Judgment of Mr Justice Finnegan delivered the 10th day of April 2008
The appellant applied to the Hepatitis C Compensation Tribunal on the 24th June 2003 pursuant to the Hepatitis C Compensation Tribunal Act 1997 section 4(1)(d) as amended by the Hepatitis C Compensation Tribunal (Amendment) Act 2002 section 4(a)(1)(i) in respect of financial loss or expenses incurred or to be incurred by him in the care of AF his wife who had contracted Hepatitis C. On the 27th October 2004 the Tribunal declined to make an award to him on the basis that on the 18th December 1997 an award had been made to him under section 4(1)(d) of the 1997 Act for financial loss or expenses to date and into the future. The appellant appealed the decision of the Tribunal to the High Court. On the 5th May 2005 the High Court (Hanna J.) dismissed the appeal. On the 25th May 2005 the High Court (Hanna J.) pursuant to section 5(19) of the 1997 Act gave the appellant leave to appeal that decision to the Supreme Court on the following specified questions of law:-
1. Was the court correct in refusing the appellant financial loss and expense incurred as a direct result of providing care pursuant to section 4(1)(d) of the 1997 Act as amended by the 2002 Act.
2. If a claimant has recovered financial loss and expense under section 4(1)(d) of the 1997 Act is he entitled to pursue a claim for financial loss and expense under section 4(1)(d) of the 1997 Act (as amended) in respect of financial loss and expense which was not contemplated in the previous application.
3. Was the court correct in finding that the Tribunal’s award of special damages to the claimant in 1997 acts as a bar to a future claim for special damages despite the court’s acceptance that there was a significant transformation in the claimant’s circumstances.
4. Was the court entitled to exercise its discretion pursuant to the Supreme Court decision of Fitzgerald v Kenny [1994] 2 I.R. 383 and award a claim for financial loss and expense pursuant to section 4(1)(d) of the 1997 Act as amended by the 2002 Act.
Proceedings before the Tribunal
On the 18th December 1997 the appellant’s wife A.F. made a claim for compensation to the Hepatitis C Compensation Tribunal having contracted Hepatitis C following the administration of contaminated anti-d immunoglobulin. The appellant made a separate claim to the Tribunal pursuant to the provisions of the Hepatitis C Compensation Tribunal Act 1997 (“the 1997 Act”) section 4(1)(d) which provides as follows:-“4(1) The following persons may make a claim for compensation to the Tribunal –
(d) any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c), 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.”
The claim related to loss of earnings as a result of time off work bringing A.F. to and from medical appointments. The appellant’s application was heard on the same day and immediately after the hearing of the application of A.F. The appellant’s evidence was that he did not anticipate ‘any detriment’ in the future and although afforded the opportunity to do so did not wish to have his hearing postponed. The evidence on the application of A.F. was of a probability that over the next five years she would develop increasing fibrosis and cirrhosis with the possibility of developing decompensated cirrhosis. The Tribunal made a provisional award to A.F. on the basis that if she developed decompensated cirrhosis or hepatocellular carcinoma she would be at liberty to return to the Tribunal for further compensation. In relation to the appellant the Tribunal made a final award in the following terms:- “We are satisfied that as a result of the necessity for Mr F. to take his wife, who has contracted Hepatitis C, to and from various doctors for medical consultations arising directly as a result of her hepatic condition that he has incurred and will in the future incur loss of earnings. Accordingly we allow the sum of £………to Mr F. and this is a final award.”
While section 4(1)(d) of the 1997 Act refers to a person “who has incurred financial loss or expenses” it was held in D.R. v Minister for Health and Children (unreported) The High Court 19th January 2001 O’Neill J. that the Tribunal could make an award for future as well as past financial loss or expenses.
Between 1997 and October 2004 the health of A.F. deteriorated significantly and led to a change in the circumstances of the appellant. He gave up his employment to care for A.F. in September 2000. The Hepatitis C Compensation Tribunal (Amendment) Act 2002 (“the 2002 Act”) amended the 1997 Act. Section 4(1) was amended as follows:
1. Section 4(1)(d) was amended by inserting after the words ‘who has incurred’ the words ‘or will incur’.
2. The categories of persons entitled to make claims was extended and relevant here is the additional category inserted into the 1997 Act at section 4(1)(d):-
“(h) Any person who is married to a person referred to in paragraph (a),(b) or (f), or who has been living with a person referred to in paragraph (a), (b) or (f) for a continuous period of not less than three years, in respect of the consortium of the person, including impairment of sexual relations with the person, arising from the risk of transmission of Hepatitis C or HIV”
Relying on these amendments on the 25th June 2003 the appellant applied to the Tribunal making a claim for compensation under section 4(1)(d) and (h). On the 24th October 2004 the Tribunal made an award pursuant to section 4(1)(h) to the appellant. The Tribunal refused to make an award to the appellant under section 4(1)(d). In so doing it had regard to the provisions of section 4(9)(a) of the 1997 Act which provides as follows: “(9)(a) Subject to subsection (13), where the Tribunal makes an award to a claimant the claimant shall have a period of one month or such greater period as may be prescribed from the date of receiving notice of the making of the award during which the claimant may decide in writing either to accept or reject the award or to appeal the award under subsection (15).”
In D.B. v the Minister for Health and Children and The Hepatitis C Compensation Tribunal (unreported) the Supreme Court 26th March 2003 the facts were as follows. The respondent made a claim to the Tribunal and on the 4th November 1997 had been awarded compensation. On the 24th November 1997 he accepted the award in writing. Notwithstanding this on the 22nd April 1999 the respondent brought a Notice of Motion to appeal the award. It was held that having accepted the award the respondent lost his right to appeal the same. In relation to section 4(9)(a) Denham J. had this to say: “There are three choices and they are put in the form of two main alternatives under the statute. Claimants may either accept or reject the award. Alternatively they may appeal the award under subsection (15). The words are plain and clear. The claimant must do one of these three alternatives. If he accepts the award he has taken one of the alternatives and cannot proceed otherwise. If he rejects the award he has made his choice and may then move into another arena. If he appeals then he has chosen to stay within the Tribunal Scheme: he has tribunalised his claim.”
As to the entitlement of a claimant who has accepted an award of the Tribunal Denham J. had this to say:- “As I have answered the first question affirmatively, the second question does not require a decision. However, for the sake of completeness, I am satisfied that, as is apparent from the construction of the section set out previously in this judgment, applying the same construction of the section results in an affirmative answer to the question. As stated previously, under the Statutory Scheme the claimant has three choices after an award is made. These choices are in the alternative. These choices had to be made within the mandatory timeframe. The choices are to accept or reject the award. Or, alternatively to appeal the award. Consequently a claimant who has accepted an award of the Tribunal is barred from appealing the award. As the claimant accepted the award in this case he is barred from appealing the award.”
The Tribunal took the view that the appellant having received an award in respect of past and future financial loss or expenses and accepted the same it had no power to make a further award. Having regard to the decision of the High Court in D.R. v The Minister for Health and Children unreported the High Court (19th January 2001) O’Neill J. the Tribunal was satisfied that it was within the jurisdiction of the Tribunal to make an award for future financial loss and expenses on the 18th December 1997. A further claim for financial loss and expenses could not be entertained. The respondent appealed to the High Court.
The decision of the High Court
The respondent’s notice of motion by way of appeal sought an award by way of an appeal pursuant to section 5(15) of the 1997 Act to the claimant in such amount as the court should see fit by way of compensation for future loss including future loss of earnings pursuant to section 4(1)(d) of the Act. The appellant submitted that the amendment of section 4(1)(d) by the insertion into the same of the words “or will incur” by the 2002 Act created a fresh ground upon which he can apply to the Tribunal. The time limit for such a claim is that provided in section 4(14) of the 1997 Act, namely within the period of three years of the date upon which she or he first began to incur such financial loss or expenses or the establishment day whichever is the later and the appellant applied within that time.
In the alternative the appellant relied on the decision of this court in Fitzgerald v Kenny 1994 2 I.R. 383. In that case the plaintiff had been awarded damages for personal injuries against the defendant and had appealed against the quantum of general damages awarded. He subsequently sought to amend his notice of appeal to include an appeal against the award of future loss of earnings and to introduce evidence of the following:-
(i) The loss of his job, four years after the trial, on medical grounds the possibility of his losing his job not having been raised at the hearing.
(ii) The deterioration of an arm injury subsequent to the trial.
(iii) Severe depressive illness relating to his injuries, psychiatric evidence having been adduced at the trial.
The Supreme Court permitted an amendment of the notice of appeal and permitted further evidence to be adduced. It was held that the loss by the plaintiff of his job was a new matter which had arisen after the trial, so that special leave to give evidence thereof was not required, although the court had to exercise a discretion as to whether such evidence should be given and that this discretion must be exercised in a fair and just manner and that each case in which the exercise of the discretion is sought must be approached in relation to its own facts. The court had regard to the provisions of the Rules of the Superior Courts, order 58, rule 8, which provides that further evidence may be given on appeal to the Supreme Court without special leave in any case as to matters which have occurred after the date of the decision from which the appeal is brought. The loss of the appellant’s job was something which had occurred after the trial and accordingly without leave of the court evidence in relation to the same could be received. In the course of his judgment O’Flaherty J. at p.389 said:-“If the evidence sought to be adduced was confined to the problem of the plaintiff’s left arm turning out to be much worse than was anticipated by the learned trial judge, and the matter of a psychiatric deterioration (it should be noted that psychiatric evidence was given on his behalf by Dr. David Dunne at the trial), I apprehend that there might be difficulties in the way of receiving such evidence.
In Dalton v the Minister for Finance [1989] I.R. 269 at p.273 Finlay C.J. speaking for the courts said:-
‘With particular regard to the assessment of damages for personal injuries, it is clear that very many plaintiffs may feel after the conclusion of their case and with the passage of years in reflecting upon the matter that they have been inadequately compensated. Many defendants may equally be of the impression, seeing the plaintiff, if they happen to do so, moving around and apparently being able to cope with life that the plaintiff has been exorbitantly compensated. To allow either of these two categories of persons subsequently to seek a variation of the assessment of damages based on after events would be to cut across the entire finality of litigation in this context.’
Dalton v The Minister for Finance was essentially an application to extend the time to appeal the damages award, nearly two years after the verdict, and the case was concerned with whether the conditions laid down in Eire Continental Trading Company Limited v Clonmel Foods Limited [1955] I.R. 170 for granting such an extension are being satisfied. The court held that, as far as two of the conditions were concerned, they had not been satisfied. It was also a case that was confined to a suggestion of deterioration in physical condition which had existed at the date of trial.
It seems to me, however, that the problem that we have to resolve in this application is presented in a more stark format. It is true that there should, as far as possible, be finality in litigation and therefore the decision as to whether to admit fresh evidence on appeal must always be one to be approached with great solicitude because if a plaintiff is to be allowed to adduce fresh evidence then, on occasion, the same must apply in favour of a defendant.”
O’Flaherty J. concluded as follows:-
“However, in my judgment, our essential task is to determine the appeal in accordance with the set of circumstances that prevails when it comes before us. Accordingly I hold as follows:
(a) The matter of the plaintiff’s job and career loss is a completely new factor arising after the trial.
(b) The evidence in regard to this matter, therefore, is to be approached as not requiring any form of special leave under the relevant rule.
(c) Nonetheless this court must apply a discretion. Like any discretion it must be exercised in a fair and just manner though it may be impossible to lay down a general rule that will cover all circumstances. Each case must be approached as requiring the exercise of the discretion in relation to its facts. In the circumstances of this case I hold that the possibility that a serious injustice would be suffered by the plaintiff must prevail over the desirability of having finality in litigation.
(d) I take the opportunity to reiterate the point that this appeal was brought in time. If the appeal had been out of time I reserve my position on whether Dalton v the Minister for Finance [1989] I.R. 269 would require any re-consideration.
(e) As regards the evidence of exacerbation of the plaintiff’s physical injuries and mental condition, if they stood alone I would not allow in this evidence. But it seems to me that the evidence in this regard is inextricably entwined with the evidence concerning the loss of the plaintiff’s job and career in the Garda Siochana and so this new evidence should be admitted too.”
For the respondent it was submitted that the statutory provisions regulating the Scheme are clear and that having accepted an award which included an award for future financial loss or expenses the appellant could not maintain the present claim. Fitzgerald v Kenny related exclusively to the provisions of the Rules of the Superior Court Order 58 Rule 8: it had no application to the statutory scheme.
The learned trial judge held that the jurisdiction of the Tribunal is circumscribed by the statutory provisions. The scheme does not provide for provisional awards other than for persons directly affected by Hepatitis C. The award to the appellant accordingly was a final award. He held that section 4(1)(d) inserted by the 2002 Act did not create a new and discrete cause of action but clarified what had been held by O’Neill J. in D.R. v The Minister for Health and Children namely that the 1997 Act enabled the Tribunal on a claim under section 4(1)(d) to make an award for future financial loss or expenses. He further held that Fitzgerald v Kenny could have no application to the statutory scheme.
Submissions of the Appellant
On behalf of the appellant it is submitted that section 4(1)(d) of the 1997 Act as amended created a new category of claim: the only limitation on bringing such a claim was the requirement in section 4(14) that application must be made to the Tribunal within the period of three years of the date upon which the claimant first began to incur such financial loss or expenses or the establishment day whichever is the later. Thus should new claims arise which fall within section 4(1)(d) a claimant may bring a second and indeed further claims to the Tribunal. Any other interpretation, it is submitted, would be at odds with the spirit of the 2002 Act the intention of which was to broaden the basis upon which claims to the Tribunal might be bought and not to clarify the provisions of the 1997 Act. Reliance is placed on M.O’C v Minister for Health [2002] 1 IR 234. That case concerned the jurisdiction of the Tribunal to award interest. It was held that on the construction of section 5(1) of the 1997 Act, whether literal or purposive, the Tribunal had such power. In the course of a judgment Denham J. said:-
“Applying a purposive interpretation to section 5(1) of the Hepatitis C Compensation Tribunal Act 1997 it is clear that the fundamental purpose of the Act is to compensate the claimants. Further it is intended that the Tribunal shall make these awards and that an award of the Tribunal shall be made on the same basis as an award of the High Court, calculated by reference to any relevant statutory provisions. Relevant statutory provisions include the Courts Act 1981. Consequently it follows that the purpose and intent of the Act is to put the Tribunal in the same position as the High Court in making awards. It is implicit in the machinery for the making of the award, for its computation on normal tort principles and by the choice afforded to a claimant to proceed with any right of action (section 5(9) to (14)) that, so far as is reasonably possible and certainly so far as amount is concerned, a Tribunal award should be comparable with a judgment of the High Court….Therefore the High Court on appeal from the Tribunal, may as it thinks fit, make an order for interest in accordance with the terms of section 22 of the Courts Act 1981 as it has the same jurisdiction as the Tribunal.”
To allow the present claim to proceed would not be in conflict with the principles which govern the measure of damages in the law of tort as the Supreme Court, having regard to the decision in Fitzgerald v Kenny, may allow a fresh claim on an appeal against an award of damages in the High Court. Having regard to the foregoing the Tribunal ought to have applied a discretion to admit the appellant’s claim on the grounds that the appellant’s situation was completely transformed and that in effect the claim before the Tribunal was a new claim.
Submission of the respondent
The respondent submits that the amendment of section 4(1)(d) did not create a new ground under which a claimant could seek compensation. Rather it clarified the Tribunal’s jurisdiction on considering a claim under section 4(1)(d) to make an award in respect of future financial loss or expenses. That the Tribunal already had such power is clear from the decision of the High Court in D.R.v The Minister for Health and Children. The appellant had the opportunity bring the present claim within the claim which he made in December 1997. At that time it was clear that there was a risk that the health of A.F. might deteriorate and the award to her was made on a provisional basis on that account. The appellant was afforded an opportunity to consider whether or not he wished to proceed with his claim at that time and determined to proceed. The scheme makes no provision for provisional awards to persons claiming under section 4(1)(d) but rather provides for a once-off award to such claimants. The Scheme provides the appellant with one claim and one claim only and this is clear on a literal interpretation of the 1997 Act and the 2002 Act and in particular the provision for provisional awards to persons contracting Hepatitis C but not for others affected by that person contracting Hepatitis C. No injustice is worked by these provisions. Where the Tribunal make a provisional award pursuant to section 5(7)(a) of the 1997 Act on the basis that a claimant may suffer particular serious consequences in the future and those consequences in fact occur a further claim may be brought and this could include a claim for care and assistance. Further it is submitted that it is a basic principle governing the award of damages for tort that a plaintiff should have “one bite of the cherry” and accordingly having regard to section 5 of the 1997 Act that principle applies to awards by the Tribunal. Reliance on Fitzgerald v Kenny, it is submitted, is misplaced as in that case the appellant had not completed his litigation as the same was pending by way of appeal to the Supreme Court. What is in issue on this appeal is not a change of circumstance between a hearing and appeal by way of significant deterioration in circumstances but rather the claimant’s entitlement to bring a second claim under a statutory scheme where he has already obtained and accepted a final award upon the basis of damages at common law.
Decision
The provisions of section 5(1) of the 1997 Act are clear. See M.O’C v Minister for Health. An award by the Tribunal 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. The section is concerned with the assessment of quantum of an award by the Tribunal and requires that the award of compensation is to be calculated by reference to the principles which govern the measure of damages in the law of torts. There is no principle affecting an award of damages by the High Court which permits a litigant who has received an award of damages which has become final and unappealable to re-litigate the matter by bringing a further claim. Further the 1997 Act is clear as to the options available to a claimant once an award is made. Section 5(9)(a) provides that a claimant may decide in writing either to accept or reject the award or to appeal the award under section 5(15). The choices are in the alternative. A claimant who has accepted an award may not appeal the same: D.B. v The Minister for Health and Children and The Hepatitis C Compensation Tribunal, unreported, the Supreme Court, 26th March 2003 Denham J. Section 5(10)(a) provides as follows:-
“(10)(a) where a claimant accepts an award (including a provisional award) of the Tribunal, the claimant must agree in writing to waive any right of action which the claimant may otherwise have had against any party and to discontinue any other proceedings instituted by the claimant arising out of the circumstances of the claimant’s claim before the Tribunal.”
The scheme of the 1997 Act is quite clear that an acceptance of an award brings finality to all claims whether by pursuing a right of action before the courts or other proceedings arising out of the circumstances of the claim. The scheme as a whole provides that an award of compensation shall bring finality except where a provisional award is made to the person who has contracted Hepatitis C pursuant to section 5(7) of the 1997 Act.
It is then necessary to consider the effect of the amendment of section 4(1)(d) of the 1997 Act by the insertion into the same the words “or will incur”. The decision of O’Neill J. in D.R. v Minister for Health and Children was delivered on the 19th January 2001. The 2002 Act was enacted on the 29th April 2002. In D.R. v Minister for Health and Children section 4(1)(d) as contained in the 1997 Act was considered. The issue was whether the Tribunal had power to make an award in respect of future financial loss or expenses. O’Neill J. had regard to the following wording in the provision:-
“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.”
and in respect of this he said:- “In other words the care in respect of which the loss is incurred is an ongoing care. It is not a past care and then it seems to me to be quite explicit in the statutory provision that the care is one which is ongoing. This being so it must in my view necessarily follow that the section ought to be construed as including loss in respect of that ongoing care which is the case in this instance. Therefore, I would take the view that subsection (1)(d) does enable the claimant to claim financial loss in respect of providing ongoing care for the persons who are in receipt of that care and hence I must respectfully differ from the Tribunal in that regard.”
Bennion on Statutory Interpretation 2nd edition section 235 provide as follows:- “Under the doctrine of precedent or stare decisis, dynamic processing of an enactment by the court produces sub-rules which are either binding or persuasive authority in relation to the future construction of the enactment. Where Parliament subsequently indicates that it adopts any such sub-rule, the status of the sub-rule becomes equivalent to that of legislation.”
The Oireachtas is normally presumed to legislate in the knowledge of, and having regard to, relevant judicial decisions. If, therefore, the Oireachtas has a subsequent opportunity to alter the effect of a decision on the legal meaning of an enactment, but refrains from doing so, the implication may be that the Oireachtas approves of that decision and adopts it. In support of the proposition Benion relies on Denman v Essex Area Health Authority 1984 3 W.L.R. 73. In the present case in passing the Act of 2002 the Oireachtas had an opportunity to alter the effect of the decision of O’Neill J. but did not do so. In these circumstances I am satisfied that the amendment effected by the Act of 2002 to section 4(1)(d) of the Act of 1997 was intended to be declaratory of the law and not an amendment of the same. The Tribunal accordingly had power under the provisions of the 1997 Act prior to amendment by the 2002 Act to make an award in respect of future financial loss or expenses. The 2002 Act did not create a new basis of claim.
Fitzgerald v Kenny did not create or recognise a right at common law to bring a series of claims in tort arising out of the same events. It did not alter the well established principle that one claim only will lie notwithstanding that a claim omitted from the original claim arose subsequent to the final determination of the original claim. That case was concerned exclusively with the situation which arose subsequent to the making of an award of damages but prior to the determination of an appeal. It does not assist the appellant.
For the foregoing reasons I am satisfied that the questions raised should be answered as follows:-
1. Yes.
2. No.
3. Yes.
4. No.
Judgment delivered the 10th day of April, 2008 by Denham J.
1. This is an appeal by Mr. F., the appellant, on specified questions of law from the High Court, pursuant to s.5(19) Hepatitis C Compensation Tribunal Act, 1997.
2. In 1997 the appellant brought a claim before the Hepatitis C Compensation Tribunal, hereinafter referred to as 'the Tribunal', pursuant to s.4(1)(d) of the Hepatitis C Compensation Tribunal Act, 1997. His wife brought an application under s.4(1)(a) of the Act of 1997. Both applications were heard by the Tribunal on the 18th December, 1997.
3. The Tribunal made an award to the appellant, stating:
"We are satisfied that as a result of the necessity for [the appellant] to take his wife, who has contracted hepatitis C to and from various doctors for medical consultations arising directly as a result of her hepatic condition that he has incurred and will in the future incur loss of earnings. Accordingly, we allow the sum of £5,000 to [the appellant] and this is a final award."
The sum of £5,000 included £3,500 loss to date and £1,500 for future loss.
4. The appellant submits that because of his wife's deteriorating health he had to leave his job in 1999 and to care for her full time from 2000.
5. On the 12th March, 2003 the appellant made a claim pursuant to s.4(1) of the Hepatitis C Compensation Tribunal Act, 1997, as amended, under two headings; (a) as someone responsible for the care of a person who was diagnosed positive for Hepatitis C, i.e. under s.4(1)(d); and, (b) as someone married to a person who was diagnosed with Hepatitis C, i.e. under s.4(1)(h).
The claim under s.4(1)(d) was for the loss of earnings he claimed he suffered to that date, and into the future, by reason of his need to care for his wife on a full time basis. He informed the Tribunal that he had made a previous claim and referred to the hearing of 18th December, 1997.
6. On the 27th October, 2004 the appellant's claim was heard by the Tribunal. The Tribunal awarded the appellant €100,000 in respect of loss of consortium. However, the Tribunal dismissed the appellant's claim for loss of earnings, holding that because of the earlier award to the appellant in December, 1997 he was not entitled to succeed on a second claim for loss of earnings.
7. The Tribunal stated:-
"The [appellant] claiMS. pursuant to the provisions of Section 4(1)(d) of the principle (sic) Act, as amended, for financial loss or expenses incurred as a direct result of providing care for his wife who had contracted Hepatitis C and for who's (sic) care he was responsible for.
Section 5.1 provides that an award is to be made on the same basis as an award of the High Court calculated by reference to the same principles which govern the measure of damages in the Law of Tort.
In this case on 18th December 1997 the [appellant] through his counsel opted to have his personal losses dealt with at that time, see question 149, page 69 of the transcript.
The matter was further discussed by counsel and the Tribunal at pages five, six and seven of the transcript [and] it is quite clear that the [appellant] determined at that time to have the Tribunal compensate him for loss and expenses past and future.
There appears to have been some reluctance on the part of the Tribunal to do so but it complied with the [appellant's] request. A sum of approximately, £3,500 for past losses and £1,500 for future losses was awarded. The Tribunal stated at page 79 that the award was final. The award was not appealed.
We are satisfied that the Tribunal at the time of making that award acted within its power and had power to make an award which would cover future loss."
8. The appellant appealed this ruling to the High Court. The High Court (Hanna J.) held that the appellant had claimed and had been compensated for future loss of earnings in 1997 and that he could not make a second claim. The High Court held that the Act did not provide for provisional awards to carers, that the amendment did not create a new cause of action, and that the appellant had already made a successful claim for future loss and that he could not make a second such claim. The learned High Court judge stated:- "The scheme provides for provisional awards for sufferers, such awards not being available in personal [injuries] actions. These awards are limited to direct sufferers. No such provision is made for carers. This is unfortunate and is highlighted by the tragic circumstances in which [the appellant] finds himself, yet even the most purposive interpretation of the legislation cannot put into it what is not there. With regard to the amendment of Section 4 (1) (d) of the act, I am of the view that this does not create a new and discrete cause of action but rather clarifies what in fact was already clarified by O'Neill J in [R] unreported, 19 January 2001, namely that the provisions for carers encompassed future loss. In any event, it is apparent from the transcript from 1997 that the Tribunal and [the appellant] proceeded on the basis that the Tribunal had jurisdiction to award compensation for future loss. With very great regret I must dismiss the appellant's appeal."
9. On the 20th May, 2005, the High Court granted leave to appeal the decision, pursuant to s.5(19) of the Hepatitis C Compensation Tribunal Act, 1997, on the following questions of law:-1. Was the High Court correct in refusing the appellant financial loss and expense incurred as a direct result of providing care pursuant to Section 4 (1) (d) of the 1997 Act as amended by the 2002 Act?
2. If a claimant has recovered financial loss and expense under section 4 (1) (d) of the 1997 Act, is he entitled to pursue a claim for financial loss and expense under section 4(1)(d) of the 1997 Act (as amended) in respect of financial loss and expense which was not contemplated in the previous application?
3. Was the High Court correct in finding that the Tribunal's award of special damages to the appellant in 1997, acts as a bar to a future claim for special damages despite the Court's acceptance that there was a significant transformation in the appellant's circumstances?
4. Was the High Court entitled to exercise its discretion pursuant to the Supreme Court decision of Fitzgerald v. Kenny [1994] 2 I.R. 383 and award the appellant financial loss and expense pursuant to Section 4 (1) (d) of the 1997 Act as amended by the 2002 Act?
10. Law
The relevant law is to be found in the Hepatitis C Compensation Tribunal Acts, 1997 to 2006.
The first issue relates to the Act of 1997 and its subsequent amendment. In 1997 the Act provided in s.4(1):-
"The following persons may make a claim for compensation to the Tribunal—
(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 expense as a direct result of providing such care arising out of the person being cared for having contracted Hepatitis C"
In D.R. v. Minister for Health and Children (Unreported, High Court, O'Neill J., 19th January, 2001) it was held that s.4(1)(d) of the Act of 1997 permitted the Tribunal to award future damages as well as past. O'Neill J. stated:- "The issue boils down to, in my view, a proper construction of section 4(1)(d). There the words used are: '… and who has incurred loss …' And it was these words that appeared to have impressed upon the Tribunal and the only loss which could be compensated for was a past loss or a loss which had accrued up to that point in time. I must respectfully disagree with the Tribunal in its construction because, for this reason, if one reads on in the Section it goes on to say: '… who has incurred financial loss or expense as a direct result of providing such care arising from the person being cared for having contracted Hepatitis C'. In other words the care and respect which the loss incurs is an on-going care. It is not a past care and then it seeMS. to me to be quite explicit in the Statutory Provision that the care is one which is on-going. That being so it must in my view necessarily follow that the Section ought to be construed as including loss in respect of that on-going care, which is the case in this instance."
If there was any remaining doubt this was clarified by the Oireachtas in the Hepatitis C Compensation Tribunal (Amendment) Act 2002 which added the words "will occur" to s.4(1)(d) so that it would read:-"(d) Any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c), and who has incurred or will incur financial loss or expenses as a direct result of providing such care arising from the person being cared for having contracted Hepatitis C".
11. The original statutory law was interpreted by the Tribunal, and the High Court, as including future damages. The appellant had the assistance of counsel and decided to proceed with his claim in 1997. Thus under the law as then interpreted, and with knowledge, the appellant proceeded with his claim, which included a claim for future loss.
The amendment in 2002 expressed explicitly what had been inferred as the law before. It did not create any new cause of action. Thus the appellant was in the same position after the amendment as before - he had brought his claim and received compensation.
12. It is clear from the transcript of the 1997 Tribunal hearing that the Tribunal made an award for damages for loss of earnings and travel into the future. Further, the appellant was not encouraged to press his claim at that time.
13. The cautious approach taken by the Tribunal is apparent from exchanges before the Tribunal. During his evidence to the Tribunal the following exchange took place between the appellant and his counsel:-
Counsel for the Tribunal drew attention to the following interchange between the appellant and his counsel, at pp.5 to 7 of the transcript, as indicating a concern by the Tribunal in proceeding then with the appellant's claim:- "MR. CONDON: There is a good deal of money in the nature of special damage but that is easy enough to calculate. We can make a calculation as best as possible into the future. I should mention that her husband has an application too and I am not sure whether you would like to deal with that now or whether it should go back to another occasion?
MS. F.: The claim for [the appellant] relates to loss of earnings and the travel
MR. CONDON: Loss of earnings and bringing her, for the most part, to Dr Kenny
THE CHAIRPERSON: It is limited to just those two aspects?
MR. CONDON: Yes. I am a little bit concerned about it because of recent times he has had an examination and is has showed some abnormal liver cells.
THE CHAIRPERSON: Yes. On blood tests. That was in his own company; is that right? They were to be investigated. I don't think it was quite abnormal liver function testes, but just abnormal blood tests on it.
MS. CREAN: No, it was liver function tests.
MR. CONDON: It appears in the papers as liver function.
MS. CREAN: But he has not had any further investigation, has he?
MR. CONDON: No, it is a comparatively recent situation, a comparatively recent test and I feel a certain amount of apprehension about this.
THE CHAIRPERSON: Is his medical condition clarified at this stage, MR. Condon?
MR. CONDON: I do not think it is fully clarified. There has been no interference with his work or anything of that kind.
THE CHAIRPESON: Would it be a bit premature, maybe, to proceed with it?
MR. CONDON: I thought perhaps it would be.
THE CHAIRPERSON: We have not received any papers, except his own statement in the booklet of papers.
MS. CREAN: In his own statement, he said that he was going to take the matter up with his general practitioner.
MR. CONDON: He was tested for hepatitis C and was clear so I am not even sure what this diagnosis is all about. But as I say, he was tested for hepatitis C and was clear so it may be that it is not a matter of any consequence.
THE CHAIRPERSON: He is clear both of the virus and the antibody?
MR. CONDON: Apparently so, yes.
THE CHAIRPERSON: But when was he last tested? When was he tested for Hepatitis C?
MR. CONDON: At the same time as the liver function question mark arose.
THE CHAIRPERSON: I see. We just have his form before us.
MR. CONDON: Yes. Really, all we are concerned with for him was a comparatively modest amount of going with her to various doctors.
THE CHAIRPERSON: And are you confident that that is all that will ever amount to, that if we deal with that today that he is not going to be prejudiced at any future stage?
MR. CONDON: That is my concern. We can go ahead now anyway but perhaps I will talk to him at lunch time and see if I can get something more concrete from him because what is in the papers is directed to the probleMS. his wife has had, as you will see.MS. CREAN: Exactly."
The matter was left in this form until later in the day.
On the resumption of the hearing MR. Condon stated:-
"Just at the outset, I should say that I have discussed, as I suggested I would, with MR. F. what the situation is and he has had some further medical contact since. He is personally quite satisfied from that that he should not necessarily be deferred. In other words, all his claim amounts to now is the absences from work and the travelling expenses that are listed."
The details of the amount were given as £2,547, which was actuarialised into the future. A separate judgment was given for the amount.
The appellant gave evidence as follows:-
"Q. MR. Condon: MR. F., as I have told you at lunchtime, I have mentioned to the Tribunal the matter that had come up in the medical examination about something in relation to your liver?
A. Yes.
Q. You have told me in the meantime that you have had this checked through and that it is not a factor any more?
A. That is correct. It is a side effect of Zoton which I am taking for my stomach.
Q. We have a list of your personal losses and I understand from you that you are anxious that this should be dealt with today, that you do not anticipate that you are going to have any detriment in your future which would mean having that postponed?
A. That is my belief, yes."
The Tribunal gave an award to Mrs. F. It then delivered its award in relation to Mr. F. The full statement of the award was as follows:- "The Chairperson: The applicant in this case is [Mr. F.] who lives with his wife and family in --------- . He brings this application under Section 4(1)(d) of the 1997 Act which provides:-
The following persons may make a claim for compensation to the Tribunal
(1)(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."
We are satisfied that as a result of the necessity for Mr. F. to take his wife, who has contracted hepatitis C, to and from various doctors for medical consultations arising directly as a result of her hepatic condition that he has incurred and will in the future incur loss of earnings. Accordingly, we allow the sum of £5,000 to Mr. F. and this is a final award."
14. The unfortunate fact is that the appellant's position after 1997 was worse than he had apparently anticipated, in that it was not just a question of taking time off to drive his wife to doctors' appointments. He gave his job up to be a full time carer.
15. This is a very sad case. However, the Court has to address issues of law and not social policy.
16. The first question of law, as set out in paragraph nine above, is whether the High Court was correct in refusing the appellant financial loss and expenses incurred as a direct result of providing care pursuant to s.4(1)(d) of the Act of 1997, as amended. I am satisfied that the High Court was correct. The appellant had brought an application pursuant to s.4(1)(d) and obtained a sum which included future losses of earnings. The Tribunal expressed concern about the claim progressing at that time. But Mr. F., who had counsel, was anxious to have the claim dealt with that day and he did not anticipate that he was going to have any detriment in his future which would mean postponing the matter.
The law applied did not change between 1997 and either 2002 or later on this issue relevant to the appellant's claim. The law was interpreted as including future damages and that was awarded by the Tribunal.
The High Court held:-
"With regard to the amendment to Section 4(1)(d) of the act, I am of the view that this does not create a new and discrete cause of action but rather clarifies what in fact was already clarified by O'Neill J. in [R] unreported, 19 January 2001, namely that the provision for carers encompassed future loss. In any event it is apparent from the transcript from 1997 that the Tribunal and Mr. F. proceeded on the basis that the Tribunal had jurisdiction to award compensation for future loss. With regret I must dismiss the appellant's appeal."
I agree with the determination of the High Court as to the law and I agree with the finding of the learned High Court judge as to the approach of the Tribunal and would affirm his decision.
17. Ambiguity
Counsel for the appellant skilfully referred the Court to the transcript so as to argue that a doubt was raised as to what had in fact been the order of the Tribunal. He referred the Court to words which, he submitted, referred to the appellant's own health and argued that that was what was in issue in 1997.
There is no doubt that there was a reference to the appellant's health, notably his liver function tests. However, the exchange relates to the fact that it was not fully clarified and that it would be premature to proceed on that issue and it did not. The Tribunal proceedings then reverted to the issue of a modest claim by the appellant of his cost of bringing his wife to various doctors. The chairperson specifically asked if whether that is all it would amount to, and queried whether if they dealt with it that day the appellant is not going to be prejudiced at a future date. Counsel indicated his concern and that he would talk to the appellant over the lunch break. After lunch counsel informed the Tribunal that he had discussed the matter with the appellant. He informed the Tribunal that it should not be deferred - that all his claim amounted to was the absences from work and the travelling expenses.
With hindsight, and the 20/20 vision which this brings, it is most unfortunate that the appellant proceeded with his claim at that time. While there were references to his health, it is clear that the claim he was advancing focused on his loss, past and in the future, relating to his care of his wife and not to his health. There was no ambiguity before the Tribunal. I am satisfied and it is clear from the transcript as a whole, especially the terms of the award, that the Tribunal was addressing a claim under s.4(1)(d) of the Act of 1997 and the loss of earnings past and future of the appellant.
18. While the legislation provides that a provisional award could be made to those persons who have contracted the disease, the Act of 1997 does not provide for provisional awards of the type claimed by the appellant. Thus there is no such jurisdiction for a court to exercise. Perhaps it is a matter the Oireachtas may address, but it is not a matter for a court of law.
19. The fact that the appellant did not, unfortunately, contemplate the future financial loss and expense which he would suffer does not enable a further claim. Once the claim is made and adjudicated upon there is no return. The High Court was correct in finding that the making of an award by the Tribunal in 1997 acts as a bar to a future such claim.
20. As to the query whether the High Court was entitled to exercise its discretion pursuant to Fitzgerald v. Kenny [1994] 2 I.R. 383 and award the appellant financial loss and expenses pursuant to s.4(1)(d) of the Act of 1997 as amended by the Act of 2002, I am satisfied that the submissions made on behalf of the Tribunal were correct and I would distinguish that case. At issue in that case was whether this Court could exercise its discretion to receive fresh evidence of matters arising after the decision to appeal from the High Court to the Supreme Court. There is an entirely different situation before the Court. The claim of 1997 was completed and was not appealed. At issue in this case is the appellant's claim to re-litigate an issue under a statutory scheme where he has already received an award for the same damages, which he did not appeal. Consequently, Fitzgerald v. Kenny is not a case of assistance to the appellant.
21. Conclusion
At issue in this appeal is the construction of a statute, and whether or not the High Court fell into error in its judgment. I am satisfied that the words in issue, and as inferred, and later clarified by the Oireachtas, are clear and unambiguous. The appellant had a right to apply under s.4(1)(d), he did so, and he received an award including future damages. It now transpires that the appellant has suffered much greater losses, which he did not contemplate in 1997. However, the legislation does not provide for a provisional award to the appellant, and the appellant did not receive a provisional award.
The decisions of the Tribunal are on the same basis as an award of the High Court. Thus while it is the specific statutory scheme which applies, it is assisted where relevant by the general law of tort. There is a well established principle that a litigant may not re-litigate the same matter a second time. In this case the appellant brought his case in 1997, succeeded, was awarded a sum of money, and did not appeal the award. Thus the litigation is concluded and may not be reopened in a new claim by the appellant.
I agree with the judgment of Finnegan J. and his analysis of the law.
I would answer the questions of law posed on this appeal (1) Yes, (2) No, (3) Yes, and (4) No.
I am keenly aware of the difficulties this decision causes for the appellant. However, it is not a decision resting on the exercise of any discretion. This is, without doubt, a very sad situation for the appellant. I would dismiss the appeal with regret for the appellant's personal circumstances.
