F. (J.) v. Minister for Health [2001] IEHC 158 (9th November, 2001)

Judgment of Mr. Justice O’Neill delivered the 9th day of November 2001. 1. The Appellant in this case instituted a claim before the Hepatitis C Compensation Tribunal pursuant to Section 4 (1)(d) of the Hepatitis C Compensation Tribunal Act 1997 (hereinafter referred to as the Act of 1997). This claim was heard by the Tribunal on the 16th day of October, 2000 and the claim was disallowed on the basis that the Tribunal concluded that the Appellant was not a person who was or is responsible within the meaning of Section 4 (1)(d) of the Act for the care of his mother that even had the Tribunal been so satisfied, it would have held that the assistance which he gave to his mother in the running of her business did not amount to care within the meaning of the Act . 2. The Appellant was born on the 24th April, 1974. He’s one of seven children of E. F., his mother who was infected with Hepatitis C in 1977 and who brought a claim to the Hepatitis C Compensation Tribunal, which claim was heard by the Tribunal on the 23rd day of June, 1998. 3. The facts relevant to this appeal as deposed to an Affidavit are as follows. 4. E. F. ran a cigarette vending business which consisted of the wholesale sale of cigarettes to various businesses. The machines were owned by E. F. She ran these machines by having them stocked with cigarettes and made her profit from the sale of the cigarettes and paid a commission to the owner of the establishment where the machines were kept. The Appellant was a full time secondary school student from September 1987 to December 1991. He did his Junior Certificate Examination in 1989 and Intermediate Certificate in 1990. During these years E. F. was suffering a considerable amount from her Hepatitis C virus which she had been infected with in 1977. The Appellant’s father had suffered from ill health and had not worked since 1985. The Appellant intended to do his Leaving Certificate in June of 1992 and go on to do an apprenticeship as a carpenter and to qualify in this trade. The Appellant’s mother’s condition resulted in a situation where she became unable to carry on running her business and in December 1990 the Appellant left school to take over the running of the business. 5. The business doesn’t appear to be particularly successful but it would appear the family appear to have got a living from it and E. F. was very anxious that the business would be kept going and had it in her mind to hand it on to her youngest child eventually. Unless the Appellant or presumably another sibling took over the running of the business it would have been lost. 6. The Appellant made the case to the Tribunal and to this Court on Appeal that but for taking over the running of the business in 1990 he would have gone on to do his Leaving Cert, his apprenticeship as a carpenter and to have qualified and that he would have worked in the construction industry as a carpenter. As a consequence of not being able to take this course he contends that he has suffered a very severe financial loss because the drawings that he is able to take from his mother’s business, have been and continue to be considerably less than the earnings he would have as a carpenter. A report was submitted to the Tribunal from a Mr. McCarthy to the effect that the Appellant’s loss of income up to the 30th April, 2000 was the sum of £28,475. In addition to that a further claim is made in respect of overtime on the basis of ten hours a week which comes to £21,054 making a total of loss claimed to the 30th April, 2000 of £49,511. Further the Appellant claims that the loss is continuing and will go on into the future. 7. When the matter was heard in the Tribunal the Appellant did not go into evidence, submissions having been heard by the Tribunal on legal issues arising out of the interpretation of Section 4 (1)(d) of the 1997 Act and having heard those submissions the Tribunal determined that the claim should be disallowed. When the appeal came on for hearing before me it proceeded in a similar fashion, submissions being made by Mr. Keane SC for the Appellant and by Mr. Carson SC for the Respondent and apart from the Affidavit grounding the proceedings and exhibits referred to therein no other evidence was at that time adduced. 8. This appeal therefore is concerned with the interpretation of Section 4 (1)(d) of the 1997 Act. It reads as follows:- “ (4)(1) 9. The following persons may make a claim for compensation to the Tribunal:- (a) a person who has been diagnosed positive for Hepatitis C resulting from the use of Human Immunoglobulin Anti-D within the State, (b) a person who has been diagnosed positive for Hepatitis C as a result of receiving a blood transfusion or blood product within the State, (c) children or any spouse of a person referred to in paragraph (a) or a person referred to in paragraph (b), who have been diagnosed positive for Hepatitis C, (d) any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c) and who has incurred financial loss or expenses as a direct result of providing such care arising from the person being cared having contracted Hepatitis C, (e) where a person referred to in paragraph (a), (b) or (c) has died as a result of having contracted Hepatitis C or where Hepatitis C was a significant contributory factor to the cause of death, any dependant of any of such person and (f) a person referred to in Section 9 in accordance with that Section.” 10. Mr. Keanc SC for the Appellant submitted that the Appellant was a person who was responsible for the care of his mother and that he had incurred financial loss. He submitted that the particular care that E. F. required of the Appellant was for him to run the business and preserve its existence for her benefit and that of her family. In taking on this task the Appellant devoted himself to the care of his mother, and hence he was a person who was responsible for the care of his mother within the meaning of Section 4 (1)(d). 11. Mr Keane referred to the case of The Inspector of Taxes -v- Kiernan [1982] ILRM 13 and relying upon that case submitted that the word “care” should be given its ordinary or colloquial meaning, that the Act of 1997 was one directed to the public at large and that the word “care” would be understood by ordinary people in its natural context as not being confined merely to care of the body but as involving a broader scope of care and in particular financial care. 12. Mr Keane submitted that for the purposes of the Section the only limitation on the scope of the care to be provided is that it must arise from the person being cared for having Hepatitis C. He posed the question “did her son show any care for her” to which he said the answer most decidedly was in the affirmative. He submitted that in fulfilling his responsibility the Appellant not only provided financial care for E. F. but in so doing relieved her physical and mental suffering in particular her depression. 13. Mr Keane referred to a decision of mine in the case of M. O’C. -v- The Minister for Health, judgment delivered 28th July, 2000 in which the Appellant in that case a teacher, gave up some teaching activities to look after his wife who was a sufferer from Hepatitis C and also to look after their children, she being unable to do so and he pointed to the fact that he was compensated for his loss of earnings as a result of having to give up these teaching activities. Mr. Keane submitted that there was no difference in reality between the domestic chores which the Appellant in the M. O’C. case took up and the assistance which the Appellant in this case gives by running the family business. 14. Counsel for the Respondent Mr. Carson SC submitted that the Appellant’s factual situation was not sufficient to bring his claim within the key phrase in the Section which is to the effect that he must be a person who is “responsible” for the care of E. F. He submitted that the Appellant was not someone who had this responsibility. 15. Mr. Carson submitted that “care” in the Act was not sufficiently wide to cater for the situation which arose in this case where the owner of a business got someone in i.e. the Appellant to run the business. He contrasted the situation in this case to that which pertained in the M. O’C. case which was a domestic situation pure and simple and he submitted that the area of care as envisaged in the Section was not to be extended beyond the domestic situation to the commercial area. He pointed to the farming situation which has frequently come before the Tribunal and this Court on appeal, where the losses which arise in farm income are claimed as the personal loss of the Hepatitis C sufferer. 16. Mr. Carson submitted that it was envisaged by the Act in particular at Section (5)(1) that “ an award by the Tribunal to a Claimant shall be made on the same basis as an award of the High Court...”. 17. In an action tort in the High Court only the person who has actually suffered a loss can make a claim. Here the loss is that of the Appellant not of E. F. and the concept of “care” cannot be so extended as to encompass the loss claimed in these proceedings. Such an approach would conflict with the clear intention of the Act to the effect that damages are to be assessed on the same basis as in an action in tort in the High Court. 18. Mr. Carson submitted that Section 4 (1)(d) requires that the loss would be “as a direct result of providing such care”. He contrasted this case with the M. O’C. case where the loss was as a direct result of being unable to do work which the Appellant in that case would otherwise have done. Mr Carson submitted that in this case the Appellant was not a carpenter and therefore could not show any direct financial loss. He submitted that the loss claim was of an indirect or potential nature. Had he become a carpenter he might have been able to show a differential between his earnings as a carpenter and his drawings from the cigarette business. He submitted that a direct loss only occurs where a carer gives up employment and incurs loss or else employs someone else to provide care and incurs expense. He submitted that to push it beyond a situation where a carer does not give up work or provide care would open a floodgate permitting very large numbers of persons whom he submitted were not contemplated by the legislator to make claims under Section 4 (1)(d). He submitted that the policy of the Act was to seek the person who had taken on responsibility for care and thereby directly suffered a loss. He contrasted this with the kind of potential or indefinite loss claimed to have been suffered by the Appellant in this case which he submitted was wholly outside the ambit of a “direct result” of providing care for somebody who has suffered from Hepatitis C. 19. Mr. Carson submitted that the ordinary rules for recovery of loss in an action in Tort apply and the statute confines the award of compensation to these rules and principles and the statute does not make provision for compensation beyond that which would be available in an action in Tort. Thus where as frequently occurs a Hepatitis C sufferer is compensated for the cost of a carer this is on the basis of a personal loss of the Hepatitis C sufferer based on a legal duty to pay the carer. In this case what is claimed is a loss which is solely that of the carer and goes quite beyond the legal duty cast on the Hepatitis C sufferer i.e. E. F. to pay for. In other words E. F. would be entitled to recover the cost of a carer or to be compensated for what she was obliged to pay in order to prevent the threatened loss. She would not be entitled to recover the cost of paying somebody on the basis that they had ambitions to a much more lucrative career which they then abandoned to provide care for a Hepatitis C sufferer. 20. Mr. Keane in reply submitted that the concept of “care” was not to be limited to “nursing care” and he referred to the Oxford English Dictionary to show that the word “care” was not there limited to a sense of looking after the body. 21. He submitted that the Respondents confused the concept of “direct result” with “likely result”. He acknowledged that if the Appellant had given up a career as a carpenter he would be in a better position to establish as a matter of probability that the loss had occurred, and he submitted the question of whether or not the Appellant would have become a carpenter and thereby suffered the loss contended for is not a question of whether that loss was “the direct result” but rather a question of whether or not that loss was a probable one or not. He submitted that the loss was not any less direct simply because he had not yet become a carpenter. The fact that he had not yet become a carpenter merely raised the issue of whether or not he would have become a carpenter. 22. Mr. Keane submitted that the 1977 Act did expand the remedies beyond the normal field of Tort. Section 4 (1)(d) itself is an addition to the scope of remedy available in an action in Tort in that it permits a claim to be made by someone other than the primary sufferer or victim, hence Section 4 (1)(d) does expand the basis for assessment of compensation beyond the normal common law assessment. 23. Mr. Keane submitted that the concept of “care” in the Act was not limited to the domestic scene and was wide enough to encompass the Appellant’s claim. DECISION 24. The meaning or interpretation of Section 4 (1)(d) of the Act of 1997 appears to me to be determined by six elements, five within the wording of the sub-section itself and one being the existence of the sub-section. 25. Taking the last mentioned first, namely the existence of the section, I am driven to the conclusion that the enactment of this sub-section has the effect of expanding the assessment of damages so far as claims under the Act are concerned so as to include claims from those who are not the primary sufferers of Hepatitis C. In doing this the legislature consciously included in the Act a departure from the normal basis of assessment of damages in the Law of Tort, where only the direct victim of the tortious act can sue, save of course, for the well known exceptions of cases of nervous shock and claims for loss of consortium and servitium. Whilst the basis of assessment of damages in respect of claims made under the provisions of the Act is, in accordance with Section (5)(1), to be on the same basis as an award of damages in the High Court, that normal basis of assessment, by reference to the principles which govern the measure of damages in the Law of Tort and any relevant statutory provisions, is added to, to the extent that is provided for in Section 4 (1)(d), thus enabling a claim to be made by someone who was not themselves a sufferer from Hepatitis C but who is a carer for a victim of Hepatitis C. 26. This is an important departure and has the following significant consequences. The normal principles which govern the measure of damages in the Law of Tort would of course enable E. F. to recover damages in respect of losses she suffered in providing necessary care consequent upon her Hepatitis C or in providing herself with services which were the necessary consequences of her Hepatitis C. Thus she would have been entitled to recover the cost of normal nursing and domestic care as was necessary depending upon her condition and she would also be entitled to recover the cost of such services as were necessary in order to enable her to keep her business going. Therefore she would have been entitled to recover the cost of employing somebody to do the work which has been done by the Appellant, in the business since 1991. She would of course have had a duty to mitigate her loss. Thus she would only have been entitled to recover the cost of employing somebody at the normal rates applicable to that kind of work. She could not employ a person who was excessively qualified and in respect of whom she was required to pay a higher rate than would normally be paid for the kind of work involved. Similarly if she claimed in respect of the Appellant she could not expect to recover on the basis that the Appellant had ambitions to more lucrative employment but gave that up to work for E. F. The law would oblige E. F. to engage somebody else at the going rate for the job in question. 27. Looking at the same situation from the point of view of a claim by the Appellant under Section 4 (1)(d) may produce a somewhat different result. If the Appellant’s case comes within the requirements of this sub-section as will be discussed shortly, the issue on mitigation, either may not arise at all in the same sense as it would on a claim by E. F. as discussed above, or the process of mitigation might produce a entirely different result. I will return to this topic when I have dealt with the five elements arising from the wording of the sub-section itself. 28. The first of these elements within the sub-section itself is the use of the phrase “any person”. The use of this phrase, leads in my view to the conclusion that no particular relationship to the person with Hepatitis C is envisaged. Thus “any person” could be a blood relation i.e. either a son, a daughter, a sibling, a husband, a wife or indeed without any blood or legal relationship. 29. The defining element as far as the range of personality who could be Claimants is the phrase “who is responsible”. This in my view is a very broad formulation. It does not confine responsibility to legal responsibility, nor indeed could it. In the case of E. F., if it were confined to legal responsibility only the husband of E. F. could claim. If the claim was to be confined to the legal content of his legal obligation then in fact no claim could arise. If E. F. was dependant on her husband he would have had a legal obligation to maintain her. But then of course he couldn’t claim in respect of that because he was legally obliged to so provide. In short therefore it is perfectly clear the phrase “responsible for” has nothing to do with legal responsibility. 30. In my view the phrase imports some degree of moral responsibility or moral duty. What the legislature intended was the normal range of moral duties and responsibilities that go with the broad range of familial relationships, including here the kind of moral duties and responsibilities that exist between human persons who have enjoyed established and committed relationships with each other. It is unnecessary for me to enumerate the entire list but suffice it to say, it is perfectly clear that a son providing care for his mother is manifestly included. 31. The next element in the sub-section which arises for consideration is the concept of “care”. 32. The issue is whether this is to be construed in a narrow sense as being confined to either the care of the body or to be confined to care provided within the domestic situation or does it have a broader scope such as including the provision of financial care or the provision of care in the form of assistance as in this case in the running of a business. 33. The Section itself, manifestly does not provide any limitation or indeed any guide to a limit on its breadth. It must be borne in mind that the central purpose of the Act is to provide compensation for those who are themselves afflicted with Hepatitis C and additionally under Section 4 (1)(d) those who care for them. Thus in approaching the construction of the Act in my view a purposive approach should be adopted, as indeed was done by the Supreme Court in the case of M. O’C. -v- The Minister for Health judgment delivered the 9th day of July, 2001. 34. It would seem to me that it is correct to approach the matter from the point of view of ensuring that the scheme of compensation provided for by the Act reaches the real and provable losses sustained by carers as a direct result of providing that care. Thus what is clearly to be avoided are artificial distinctions as between one loss and another based on an excessively narrow construction of the word “care”. 35. In my opinion where someone who in the sense already discussed is responsible, provides necessary assistance to somebody who has Hepatitis C to enable that person to cope with, or surmount the effects of Hepatitis C on their physical or mental health, or on their domestic environment or in their vocational life, that necessary assistance can properly be regarded as “care” within the meaning of the Section. In my view a distinction which says that a concept of “care” can include domestic assistance but cannot include assistance necessary to preserve say a small family business is artificial and should not be countenanced. Thus I have come to the conclusion that the concept of “care” as used in the Section does include the kind of service provided by the Appellant for E. F. since 1991 to date. Mr. Carson raised the spectre of “floodgates” opening in the context of this interpretation of the subsection. I do not think this apprehension is well founded. It may of course be the case that more than one member of a family could make a claim under Section 4 (1)(d). However each claim will necessarily be confined to the particular service provided and will of course depend on whether a loss or expense was suffered as a “direct result” of providing that care. Thus duplication of claims will not arise. 36. The next element in the Section is the requirement that the person who is providing care “has incurred financial loss” or expenses. Little need be said about that here. It seems to me to be primarily an issue of fact as to whether or not in any case such financial loss or expense has been incurred. 37. The next and final element arising out of the wording of the sub-section itself is the meaning to be ascribed to the phrase “direct result”. In the context of the dispute in this case the contest on the meaning of this phrase is as between whether it confines a loss to an actual loss or whether as is contended for by Mr. Keane it can include a potential or foreseeable loss. 38. It would appear to me that the phrase “direct result” simply means that the loss claimed has to have been caused by the provision of the care and not by anything else. Insofar as this case is concerned I agree with Mr. Keane that the distinction which is sought to be drawn by the Respondent, in reality, merely raises a question as to the foreseeability or probability of the loss arising rather than raising any question as to the direct causal link between the provision of care and the claimed loss. 39. I have therefore come to the conclusion that the claim which is made by the Appellant in respect of his anticipated loss because of his inability to take up work as a carpenter is a loss in respect of which he may make a claim under Section 4 (1)(d). It is of course a claim which has to be based on evidence in the ordinary way. 40. I now return to consider the nature and scope of the claim made by the Appellant herein in the context of a claim made under Section 4 (1) (d), as distinct from a loss that might in another context have been claimed by E. F. in her proceedings. 41. As said earlier E. F. had she been claiming the cost of engaging assistance in order to replace her own labour in the business she would have been obliged to mitigate her loss and could not have made a claim on the basis of recovering at a higher rate based on the ambitions of the person she took on. In assessing the Appellant’s claim under Section 4 (1) (d) as indicated earlier, different considerations apply. It must first be considered whether or not the Appellant satisfies the requirements of the Section as discussed above. I am satisfied that he does, namely that he is a person who is responsible for the care of E. F., that the nature of the assistance which he provides or has provided comes within the definition of “care”, that subject to proof in the ordinary way he has pointed to a financial loss, and likewise subject to proof in the ordinary way that loss could be said to have arisen as a direct result of providing care, in the sense of it being caused solely by the provision of that care. 42. Next one must consider the question of mitigation in the context of the Appellant’s claim. In this context mitigation would necessarily have meant the abandonment of the provision of the care involved. It would not seem to have been possible for the Appellant to have pursued his career as a carpenter while at the same time running the cigarette business. Thus it could only be said that mitigation could arise if it were to be shown that some other scheme was reasonably practicable. Were it the case that the Appellant’s father was in good health I would be minded to conclude that he might be the appropriate person to be “responsible for” the care of E. F. Given that the Appellant’s father has been in poor health since 1985, and so it would appear unable to take on this role it would seem to me that either the Appellant or another one of the older members of the family would have to take it on. The question would inevitably arise as to whether or not it would be possible to have engaged the services of someone from outside the family on a commercial basis. Having regard to the size of the business and its relative weakness it would seem to me to have been highly unlikely that it would have been commercially possible to have engaged somebody from outside the family to take on this role. The question then arises whether or not for the purposes of mitigation the Appellant should have simply declined to take on this involvement and placed his mother in the position of allowing the business to collapse. 43. I would be inclined to the view that notwithstanding that the business was obviously not in a financial sense a roaring success, that nonetheless it was reasonable for E. F. to try to hang on to it as it did provide the family with a living, and the independence that went with that, and it held out the prospect in the long term of providing a livelihood for one of her children. Having regard to these reasonable objectives from the point of view of his family, in my view the Appellant is not to be faulted for having taken on the role in the business that he did from 1991 onwards. Given that he was in my view justified in doing that I cannot see any basis upon which he could have achieved a mitigation of the loss he claims. 44. That leaves open the question of proof of that loss. Hitherto in these proceedings, as I have already said, no evidence has been adduced apart from that on Affidavit, the matter proceeding by way of legal submission only. 45. It would seem to me therefore that the appropriate course is for the matter to be put back in for hearing so that evidence can be heard on the question of the losses claimed. © 2001 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII