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1. The Applicant in this case was born on the 29th May, 1967. At the age of 6 years he was diagnosed as suffering from moderate Haemophilia A. To treat this condition he received multiple cryo precipitate and Factor 8 concentrate treatments over the years in addition to a blood transfusion in June of 1982.

2. It is common case that as a result of either the cryo precipitate or the Factor 8 concentrate the Applicant was infected with the Hepatitis C virus. The Applicant was diagnosed as Hepatitis C antibody positive in November, 1990. He had evidence of abnormal liver biochemistry since 1982 and he has tested PCR positive for the virus since then. His HCV genotype is type 1.

3. The Applicant received the cryo precipitate starting in 1975 and the Factor 8 starting in 1983. I except the evidence of Professor Eric Preston that the latest point in time at which the Applicant would have been infected with Hepatitis C was 1983 but it is probable that he was infected earlier than this from the cryo precipitate.

4. I also except Professor Preston's evidence that having regard to the time that has elapsed since his infection with the virus it is probable that the Applicants liver is either now cirrhotic or will be very shortly. I also except Professor Preston’s evidence that as a consequence of this the Applicant is likely to develop decompensation liver disease in the time scale of 5-10 years from now.

5. The inevitable consequence of this will be liver failure which will require a liver transplant for the Applicants survival. Notwithstanding being haemophiliac the Applicant would be a candidate for liver transplantation but the transplantation would have to be carried out in a centre where the expertise of a liver transplant team and a haemophiliac team were located on the one site. At the moment such a centre does not exist in Ireland and it would therefore be necessary if that state of affairs continued for the Plaintiff to have the transplantation done in the United Kingdom.

6. Assuming that a successful liver transplantation is carried out, the Applicant’s new liver will immediately and inevitably be infected with the Hepatitis C virus and it is probable that the Applicant will continue to suffer the symptoms of Hepatitis C which he has at the moment and in due course should he survive long enough his transplanted liver will also fail.

7. The Applicant is now 33 years of age, he is married and has one young child and his wife is expecting another. Since the early 1990’s he has the hallmark symptom of Hepatitis C namely profound fatigue. This fatigue has had a very significant effect upon his life, both in terms of his working life and his domestic life. Insofar as work is concerned the Applicant set out when he left school to have a career in catering. It was his ambition, indeed his dream to have his own restaurant. To equip himself with the necessary skills and experience to achieve that ambition he trained as a chef and having gained that experience he then took up work as a waiter in order to fully equip himself to deal with the business of a restaurant. In 1993 he was working as a full-time waiter in a restaurant. From September, 1993 until April, 1994 he underwent treatment with Interferon. While on this treatment he was unable to continue work as a full-time waiter but continued working part-time. By April, 1994 he found that he was unable to continue this, so he gave up the catering industry entirely. From then he worked as a curtain fitter for his mother who was in the curtain business, until he had a serious road traffic accident in November, 1997. In this accident he suffered very serious injuries to his legs, resulted in the amputation of his right leg above the knee. He was successfully fitted with a prosthesis but, that notwithstanding he was obliged to give up work as a curtain fitter because he was unable for the work regime of a curtain fitter involving as it did climbing ladders and ascending and descending stairs and carrying heavy loads. He adapted very well to this situation and he commenced work as a pelmet maker and upholsterer in a self employed capacity. He found that this suited his health at the time because he was able to adapt his hours of work so as to fit in with his energy levels. He finds that at times his energy levels are very low and there are days when he can’t work at all, but because of the flexibility of being self employed and of the nature of the work involved he is able to get by and make a living from this business.

8. Since his early 20’s the Applicant has had to endure serious symptoms of Hepatitis C. These have seriously compromised his enjoyment of life and are continuing to do so. I accept his evidence that he has no energy for any activity other than work and that in the domestic situation he is unable to participate in the normal way in family life, leaving the burden of all of this to his wife. But for the Hepatitis C the Applicant would have been enjoying relatively normal health as his haemophilia was of a relatively mild nature and during his adult life it had not troubled him at all.

9. In my view the appropriate sum to compensate the Applicant by way of general damages for his pain and suffering to date and for what he will undoubtedly have to endure for the rest of his life from Hepatitis C is the sum of £300,000.00.

10. The Applicant also claims damages in respect of a future loss of earnings on the basis that, but for the Hepatitis C he would have continued in the catering industry and even if he hadn’t opened his own restaurant he would have being employed either as a chef or a restaurant manager or indeed, perhaps, as a catering manager in a hospital or large institution. In all of these occupations, he would be earning now and into the future significantly more than he can earn as a curtain fitter or a pelmet maker. In these two latter occupations his earnings were similar.

11. Evidence was given to me by Ms. Susan Tolan an expert Occupational Therapist and Vocational Evaluator of the earnings available to a variety of categories of chefs and restaurant and catering managers, as follows, namely: a sous chef earns £22,610.00 per annum; a head chef earns between £25,000.00 and £30,000.00 per annum; a head chef with an excellent reputation can earn in excess of £35,000.00 per annum, a restaurant manager earns between £21,000.00 and £31,000.00 per annum and a catering manager in a hospital earns between £25,000.00 and £30,000.00 plus pension.

12. On the basis of the differential between these levels of earnings and the Applicants earnings as a curtain hanger or pelmet maker, the Applicant sought to introduce the evidence of an actuary Mr. Logan to give evidence of appropriate capital sums to compensate in respect of the loss claimed. At this point in the case, Mr. Carson for the Respondents objected to the admission of this evidence on the grounds that as the evidence stood there was no evidence of any loss continuing after the date of the Applicants road traffic accident in 1997, as a result of which he suffered the amputation of his right leg in consequence of which he could not in any event have continued in the catering industry. The evidence of Ms. Tolan had been to the effect that the Applicant could not have continued because of this injury in the catering industry except as a catering manager in a hospital, an occupation which was essentially sedentary in nature. It was contended by Mr. Carson that any loss under this heading would have ceased at that point in time and hence there was no basis or foundation for the admission of actuarial evidence in relation to the continuing loss in this regard.

13. The objection taken by Mr. Carson raises an issue as to the treatment of losses in the context of supervening events occurring before the date of assessment of damages. This is a vexed question and notwithstanding the fact that it was an issue in two appeals taken to the House of Lords, first in the case of Baker -v- Willoughby [1970] AC 467 and in the case of Jobling -v- Associated Dairies Limited [1982] AC 794 , no clear or persuasive solution has emerged. There does not appear to be any authority in this jurisdiction directly on the point.

14. Mr. Carson submits that the principles set out in the case of Reddy -v- Bates [1984] I.L.R.M. 197 govern the problem in the sense that the requirement to have regard to the vicissitudes of life in the assessment of future loss, must mean that where an event occurs prior to the assessment of damage the necessity of conducting the normal exercise of estimating future loss is overtaken, and on the principle that the Court should not speculate where knowledge of actual fact is available, the Court must have regard to the supervening event and that it matters not whether the event is tortious or non tortious.

15. The above two English cases clearly illustrate the difficulty of finding a principle or a set of principles which satisfactorily govern the treatment of supervening events in the context of the assessment of damages.

16. In this case the speeches of their Lordships explore the various principles and indeed policies which have a bearing on whether or not a supervening event is to be disregarded or not. It can fairly be said that the outcome generally of their extensive consideration of the subject is defeat in the sense that they were unable individually or collectively to convincedly adopt a principle or a set principles to apply both in circumstance of the supervening event being tortious and non tortious.

17. Lord Wilbeforce towards the end of his speech said the following:-

18. Edmund/Davies L J at page 808 of the report says the following:-

19. And he continues at page 809:-

20. He goes on further on page 809 to say:-

21. Lord Russell of Killowen in his speech at page 809 says the following:-

22. He goes on further at page 870 to say the following:-

23. Lord Keith of Kinkel at page 815 of the report said the following:-

24. Lord Bridge of Hawrich at page 820 of the report says the following:-

25. He goes on at page 821 to say:-

26. It is of course the lawyers earnest desire always to find a principled reason to support a decision and only where that search fails to adopt policy based reasoning.

27. Before examining these in turn the backdrop must be set out namely the well settled range or principles generally governing the assessment of damages and which may be summarised as follows;

28. The problem with causation as a general governing principle and in particular the necessary finding that the original tort and supervening event become concurrent causes of the damage, is that this would apply with equal force whether the supervening event was either a tortious act or non tortious event such as the occurrence of natural disease. That being so the application of this principle to the facts in Jobling would have involved bringing the Court into conflict with the well settled principle that the occurrence of natural illness was one of the vicissitudes of life which a Court must have regard to in the assessment of future damages. For that reason their Lordships rejected causation as a general principle governing the treatment of all supervening events. I would respectively agree. Such an approach would clearly be in conflict with the Judgments of the Supreme Court in Reddy -v- Bates [1984] I.L.R.M 197. Thus any approach to this problem which has the effect of excluding the occurrence of natural illness from the assessment of future damages would be wrong in principle and unworkable.

29. It has long been part of the common law that a Court asked to assess damages for loss of income into the future must have regard to the vicissitudes which can in the normal course of life befall a person, resulting in a diminution in their earning capacity or the duration of their working life. The leading statement on this is to be found in the Judgment of Brett L J in Philips -v- London and South West Railway Company [1879] 5 C.P.D. 280, at 291-292 where the following was said:-

30. In modern times in this jurisdiction this principle finds expression in the Judgments of the Supreme Court in Reddy -v- Bates [1984] I.L.R.M 197. In his Judgment Griffin J lists the matters to which regard must be had as “ unemployment, redundancy, illness, accident and the like ”.

31. There could be no doubt, in my view, in the light of this that in assessing damages for future loss of earnings a Court must have regard to the contingency of natural illness occurring in the future, and where an event such as this occurs before the assessment of damages in respect of the first wrong, takes place, I am quite satisfied that actual knowledge of that fact must replace estimation of future contingency and the supervening event must be taken into account.

32. The difficult question is whether a supervening event which happens to be a tortious act is to be treated in the same way as one of the vicissitudes of life to be taken into account as either reducing damages in respect of future loss of earnings or eliminating such damages entirely.

33. Amongst the events listed by Griffin J in Reddy -v- Bates was that of “ accident”. That case however did not deal at all with the question of whether tortiously caused accidents were to be regarded in the same way as the other vicissitudes of life.

34. Logically it would seem hard to argue against the inclusion of tortiously caused accidents. Events of that kind are undoubtedly part of the “ slings and arrows of outrageous fortune ” and thus, why in principle should they be excluded? The argument against including tortious accidents seem to be one of a practicable nature rather than a principled one and arises from the application of some of the other well settled principles regulating the assessment of damages, listed above. In particular the principle that a Defendant must take the Plaintiff as he finds him would mean as has been argued in this case that when the driver of the motor car that injured the Plaintiff, collided with the Plaintiff, the Plaintiff was at that point in time somebody who was already disqualified and disabled from further participation in the catering industry and at that time had an accrued loss in respect of that damage. Thus it is to be anticipated that the Defendant in proceedings in relation to the road traffic accident would say that he could not have a liability to compensate the Plaintiff in respect of the diminution in his earning capacity resulting from his exclusion from the catering industry.

35. If that be so, then if the Respondents in this case are permitted to say that the road traffic accident was one of the vicissitudes of life the consequence of which was that regardless of the occurrence of Hepatitis C, the Plaintiff’s participation in the catering industry would have ended, in any event, then the Applicant in this case would find himself in the situation of being unable to claim any damages in respect of this loss of income from the time of the road traffic accident onwards. To many that would seem an unacceptable and indeed unjust result. Why, it may be asked, should the original wrongdoer i.e. the Respondents in this case, be relieved of a liability which they undoubtedly had, because of the infliction on the unfortunate Applicant of a second tort by another party? Should the clean and clinical lines of logic be permitted to run that far?

36. In my opinion, to permit principle to go that far is to allow it run into the realm of caprice. There is no good reason why the Respondent in this case or in similar cases should have this relief from liability arising directly out of a second misfortune tortiously visited on the Applicant. Instead it should be said, that as a matter of policy, tortious events should not be considered to be amongst the “ vicissitudes of life ”, which a Court should have regard to in the assessment of future loss.

37. Where a claimant has suffered injuries from two or more successive and independent tortious acts, policy should lean against the application of any rule or principle which would have the effect of preventing a claimant from being fully compensated for the aggregate effects of all his injuries. Hence the necessity in my view to remove subsequent tortious acts from the list of life's vicissitudes.

38. In my opinion, in this situation the governing principle must be to ascertain the aggregate of damages to which the Plaintiff is entitled to for all of his injuries and to then determine who caused each item of damage. This task should be approached, by applying the well settled principles set out above for the assessment of damages, i.e. a Defendant takes the Plaintiff as he finds him; a Defendant only pays for such damage as he causes; so that in the end the claimant is justly compensated for the aggregate of his injuries, losses and damage and that each Defendant/Respondent pays only for such portion of the claimant’s injuries, loss and damage as he has caused.

39. Thus if the supervening event is a tortious act the critical consideration becomes that of causation of the specific items of damage.

40. This approach is by no means free of problems. Clearly procedural difficulty will be encountered in determining these issues involving all necessary parties. However these problems are not insurmountable and existing Rules of Court provide procedures for dealing with complications of this kind. In this context what is involved is a situation where it is possible to say that particular items of damage were caused either by the original wrong or the supervening tort. In that situation the task of the Court is to assess the aggregate of the Plaintiff's losses and to visit upon each party such damage as has been caused by them.

41. Different considerations arise where it is not possible to attribute particular items of damages to particular parties and where it can fairly be said that an item of loss or damage was caused wholly either by the original wrong-doer or the supervening tortfeasor. This is indeed the situation which exists in this case. Undoubtedly the Applicant was excluded wholly from the catering industry by the Hepatitis C and also would have been excluded by the road traffic accident. Thus the loss of income as result of exclusion from the catering industry after the road traffic accident could be wholly attributable to either of these events. In my opinion the consequence of this is to invoke section 11(1) and (2) of the Civil Liability Act which defines concurrent wrong-doers.

42. It reads as follows:

43. In my opinion the Respondents in this case are "wrong-doers" within the meaning of the act, as is the driver of the motor vehicle which struck the Plaintiff, assuming there was some degree of fault on his part. The wrongs in both instances can be regarded as independent acts causing the same damage and both wrongs may be regarded as torts. As the act says it is immaterial that they occurred successively rather than contemporaneously.

44. The consequence of this so far as the assessment of damages in this case is concerned is that so far as this item of loss is concerned i.e. the loss of earnings resulting from the Applicant's exclusion from the catering industry, the Respondents and the driver of the motor car are to be considered as concurrent wrong-doers. As such either of them can invoke the provisions of the Civil Liability Act in order to seek contribution from each other in respect of this item of loss, but each of them is liable to the applicant for the entire amount of this loss.

45. It is of course open to a Respondent as a matter of defence, where a supervening event takes place, to contend that that supervening event was not tortious at all, and if successful in that defence, the supervening event would have to be regarded as a non-tortious accident or one of the vicissitudes of life with all of the consequences which flow from that, including the removal of that event from the scope of section 11 of the Civil Liability Act, which proceeds on the basis that those responsible for both events are "wrong-doers".

46. Before leaving the subject of causation I should mention that in the course of the argument it was suggested that the road traffic accident might have been a novus actus interveniens . In my view it could not have been. A correct analysis leads in my view to the conclusion that, assuming there was some degree of fault on the part of the driver in the road traffic accident, that he or she and the Respondent in this case are concurrent wrong-doers. Necessarily this excludes the novus actus interveniens principle.

47. I am satisfied on the evidence, that both the Respondent and the owner/driver of the motor car involved in the road traffic accident were both wrong-doers and consequently, in my view, concurrent wrong-doers within the meaning of section 11(1) and (2) of the Civil Liability Act, 1961. As a consequence of this the Applicant is entitled in these proceedings to recover the full amount of his loss in respect of his exclusion from the catering industry after the road traffic accident from the Respondent in these proceedings.

48. I am satisfied from the evidence I have heard from the Applicant, and from Miss Tolan and from Mr Logan that there is a significant differential between the Applicant's current earnings as a pelmet maker and what he would be earning had he remained in the catering industry. Taking a prudent approach to his loss, I have come to the conclusion that he should be compensated on the basis of a loss of earnings from the £25,000 to £30,000 bracket. Thus the loss per week will be somewhere between £130 and £182.) The appropriate multiplier assuming tax at 20% to age 65 is 998. Having regard to these factors and also the normal vicissitudes of life as mentioned in Reddy -v Bates in my view the appropriate sum to compensate the Applicant in respect of this loss into the future from now is the sum of £125,000.

49. In respect of his loss under this heading since February 1997 to date having regard to the figures of which Mr Logan gave evidence, in my opinion the appropriate sum to compensate the Plaintiff for that loss since then is £17,500.

50. The award therefore will be £442,500.