Supreme Court allows appeal, holding hospital bed charge calculation method is reasonable and intra vires the 1986 Act.

THE SUPREME COURT

APPEAL NO. 11 & 28/00

1990 NO. 7308P

Denham J.

Murphy J.

Murray J.

McGuinness J.

Fennelly J.

BETWEEN

DEREK CRILLY

PLAINTIFF

and

T. & J. FARRINGTON LIMITED and JOHN O’CONNOR

DEFENDANTS

AND IN THE MATTER OF AN ISSUE DIRECTED TO BE TRIED

BETWEEN

THE EASTERN HEALTH BOARD

CLAIMANT/APPELLANT

and

DEREK CRILLY

FIRST NAMED RESPONDENT

and

FBD INSURANCE PLC

SECOND NAMED RESPONDENT

Judgment delivered by Mrs. Justice Denham on the 11th day of July, 2001

1. Issues

In this case the matter for decision is whether the method of calculation of the charge payable under s. 2 of the Health (Amendment)

Act, 1986, namely, the calculation of charge by the division of annual hospital costs by the number of occupied hospital bed days

during the same year, as used by the Eastern Health Board (now known as the Eastern Regional Health Authority) hereinafter referred

to as the claimant, is reasonable, proper and intra vires the Health (Amendment) Act, 1986. In addition the claimant has asked that

regard be had to parliamentary materials when interpreting statutes. The second-named respondent in this appeal, F.B.D. Insurance

plc., is hereinafter referred to as the insurer.

2. Background

Derek Crilly was severely injured in a road traffic accident. He was a patient in a number of hospitals and underwent extensive medical

treatment. He sued T. & J. Farrington Limited and John O’Connor. In a reserved judgment on 26th August, 1992 Derek Crilly was

awarded £1,667,078.20. As his injuries resulted from a road traffic accident the Act of 1986 applied. The claimant claimed a charge. I

was the trial judge in the High Court in the said original action, as was noted in court at the commencement of this appeal. The

parties had no objection to my presiding on the adjudication of the issues now before this court. In the said reserved judgment of

26th August, 1992 I stated:

“It seems unreasonable to the Defendants that they should bear the cost of a special road traffic accident rate in hospital over

and above the ordinary rate. Consequently I am including in this judgment a figure which represents the cost for a private

patient in Beaumont, but not the additional loading because the Plaintiff was a road traffic accident victim. This figure is not

final. In relation to Our Lady’s Hospital Drogheda where the Plaintiff was in a general ward I have set payment on the basis of

£99 per day, i.e., semi-private. I grant the hospitals liberty to apply to explain why they consider it fair to charge this extra

rate for road traffic accident victims to the defence. The evidence I heard from the hospitals merely established that there was

this rate over and above the private rate or semi-private rate and its method of costing is set out.”

The issue in this case between the claimant and the insurer is as to the method of charging of the Beaumont Hospital bill. In fact the

bill has been paid and in this case in the High Court [2002] 1 I.L.R.M. 548 Geoghegan J. questioned whether the subject was moot.

However, in view of the fact that the declaratory relief sought is in relation to an issue which arises every day of the week between

the claimant and the insurer the learned trial judge acceded to the request of the parties that the matter proceed.

3. The Statutory Law

The matter in issue requires the construction of the Health (Amendment) Act, 1986. The long title to the Act describes it as:

“An act to enable charges to be made by health boards for in-patient services and out-patient services provided for persons in

respect of the treatment of certain injuries caused by the use of mechanically propelled vehicles in public places.”

Section 2 states:

“(1) Where -

(a) injury is caused to a person by the negligent use of a mechanically propelled vehicle in a public place, and

(b) in-patient or out-patient services have been, are being or will be provided by or on behalf of a health board in respect

of the injury, and

(c) any one of the following, that is to say, the person aforesaid, his personal representative or dependant, has received,

or is entitled to receive damages or compensation in respect of the negligent use aforesaid from the person liable to pay

such damages or compensation in respect of that injury, or any loss, damage or expense (or mental distress in the case

of a dependant) arising therefrom,

the health board shall, notwithstanding anything in the Health Acts, 1947 to 1985, make a charge upon the person who

received or is entitled to receive such damages or compensation in respect of the said in-patient services or out-patient

services.

(2) (a) A health board may waive the whole or part of a charge under subsection (1) of this section if it considers it proper to

do so -

(i) having had regard to the amount of damages or compensation, and interest (if any) thereon, received by the person

liable to pay the charge in respect of the injury to which the charge relates, and

(ii) in a case where there was contributory negligence on the part of the person to whose injury the charge relates or of

one for whose acts he is responsible, having had regard to any reduction in the amount which would have been received

but for the contributory negligence.

(b) In proceedings brought by a person to whom injury is caused by the negligent use of a mechanically propelled vehicle in a

public place, or by the personal representative or dependant, of such a person in respect of such negligent use as aforesaid,

claiming damages in respect of that injury, or any loss, damage or expense (or mental distress in the case of a dependant)

arising therefrom, paragraph (a) of this subsection shall be disregarded.

(3) (1) Any sum due by a person to a health board under section 2 of this Act may be recovered by the health board from the

person as a simple contract debt in any court of competent jurisdiction.

...

(4) (1) This Act may be cited as the Health (Amendment) Act, 1986.

(2) The Health Acts, 1947 to 1985, and this Act may be cited together as the Health Acts, 1947 to 1986.

(3) The Health Acts, 1947 to 1985, and this Act shall be construed together as one Act.”

The Health Act, 1970 provides:

“s.52 (1) A health board shall make available in-patient services for persons with full eligibility and persons with limited eligibility.

...

“s.55 A health board may make available in-patient services for persons who do not establish entitlement to such services under

section 52 and (in private or semi-private accommodation) for persons who establish such entitlement but do not avail

themselves of the services under that section and the board shall charge for any services so provided charges approved of or

directed by the Minister.”

4. The High Court

In the High Court [2000] 1 I.L.R.M. 548 Geoghegan J. determined at p. 551 of the report:

“... the actual issue in the case is whether the calculation of the charge by the division of the annual costs of a particular

hospital by the number of occupied hospital bed days in that hospital during the same year is reasonable and intra vires the

1986 Act”

There had been previous decisions on this issue in the High Court in other cases, to which the learned trial judge referred and he then

noted at p. 555 of the report:

“... I do acknowledge that the issue has been argued before me in a much fuller way than it was in the other cases and also

that new matter has been put before me if I am prepared to look at it which was not before the other judges ... I have also had

the benefit of evidence as to the practicalities of different methods of charging.”

Applying the traditional canons of construction the learned High Court judge held that s. 2(1) of the Act of 1986 cannot be

interpreted as requiring the health board to make a charge similar to the charge under s. 55 of the Health Act, 1970 as the said s. 55

provides for a fixed charge, i.e. a charge to be fixed from time to time by the Minister for Health, and that there was no reference in

s. 2(1) of the Act of 1986 to such a fixed charge.

Further, the learned trial judge held:

“The charge must be a reasonable one.”

After analysis, he held as set out at pp. 555-7 of the report:

“The charge which the health board is obliged to make upon a person such as the plaintiff in this case, is a charge in respect of

the actual in-patient services or out-patient services which that plaintiff received. That is perfectly clear from the wording of

the subsection. This does not mean that there can be no element of averaging because some averaging may be necessary in

order to assess with any practicality a reasonable price for the services given. But on any reading of s. 2(1) of the 1986 Act it

is difficult to see how a health board would be entitled to charge a patient in Beaumont Hospital with a broken toe, the identical

daily charge as a similar type plaintiff who had to undergo expensive brain surgery.

The general averaging is, in my view, quite clearly an artificial way of determining price and could not fall within any quantum

meruit concept. If intended it would have to be expressly provided for.

In summary, therefore, applying the ordinary rules of construction I am satisfied that the charge under s. 2(1) of the 1986 Act

must be a reasonable charge in the quantum meruit sense. In so far as a plaintiff will have received treatment within a

particular speciality some averaging within that speciality would be acceptable in arriving at the charge but the general

averaging as contended for could not be contemplated as a reasonable basis for a charge unless there was a special provision

in the section covering it.”

On the second issue, the consideration of parliamentary debates, the learned High Court judge quoted from Costello P. in People

(D.P.P.) v. McDonagh [1996] 1 I.R. 565; [1996]

2 I.L.R.M. 469, referred to other case law and set forth five propositions. He then looked at what the Minister for Health said in the

Dail when piloting through the bill which later became the Act of 1986.

5. Appeal by Claimant

The claimant appealed. The grounds of the said appeal are that the learned High Court judge erred in fact and law:

1. In failing to have any or any adequate regard to the uncontroverted evidence in holding that the charge sought to be

imposed by the claimant under the Health (Amendment) Act, 1986 was not a reasonable charge.

2. In failing to have any or any sufficient regard to the claimant’s uncontroverted evidence that the system of determining

charges, used by the claimant, was appropriate and reasonable having regard to the available or possible methods of charging.

3. In holding that the division of annual hospital costs by the number of occupied hospital bed days during the same year, or

general averaging as so described by the learned trial judge, could not fall within any quantum meruit concept.

4. In holding that the general averaging, as contended for by the claimant, could not be contemplated as a reasonable basis for

a charge under the Health (Amendment) Act, 1986 unless there was a special provision in the section covering it.

5. In holding that the claimant’s charge was not a charge in respect of the actual in-patient services or out-patient services

which were received.

6. Alternatively, in holding that the charge the claimant is obliged to make upon a person such as Mr. Crilly in these proceedings

is a charge in respect of the actual in-patient services or out-patient services which that person receives.

7. In failing to have any or any adequate regard to the evidence said by the claimant in respect of speciality costing and/or

case mix indices and/or other possible methods of charges in arriving at a decision as to what was a reasonable charge and/or a

charge permitted by the Health (Amendment) Act, 1986.

8. In having regard to s. 157 of the Road Traffic Act, 1988 of England and Wales as an aid to the construction of the Health

(Amendment) Act, 1986.

9. In holding that no attention should be paid to that part of the speech of the then Minister for Health in the Dáil whereby the

Minister approved of the claimant’s proposed method of charge, when construing the Health (Amendment) Act, 1986.

10. In failing to have any or any sufficient regard to the independent, uncontested evidence that the method of charge

proposed by the claimant was a reasonable one.

6. Cross Appeal by Insurer

The insurer cross appealed on the grounds that the learned trial judge erred in law and/or fact:

1. In holding that the words “make a charge” occurring in s. 2(1) of the Health (Amendment) Act, 1986 cannot or ought not be

interpreted as meaning that a health board should make a charge similar to the charges imposed under s. 55 of the Health Act,

1970; such charges being in the nature of a contribution towards the actual cost of in-patient services rather than a charge

representing the total economic cost thereof.

2. In declining to hold that in the absence of any definition or prescription in the Act of 1986 of the nature and/or amount of

the charge to be made thereunder or the method of its calculation it was appropriate to construe the phrase “make a charge” in

that Act ejusdem generis with the term “charge” in the Act of 1970, as s. 4 of the Act of 1986 provides for its collective

construction with the Health Acts 1947 to 1985.

3. That if and insofar as the learned trial judge called in aid or was influenced by the statement by the Minister for Health when

presenting the bill which subsequently became the Act of 1986 so as to conclude that the charge to be made under the Act of

1986 was not to be equivalent in character and amount to that made under s. 55 of the Act of 1970, he was incorrect in so

doing.

4. In holding that the charges imposed under s. 2(1) of the Act of 1986 amounted to a demand for payment in respect of a

statutory contract between the health board and the recipient of the service and thus holding that the said charges were not

in the nature of an imposed statutory obligation such as a tax or quasi tax or levy or charge of a similar nature.

5. In holding that he was entitled to have regard to what was said in the Oireachtas during the course of the parliamentary

debates of the Act of 1986 either to the extent to which he so held as a general proposition flow or in the circumstances of this

particular case.

6. In failing to hold that the admission of such material would constitute a breach of the separation of powers as ordained by

the Constitution and in particular Articles 15, 28 and 34 thereof.

7. Submissions of the Claimant

Paul Gallagher, S.C., counsel for the claimant, submitted that the High Court judge held:

(i) that the charge to be made under s. 2(1) of the Act of 1986 was not the charge made under s. 55 of the Health Act, 1970,

known as the maintenance charge;

(ii) that the charge to be made under s. 2(1) had to be a reasonable charge;

(iii) that a charge based on an average daily cost was not a reasonable charge;

(iv) that a reasonable charge could, however, involve some averaging of costs;

(v) that the court was entitled to have regard to the Dáil Debates and the statement of the Minister on the introduction of the

bill that the charge proposed was not the s. 55 Health Act, 1970 charge;

(vi) that nevertheless, a court could or should disregard the statement of the Minister made in the same debate that the

charge would be an average daily cost.

The claimants agreed with the submission at (i), (ii) and (v) above and submitted that (iii), (iv) and (vi) were wrong in fact, in law

and internally inconsistent.

It was submitted that there is a mandatory obligation on the health board to impose a charge. The manner in which the charge is to

be calculated is not set out in the Act. The charge to be imposed may be in respect of future or ongoing services which are

necessarily uncertain and can only be determined as a matter of probability. In fact while there should be a relationship between the

charge and the service it is not required to be precise.

It was submitted that the learned trial judge was correct when he held that the charge must be reasonable and moreover, reasonable

vis-à-vis both parties. It was submitted that the claimant’s practice of seeking to recoup the average daily cost (A.D.C.) is

reasonable as regards its own conduct and as regards the health board and in-patient/recipient of services.

It was contented that a scheme permitting “some” averaging would be necessarily arbitrary and less transparent than the existing

practice.

It was submitted that as regards a method of calculation whereby the charge would be in respect of actual services received by a

patient but permitting some averaging necessary to obtain a reasonable price, there was no such scheme in Beaumont Hospital or in

any other hospital in the country. The claimant suggested that the cost of establishing and implementing such a scheme for the less

than 1% of patients who are road traffic accident victims would be disproportionate and might even exceed any saving which might

otherwise accrue to patients themselves.

It was further submitted that the evidence in this case was that of the claimant’s concerning the A.D.C. scheme. The evidence

adduced was that it was not feasible to price on an individual basis and that averaging, in particular A.D.C., was a reasonable method

of charge. The uncontradicted evidence before the court was that the charge made by the complainant was reasonable and

appropriate. Further that the A.D.C. had the advantage of transparency. The method was particularly appropriate as insurers are by

definition averagers of cost and risk.

The claimant submitted that the conclusion that the charge is reasonable is one which could be reached without recourse to

parliamentary materials. However, the claimant adopted the conclusions and reasoning of the learned trial judge as regards the

admissibility of parliamentary material, i.e. Dáil and Seanad debates. It was submitted, however, that the treatment of the Minister’s

statement to the Dáil by the learned trial judge was not consistent with the learned trial judge’s own enunciation of how such

parliamentary material should be treated.

8. Submissions of the Insurer

Mr. Patrick Connolly, S.C., counsel on behalf of the insurers, submitted that the High Court judgment, when perused as a whole, found

that the method of calculation advanced by the claimant, i.e. A.D.C., was ultra vires the Act of 1986. It was submitted that the

learned trial judge was correct in so holding. It was submitted that it is clear from the Act that the charge to be levied is to be in

respect of the services actually received by the individual patient. As regards the proposition that individualisation of charges is either

very difficult or very expensive, that was nihil ad rem so far as the issue of intra or ultra vires was concerned.

The insurer further submitted that the determination by the learned trial judge that the charge to be imposed under the Act should be

a reasonable one is correct and that the trial judge was correct in holding that the charge sought to be imposed by the claimant was

not reasonable.

With regard to the expert evidence, it was argued on behalf of the insurer that the evidence tendered on behalf of the claimant was

and is irrelevant to the legal issues at the heart of the case, such as vires and reasonableness. However, the insurer advanced the

argument that as “charge” is not defined in the Act of 1986 and the Act provides that it is to be construed with the other acts which

constitute the health code, assistance as to the nature of the charge is provided by reference to s. 55 of the Health Act, 1970.

Indeed, the insurer submitted that the word “charge” in s. 2 ought to receive a similar meaning to that given to the charge in

s. 55 as both are instances where otherwise eligible patients are required to incur a charge for hospital services and if it had been

intended that such a patient would be required to pay the full economic cost of hospital services, the Oireachtas would surely have

said so in explicit

language. It was submitted by the respondents that such a conclusion could also be drawn by employing the standard principles of

statutory interpretation.

As regards the admissibility of parliamentary debates counsel analysed and distinguished case law. It was submitted as a general

proposition that whatever be the modern considerations in relation to such concepts as “purposive interpretations” and the looking at

external materials, the primary and dominant canon of construction still remains that the meaning of legislation is to be gleaned in the

first instance by the language taken as a whole of the act (and sister acts) and that recourse to external material only arises in

certain limited circumstances at most. It was submitted that insofar as it is stated in The People v McDonagh [1996] 1 I.R. 565 that

external material could be looked at even when there was no ambiguity in the Act, such a proposition was obiter and extreme, and of

itself, not well founded

9. Declaration Sought

The claimant sought a declaration that the method of calculation of the charge payable under s. 2 of the Health (Amendment) Act,

1986, namely the calculation of the charge by the division of annual hospital costs by the number of occupied hospital bed days

during the same year, as used by the claimant, is reasonable, proper and intra vires the Health (Amendment) Act, 1986.

10. Decision

(a) Method of Calculation of Charge

The issue is whether the method of calculation of the charge payable under s. 2 of the Health (Amendment) Act, 1986 by the

claimant is reasonable and intra vires the Act. Under s. 2 of the Act of 1986 where injury is caused to a person by the negligent use

of a motor vehicle in a public place and in-patient or out-patient services have been, are being, or will be provided by or on behalf of

a health board in respect of the injury, and the injured person, or his personal representatives or dependants, have received or are

entitled to receive, damages or compensation in respect of that negligence from the person liable to pay such damages arising

therefrom, the health board shall, notwithstanding anything in the Health Acts 1947 to 1985, make a charge upon the person who

received or is entitled to receive such damages or compensation in respect of the in-patient or out-patient services.

Section 2 of the Act of 1986 is mandatory. The claimant “shall” impose a charge, although the claimant has authority to waive the

charge under s. 2(2) of the Act of 1986. The method of calculating the charge is not set out specifically in the said Act. The

calculation of the charge may be complex as it may relate not only to past services but to services to be given in the future. The Act

of 1986 does not state that the charge shall be in relation to the precise services rendered. However, it is clear that the words

envisage a relationship between the charge and the in-patient or out-patient services. What is established under the statute is the

basic policy for a pragmatic scheme.

The issue arises under a public statute. It is a matter of public law. I am satisfied that the correct basis for the determination of the

issue is to be found in public law. The Oireachtas has left the type of charge to be determined, in this case by the complainant, in

accordance with the principles and policies of the Act. The applicable rule of law was stated by Henchy J. In Cassidy v. Minister for

Industry [1978] I.R. 297 at pages 310-311 where he stated:

“The general rule is that where Parliament has by statute delegated a power of subordinate legislation, the power must be

exercised within the limitations of that power as they are expressed or necessarily implied in the statutory delegation. Otherwise

it will be held to have been invalidly exercised for being ultra vires. And it is a necessary implication in such a statutory

delegation that power to issue subordinate legislation should be exercised reasonably. Diplock L.J. has stated in Mixnam’s

Properties v. Chertsey Urban District Council at p. 237 of the report:

‘Thus, the kind of unreasonableness which invalidates a by-law [or I would add, any other form of subordinate legislation]

is not the antonym of ‘reasonableness’ in the sense of which that expression is used in the common law, but such

manifest arbitrariness, injustice or partiality that a court would say: ‘Parliament never intended to give authority to make

such rules; they are unreasonable and ultra vires.’”

That test, as applied by Blayney J. in McGabhann v. Law Society [1989] I.L.R.M. 854, is applicable. In that case the learned judge, in

considering the question as to whether the Law Society’s compensation rules were unreasonable, stated at p. 862 of the report:

“Could it be said that the committee, in laying down this standard, was guilty of manifest arbitrariness, injustice or partiality? In

my opinion it could not. There was no arbitrariness or partiality about it because it was a fixed standard which applied equally to

all the candidates taking the examination. Nor could it be said to be unjust.”

The test is thus to see if the charge is reasonable in the above sense. It is a matter of construction.

I am satisfied that the learned trial judge was correct in holding that s. 2(1) of the Act of 1986 cannot be interpreted as requiring a

health board to make a charge similar to a charge under s. 55 of the Health Act, 1970. The wording of the sections is entirely

different. Section 55 relates to “charges approved of or directed by the Minister”: a specific scheme. It is a fixed charge. There is no

reference to such a charge in s. 2 of the Act of 1986. Nor is there a reference to charges being approved by the Minister. A different

approach is taken in s. 2, where it is stated that the health board “shall ... make a charge”. It is noteworthy that the mandatory

requirement is stated to be “... notwithstanding anything in the Health Acts, 1947 to 1985”. Thus while the Health Acts, 1947 to

1985, and the Act of 1986 shall be construed together as one, it is clear that separate systems of charging are envisaged.

The learned trial judge was correct in determining that the charge must be a reasonable one. I am satisfied that the power must be

exercised reasonably. It must not be arbitrary, unjust or partial.

The Act of 1986 does not state expressly what charge or system of charge is to be used under s. 2. In this it is different from the

scheme in s. 55 of the Act of 1970. Thus s. 2 falls to be construed. The section has been set out in full previously in this judgment.

Observations have been made as to its nature. It falls to be construed under the traditional canons of construction. The section sets

out circumstances:

“Where ... the health board shall ... make a charge ...”

As previously noted, the claimant is mandated to make a charge. The Act refers to “a charge”. The Act does not refer to “the

charge” for the actual cost of the services. In fact, in certain circumstances, for example, if the damages include future services, the

charge could not be determined precisely.

There was evidence of the difficulties in establishing the actual cost of the services rendered. While this does not settle the matter it

is a relevant factor.

There was ample factual evidence as to the nature of the charge. The evidence was that the claimant seeks to recoup the “Average

Daily Cost” (A.D.C.). The A.D.C. is calculated by taking the hospital’s total annual expenditure and dividing this by the number of bed

days occupied in the year. It appears that the charge made by a hospital in a given year usually lags behind the actual cost in that

year because it is calculated on the basis of the preceding year’s audited accounts. The A.D.C. excludes capital and capital

appreciation costs. This is a transparent system of establishing the charge. It is a system of averaging which is reasonable and

consistent. Consequently it is not arbitrary, partial or unjust. No evidence was given as to any other system.

Reference was made to English legislation. This has not proved helpful. At issue is the specific interpretation of an Irish act - the

establishment of an Irish scheme.

Section 2 of the Act of 1986 is a clear section. The words are plain. There is no ambiguity. It is a situation where no complex canons

of construction are needed.

I am satisfied that whereas the learned trial judge was correct in determining that the charge must be reasonable and correct in

applying the traditional canons of construction, he fell into error in determining that the charge is a charge in respect of the actual in-

patient or out-patient services which the victim received. The section does not so state expressly. It is a statutory section enabling

a health board impose “a charge”. The section requires “a charge” to be made in respect of the services which the person has

received or is entitled to receive. The Act does not expressly require the charge to cover precisely the services given. Discretion is

left to the claimant to establish the charge.

The section relates to victims of road traffic accidents. The wording echoes legislation requiring compulsory insurance. It refers to

such injured persons as have received in-patient or out-patient services and as have received or will receive damages or

compensation. In referring to the services rendered or to be rendered and the charge to be made the section does not tie one with

the other. Thus the statute does not expressly provide for individualised charges. Nor, in an area where averaging is the norm, would

it be reasonable to so imply. Indeed, the learned trial judge accepted that there would in fact be a degree of averaging.

On the clear words of the statute “a charge” is mandated. This must be reasonable. On the evidence A.D.C. is reasonable. This is a

matter which was uncontradicted and so must weigh in the analysis of the case, for what is reasonable is a matter of law and fact.

The facts are based on the evidence. The evidence was that the A.D.C. was reasonable and practical. Section 2(1) provides a

distinct charging system relating to victims of road traffic accidents. Road traffic accident victims are 0.78% of users of hospital

services. In interpreting the section the fact that the section applies to this separate group is relevant. The reality that

individualisation of charges would be very expensive is a factor, although not conclusive, in analysing the factual aspects of the

issue.

I am satisfied that the A.D.C. falls within the range of “reasonable”. It is not arbitrary, partial or unjust. It is transparent. It is

calculated on the general average and not on the more intensive use of hospital facilities by road traffic accident victims. It is

charged by the year in arrears. The capital cost is not included. Of course, it is not the only scheme possible under the section.

However, the A.D.C. is within the scope of “reasonable”.

To summarise my conclusions on this aspect of the case, I am satisfied that the charge must be reasonable. Applying the ordinary

rules of construction I am satisfied that the words of the section are clear and unambiguous. The charge under s. 2 of the Act of

1986 is not the charge envisaged under s. 55 of the Health Act, 1970. Further, a charge need not be the precise charge for the

actual services rendered. An average is a reasonable basis for a charge. The A.D.C. is reasonable and intra vires s. 2(1) of the Act of

1986. Consequently, I would allow the appeal and dismiss the cross appeal.

(b) Admissibility of Minister’s Statement in Parliamentary Debates - a note of caution.

As a result of the conclusion reached above it is not necessary to proceed to determine the admissibility in evidence of parliamentary

debates. However, I would strike a note of caution as to the admissibility in court of ministerial statements in parliamentary debates.

The learned trial judge pointed out that it was not necessary for him to address this issue. Nevertheless, he then went on and

stated:

“In case I am wrong in the view which I have taken, I think that I should now consider whether and to what extent I take into

account also a statement made by the minister when piloting through the bill as has been urged on me by counsel for the health

board. Traditionally, of course, this was forbidden in common law jurisdictions. But that has now changed somewhat. In

England, the House of Lords departed from it in Pepper -v- Hart, [1993] 1 All E.R. 42 but set down limits. I do not think that

there is any point in my analysing the speeches in that case because it is quite clear that the Irish Supreme Court in People

(D.P.P) -v- McDonagh, [1996] 1 I.R. 565; [1996] 2 I.L.R.M. 468 has gone much further.”

In People (D.P.P.) v. McDonagh [2000] 1 I.L.R.M. 548, Costello P. expressed an opinion on the use of parliamentary material in the

construction of a statute. In stating this opinion in McDonagh Costello P. was consistent with his judgment in Wavin Pipes Ltd. v. The

Hepworth Iron Co. Ltd. (unreported, High Court, 8th May 1981). In McDonagh Costello P. declared at p. 570 of the report:

“It has long been established that a court may, as an aid to the construction of a statute or one of its provisions, consider its

legislative history, a term which includes the legislative antecedents of the provisions under construction as well as pre-

parliamentary material and parliamentary material relating to it. Irish statutes frequently and for very good reasons adopt with

or without amendment the provisions of statutes enacted by the United Kingdom Parliament dealing with the same topic and so

the legislative history of Irish statutes may well include the legislative history of the corresponding enactment of the United

Kingdom Parliament. It was urged on the appellants’ behalf that the Court should not consider the legislative history of s. 2 of

the Act of 1981 because the Court can only do so when construing a section which is ambiguous, which this section clearly is

not. I cannot agree with this submission. Our courts do not and should not adopt such a rigid exclusionary rule (e.g. Bourke v.

Attorney General [1972] I.R. 36) in which the Supreme Court not only used the European Convention on Extradition to assist in

the construction of the Extradition Act, 1965, but also its travaux preparatoires,) and it seems to me that the Court should

have regard to any aspect of the enactment’s legislative history which may be of assistance.”

Of McDonagh’s case the learned trial judge stated, [2000] 1 I.L.R.M. 548 at p. 558:

“It is certainly not direct authority for the proposition that an explanation as to the meaning of a section by the relevant

minister when piloting the Bill through the Dail can be used as an aid to construction. That point did not arise in that case. The

passage from the judgment of Costello P. which I have cited begins with the words ‘it has long been established’. Quite clearly it

has not long been established in Ireland that a minister’s statement could be used in aid of construction. I do not think that

Costello P. had that in mind at all when he used that expression. But at the same time I think that it is well within the spirit and

intent of the passage cited to deduce from it that he would have been of the view that in certain circumstances such a

ministerial statement could be availed of. This view would seem to correspond to that taken by Shanley J. in In Re National Irish

Bank Ltd., [1999] 1 I.L.R.M. 321 and Kearns J. in Lawlor -v- Flood, High Court 1999 No. 197 JR 2nd July, 1999. What Costello P.

was referring to in McDonagh’s case was material such as advice of committees and commissions in advance of legislation, the

history of a particular bill passing through parliament such as for instance the significance of amendments that might have been

made along the way, the link with English legislation etc. Not too much significance can be attached to his reference to travaux

preparatoires because that was in the context of construing an Act which itself had its foundation in an international treaty.”

The McDonagh decision raises a number of relevant matters:-

1. The decision was that legislative history may be looked at by a court in construing a statute, even if the section being construed is

unambiguous.

2. In McDonagh reference was made to earlier relevant legislation both in Ireland and the United Kingdom. It was in that sense that

the legislative history of the section in issue was before the court. There was no issue in the case as to the admissibility of

parliamentary debates or ministerial statements.

3. Costello P. stated that:

“It has long been established . . . ”

Both the above matters (the said legislative history and the fact that its use had long been established) indicate an approach

consistent with the current law. It has indeed long been established that such legislative history of a section could be referred to.

This is done frequently.

4. Special reference was made to Bourke v. Attorney General [1972] I.R. 36. In that case there was reference to travaux

preparatoires. This was in reference to an international treaty. International treaties are a different and specific matter. It is

important that the interpretation of international treaties in Ireland be compatible and consistent with the interpretation of the treaty

in other countries. Reference to travaux preparatoires aids this approach.

5. The statement of Costello P. was an obiter dictum.

6. It has long been the common law that words spoken in parliamentary debates are not admissible in court in construing statutes.

7. The law of other common law countries was opened in the submissions in this case. It is clear that decisions have been made in

other jurisdictions to admit in evidence parliamentary debates. However, it is also clear that such approach has not been without its

problems and that in certain instances there appears to have been attempts thereafter to limit the admissibility of such evidence.

Consequently, it is not an approach which heralds a panacea for all ills.

8. To hold that parliamentary debates are admissible would be an alteration in the law and an alteration which would have a profound

effect. For example, it could have a negative effect on presumptions, such as the presumption of the constitutionality of legislation.

Canons of construction and presumptions, which are the product of many years of common law, could be called in question. In

addition, it could have an effect on the Dáil and Seanad which might feel bound when debating each bill to state what is meant by

each section of a bill. It is possible that a minister’s speech would then be drafted with a view to persuading a court of a certain

approach. This would bring a new aspect to the parliamentary process in addition to its current roles. It might render the processing

of legislation more complex. In addition, if a Minister’s statement in the Dáil is to be accepted, are those of the opposition to be

excluded? Their interpretation may be radically different. Further, bills are often amended as they proceed through the Dáil and

Seanad. These amendments may significantly alter the intention expressed in the original ministerial speech. Are all speeches then to

be analysed together with the amendments to obtain the expressed intention on the meaning of an act?

For well established reasons, including those I have just stated, the speeches made by ministers in the Dáil and Seanad when

introducing legislation have not been admissible in court when the court is construing statutes. I am not persuaded that good reason

has been indicated in this case for changing or developing the common law in this jurisdiction.

In this case the Act is clear, there is no ambiguity and the section in issue has been construed in accordance with the traditional

canons of construction. McDonagh decided that even if an act is not ambiguous the legislative history, that is the legislative

antecedents, may be considered by a court. I agreed then and I agree now with Costello P.’s judgment that such an approach should

not be excluded. A court has a discretion to consider such legislative history.

In this case such an approach would not lead to any different construction of the relevant legislation. Nor would I have reached a

different conclusion if the Minister’s statement had been admissible.

In the High Court the learned trial judge looked at what the then Minister for Health in 1986 said to the Dáil when piloting through the

bill which became the 1986 Act. The learned trial judge cited the Minister as stating:

“Section 2(1) gives specific power to health boards to make charges for hospital in-patient or out-patient services on persons

injured in road traffic accidents who have received or are entitled to receive damages or compensation in respect of the

accidents. The charge payable is not specified but would normally be the average daily cost per bed day in the hospital

concerned. This will vary depending on the hospital involved.”

Of that statement the learned trial judge held at p. 559 et seq. of the report:

“This statement does assist in the interpretation of the section but only by implication. The fact that the minister told the Dail

that the charge would normally be the average daily cost per bed day in the hospital concerned means that as far as the

minister was concerned at least it was never intended that the s. 55 charges should apply. I think that I would be entitled to

draw an inference that the members of the Oireachtas who voted in favour of the Act did so on the assumption that the charge

was not intended to be calculated by reference to the charge specified by the minister under s. 55 of the 1970 Act. Of course I

had already formed that view independently of reading the ministerial statement.

I have come to the conclusion that I should pay no attention to the remaining part of the minister's statement. He points out

that the charge payable is not specified but that of course is self-evident and in so far as he goes on to say that it would

normally be the average daily cost per bed day in the hospital concerned, he is merely indicating departmental policy. That

policy was restated in the circular already referred to which was sent to the health boards on 8 August 1986, some three

months after the Act came into force. While obviously the departmental memo can be of no assistance to the construction of

the Act passed before it, I do not consider that the ministerial statement can be of any assistance either. It is ultimately for

the court and only the court to decide whether a charge calculated in the manner suggested by the minister can be regarded

as a quantum meruit charge. For the reasons which I have indicated earlier in this judgment, I do not think that it can.

Accordingly, the declaration sought by the Eastern Health Board must be refused.”

If I were satisfied that in general the statements of ministers in parliamentary debates should be admissible in evidence (which, as

yet, I am not), then, consequent on the doctrine of the separation of powers and the division of the functions of the three organs of

government and the respect which one organ of government holds for another, such statement should carry significant, heavy

weight. Where a minister specifically stated what a section meant I would consider that it would be difficult to determine that such

admissible evidence should not be followed. All of that being so, if the statement of the Minister were admissible in this case, I would

have been inclined to decide that A.D.C. is a reasonable interpretation of s. 2 of the Act of 1986 and intra vires the Act. However,

this approach does not arise.

11. Conclusion

For the reasons stated in this judgment I would allow the appeal and set aside the order of the High Court. I would make an order in

the form of the declaration sought that:

“... the method of calculation of the charge [payable] under s. 2 of the Health (Amendment) Act 1986, namely, the calculation

of charge by the division of annual hospital costs [by] the number of occupied hospital bed days during the same year, as used

by the Appellant, is reasonable, proper and intra vires the Health (Amendment) Act, 1986.”