LO'S v Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 27 January 2017
• Neutral Citation: [2017] IECA 7
• Date: 27 January 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 7 Record No. 2016/219

[2017] IECA 7

THE COURT OF APPEAL

Irvine J.

Peart J.

Irvine J.

Hedigan J.

Neutral Citation Number: [2017] IECA 7

Record No. 2016/219

IN THE MATTER OF AN APPEAL PURSUANT TO THE PROVISIONS OF SECTION 5(15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACTS 1997 - 2006

BETWEEN/

L O'S

RESPONDENT

- AND -

THE MINISTER FOR HEALTH AND CHILDREN

APPELLANT

Points of law – Damages – Medical condition – Appellant seeking to appeal from the decision which he made on the respondent’s appeal from the determination of the Hepatitis C Compensation Tribunal on specified questions of law – Whether the principles which govern the measure of damages specified in s. 5(1) of the Hepatitis C Compensation Act 1997 could warrant a provisional award pursuant to s. 5(7) by which the particular serious consequences in the future may be itemised or specified as external to the appellant’s medical or clinical condition

Facts: By order of the High Court (Abbott J), made on 22nd May 2014, the appellant, the Minister for Health and Children, was granted leave to apply to the Supreme Court from the decision which he had earlier made on the respondent’s appeal from the determination of the Hepatitis C Compensation Tribunal on the following specified questions of law: 1) whether the “principles which govern the measure of damages” specified in s. 5(1) of the Hepatitis C Compensation Act 1997 could warrant a provisional award pursuant to s. 5(7) by which the “particular serious consequences in the future” may be itemised or specified as external to the appellant’s medical or clinical condition; 2) whether the “principles which govern the measure of damages” specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the “particular serious consequences in the future” may arise without any worsening or deteriorating medical condition of the appellant; 3) whether the “principles which govern the measure of damages” specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the “particular serious consequences in the future” confined to future pecuniary or a special damages assessment alone, and without any deteriorating pain and suffering or loss of amenity; 4) whether the “principles which govern the measure of damages” specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the “particular serious consequences in the future” relating to future pecuniary or special damages assessment alone, and in the absence of any cause or trigger at some future date for any further general damages; 5) whether the “principles which govern the measure of damages” specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the “particular serious consequences in the future” might be limited solely to future pecuniary or special damages; 6) whether the “principles which govern the measure of damages” specified in s. 5(1) could warrant the Tribunal or court on appeal from refraining to make a full assessment, guided by such evidence expert or otherwise as may be helpful, in present day money of pecuniary or special damages in the future; 7) whether the “principles which govern the measure of damages” specified in s. 5(1) could warrant the Tribunal or court in its determination from refraining to assess “or any claimant from refraining to adduce present day evidence of” pecuniary or special damages into the future based upon extant medial, clinical and expert evidence on the footing of a “provisional award” which make specify isolated or unspecified “particular serious consequences” in the future unconnected to or without deteriorating or worsening clinical or medical condition; and 8) whether the appellant is entitled to have the appeal from the Tribunal remitted to the High Court for reconsideration in the event of the Supreme Court’s (Court of Appeals) determining any of the questions at nos. 1 to 7 in favour of the respondent.

Irvine J held that the answers to the questions raised on this appeal were as follows: 1) the question which was intended was whether, in light of the requirement that awards of the Tribunal should be calculated by reference to “the principles which govern the measure of damages in the law of tort” it was permissible for the Tribunal/Court to make a provisional award under s. 5(7) by reference to possible “serious consequences” external to the applicant’s medical condition, the answer to that question being yes; 2) the question intended was whether in light of the requirement in s. 5(1) that awards be made on the same basis as those made in the High Court by reference to “the principles that govern the measure of damages in the law of tort” is it permissible for the Tribunal/Court to make a provisional award without making the same provisional on a specified deterioration in the applicant’s medical condition, the answer to that question being yes; 3) The Tribunal/Court may make a provisional award entitling an applicant to return to the tribunal to seek additional compensation in respect only of pecuniary loss, such as loss of earnings, without requiring them to demonstrate any change in their medical status; 4) even if the applicant’s fatigue were to deteriorate and even if it could be established that the same was related to his past exposure to HCV he is not entitled to seek additional general damages as a result; 5) this question was already answered; 6) if this question was meant to ask whether the court may refuse a provisional award, even where the applicant can satisfy the criteria required for the purposes of s. 5(7) and force an applicant to take a lump sum award, the answer is no;7) this question was already answered; 8) does not apply.

Appeal dismissed.

JUDGMENT of Ms. Justice Irvine delivered on the 27th day of January 2017

1 This judgment concerns the interpretation of the provisions of s.5 of the Hepatitis C Compensation Act 1997 (‘the Act’) which provides that in certain specified circumstances an applicant who qualifies for compensation under the statutory compensation scheme thereby created, may apply to the Hepatitis C Compensation Tribunal (‘the Tribunal’) or the High Court on appeal, for what is described therein as a provisional award of damages which entitles them to return to the tribunal to claim additional compensation should certain serious consequences of their infection occur.

2 By order of the High Court (Abbott J.) made on 22nd May 2014, the Minister for Health and Children (‘the Minister’) was granted leave to apply to the Supreme Court from the decision which he had earlier made on the respondent's appeal from the determination of the Tribunal on the following specified questions of law:-

1. Whether the ‘principles which govern the measure of damages’ specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the ‘particular serious consequences in the future’ may be itemised or specified as external to the appellant's medical or clinical condition;

2. whether the ‘principles which govern the measure of damages’ specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the ‘particular serious consequences in the future’ may arise without any worsening or deteriorating medical condition of the appellant;

3. whether the ‘principles which govern the measure of damages’ specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the ‘particular serious consequences in the future’ confined to future pecuniary or a special damages assessment alone, and without any deteriorating pain and suffering or loss of amenity;

4. whether the ‘principles which govern the measure of damages’ specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the ‘particular serious consequences in the future’ relating to future pecuniary or special damages assessment alone, and in the absence of any cause or trigger at some future date for any further general damages;

5. whether the ‘principles which govern the measure of damages’ specified in s. 5(1) could warrant a provisional award pursuant to s. 5(7) by which the ‘particular serious consequences in the future’ might be limited solely to future pecuniary or special damages;

6. whether the ‘principles which govern the measure of damages’ specified in s. 5(1) could warrant the Tribunal or court on appeal from refraining to make a full assessment, guided by such evidence expert or otherwise as may be helpful, in present day money of pecuniary or special damages in the future;

7. whether the ‘principles which govern the measure of damages’ specified in s. 5(1) could warrant the Tribunal or court in its determination from refraining to assess ‘or any claimant from refraining to adduce present day evidence of’ pecuniary or special damages into the future based upon extant medial, clinical and expert evidence on the footing of a ‘provisional award’ which make specify isolated or unspecified ‘particular serious consequences’ in the future unconnected to or without deteriorating or worsening clinical or medical condition, and

8. whether the appellant is entitled to have the appeal from the Tribunal remitted to the High Court for reconsideration in the event of the Supreme Court's (Court of Appeals) determining any of the questions at nos. 1 to 7 in favour of the respondent.

Background facts

3 The respondent (‘L O'S’) was born in 1994 and is the youngest of four children. His mother received transfusions of contaminated blood in 1981 while a patient in the National Maternity Hospital and was diagnosed as positive for the Hepatitis “C” virus (HCV) in 1998. L O'S contracted HCV from his mother in or around the time of his birth but cleared that infection. That he had earlier contracted HCV was ascertained by blood testing which established the continued presence of antibodies to the virus.

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