The hearing before me is consequently a full de novo application for compensation.

Background

3 3. R.C. was born on 8 ^th July, 1985 and is now 26 years of age. She presently lives with her parents at Ballycragh, Dublin 24. It is accepted that R.C. has been diagnosed positive for HIV and that she contracted her infection in the course of an intimate relationship with A.F. who himself has been compensated by the Tribunal as a person who contracted his infection from contaminated blood products used in the treatment of his haemophiliac condition.

4 4. In the course of the present appeal, I heard medical evidence from Prof. Colm Bergin, Consultant in Infectious Diseases. I also heard evidence from R.C. and both of her parents in addition to evidence from A.F's mother, E.F. Regrettably, at the time of the hearing, A.F. was very ill and awaiting liver transplantation in London consequent upon his co-infection with HCV.

5 5. The evidence given by R.C. on the present appeal was at times somewhat different from that given by her to the Tribunal, particularly in relation to a number of relevant dates. Likewise, R.C. and A.F's mother were not agreed as to the dates when R.C. moved in to reside with A.F. in an apartment he purchased in Lucan. Neither were they in agreement as to the date upon which the couple vacated that apartment or the date upon which their relationship eventually came to an end. However, I think little turns upon these differences having regard to the closing legal submissions made by the parties. I am also entirely satisfied that all of the witnesses, including R.C., gave evidence with the intention of fully and truthfully informing the court as to their recollection of all relevant events.

6 6. I do not intend in the course of the present judgment to record the evidence given by the various witnesses. However, having regard to that evidence I will now set out my findings of fact as to the nature of the relationship which existed between R.C. and A.F. prior to its termination. I will then deal with the circumstances relevant to R.C's infection with HIV prior to ruling on her entitlement to compensation under s. 4(1)(g) of the 1997 Act.

Findings of Fact

7 7. A.F. was born in 1982. He is the eldest of three adopted children and is a haemophiliac. Sadly, in the course of his treatment for that condition, he went on to contract both HIV and HCV from contaminated blood products. A.F. coped badly with his diagnosis and illness. He has apparently never discussed his condition or its consequences with his mother and father. He rarely told anyone about his infections and when he did, such disclosure, according to his mother, was not always well received. Accordingly she advised him to be very careful about sharing his diagnosis with anyone unless they really had to be appraised of his status.

8 8. A.F. met R.C. in 2003. I accept that they entered into a sexual relationship shortly thereafter albeit that the same was somewhat curtailed by the fact that they were mostly residing in the homes of their respective parents. This continued until they went to live with each other in an apartment in Lucan which A.F. bought out of the compensation obtained by him in respect of his HIV and HCV infections. The purchase of the relevant apartment was completed on 5 ^th December, 2003 and I am satisfied that R.C. and A.F. moved into it prior to Christmas 2003. I believe that R.C. is mistaken in her recollection that she made that move in October 2003 as this could not have occurred prior to the completion of the purchase.

9 9. I accept that in December 2003, R.C. moved her clothes and belongings into the Lucan apartment and that thereafter she spent a good deal of her social welfare income on items such as towels, bed linen, photo frames, cutlery, pots and pans etc. all of which helped to make her life with A.F. more comfortable than it might otherwise have been.

10 10. As to the relationship between R.C. and A.F. in general, I am satisfied that from the earliest of times that they were a committed couple who rarely if at all socialised separately. They went on holidays together, at home and abroad, and in the initial phase of their relationship regularly stayed with each other in their respective parent's homes.

11 11. During the period when R.C. and A.F. were together, they were treated by their respective families as a normal couple in that they went together to all family functions such as christenings, weddings and Christmas day festivities. They also attended R.C's mother...