IpsofactoJ.com: International Cases [2008] Part 3 Case 5 [SCIre]


SUPREME COURT OF IRELAND

Coram

Hepatitis C & HIV

Compensation Tribunal

- vs -

Minister for Health & Children

MURRAY CJ

FINNEGAN J

KEARNS J

7 MAY 2008


Judgment

Justice Finnegan

  1. The Hepatitis C Compensation Tribunal Act 1997 established a statutory body for the purpose of administering the statutory compensation scheme for persons who had contracted Hepatitis C within the State from contaminated blood products. Where such a person died as a result of contracting Hepatitis C his dependants as defined in section 47(1) of the Civil Liability Act 1961 as amended by section 1 of the Civil Liability (Amendment) Act 1996 were afforded an entitlement to claim compensation. The Hepatitis C Compensation Tribunal (Amendment) Act 2002 extended the persons entitled to benefit under the statutory compensation scheme, enabled the Tribunal to award general damages in respect of pain and suffering which the deceased had suffered in his lifetime and extended the scheme to persons who had contracted HIV from contaminated blood products.

  2. N.C. (“the deceased”) died on the 18th January 1994. He was a haemophiliac and had contracted Hepatitis C and HIV as a result of having contaminated blood products administered to him. He was survived by his widow KW and KC his daughter the first and second named notice parties. The deceased also left him surviving his father JC, his mother BC and ten siblings, RC, SC, TC, EB, JC, AC, TC, SC, MC and TC. Claims were made to the Hepatitis C and HIV Compensation Tribunal as follows. Ivor Fitzpatrick & Co solicitors submitted a claim on behalf of KW, the widow, on her own behalf and in the same listed as statutory dependants of the deceased her daughter, the deceased ‘s father and mother and his ten siblings. The same firm of solicitors lodged separate applications on behalf of the deceased’s father and mother and eight of his siblings AC, EB, JC, RC, SC, FC, SC and TC. Marcus A. Lynch, solicitors, lodged separate applications on behalf of two siblings MC and TC.

  3. The application of KW was made in Form 11 the form employed by the Tribunal for dependency claims. The form contained a schedule of the names of the other dependants of the deceased. Paragraph 23 of Form 11 was completed as follows:–

    Dependants will be making a claim for general damages and mental distress, post-traumatic stress disorder/nervous shock, loss of society, care and companionship, loss of services and special damages. Dependant will also be making a claim for loss of consortium.

  4. The form was accompanied by a letter dated 1st September 2003 which reads as follows:–

    We act on behalf of Mrs KW (nee C) of the above address in relation to her claim under section 4(1)(e) of the Hepatitis C Compensation Tribunal (Amendment) Act 2002. We enclose herewith on behalf of Mrs W completed Form 11.

    For the purpose of clarity we would advise that the claim is made under the following headings:

    (1)

    A claim for general damages on behalf of the statutory dependants under section 5(2A)(b) of the 2002 Act.

    (2)

    A claim under section 5(2A)(a) of the Hepatitis C Compensation Tribunal (Amendment) Act 2002 by the statutory dependants for damages for mental distress as provided for under Part IV of the Civil Liability Act 1961.

    (3)

    A claim for special damages pursuant to Part IV of the Civil Liability Act 1961.

    (4)

    A claim for an award in respect of aggravated and/or exemplary damages to be determined and assessed by the Tribunal under the new section 5(2A)(c) of the 2002 Act.

    (5)

    A claim in respect of post-traumatic stress disorder or nervous shock, under section 5(3A)(a) of the 2002 Act.

    (6)

    A claim in respect of loss of society, companionship, care and affection, under section 5(3B)(b) of the 2002 Act.

    (7)

    A claim for loss of consortium under section 4(1)(h) of the Act.

    The above claims are deemed to be incorporated in the application Form 11 signed by Mrs KW. You might kindly acknowledge safe receipt and revert with the Tribunal reference number in due course.

    We will forward supporting documentation in due course.

  5. Subsequent to that separate claim forms were filed in Form 11 on behalf of the deceased’s daughter, father, mother and siblings.

  6. The hearings took place before the Tribunal on the 11th and 12th November 2003. Because of animosity between KW and the deceased’s father and mother and siblings they attended before the Tribunal separately. The Tribunal delivered a ruling on the 17th September 2003 and assessed a sum in respect of general damages to which the deceased would have been entitled to recover and apportioned the same largely between KW and KC. Nine of the deceased’s siblings were given token sums with somewhat larger sums being given to the deceased’s parents and SC. KW and KC received substantial sums for post-traumatic stress and nervous shock and loss of society. A substantial sum was awarded to KW in respect of loss of consortium. Substantial sums were awarded to both KW and KC in respect of future loss of support. Of the award for mental distress a modest sum was awarded to the deceased’s parents and siblings the remainder going to KW and KC. In addition an award was made from the reparation fund which was apportioned among the dependants in the same ratio as the award.

  7. By letter dated 5th January 2004 Ivor Fitzpatrick & Co Solicitors were notified of the award and its apportionment and an acceptance form was enclosed for completion by KW both in respect of the award and the payment from the reparation fund. The acceptance form signed by KW was duly returned. The covering letter provided as follows:–

    Please note that this acceptance form applies to KW and KC where applicable only.

  8. By letter of the 14th January 2004 Ivor Fitzpatrick & Co again wrote to the Tribunal in the following terms:–

    The acceptance/rejection/appeal forms in relation to the late NC’s dependency claim referred to KW only and as each of the statutory dependants are deemed individual claimants in respect of the general damages it is our considered opinion that individual acceptance/rejection/appeal forms should be furnished to each and every claimant.

  9. The Tribunal responded by letter of the 4th February 2004 to the effect that the deceased’s parents and siblings did not have claims in their own right but only as dependants within the meaning of the Civil Liability Act 1961 and that they had had apportioned to them part of the dependency claim and that the ultimate decision as to the acceptance or appeal of the awards was for KW in whose name the claim was brought: accordingly they had not received an award per se and had no right of appeal. By letter dated 4th February 2004 the deceased’s parents and nine of his siblings (that is excluding SC) filed notice of appeal.

  10. On the 4th February 2004 the respondents on this appeal issued an originating notice of motion by way of appeal in the High Court seeking inter alia the following relief:

    An award by way of an appeal pursuant to section 5(15) of the Hepatitis C Compensation Tribunal Acts 1997 and 2002 to the claimants in such amount as this honourable court shall see fit by way of general damages and mental distress.

  11. The Minister regarded the taking of the appeal as invalidating the acceptance of the award by KW and issued a motion to restrain the payment out of monies to those named in the award pending determination of the appeal.

  12. A preliminary issue on the appeal was whether or not individual dependants who had been awarded sums by the Tribunal on foot of dependency claims are entitled to appeal the award of the Tribunal or is the acceptance by one of the dependants, who is treated as the claimant by the Tribunal, a valid acceptance of the award pursuant to section 5(9)(a) of the Act of 1997 binding all of the dependants to whom sums were awarded so preventing an appeal by all dependants except only the one deemed to be the claimant. Further if such dependant is entitled to appeal is that dependant entitled to appeal against the entire award or merely the apportioned part of the award that applies to him. Before the High Court (O’Neill J.) the Minister and the claimants submitted that the acceptance by KW did not preclude appeals by other dependants dissatisfied with the amounts awarded to them while the notice parties and the Tribunal submitted that the acceptance by KW was a valid acceptance pursuant to section 5(9)(a) of the Act of 1997 binding on all other dependants none of whom could maintain an appeal against any part of the award of the Tribunal.

    THE LEGISLATION

  13. The relevant provisions of the Hepatitis C Compensation Tribunal Act 1997 as amended by the Hepatitis C Compensation Tribunal (Amendment) Act 2002 are as follows:–

    1.

    (1)

    In this Act unless the context otherwise requires –

    “Award” means an award of compensation.

    “Claimant” means a person referred to in section 4(1) making a claim to the Tribunal in respect of any matter referred to in that subsection or a person referred to in any regulations made under section 9 in respect of the matters referred to in those regulations.

    “Dependant” has the meaning assigned to it by section 47(1)(inserted by section 1 of the Civil Liability (Amendment) Act 1996) of the Civil Liability Act 1961.

    3.

    (11)

    Subject to this Act, the Tribunal shall determine its own procedures and, in so doing, shall as far as is practicable adopt procedures which are informal.

    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 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 themselves being diagnosed positive for Hepatitis C.

    (d)

    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 such person.

    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 IV 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.

    (2)

    Notwithstanding subsection (1) of this section and section 2(2) of the Civil Liability (Amendment) Act 1996, section 49(1)(b) of the Civil Liability Act 1961 (as amended by section 2(1)(a) of the Civil Liability Amendment Act 1996) shall have effect in respect of a claim made pursuant to section 4(1)(e) of this Act.

    (2A)

    Notwithstanding subsection (1) –

    ....

    (b)

    The Tribunal may make an award to a dependant referred to in paragraph (e) or (j) of section 4(1) consisting of an amount equal to the amount of the general damages including damages for pain and suffering, personal injury, loss or diminution of expectation of life or happiness which the deceased suffered during his or her lifetime and to which the deceased would have been entitled if he or she had survived and brought a claim for compensation to the Tribunal, and where there is more than one such dependant the amount aforesaid of the award shall be divided among those dependants in such manner as the Tribunal thinks just.

    (4)

    Subject to subsection (8), the Tribunal shall decide upon the amount of any award it may make to a claimant.

    (5)

    Where the Tribunal makes an award to a claimant it shall award to the claimant any reasonable costs and expenses the claimant has incurred in taking his or claim.

    (6)

    The Tribunal shall assess and make any award for general or special damages on the basis of a single lump sum award or a provisional award as chosen by a claimant under subsection (8).

    (9)

    (a)

    Subject to section (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).

    (b)

    If a claimant neither accepts nor rejects an award or appeals the award under subsection (15) within the period referred to in paragraph (a) the claimant shall be deemed to have rejected the award.

    (13)

    In the case of an award to a claimant who is a minor or in the case of a settlement for a claimant who is a minor, the acceptance of the award shall be subject to the approval of the High Court which approval shall be sought within one month or such longer period as may be prescribed of the notification of the making of the award and the claimant may have one month or such longer period as may be prescribed from the date of such approval within which to accept or reject such approved award. The High Court may direct that where it considers any part of such an award, in respect of aggravated or exemplary damages, is too low, that the claimant shall apply to have a payment made from the reparation fund in lieu of such damages.

    (15)

    An appeal shall lie to the High Court by a claimant in respect of any decision made by the Tribunal and the Minister may cross-appeal any such appeal.

    (19)

    A decision of the High Court on an appeal under this section shall be final, save that, by leave of the court, an appeal from the decision shall lie to the Supreme Court on a specified question of law.

    The relevant provisions of the Civil Liability Act are as follows:–

    48.

    (1)

    Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured but for his death to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.

    (2)

    Only one action for damages may be brought against the same person in respect of the death.

    (3)

    The action may be brought by the personal representatives of the deceased or if at the expiration of six months from the death there is no personal representative or no action has been brought by the personal representative, by all or any of the dependants.

    (4)

    The action by whomsoever brought shall be for the benefit of all the dependants.

    (5)

    The plaintiff shall furnish the defendant with particulars of the person or persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.

    49.

    (1)

    (a)

    The damages under section 48 shall be –

    (i)

    the total of such amounts (if any) as the jury or the judge, as the case may be, shall consider proportioned to the injury resulting from the death to each of the dependants respectively for whom on whose behalf the action is brought, and

    (ii)

    subject to paragraph (b) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for the mental distress resulting from the death to each of such dependants.

    (b)

    The total of any amounts awarded by virtue of sub-paragraph (ii) of paragraph (a) of this subsection shall not exceed £20,000.

    (c)

    Each amount awarded by virtue of paragraph (a) of this subsection shall be indicated separately in the award.

    (2)

    In addition damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the dependants or the personal representative by reason of the wrongful act.

    50.

    In assessing damages under this part account shall not be taken of –

    (a)

    Any sum payable on the death of a deceased under any contract of insurance.

    (b)

    Any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased.

    THE DECISION OF THE HIGH COURT ON THE PRELIMINARY ISSUE

  14. O’Neill J. in giving judgment held that all of the appellants who had submitted individual claim forms or who were included in the claim of KW and KC would have to be regarded as “claimants”. He then continued:–

    What then is the position of claimants who accept the award of the Tribunal? Awards to dependants in respect of financial loss, or a loss of society or for post-traumatic stress disorder or nervous shock present no difficulty in my opinion. These awards are solely for the benefit of the dependant to whom they are awarded and the assessment of the quantum of these awards depend solely on the injury suffered under each heading by each dependant. In my view each of the dependants who is a recipient of awards of this kind can individually exercise the choices required by section n 5(9)(a) of the Act of 1997 and if administrative changes are required in order to enable dependants to whom awards of this kind are made, to exercise those choices, then that must be done.

    The award of damages for mental distress is required by section 49 (of the Civil Liability Act 1961) to be separately indicated. Although the award is in respect of the assessment of the mental distress suffered by the individual dependants, because of the statutory limitation on the totality of awards for mental distress it would invariably, though perhaps not always, be the case that an appeal by one dependant of an award for mental distress would affect awards under this heading to other dependants.

    Similarly awards to dependants in respect of the division of the general damages or aggravated or exemplary damages would likewise inevitably affect amounts awarded to other dependants unless of course the assessment of the quantum of general damages was increased, so as to protect awards to other dependants from reduction.

    It would appear to me to be unavoidable that if some or any dependants wish to appeal the awards to them in respect of general damages, or the aggravated or exemplary damages, that there will be interference with other awards to other dependants in respect of the division of general damages even though the recipients of those awards may be disposed to accept them.

    It necessarily follows in my opinion that, where one or more dependants in these circumstances wishes to appeal, there are three possible consequences.

    Firstly one could follow the approach adopted heretofore by the Tribunal and treat the award as a single award to a single claimant who alone would exercise the choices required by section 5(9)(a). For the reasons set out above and in particular bearing in mind that if one claimant, who would undoubtedly have a conflict of interest, is permitted to prevent all or any of other claimants appealing, significant injustice can result.

    A second possibility is to permit a dependant who wishes to accept the award in respect of a division of the general damages to accept the award and thereby preserve that award inviolable to the appeals of other dependants. The consequence of this approach would be if the appellants were successful in their claim for either a larger assessment of damages or a larger division of the general damages then the Minister would necessarily be exposed to an artificially inflated assessment of the quantum of general damages. If this were not done then the preservation intact of the award in the hands of a dependant who has accepted it, would have the effect of defeating a potential appeal. The third possibility is, that in the event of an appeal by one or more dependants in respect of an assessment of the quantum of general damages or the award to him of compensation following a division of that award, then the appeal must have the effect of defeating an acceptance by another dependant.

    I am inclined towards the third choice as being the only one which is capable of achieving an appropriate balance of justice between dependant claimants and the Minister.

  15. The learned trial judge concluded that the respondents are entitled to appeal both in respect of the quantum of general damages and the division of the same among the dependants. The learned trial judge reached his conclusion on the basis of a literal interpretation of the Acts of 1997 and 2002 and the relationship with the Civil Liability Act 1961 and the Civil Liability (Amendment) Act 1996. He held that section 5(1) of the Act of 1997 had reference only to the provisions of the Civil Liability Acts insofar as they relate to the principles which govern the assessment of damages. Section 5(1) did not incorporate into the scheme of the Acts of 1997 and 2002 the provisions of the Civil Liability Act 1961 section 48(2). He held that each of the dependants was a claimant and was entitled individually to determine pursuant to section 59 to accept, reject or appeal the computation or apportionment of the award of general damages and that, in the event of a decision being made to appeal, acceptance of the decision of the Tribunal by other claimants would be defeated. Insofar as the award for mental distress is concerned the position, it follows, would be the same.

    THE APPEAL TO THIS COURT

  16. Following judgment the appellant sought and was granted leave to appeal on the following specified questions of law:–

    1. May one or more dependants on whose behalf a claim for compensation pursuant to the Hepatitis C Compensation Tribunal Act 1997 as amended has been made to the Hepatitis C and HIV Compensation Tribunal appeal the award to the High Court?

    2. If so does the acceptance of the award by the party who made the claim for compensation to the Tribunal preclude an appeal against the same award being made by one or more of the dependants.

    3. If not is the appellant entitled to appeal against the entire award of the Tribunal or merely the apportionment of that award insofar as it affects the appellant.

    SUBMISSION OF THE APPELLANT

  17. On behalf of the appellant it is submitted that the effect of section 5(1) of the Act of 1997 is to import the restriction contained in the Civil Liability Act 1961 section 48(2) – only one action may be brought. The approach adopted by the Tribunal has been to limit dependency claims to one claimant who prosecutes for and on behalf of all dependants. One single lump sum award is then made and that is subject to a decision to be made under section 5(9)(a). The decision is one for the claimant bringing the application. The acceptance of the award by that claimant precludes any appeal by any other dependant. Reliance is placed on D.B. v Minister for Health and Children and the Hepatitis C Compensation Tribunal [2003] 3 I.R. 12 where it was held that the options provided for in section 5(9)(a) are mutually exclusive.

  18. Section 1(1) of the 1997 Act defines claimant as a person referred to in section 4(1) making a claim to the Tribunal. Thus while the persons coming within the categories of persons listed in section 4(1) of the Act may bring a claim they become claimants only upon making a claim. One claimant only is envisaged within the scheme of the Act and this is consistent with the scheme of the Civil Liability Act 1961. Section 5(6) and (8) of the 1997 Act provide for a single lump sum award (other than where a provisional award may be made). This is consistent with the scheme of the Civil Liability Acts in that on the claim there will be a single award of the damages which the deceased would have been entitled to recover but for his death. It is submitted that there are obvious parallels between the scheme under the Acts of 1997 and 2002 and the scheme of the Civil Liability Acts and that there is no recorded instance of a dependant not a plaintiff in a fatal injuries action appealing either the award or its apportionment.

  19. Section 48(2) even though not expressly incorporated into the statutory scheme by section 5(1) should be impliedly incorporated because of the similarity of the statutory scheme in each case. Section 49(1) of the 1961 Act expressly refers to damages under section 48 of that Act and there is express reference in section 5 of the Act of 1997 to section 49 of the 1961 Act and by extension therefore a reference to section 48.

  20. Alternatively it is submitted, particularly having regard to the Interpretation Act 2005 section 5, that if ambiguity remains the court should adopt a purposive interpretation. Thus the 1961 Act was framed to protect a defendant from a proliferation of separate actions by dependants and the same rationale should be applied in the present case insofar as the award of general damages (including damages for mental distress) are concerned. Section 5(2A)(b) envisages a single award to a single claimant. This, it is submitted is clear from the wording of section 5(2A)(1)(b) –

    The Tribunal may make an award to a dependant referred to in paragraphs (e) or (j) of section 4(1) consisting of an amount equal to the amount of the general damages including damages for pain and suffering, personal injury, loss or diminution of expectation of life or happiness which the deceased suffered during his or her lifetime and to which the deceased would have been entitled if he or she had survived ....

  21. The clear wording of section 5(2A)(b) in particular the phrase “equal to” excludes the possibility of several awards to several claimants and particularly so as the Tribunal’s obligation is to make a single lump sum award under section 5(6) of the 1997 Act.

  22. The learned trial judge, it is submitted, was in error in holding that the apportioned awards to individual dependants were “awards” within the meaning of the Act and so amenable to the process of acceptance, rejection or appeal provided. The Tribunal’s approach to date has been to characterise only the single lump sum payment as an award for the purposes of section 5(9)(a). The approach favoured by the learned trial judge operates an injustice against those who wish to accept the apportioned amount of general damages awarded to them. The injustice would be exacerbated if instead of opting to appeal a disappointed dependant rejects the award. In these circumstances the other dependants lose the right to avail of the statutory scheme.

  23. Finally it is submitted that a consequence of the decision of the High Court will be administrative chaos. In many cases dependants will have to prosecute separate claims. Alternatively if a single claim is made the wishes of one dependant to appeal or reject an award would defeat the acceptance of the award by all other dependants. In the course of her judgment in D.B. v Minister for Health and Children and the Hepatitis C Compensation Tribunal McGuinness J. said:–

    While I am conscious of the danger of attributing particular intentions to the Oireachtas, it seems to me reasonable to assume that a further aim of the Act was to provide a scheme which could deal with a large number of claims for compensation in a consistent orderly and reasonably expeditious manner.

  24. The construction placed upon the statutory scheme by the learned High Court judge would prevent this aim being achieved.

    SUBMISSIONS ON BEHALF OF THE RESPONDENTS

  25. The respondents’ first submission is as follows. The Act of 1997 provides as follows.

    Section 5(15):

    An appeal shall lie .... by a claimant .... in respect of any decision.

    Section 1(1)

    claimant means a person referred to in section 4(1) making a claim.

    Section 4(1):

    The following persons may make a claim (inter alia) (e) .... any dependant of (the deceased).

    Section 1(1)

    “dependant” has the meaning assigned to it by section 47(1) of the Civil Liability Act 1961.

  26. Each of the respondents is a dependant. Each of them made a claim to the Tribunal. Accordingly, on a literal construction they are entitled to appeal. Thus the statute is clear and there is no question of it being obscure or ambiguous or absurd and it is appropriate that it should be construed literally.

  27. While the literal interpretation may be inconvenient to the Tribunal it would not result in the statutory scheme being unworkable. It will require the Tribunal to review its procedures.

  28. Discrete parts of the Civil Liability Act 1961 Part IV are incorporated into the Act of 1997. In particular the definition of dependant, the incorporation of section 49(1)(b) and the basis upon which damages under Part IV of the Civil Liability Act 1961 are assessed. It is clear that by express importation of these provisions the Act of 1997 did not intend by implication to import other provisions.

  29. Section 5(2A)(b) requires that the amount available for general damages be apportioned between the dependants in such manner as the Tribunal thinks just. In this context “award” relates to a single sum for division among dependants rather than that there is a single unitary award to a single claimant.

  30. There is no necessary implication arising by reason of the reference inserted into the 1997 Act by the 2002 Act in section 5(2A) to the Civil Liability Act 1961 section 49 and the reference in section 49 to section 48 of the Act: the sections are not interrelated in that section 48 is concerned with process/procedure and section 49 with the basis for an award of damages.

    SUBMISSIONS ON BEHALF OF THE MINISTER

  31. On behalf of the Minister it is submitted that each of the respondents comes within the provisions of section 4(1) of the Act of 1997 as amended each being a dependant as defined and is a person who may make a claim.

  32. Section 5(15) the Act of 1997 provides:–

    An appeal shall lie to the High Court by a claimant in respect of any decision made by the Tribunal.

  33. As each of the respondents is a dependant and was entitled to become and became a claimant each has a right to appeal any decision of the Tribunal. The Minister supports the learned trial judge’s reasoning and submits that the Civil Liability Act 1961 section 48(2) is not part of the statutory compensation scheme.

  34. The Civil Liability Act 1961 Part IV is incorporated insofar as it is relevant to the calculation of the award of damages only. Thus there is no restriction to one claim only being made on behalf of all claimants/dependants. In practice the Tribunal deals with separate claims from dependants of the same deceased which claims may differ dramatically from each other. Where a single claim is brought the effect of section 5(2A)(b) is to enable the Tribunal to individualise awards to dependants by apportioning the general damages amongst them as it thinks just. Likewise an award of exemplary damages. Where there are multiple dependants the award for the purposes of an appeal is not the determination of the amount of general damages but rather the manner in which the damages are to be apportioned between dependants.

  35. To prevent an individual dependant from appealing could result in significant injustice. The only inconvenience which could result from the interpretation of the learned High Court judge is that in the event of an appeal by one or more of the dependants the Tribunal will be required to decline to make payments pending determination of such appeal.

    SUBMISSIONS ON BEHALF OF KW AND KC

  36. KW accepted the award on her own behalf and on behalf of KC. On their behalf it is submitted that the Civil Liability Act 1961 section 48(2) is incorporated into the Acts of 1997 and 2002. This results from the reference in section 5(1) of the 1997 Act to Part IV of the Civil Liability Act 1961 and also because of the reference in section 5(2A) inserted into the 1999 Act by the 2002 Act which refers to the Civil Liability Act 1961 section 49, section 49 containing a reference to section 48.

  37. Alternatively it is appropriate to adopt a purposive interpretation of section 5(1) of the 1997 Act. It would be contrary to public policy if more than one application could be made to the Tribunal in respect of general damages as this would lead to contradictory results both in relation to the amount awarded and the apportionment of the same where the statutory scheme provides for a single lump sum award which is to be apportioned. A successful appeal will result either in the total amount of the award being increased or the proportion awarded to another or other dependants being reduced. While in the case of a claim to the Tribunal one dependant might have no interest in the claims of other dependants this does not preclude a purposive interpretation as this is also true in relation to claims under Part IV of the Civil Liability Act 1961. By allowing one person to be the claimant other dependants waive their right to appeal.

  38. What happened in the present case is that only one claim was processed, that of KW, and the claims of other dependants were considered within that claim thus mirroring the procedure under the Civil Liability Act 1961. This, it is submitted, is what is envisaged by the statutory scheme. It was appropriate that one acceptance form should be issued by the Tribunal in these circumstances. The Acts of 1999 and 2002 speak of award in the singular rather than in the plural and provide for the award to be apportioned. There is only one award and accordingly only one appealable decision. Any other interpretation it is submitted would lead to administrative chaos.

  39. The effect of the definition of claimant read together with section 4(1) of the Act of 1997 as amended is that any person coming within the category of dependant may make a claim: however having regard to the Civil Liability Act 1961 section 48(2) only one claim may be processed. It is clear from the decision of the Supreme Court in D.B. v. The Minister for Health and Children and the Hepatitis C Compensation Tribunal [2003] 3 I.R. 12 that the options of acceptance, rejection and appeal conferred by section 5(9) of the Act of 1997 are mutually exclusive and that acceptance brings finality to the claim. Accordingly the acceptance by KW is valid and its effect is to deprive the other dependants of any entitlement to reject the award or to appeal the same.

    SUBMISSIONS ON BEHALF OF SC

  40. It is submitted that only where the literal construction would lead to absurdity the court should adopt a purposive approach: M O’C v Minister for Health [2002] 1 I.R. at 234. This is likewise the case where the literal approach would lead to ambiguity or absurdity. The Acts of 1997 and 2002 throughout refer to an award and not to awards. The statute accordingly is clear and unambiguous. Section 5(9) provides that where the Tribunal makes an award to a claimant the claimant has the option either to accept or reject the award or to appeal the same. This clearly refers to the person to whom the award is made and there is no provision in the code for these options to be available to a dependant other than the claimant. D.B. v. Minister for Health and the Hepatitis C Compensation Tribunal makes it clear that the options provided for in section 5(9) are mutually exclusive so that once an award is accepted by a claimant the options to reject or appeal are not available to the other dependants.

    Benion on Statutory Interpretation section 355 provides as follows:–

    An Act or other legislative instrument must be read as a whole, so that an enactment within it is not treated as standing alone but it is interpreted in its context as part of the instrument.

    Again at page 997:–

    Where two enactments within an Act or other instrument appear to conflict it may be necessary to treat one as modifying the other. This depends on whether the appearance is true, or a product of the reader’s carelessness. Much care, not always given, is needed in reading legislation. If it is true and no charity can construe the enactments as consistent with each other, then logic demands action. Such adjustments of the words must be effected as will make them maintainable by one and the same proponent in one and the same discourse. Lord Herschell LC said that where there is a conflict between two sections in the same Act:

    You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision, and which must give way to the other.

  41. In the present case section 5(9) is the leading provision and section 5(15) the subordinate one. Section 5 (2A)(b) of the Act requires to be construed by analogy with the provisions of Part IV of the Civil Liability Act 1961 and accordingly the Tribunal must make an award to one claimant and it has a discretion to whom it will make that award. While the award may require to be apportioned nonetheless one award only is made. The claimant to whom the award is made is seized with the right to accept, reject or appeal the same and acceptance by that claimant precludes an appeal by any other dependant.

    DECISION

  42. The scheme of the Act provides for nine separate categories of claimant. On this appeal the court is concerned with one only of the three categories of claims by dependants namely those arising under section 4(1)(e) being claims for mental distress and general damages.

  43. The Tribunal and the notice parties submit that section 5(1) of the 1997 Act has the effect of incorporating into the scheme of the Act the provisions of Part IV of the Civil Liability Act 1961 and in particular section 48(2) of the Civil Liability Act 1961 which provides that only one action for damages may be brought against the same person in respect of a death. I am satisfied that the wording in section 5(1) is clear. It prescribes the basis upon which awards of the Tribunal should be made and that is 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 IV of the Civil Liability Act 1961. Only those parts of Part IV of the Civil Liability Act 1961 affecting the principles which govern the measure of damages in the law of tort are incorporated into the scheme. The other provisions within Part IV of the 1961 Act are not relevant to the Tribunal. The reference in section 5(2) of the Act to section 49(1)(b) of the Civil Liability Act 1961 and the reference within section 49 to section 48 of that Act do not affect this construction. Indeed if it was the intention of the Legislature and the true construction of section 5(1) of the Act that the entire of Part IV of the Civil Liability Act 1961 should be incorporated into the Act section 5(2) would be unnecessary. Section 5(2) incorporates into the statutory scheme the limitation contained in section 49(1)(b) of the Civil Liability Act 1961 on the amount which may be awarded for mental distress. I am satisfied on a literal reading of the clear wording of section 5(1) that the provisions of the Civil Liability Act 1961 section 48(2) are not incorporated into the statutory scheme. Nor is such incorporation required by any necessary implication. There is no requirement that there should be a single claim by and on behalf of all persons coming within the nine categories set out in section 4(1) of the Act or by dependants.

  44. This construction is not affected by the provisions of section 5(6) which provides that the Tribunal shall assess and make any award for general or special damages on the basis of a single lump sum award. What is required by section 5(6) is that each claimant will receive a single lump sum award for general or special damages. In claims by dependants each dependant will receive an award of his apportioned share of the total award for mental distress and general damages. Such an award is an award of compensation within section 1(1) of the Act. The Act does not expressly provide for the apportionment of an award for mental distress where there are claims by more than one dependant. However as each dependant is entitled to maintain a claim for mental distress and as the limitation on the amount of the award for mental distress is limited by the incorporation into the statutory scheme in section 5(2) of section 49(1)(b) of the Civil Liability Act 1961 it is necessarily implied that there should be an apportionment. In relation to a claim for general damages section 5(2)(a) of the Act, which enabled a claim for general damages to be brought by a dependant, expressly requires an award under that heading to be apportioned.

  45. The Act speaks throughout of “a claimant” in the singular. It is clear from the nine categories of claimant in section 4(1) that several individual claims may be brought in respect of the same person who has been infected. Thus the person infected may make a claim under section 4(1)(a). A person responsible for the care of that person may claim under section 4(1)(d). A spouse or partner may claim under section 4(1)(h). These claims do not overlap in any way and there is no requirement in logic that there should be a single claim only. The claims may arise at different times and with different limitation periods under section 14. I am satisfied that while speaking of “a claim” in the singular the Act envisages multiple claims. The Interpretation Act 2005 section 18 provides that a word importing the singular shall be read as also importing the plural.

  46. Each person coming within the categories listed in section 4(1) has a statutory entitlement to an individual claim. Each dependant has a separate personal interest in the amount of the award for mental distress and general damages and its apportionment. If a single claim only is permitted then it would be possible that a claimant bringing the claim might have little or no interest in the dependency claim and so not materially affected by the total amount of the award under these headings or the apportionment of the same: in consequence he will have no personal interest in appealing an award. The single claim procedure adopted by the Tribunal coupled with a denial of a right of appeal as advocated by the Tribunal would deny a dependant the opportunity to vindicate his rights or rectify an error. In the absence of clear words compelling such an interpretation I would not expect the Legislature to have so intended.

  47. There are two provisions in the Acts which give a right of appeal. Section 5(9)(a) allows a claimant to appeal an award. Section 5(15) allows a claimant to appeal any decision made by the Tribunal. If a dependant should bring an individual claim he can avail of these rights of appeal. If, however, the claim is brought by a claimant for and on behalf of all dependants on the construction contended for by the Tribunal and the notice parties no appeal would be available other than by the claimant making the claim. This disparity in rights cannot be justified. If, pursuant to procedures adopted by the Tribunal pursuant to section 3(11) of the Act a single claim only should be permitted this could not deny a dependant that right of appeal which he would have enjoyed as an individual claimant. Where a representative claim is brought each person on whose behalf it is brought is nonetheless a claimant and enjoys right of appeal as such. The award to each such claimant is an award of compensation and may be appealed by him. His position should not be adversely affected by the accident that as a matter of administrative convenience a representative claim is brought.

  48. I find support for the view that each dependant is a claimant entitled to bring a claim in section 5(13) of the Act. This provides in relation to a minor claimant that acceptance of an award requires approval of the High Court. If the minor is the sole claimant such approval must be obtained. If, however, as contended for by the Tribunal one claim only is permissible, that claim was brought for and on behalf of all the dependants one or more of whom are minors but who it is contended are not claimants then on the literal construction of section 5(13) the approval of the High Court would not be required. It is unlikely in the extreme that the Legislature would have intended to make this distinction.

  49. I am satisfied that the Act properly construed allows for individual claims by persons entitled under section 4 to bring claims including claims by individual dependants. Each such claimant enjoys the rights of appeal provided for in the Act. If a claim is brought by one claimant for and on behalf of other claimants, each person on whose behalf a claim is brought is himself a claimant and enjoys a right of appeal in respect of the award to him or any decision of the Tribunal which affects him. The rejection of an award by him could not affect others in the same class of claimant so that they would lose their right to remain within the statutory scheme and be compelled to seek a remedy if any should be available at law.

  50. This construction will complicate the administrative burden on the Tribunal. The Tribunal’s procedures will have to be adopted to deal with the situation which can, as here, arise on dependant claims where one or more of the dependants accept the award and apportionment and another or others appeal the same. If payment is made to those who accept the award and the appeal, whether as to the award or its apportionment, is successful the apportionment will have to be revisited. Section 5(12) requires the Tribunal to pay the amount of the award within twenty eight days of the receipt of notification of acceptance of the award. If the Minister should pay the dependants who accept notwithstanding an appeal by other dependants and on appeal against the apportionment of the award the apportionment is adjusted adversely to the accepting dependants the Minister will be faced with the prospect of having to seek to recover the overpayment to the accepting respondents. For this reason section 5(12) requires to be construed insofar as it applies to claims by dependants to avoid it being unworkable or impracticable. It cannot have been the intention of the Legislature that there should be payment to dependants wishing to accept their apportioned part of the award while other dependants are appealing the same. The Interpretation Act 2005 section 5 permits departure from a literal interpretation where it fails to reflect the plain intention of the Oireachtas and instead the giving of a construction that reflects the plain intention. I would interpret “a claimant” in section 5(12) in relation to claimants within section 4(1)(e) where there is more than one such claimant as “the claimants”. The obligation to pay will only arise where all the claimants accept an award and apportionment and payment would otherwise be postponed of awards for mental distress or general damages until the determination of the appeal. Where separate claims are brought by dependants for mental distress or general damages the amount of any award could not be assessed nor could it be apportioned until all persons entitled to bring such a claim have done so.

  51. The Tribunal found it convenient for administrative purpose if in respect of dependant claims one claim is brought for and on behalf of all the dependants. I see no reason why the Tribunal should not encourage claimants to bring claims on that basis. Section 3(11) allows a Tribunal to determine its own procedures. However where this is done each dependant must be regarded as a separate complainant and the method of proceeding adopted being for administrative convenience only cannot prejudice the right of appeal which each dependant would enjoy had a separate claim been brought. The accident of the claim being brought by one dependant on his own behalf and for and on behalf of other dependants should not deprive those other dependants of the right to challenge an award or the apportionment of the same. Proceedings before the Tribunal could be simplified by the use of waivers as in claims under the Civil Liability Act 1961 Part IV. By availing of section 3(11) the Tribunal may well be able to further simplify proceedings before it. While the view which I have formed will add complexity to the administration of the statutory scheme by the Tribunal by use of its power to determine its own procedures it would be possible to minimise the inconvenience resulting from the construction which I have placed upon the statutory provisions and avoid the administrative chaos which it fears. Having regard to the foregoing I would answer the questions posed as follows:–

    1. Answer – Yes

    2. Answer – No

    3. Answer – the appeal may be against the award of compensation or the apportionment thereof to the appellant.

    Justice Kearns

  52. Some very simple propositions of statutory interpretation are outlined in Bennion’s Statutory Interpretation (4th Edition) at Part XXI. The chapter is entitled “Construction against Absurdity” and recites in that context a number of presumptions and principles which should be applied when interpreting legislation.

  53. Firstly, there is a presumption that an “absurd” result is not intended by the legislature. As Bennion states (at p.831):–

    The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. Here the courts give a very wide meaning to the concept of ‘absurdity”, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief.

    On the page following (p.832) Bennion states:–

    The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament.

  54. Further, the court seeks to avoid a construction that causes unjustifiable inconvenience to persons who are subject to the enactment, since this is unlikely to have been intended by Parliament (p.839).

  55. Finally, Bennion also states (at p.845) that:–

    The court seeks to avoid a construction that creates an anomaly or otherwise produces an irrational or illogical result.

  56. An award under s 5(2A) (b) of the Act is one made in respect of the general damages which the deceased would have been entitled for pain and suffering, personal injury, loss of/or diminution or expectation of life or happiness, which the deceased suffered during his or her lifetime and to which the deceased would have been entitled if he or she had survived and brought a claim for compensation to the Tribunal. It equates to an award to which the deceased alone would have been entitled.

  57. I am quite satisfied that the terminology of this sub-section, which follows on immediately after a sub-section dealing with the Civil Liability Act, 1961, contemplates a unitary award such as is indeed provided for by the Civil Liability Act, 1961 in respect of a fatal claim. Sub-section (b) does not refer to multiple awards. It provides that the amount of the award, which is described exclusively in the singular, shall be divided amongst the dependents in such manner as the Tribunal thinks just. Again, this language closely tracks the language contained in the Civil Liability Act, 1961 and puts in place a scheme to be operated in the same manner. If separate claims had been intended one would have expected explicit statutory language so providing. To put it another way, if multiple awards had been intended words such as “awards” or “the aggregate amount of the awards must not exceed the total sum to which the deceased would have been entitled” would have been deployed in the relevant sub-section. Such words do not appear.

  58. Assuming, for the purposes of argument, that the dependents are to be seen as separate individual claimants, the following inevitable consequences would follow:–

    1. Each such appellant would be entitled to appeal both the adequacy of the lump sum award and the division or apportionment thereof. If there were multiple dependents this would lead to multiple appeals where the lump sum might require to be assessed repeatedly even though the closest and main dependents were happy with it. If any appeal the lump sum might be reduced: what happens then?

    2. Each appellant would be entitled to challenge the apportionment, thereby opening up to possible revision the apportionment made to other dependents who are content with the sum apportioned to them.

    3. The bringing of an appeal by a dependent who may have only the most peripheral interest in the apportionment would have the effect of delaying payment to all other dependents, including a main dependent, all of whom may be satisfied to accept the apportionment made amongst them. This is what has happened in the instant case.

    4. The rejection by a minority dependent of an apportionment made in his or her favour, unaccompanied by any appeal, would have the effect that all dependents, including the claimant or claimants, being the spouse and child of the deceased herein, would be deemed to have rejected the lump sum award and would thereafter be confined to their remedy in common law.

    5. The claimant may have no prospect of winning a common law claim for compensation and would thus be altogether deprived of his or her share in the apportionment of the lump sum award.

  59. I would see these consequences as comprehensively fitting the description of an absurd, illogical and unworkable construction of the statutory scheme.

  60. Of course there are unsatisfactory anomalies in the existing statutory provisions, but to a large degree these anomalies are also inherent in the provisions of the Civil Liability Act, 1961. There might be grounds for arguing that a statutory provision which permits an appeal to the claimant but not the other dependents fails constitutional scrutiny but the constitutionality of the present legislation is not an issue in these proceedings. Also it is important to bear in mind that the interpretation adopted by the Tribunal, consistent with the scheme of the 1961 Act, ensures a sensible, practical and efficient system for the disposal of dependency claims.

  61. The statutory language is not so clear as to suggest that the legislature really intended that each dependent should have a separate and distinct claim, nor is the literal meaning of the statutory scheme so clear and unambiguous as to compel one to that conclusion. In my view the legislature should not be taken as having intended an absurdity, although I do accept that the statutory scheme requires re-visitation in the light of the differing views expressed by members of this Court in relation to the interpretation of Section 5(2A)(b).

  62. I would allow the appeal and would answer the questions posed on the specified questions as follows:–

    1. No

    2. Yes

    3. Does not

    Murray CJ

  63. Concurred.


Cases

D.B. v Minister for Health and Children and the Hepatitis C Compensation Tribunal [2003] 3 I.R. 12

M O’C v Minister for Health [2002] 1 I.R. 234

Legislations

Hepatitis C Compensation Tribunal Act 1997: s.4, s.5

Civil Liability Act 1961: s.47, s.48, s.59

Civil Liability (Amendment) Act 1996: s.1

Hepatitis C Compensation Tribunal (Amendment) Act 2002

Authors and other references

Bennion’s Statutory Interpretation (4th Edition)


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