High Court allows appeal to increase Hepatitis C compensation from €115k to €125k due to significant past liver damage.

[2017] IEHC 703

THE HIGH COURT

[2017 No. 5 C.T.]

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5(15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT, 1997-2006

AND IN THE MATTER OF A CLAIM BY P.B.

AND IN THE MATTER OF A DECISION BY THE HEPATITIS C AND HIV COMPENSATION TRIBUNAL OF THE 26TH OF MAY 2017

BETWEEN

P.B.

APPELLANT

AND

THE MINISTER FOR HEALTH

RESPONDENT

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 20th October, 2017.

Introduction

1. These proceedings come before the Court by way of an Appeal from the decision of the Tribunal, dated the 26th May 2017,

brought by the Appellant under s. 5(15) of the Hepatitis C Compensation Tribunal Acts 1997-2006 (the Acts) to vary the provisional

award of €115,000.00. The only issue with which the Court is concerned is one of quantum which, in all the circumstances of the

case, the Appellant contends is wholly insufficient as against which the Respondent says if anything the award is generous.

Background

2. The Appellant is now in her seventies. She contracted Hepatitis C from a contaminated unit of anti-D administered in 1977 and

brought a claim under the Act of 1997, which was heard on the 28th April, 1998. The tribunal made a provisional award of

IR£115,000.00 for general compensation and IR£55,000.00 for pecuniary losses. The award was provisional on the Appellant being

entitled to return to the tribunal in the event that her condition deteriorated to one of Cirrhosis or Hepatocellular Carcinoma.

3. She suffered from a severe depression following a miscarriage in 1977, which was treated pharmacologically under the care of Dr.

Fahey, Consultant Psychiatrist. Although treatment was successful, the Appellant remained psychologically vulnerable. Against this

background it is not surprising that the subsequent diagnosis of Hepatitis C had a profound psychological impact which necessitated a

year long course of psychotherapy.

4. Throughout the 1990s, and subsequently, the Appellant has had to attend the outpatient’s clinic at Beaumont Hospital for medical

follow-up in respect of her ongoing Hepatitis C infection, initially under the care of Professor Fielding. This presented a particular

challenge given a life long phobia about all things medical.

5. To help deal with this phobia, the Appellant was referred for counselling to the nurse counsellor at the Beaumont as a result of

which she was able to comply with the requirements of the out patient assessment and treatment regime to a point. She drew the

line, however, at having a liver biopsy which had been recommended following a series of chronically abnormal blood tests which had

always tested PCR positive with persistent elevation in liver enzymes, indicative of liver damage.

6. Amongst the significant symptoms from which the Appellant suffered, fatigue featured prominently accompanied by bouts of

depression and anxiety. In later years she came under the care of Professor Frank Murray who prepared reports and gave evidence to

the Tribunal. At the hearing on the 24th May 2017, he explained that when fibroscanning recently became available as a diagnostic

tool for identifying the status of the liver, the Appellant agreed to undergo a scan which confirmed the consistent results of the blood

tests and the likely hood that the Appellant’s liver disease had progressed to Cirrhosis.

7. Prior to that diagnosis, the Appellant had lived her life as best she could despite the impact which the continuing infection had had

upon her level of functioning; she described her family and social life as being relatively full in the circumstances. The confirmation

that her disease had progressed to Cirrhosis came as a terrible shock which once again had a profound psychological impact which

manifested itself in a heightened sense of anxiety and inability to cope; most significantly she started to experience panic attacks,

something not previously experienced.

8. In this regard Ms. Jo Campion, Clinical Psychologist, who prepared reports and gave evidence to the Tribunal and the Court, found

the Appellant to be a remarkably changed woman compared to the person whom she had assessed and counselled in the 1990’s,

moreover, as a consequence of the panic attacks she had become socially withdrawn.

9. Against this background, and notwithstanding her medical phobia, it is not hard to understand why the Appellant decided to

undergo the new DAA antiviral treatment in 2015, which by then was having a significant success rate in clearing the virus. However,

the Appellant’s initial response to treatment was very disappointing and reported that she had failed to clear the virus, a result

viewed as more bad news accentuated by her knowledge of the otherwise high success rate of the treatment. More than a month

was to pass before she discovered that she had tested PCR negative.

10. During treatment the Appellant had suffered from poor appetite, weight loss, nausea and an increase in fatigue to the point of

exhaustion; she had also become more socially withdrawn and personally introverted. It was apparent from her evidence the good

news that she had cleared the virus hah not had as positive an impact on her psychological functioning as one might have expected:

she continued to suffer from severe panic attacks and chronic anxiety which had intensified .

11. Even today she worries about herself and what the future holds in store. She has been unable put the diagnosis of Cirrhosis out of

her head and is constantly anxious about the implications of the condition for her future health; she described her life now as being

very different to what it had been prior to learning that the disease had deteriorated to Cirrhosis.The emotional and psychological

impact of the diagnoses cannot be understated; the Appellant presented in the witness box as someone who had been badly affected

by the diminution in capacity to enjoy her life as she had done prior to the diagnosis, particularly her ability to socialise and interact

fully with her grandchildren.

12. The sense of isolation, sadness and a fear of what the future holds were patently evident from her demeanour in the witness box

which, sadly for her, seem likely to remain features of life in the future. The Appellant’s situation was described by the Tribunal as

“difficult”, so it is and, in my view, so it is likely to remain. I was impressed by the Appellant and the fortitude with which she bears

the effects which the diagnosis has had on her life; I accept her evidence, the medical evidence which has been admitted and the

evidence of Ms. Jo Campion.

Function of the Court on Appeal ; the Law Governing the Assessment of Compensation.

13. On the hearing of an appeal, although the transcript of the evidence and the decision of the tribunal are before it, the Court is

not concerned with a review of the tribunal’s decision, rather the appeal proceeds de novo as a full rehearing of the application. In

carrying out an assessment the tribunal is required to proceed in accordance with Section 5 (1) of the Acts which provides that

compensation is to be assessed on the same basis as an award of the High Court, namely by reference to the principles which govern

the measure of damages in the law of tort and any relevant statutory provisions.

14. These principles are well settled and must be applied subject to certain statutory provisions in the Acts which enable the tribunal,

or the court on appeal, to depart from the principle of finality which governs the assessment of general damages at common law given

statutory effect by s. 5 (b). The jurisdiction and basis for the making of what is described as ‘a provisional award’ is to be found in s.

5 (7) (a) (b) and (c).

15. The Court was referred to L O’S v. The Minister [2017] IECA where at p. 28 Irvine J. explained the consequences of these

provisions for the assessment of compensation by the tribunal, or the court on appeal. With regard to the carrying out of an

assessment on an application for a provisional award, and the reason why the quantum of such award would likely be lower than an

award made on an application for a final lump sum, the learned judge observed “…the applicant would likely receive a lower award

than their counterpart who opted for a lump sum because the Tribunal/Court must, in making a provisional award, exclude from its

consideration any damages for the risk that the serious complications identified in the provisional award might occur. However, if

the applicant were to go on to develop cirrhosis or liver cancer they would then be compensated in full in respect of such condition

and its consequences”, a statement which I readily adopt.

That is precisely the task which the Tribunal had to undertake and with which the Court is now concerned.

16. It is not in question that Cirrhosis of the liver is a very serious and irreversible medical condition which, unfortunately for some,

can be fatal. As already stated the award of the 28th April, 1998 was provisional and provided that the Appellant had liberty to return

to the tribunal and seek further compensation in the event that her condition deteriorated to Cirrhosis or Hepatocellular Carcinoma.

17. In carrying out the assessment the Tribunal had to exclude from its consideration any compensation for the risk that either of

those serious consequences might occur. It follows that the award made no provision for those risks, accordingly, when the

Appellant’s condition deteriorated to Cirrhosis she was entitled to return to the Tribunal and have full compensation assessed.

Provisional or Lump Sum Award

18. In carrying out an assessment regard must also be had to whether the application is for a final lump sum award or, as in this case,

for another provisional award. If the application is for a provisional award, as here, compensation must be assessed in accordance

with the precepts already discussed. In that regard the Tribunal identified in its decision the serious complications and circumstances

in which the Appellant may return to the Tribunal in future, including deterioration in her condition to one of decompensated Cirrhosis.

Consequently, in carrying out its assessment the Tribunal had to exclude from its consideration the risk that the Appellant’s condition

might deteriorate to decompensated Cirrhosis, the Court must do likewise.

Decision

19. While the Court considers that the award of the Tribunal is within the range of compensation appropriate to the condition of

Cirrhosis, on any view of the evidence there has to a significant element of past loss in circumstances where no biopsy was

undertaken and fibro scanning had yet to be deployed as a diagnostic tool for assessing the status of the liver, including Cirrhosis, a

condition which had likely developed long before that diagnosis was made. This is a significant factor which, in addition to the

irreversible and permanent nature of the condition, also falls to be considered in carrying out the assessment.

20. Accordingly, in the particular circumstances of this case, the Court considers that a fair and reasonable sum to compensate the

Appellant commensurate with the deterioration of her condition to one of Cirrhosis is €125,000.

Ruling

21. The Court will allow the Appeal and vary the award of the Tribunal by substituting the sum of €125,000. The terms of the award

are otherwise affirmed and the Court will so Order.