O'C (M.) v. Minister for Health [2000] IEHC 61 (28th July, 2000)

JUDGMENT of Mr. Justice O’Neill delivered the 28th day of July 2000. 1. M O C is the husband of B O C who contracted Hepatitis-c as a result of an injection of contaminated Anti-D, on about the 18th May 1977. B O C made an application to the Hepatitis-C Compensation Tribunal and her application was heard on the 24th February 1998 and she was made an award of compensation. M O C brought an application for compensation to the Hepatitis-C Compensation Tribunal and his application was heard on the 9th day of February 2000. The claim made by M O C was in respect of loss of earnings resulting from the Appellant being obliged to curtail his teaching career due to the demands made of him in caring for B O C due to her Hepatitis-C infection. 2. The Tribunal refused the Appellants claim finding that the evidence did not suggest anything to warrant an abandoning by the Appellant of employment or of reducing his employment due to the fact that B O C’s health was impaired by the Hepatitis-C infection. 3. The Appellant's claim both to the Tribunal and on appeal to this Court is made under three headings. 4. Firstly the Appellant claims that he was obliged to give up his post as an Examiner in 1978 because at that time and particularly during those summer months B O C due to her deteriorating health was unable to cope with looking after three young children on her own and as a result M O C claims that he was obliged to give up his work as an Examiner because that work took up a great deal of his time during the summer months when B O C needed his help. 5. Secondly M O C claims that in 1989 he retired from his post as a teacher two years earlier than he needed to because at that time his wife's health was poor and he was needed at home to help care for his children and also his wife. 6. Thirdly M O C had part time employment as a teacher in a school other than that in which he taught full time. Due to B O C’s illness, he claims that from 1980 he was obliged to reduce his part time teaching hours and that in 1989 he was obliged to give up this work completely. From 1979 to 1989, B O C claims that his part time teaching hours were reduced from 7 hours per week to 3 ½ hours per week i.e. a loss of 3 ½ hours per week. 7. In addition to the foregoing claims the Appellant also claims interest pursuant to Section 22 of the Courts Act 1981 on such compensation as is awarded to him in respect of his aforesaid loss of earnings. 8. The Appellants appeal raises an issue of fact as to whether or not his cessation of his various forms of employment was caused by being obliged to give up these employment's in order to care for B O C and secondly an issue of law as to whether or not the Appellant is entitled to interest on any compensation he is awarded in respect of his loss of earnings pursuant to Section 22 of the Courts Act 1981. 9. The statutory basis for the Appellants claim is Section 4 sub section D of the Hepatitis-C Compensation Tribunal Act 1997 which reads as follows “ 4-(1 ) 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 this ........ (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 for having contracted Hepatitis-C.” 10. Section 5 of the Act goes on to deal with the basis upon which claims of this nature are to be assesed by the Tribunal and this Court on appeal and is in the following terms: “ 5-(1) an award of the Tribunal to a claimant shall be made on the same basis as an award of the High Court calculated by reference to the principles which govern the measure of damages in the Law of Tort and any relevant statutory provisions (including part 4 of the Civil Liability Act, 1961 ) and including, subject to Section 11 , consideration of an award on the basis which reflects the principles of aggravated or exemplary damages.” 11. Thus, the essence of the Appellants claim is that he suffered financial losses and expenses as a person who was responsible for the care of B O C who had contracted Hepatitis-C from the use of the Anti-D drug, and that he is entitled to bring a claim in respect of those losses under Section 4 (1) (d) of the Hepatitis-C Compensation Tribunal Act 1997. 12. I have carefully considered the evidence given to the Tribunal as recorded in the transcript and also the evidence of M O C given before me on the hearing of this appeal. I have also carefully considered the various professional reports exhibited in the Appellants Affidavit. I should say at the outset that having heard and observed M O C give his evidence I am satisfied that he is a truthful witness and a careful historian of his experiences of his wife's ill health. 13. He described to me the change in his wife which occurred after the birth of their last child in 1977. This change was characterised by her being afflicted with a lack of energy and an inability to cope and manage the demands of her young children. This change was in contrast to her previous personality which had been extremely active hardworking and outgoing. His evidence was that B O C had no difficulty with the first two children or the rearing of them and had worked up to the birth of the second child but discontinued work from then on. 14. I have no doubt that B O C began to experience the ill effects of Hepatitis-C from that early stage, a pattern which is typical of the course of this disease. 15. The Respondents have pointed to two features of B O C’s medical history from which they would contend that the effects of Hepatitis-C on B O C were not as serious as is now claimed. The first of these is the fact that B O C did not complain of tiredness until the 1990’s and secondly they point to B O C’s complicated medical history, she having suffered from Anaemia, Hypothyroidism and Breast Cancer, and that these illnesses would in part at least have caused the symptoms which are now attributed to Hepatitis-C. 16. There are two salient features in the evidence which persuade me that the Respondent's contention cannot be sustained. The first of these is that on B O C’s evidence as given to the Tribunal and the Appellant's evidence in this appeal B O C was suffering symptoms of Hepatitis-C long before she suffered the three other illnesses mentioned above. She did not suffer Anaemia until the late 80’s, her Hypothyroidism occurred in 1993 and her Breast Cancer in 1994. The evidence from the relevant medical experts is that all of these three complaints were successfully treated and being successfully treated would not have accounted for any further fatigue. Thus, I take the view that the occurrence of these complaints do not account for the ongoing symptoms that B O C has had going back as far as 1978. 17. The second feature of the evidence which persuades me to this view is the fact that in 1983 and 1984 B O C went back to work as a Nurse but notwithstanding her desire to resume her career as a Nurse from then on she was obliged to give up this work in 1984. At that stage her youngest child was seven years of age and well established in school. I would readily accept B O C’s evidence that it was her intention to resume her Nursing career as soon as she could, having regard to her family commitments and that she set about doing that by going back to work in 1983. Having regard to the fact that she had contracted Hepatitis-C in 1977, that symptoms set in early in 1978, it would seem to me probable that by 1984 she was experiencing a profound degree of fatigue and that in all probability this was the cause of her desisting work in 1984. 18. While it is a significant feature in the case, that B O C did not complain to any doctor of her fatigue prior to the 1990’s, in the light of the evidence in regard to her work history and her personality I would be inclined to accept her explanation in this regard which was to the effect that she did not regard fatigue or tiredness as a definable medical complaint to be brought to the attention of a doctor, particularly having regard to the fact that as is common with a lot of women who have suffered from Hepatitis-C, she felt the fatigue was due to the normal rigours of child rearing. 19. I have come to the conclusion therefore that B O C was suffering serious symptoms of Hepatitis-C from as early as 1978 that these became progressively worse as the years went by. I am satisfied that M O C’s decision to give up his post as an Examiner in 1978 was the direct result of a significant deterioration in B O C’s health at that time due to Hepatitis-c. I am equally satisfied that his decision to curtail his part time hours from 1979 onwards was likewise impelled by the need for him to do more and more in the domestic situation as B O C became less able to cope with the demands of domestic life and I am fully satisfied that his decision to take early retirement in 1989 was caused solely by B O C’s ongoing and deteriorating health due to Hepatitis-C. In this latter regard it should be said that I am quite satisfied on the evidence that M O C was a highly professional, dedicated, and very successful teacher and having regard to his obvious dedication to that profession there would appear to me to be no other plausible explanation for his early retirement other than the continuing deterioration in B O C’s health. In this regard it should be borne in mind that in 1989 M O C still had dependent children all in full time education and it could hardly be said that the very significant drop in his income as a result of taking early retirement would have been an easy option, a fact which fortifies me in the view that at that time he had little or no choice but to take early retirement in order to care for B O C. 20. M O C is therefore in my view entitled to be compensated in respect of the losses he has suffered as set out in the three heads of his claim. 21. In respect of these losses I have the very helpful evidence of an actuary Mr. Logan whose evidence was not disputed by the Respondents. 22. In approaching the figures in respect of which Mr. Logan gave evidence the first matter which arises is whether or not the pension which M O C came into receipt of in 1989 is to be taken into the account in the computation of loss. 23. I am of the view that M O C’s pension should not be brought into the reckoning as it would appear to be one of the matters excluded by Section 2 of the Civil Liability (Amendment) Act 1964 . Hence I propose to rely upon the figures calculated by Mr. Logan on that basis. Mr. Logan has calculated a sum of £60,559.00 as the amount of M O C’s loss as a result of curtailing his work and ultimate retirement in 1989. I accept Mr. Logan’s evidence in that regard, and in my view M O C is entitled to recover that sum. 24. That brings me to the final part of M O C’s claim namely his claim to be entitled to interest pursuant to Section 22 of the Courts Act 1981. 25. This Section reads as follows “22 (1) where in any proceedings a Court orders the payment by any person of a sum of money ( which expression includes in this section damages), the Judge concerned may if he thinks fit, also order the payment by the person of interest at the rate per annum standing specified for the time being in Section of the Debtors (Ireland) Act 1840, on the whole or any part of the sum in respect of the whole or any part of the period between the date when the cause of action accrued and the date of the Judgment, (2) Nothing in Sub Section (1) of this Section -.............. (3) Shall authorise the giving of interest on damages for personal injuries, or in respect of a persons death, insofar as the damages are in respect of - (i) Any loss occurring after the date of Judgment for damages, or (ii) Any loss (not being pecuniary loss) occurring between the date when the cause of action to which the damages relate occurred and the date of this said Judgment. (iii) In this Section - “ damages for personal injuries” include damages for personal injuries arising out of the contracts ; “Pecuniary loss” means loss in money or moneys worth, whether by parting with what one has or by not getting what one might get; “Personal injuries” includes any disease and any impairment of a persons physical or mental condition; “Proceedings” includes proceedings to which the State or a State authority (within the meaning of the Act of 1961) is a party. The first thing to be noted about the Section is that the jurisdiction to order the payment of interest is expressly reserved to a “ Court”. In my view the Tribunal as set up by the Hepatitis-C Compensation Tribunal Act 1997, and its non statutory predecessor were not a “Court” within the meaning of Section 22 of the Courts Act 1981. Had it been intended by the Oireachtas to give to the statutory Tribunal a jurisdiction to order the payment of interest it would in my view have been necessary to make express provision in the legislation for that. That was not done and hence I have come to the conclusion that the Tribunal had no jurisdiction to order the payment of interest . The proceeding before this Court is an appeal from the Tribunal pursuant to Section 15(5) of the Hepatitis-C Compensation Tribunal Act 1997. These appeals are essentially in the nature of a re hearing of the case and in my view this Court on such appeals cannot assume a greater jurisdiction than that which the Tribunal has. Were it the case that this Court were to take upon itself in such appeals the granting of remedies which were not available at the Tribunal, the inevitable result would be that all cases in which there was a potential claim for interest would have to be appealed to this Court in order to do justice to a Claimant. I am satisfied that such a result would be contrary to principle and impractical. That being so in may view the claim for interest pursuant to Section 22 of the Courts Act 1981 must fail. In summary therefore the Appellant is entitled to a sum of £60,559.00 as compensation pursuant to Section 4 (1)(d) of the Hepatitis-C Compensation Tribunal Act 1997. © 2000 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII