Appeal against Hepatitis C compensation award allowed where dependants appeal apportionment despite one accepting.

THE SUPREME COURT

RECORD No. 231/2005

Chief Justice

Kearns J.

Finnegan J.

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5(15) OF THE HEPATITIS C COMPENSATION

TRIBUNAL ACTS, 1997 AND 2002

IN THE MATTER OF A HEARING AND DECISION AND AWARD MADE BY THE TRIBUNAL TO RC, JC, BC,

SC, TC, RB, JC, AC, TC, SC, MC, and TV ON THE 17TH DECEMBER 2003

AND IN THE MATTER OF AN APPEAL OF THE CLAIMANTS RC, JC, BC, SC, TC, EB, JC, AC, TC, SC, MC

and TC ON THE 18TH DECEMBER 2003

BETWEEN

RC, JC, BC, SC, TC, EB, JC, AC, TC, MC and TC

RESPONDENTS/CLAIMANTS

and

THE MINISTER FOR HEALTH AND CHIDLREN

RESPONDENT

and

THE HEPATITIS C AND HIV COMPENSATION TRIBUNAL

APPELLANT

and

KW, KC, and SC

NOTICE PARTIES

Judgment of Mr Justice Finnegan delivered on the 7th day of May 2008

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.

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 & Company 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.

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.”

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.”

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

siblings.

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.

By letter dated 5th January 2004 Ivor Fitzpatrick & Company 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.”

By letter of the 14th January 2004 Ivor Fitzpatrick & Company 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.”

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.

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.”

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.

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

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:-

Section 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.

Section 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.

Section 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.

(e) 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.

Section 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:-

Section 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.

Section 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.

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”.

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

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

(a) 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?

(b) 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.

(c) 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

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.

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.

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.

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…”

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.

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.

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.”

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

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.”

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.

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.

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.

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.

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

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.

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.”

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.

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.

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

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.

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.

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.

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

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.’”

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:-

(a) Answer – Yes

(b) Answer – No

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