W v Minister for Health and Children

• Jurisdiction: Ireland
• Judge: Mr. Justice Michael Hanna
• Judgment Date: 07 October 2016
• Neutral Citation: [2016] IEHC 692
• Docket Number: [2013 7 CT]
• Court: High Court
• Date: 07 October 2016

[2016] IEHC 692

THE HIGH COURT

Hanna J.

[2013 7 CT]

IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 AND IN THE MATTER OF SECTION 5 (9) (a) AND IN THE MATTER OF SECTION 5 (15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 AS AMENDED BY THE HEPATITIS C COMPENSATION TRIBUNAL (AMENDMENT) ACT 2002

BETWEEN

W

APPELLANT

AND

THE MINISTER FOR HEALTH AND CHILDREN

RESPONDENT

HEPATITIS C & HIV COMPENSATION TRIBUNAL

NOTICE PARTY

Health – Compensation – Hepatitis C Compensation Tribunal Act 1997 – S. 5 (9) (a) and s. 5 (15) of The Hepatitis C Compensation Tribunal (amendment) Act 2002 – Post traumatic disorder

Facts: The appellant had filed an appeal against the order of the notice party for refusing to award compensation to the appellant for post-traumatic injury caused by the loss of his son. The appellant was awarded compensation for loss of society by the notice party. The appellant contended that he had suffered post-traumatic disorder due to the early death of his daughter followed by the tragic death of his son. The notice party awarded no damages to the appellant pursuant to s. 4(1) (e) and ss. 5(3), (3A) (a) and (b) of Hepatitis C Compensation Tribunal (Amendment) Act 2002. The notice party stated that the appellant had not established a claim for damages under s. 5 (3) (3A) (a) and (b) of the Amendment Act 2002.

Mr. Justice Michael Hanna held on the balance of probabilities that the appellant had suffered moderate post-traumatic stress disorder and was therefore, entitled to be compensated. The Court took into consideration the reports of the experts and accepted their diagnosis of post-traumatic stress disorder in the present case. The Court stated that the various indices set out in Diagnostic and Statistical Manual of Mental Disorders had been met in the present case. The Court awarded a compensation of €125,000 to the appellant; however, it reduced a sum of €15,000 for not fulfilling the obligation to undertake therapy as suggested. The Court, therefore, awarded €110,000 in respect of the post-traumatic stress disorder.

JUDGMENT of Mr. Justice Michael Hanna delivered on the 27th day of October 2016.

Mr. Justice Michael Hanna

1 The applicant in this case is Mr. W who was born on the 9th November, 1941. This case arises from the tragic death of his son, B, one of the two significant bereavements with which we have been concerned in this case, the other being of course the tragic death of the applicant's daughter, J, who died in a road traffic accident at the age of four and a half. Her death clearly impacted cruelly upon the applicant and, of course, his wife and family.

2 This matter comes before the Court by way of appeal from the Hepatitis C & HIV Compensation Tribunal (‘the Tribunal’). On 16th July, 2013, the Tribunal made an order awarding the applicant no damages pursuant to Section 4(1) (e) and Section 5(3) (3A) (a) and (b) of the Hepatitis C Compensation Tribunal Act 1997 (as amended) in respect of his proceedings for post-traumatic stress disorder and nervous shock following his son's death. The appeal is brought by the applicant by way of notice of motion dated 14th August, 2013, and the motion is grounded on the affidavit of Raymond Bradley, solicitor for the applicant. The Tribunal refused to award damages, finding on the basis of the evidence given that the applicant had not established a claim for damages under s. 5 (3) (3A) (a) and (b) of the 1997 Act as amended. The Tribunal found that the applicant failed to establish that he had suffered a psychiatric injury ‘above the effects of normal grief, distress and bereavement.’ Compensation for loss of society was awarded.

3 It would be invidious to set out in detail the mental anguish and suffering that Mr. W and I have no doubt his wife have been through as a result of the unhappy events that have been recited in this Court, but I will set out very briefly the necessary facts.

Background Facts

4 The plaintiff's son was born a haemophiliac. This condition was managed up to a certain point when he was referred to the care of Dr. C. Through circumstances all too familiar to people in this Court and beyond to the tragic victims of this happenstance, he went on to develop Hepatitis C and HIV. As a consequence of all of this, on top of his already profound ill health, he suffered illness of a great and ultimately lethal kind.

5 It is of note that, up to a certain point, he was managing his illness. He was treated into the 1990s, as we know, up to the date of his untimely death on the 3rd November, 1994, and probably was doing reasonably well according to the lights of that time. The applicant's son did not have available to him the wonderful array of medication and treatment since developed, including by Irish doctors and hospitals, to combat the ravages of the infections that have resulted from the pollution of the blood supply given to various members of the population. The precise circumstances surrounding his death are, of course, significant and relevant given that Section 5(3) (3A) (a) of the 1997 Act (as amended) provides that:-

‘Where a dependant referred to in paragraph (e) or (j) of section 4(1) is the child, spouse, father or mother of the person who died (“the deceased”) as a result of having contracted HIV or Hepatitis C, or where HIV or Hepatitis C was a significant contributory factor to the cause of death, the Tribunal may make an award to that dependant in respect of post-traumatic stress disorder or nervous shock if he or she satisfies the Tribunal that he or she has suffered or is suffering from that condition as a result of the death.’

6 Mr. W described graphically how, when he dropped his son off in the hospital, nothing was untoward. His son, B, had not been well. This was a normal thing to do in the context of the life they led then. Off went Mr. W to work the next day.

7 The applicant wasn't expecting anything particularly unusual. Then came the phone call from his wife telling him he had to go urgently to the hospital. This was in the days before mobile phones. The applicant described the trip to the hospital, and there being told to wait in the day room (in fact waiting in the corridor), then witnessing the emergency transfer of what turned out to be his son, on a bed surrounded with the paraphernalia of hospital and of emergency, into a lift. The anxiety and worry of that was then compounded by being called in to...