High Court allows appeal against Hepatitis C Tribunal award, increasing general damages for permanent brain injury.

neutral citation [2015] IEHC 660

THE HIGH COURT

[2015 No. 3 CT]

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5 (15) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACTS, 1997 –

2006

IN THE MATTER OF A DECISION OF THE HEPATITIS C COMPENSATION TRIBUNAL TO THE CLAIMANT, A.M. ON THE 13th OF

APRIL 2015, REFERENCE 0968/96

AND IN THE MATTER OF AN APPEAL OF THE CLAIMANT A. M.

BETWEEN

A. M.

APPELLENT

AND

THE MINISTER FOR HEALTH

RESPONDENT

JUDGEMENT of Mr. Justice Bernard J. Barton delivered the 22nd day of October 2015

1. This matter comes before the court by way of an appeal pursuant to s. 5 (15) of the Hepatitis C Compensation Tribunal Acts 1997-

2006 ( the Acts) from an award of the Tribunal made to the appellant on the 13th of April 2015 in the total sum of €180,000 and of

which €150.000 was in respect of general damages.

2. In the opening before me, senior counsel for the appellant, Mr. Rogers, informed the court that whilst she was satisfied with the

grounds for and upon which she may return to the Tribunal at a later date, she was dissatisfied with the award made to her in

respect of general damages and that this was the subject matter of the appeal. When due regard was had to all of the evidence and

in particular a decision of the tribunal in the case of N.G. delivered on the 2nd of July, 2014,(1445/96) it was the appellant’s case that

the award was both insufficient and inadequate.

Background

3. The appellant was born on the 9th of April, 1946, is married, and lives with her husband in Blackrock, County Dublin. They have four

children and five grand children. An anti D injection, which came from a batch infected with hepatitis C, was administered to the

appellant in 1977. She subsequently tested PCR positive with a full viremic load.

4. The affects of the infection on the appellant as regards her social, recreational and vocational life between then and 1998 are set

out in the transcript of the evidence and medical reports furnished in connection with the initial application brought by her to the

tribunal under the Hepatitis Compensation Tribunal Act 1997 and on foot of which an award an award, dated the 6th of January 1998

was made in the amount of £283,500, of which £120,000 was in respect of general damages.

Statutory Provisions.

5. Section 5 (7) of the Hepatitis C Compensation Tribunal Act, 1997 ( since amended to include claims by those who have contracted

HIV ) provides for the making of what is described in that section as a “provisional award”. The Tribunal is empowered to make a

provisional award where it is of the view that there is a possibility, but no more than a possibility, that a claimant as a result of

having contracted Hepatitis C may suffer particular serious consequences in the future. The section provides that the award is to be

calculated in accordance with the principles which govern the measure of damages in the law of tort and any relevant statutory

provisions referred to in s.5 (1) but assessed on the assumption that such serious consequences will not occur, identifying those

consequences and specifying the period within which the claimant may apply in the event of such occurring.

6. Section 5 sub s 7 provides that where such consequences do occur, the claimant is entitled to apply for an award of further

compensation in accordance with the terms of the provisional award.

7. The conditions attached to the award of the tribunal made to the appellant on the 6th of January, 1998 were expressed in the

following terms:

“In the event of the applicant’s condition deteriorating to decompensated cirrhosis or to hepatocellular carcinoma

she will be at liberty to return to the Tribunal for further compensation.”

8. The appellant had been hepatitis C virus positive since the time of her infection in 1977 and was still virus positive when in 2013 a

decision was made to treat the infection with interferon/ribavirin therapy. It was the appellant’s evidence to the Tribunal, and indeed

to the Court, that she decided to proceed with that treatment on medical advice. The appellant was very conscious of her medical

condition and was well informed of its potential consequences. She was aware of the significant side affects associated with the

combined therapy and in that connection was awaiting the development of further drugs, the trials of which had been extremely

positive.

9. It appears that during a medical review in 2013, her consultant Hepatologist, Professor John Hegarty, informed the appellant that it

was no longer advisable to delay treatment since it appeared that test results had confirmed a serious deterioration in what was

progressive liver disease suggestive of possible cirrhosis.

10. With some reluctance the appellant commenced treatment in September 2013, as a result of which she developed significant but

well known side effects including spasms, shakes, sweats, dry skin, rash, fatigue and problematic synsopal episodes. Shortly after

commencing the therapy the appellant also developed abdominal symptoms. An ultra sound, carried out on the 14th of October 2013,

confirmed the presence of ascites in the liver. This was shocking news for the appellant since not only did it confirm the presence of

cirrhosis of the liver but that this condition had progressed to decompensated cirrhosis.

11. At about this time Professor Hegarty retired from his consultant post and was succeeded by Dr. Diarmaid Houlihan, consultant

hepatologist, who thereafter took over the management of the appellant’s hepatitis.

12. Apart from his medical reports, Dr Houlihan gave evidence to the Tribunal and to the Court. It transpired from testing carried out

early on that the appellant was responding very positively to the treatment; consequently, Dr. Houlihan advised her that,

notwithstanding the awful side effects which she was experiencing, she ought to remain on the treatment, advice which was

accepted. The treatment was effective; the appellant cleared the virus and has since remained PCR negative.

13. Doctor Houlihan had hoped that as a result of becoming PCR negative that there was a prospect of liver tissue regeneration to

the point where the appellant’s liver would no longer be decompensating. Regrettably that did not happen and his evidence to the

Court was that as she continues to have decompensated cirrhosis it is a matter of medical probability that she will continue to do so.

He also confirmed that the development of ascites was itself evidence of decompensated cirrhosis.

14. It was also his evidence that one of the recognised consequences of decompensated cirrhosis is the development of hepatic

encephalopathy. He explained that this condition arises because the cirrhotic liver is no longer able to filter toxins and ammonia from

the blood stream with the result that the brain is affected by swelling of the astrocytes, which are the cells that make up the brain.

15. He explained that encephalopathy is divided into four grades, the first of which involves increased sleepiness and forgetfulness;

the second by those and slurred speech, the third by those and drowsiness and finally, the fourth by coma. It was his opinion that

the appellant could be categorised as being between grade 1 and grade 2.

16. Although the condition is irreversible, there are treatments which work by flushing the toxins out of the bowel or neutralising the

bacteria that produce the toxins. One of the therapies is rifaximin which acts by sterilising the bacteria in the blood which produce

the toxins, however, and again rather unfortunately for the appellant, this treatment was not of benefit to her. She has, however,

been treated with other medications and modalities to help clear the toxins from her body, including laxatives.

17. The fact that the appellant will, as a matter of probability, remain PCR negative and that the risk of recurrence of the virus being,

in the opinion of Dr. Houlihan, no more than one of a low possibility, is of some prognostic significance. The appellant is not at a point

in terms of her medical condition where she would be offered a liver transplant. In that regard Dr. Houlihan’s evidence was that in the

ordinary way patients would not be offered a liver transplant in circumstances such as those of the appellant before reaching stage

two/three encephalopathy because of the risks associated with transplantation. The appellant is now sixty-nine years old. Were she

to progress to stage two/three or if the ascites was to return it is unlikely, for a number of reasons not the least of which was the

increased risk of mortality in individuals over seventy, that the appellant would not be offered the option of liver transplantation.

18. Doctor Houlihan explained that had the appellant been suffering from decompensated cirrhosis prior to the commencement of her

treatment she would not have been commenced on the treatment since that is one of the potentially negative consequences.

Regrettably, in her case it was the treatment which whilst effective in clearing the virus, triggered the decompensation.

19. A recent EEG carried out by Prof. Tubridy confirms the clinical assessment that the appellant continues to suffer from

encephalopathy at a point between stages one and two, and consistent with the clinical signs of fatigue, forgetfulness and poor

concentration. Dr. Houlihan thought that the appellant had a 20% chance of progressing to stage two. However, he hoped with

treatment to be able to maintain the appellant’s status at its present level and which, in his view, was as much as could be expected.

He thought, as a matter of medical probability, that the appellant’s life expectancy to be approximately 75 years.

20. The appellant gave evidence that prior to commencing her treatment she had lived a life which was as full as was possible given

her hepatitis C condition but not notwithstanding which was a life of social and personal confidence, independence and control but

each of which had been effectively destroyed by the development of encephalopathy. She had become very forgetful, confused,

fatigued, more socially withdrawn and dependant on her 75 year old husband. Practical examples of the change in her life were of an

inability to drive, carry out normal household chores, or to go shopping. She gave evidence of a tendency to trip, and that whilst she

could go out alone on short walks from her house such as into a neighbouring park or to walk on a short section of the pier at Dun

Laoghaire, she would not attempt anything else unless accompanied; she would generally take her husband’s arm for support when

they were out together.

21. Dr. Houlihan had advised her to talk as much as possible for the purposes of maintaining fluency in the context of her

encephalopathy but she gave evidence of talking less and socialising less with her close friends who whilst they were understanding

of her condition she felt were nevertheless irritated by her tendency to be repetitive. She described how she felt that she had lost a

whole sense of herself, her joy in living life, her confidence and her independence and in particular the loss of being in control of all

aspects of her life.

22. The appellant gave evidence that she was aware of the necessity to keep herself fit, that she enjoyed going to hydrotherapy for

that purpose and of the medical necessity of keeping herself, as she put it, flushed out but that as a result of the necessity of having

to take medication to assist with that she was left with a constant feeling of her body being dehydrated together with bloating of her

tummy in the evening time which was also painful.

23. Despite her fatigue, loss of independence and forgetfulness the appellant gave evidence that she was aware and determined to

keep herself looking as well as possible and was clearly conscious of and had a desire to live her life with dignity insofar as that too

was possible. In this regard she described as one very important reason for keeping up her appearance a wish, to put it in her own

words, “not to frighten my grandchildren” who range in age from sixteen to twenty months and who are still an important part of her

life.

24. Having had an opportunity to observe the demeanour of the appellant in the witness box, it was also evident that this

unfortunate woman, despite her encephalopathy, had a clear insight and understanding of what she described as her “predicament”.

She contrasted that with the life which she led prior to commencing treatment and which she described as one of complete

independence, self confidence, and an ability to make plans and put those into effect of her own accord. Rather sadly, I thought, she

did not think that there was now much left anymore to her life. She knew that these proceedings meant that things were very serious

and that whilst she wished she could be more optimistic she did not really think about the future but rather lived from day to day.

25. Miss Jo Campion prepared a report arising from her various assessments of the appellant and which was available to the Tribunal

and the court. In addition she gave evidence in which she emphasised how completely different the appellant’s presentation was to

the court from the lady whom she had seen and assessed prior to the commencement of her treatment. It was obvious to her that

the appellant had become very upset and frustrated at the effect on her brain of the encephalopathy. She was an extremely

intelligent woman, very well read and very well educated too, and despite her condition was still aware of her brain’s memory and

capacity but frustrated by the inability to act upon and process information which whilst there she could no longer reach. By nature

she is a realist; prior to her treatment she had studied psychology and had helped others who had suffered with hepatitis C. All of

that was now denied to her. Her cognitive abilities were unquestionably important to the appellant and she grieved for the way in

which these had been progressively affected and are likely to be so in the future. The progressive loss of her mental faculties was

nothing short of devastating.

26. I have had the benefit of reading the transcripts of the evidence given before the Tribunal on foot of the applications in January

1998 and April 2015 as well as the medical and other expert reports prepared for those applications together with the evidence of the

appellant, Dr. Houlihan and Miss Campion given during the course of the hearing of this appeal and which the court accepts.

27. It was submitted by Mr. Rogers on behalf of the appellant that the court should have regard by way of a guide in the assessment

of damages to the decision of the Tribunal in the case of N.G. where the Tribunal made an award of €250,000 in respect of general

damages for cirrhosis. As to the inadequacy and insufficiency of the award of the Tribunal in this case, it was his submission that the

award of the Tribunal made to the appellant had failed to properly or adequately reflect the effect which the encephalopathy had had

and was likely to have on the appellant, a condition which was a direct result of a treatment which itself had become an absolute

medical necessity due to the progressive deterioration of the appellant’s liver disease caused by hepatitis C infection.

28. Senior counsel for the respondent, Mr. McCullagh, submitted that the decision in N.G. had to be distinguished. It was a different

case to that of the appellant. In that case it was clear from the award of the Tribunal that the appellant was being compensated for

the development of cirrhosis and which would also likely result in a transplant but which had been no more than a possibility at the

time of the provisional award made in 1998.

29. It was also submitted on behalf of the respondent that the treatment which was afforded to the appellant was not itself

compensatable falling as it did outside the conditions set out in the provisional award, and such treatment having commenced prior to

the development and diagnosis of decompensated cirrhosis.

30. In reply to that Mr. Rogers submitted that the treatment was compensatable since it was a necessary consequence of the liver

disease caused by the hepatitis C infection. The risk of decompensation was an ever attendant risk on an untreated cirrhotic liver.

Untreated her mortality risk was higher. Viewed objectively she really had no effective choice but to undergo the advised medical

treatment which had triggered the very condition the development of which entitled the appellant to return to the tribunal.

Decision

31. It is evident from a reading of the transcript of the proceedings before the tribunal that the development of the encephalopathy

was found to be responsible for causing the appellant significant psychological sequelae and that there was also the possibility that

the appellant would require liver transplantation at some stage in the future.

32. Whilst it is apparent, for the reasons given in the evidence of Dr. Houlihan to the court, that it is unlikely that the appellant would

be offered transplantation in the future, it is also clear from his evidence that the consequences of the encephalopathy went far

beyond the psychological. They were organic directly affecting the brain so as to have resulted and likely to result in ongoing

functional impairment. The significance of that for the appellant cannot be understated particularly and especially in circumstances

where, although impaired, her cognition is such that she has an appreciation, to use her words, of the predicament in which she now

finds herself. Psychologically, the mental anguish and effect that that has had on the appellant was abundantly clear from her

evidence and the way in which that evidence was given.

33. Under the scheme established by the Acts the court is required when applying the principles of tort law concerning the

assessment of compensatory damages in the circumstances of a case such as the present, involving as it does a return to the

tribunal, to have regard to the fact that an award of general and special damages has already been made in respect of the injuries

and loss suffered and likely to be suffered by the appellant as a result of having contracted hepatitis C and which included cirrhosis .

34. The court is concerned on this appeal, as was the tribunal on the application before it, with the assessment and making of an

award of general damages in respect of the present and future pain and suffering arising as a result of the development of

decompensated cirrhosis of the liver which, at the time of the original hearing in 1998, was considered, on the evidence as it then

was, to have been no more than a possibility and for which the applicant was not compensated in 1998.

35. Accepting as I do the evidence of the Appellant, and Ms. Campion in relation to the mental and physical status of the appellant

prior to commencing the anti viral treatment, albeit PCR positive, she was leading a wholly independent resourceful and satisfying life

up to that time. As against that, it is unquestionably the case that her liver disease was progressing and that without treatment

would have progressed most likely to the point of failure the likelihood of which is, in my view, corroborated by the medical advice

given by Prof. Hegarty in 2013, that the appellant should not any longer delay commencement of the treatment.

36. That was something of a Hobson’s choice for the appellant because of the known side effects of the treatment on patients and of

the risk of other negative consequences such as the development of decompensated cirrhosis.

37. Unfortunately for the appellant, the preferred medical option of treating the gastro-intestinal consequences of decompensation by

a particular antibiotic was not successful. Whilst the build up of toxins and ammonia in her body as a result of the decompensation

has been treated, so far as possible, by other medicines and modalities this failed to prevent the development of encephalopathy

which is now a present and will be a permanent feature of the appellant’s life; though Dr Houlihan is hopeful that the treatments will

prevent further progression of that condition.

38. The combined treatment, which commenced in September 2013, was initially well tolerated by the appellant and at an early stage

showed positive results in terms of dealing with the virus. It did not take long, however, before the well known side effects, which

were described by the appellant and considered by the appellant to be a horrendous, began to take hold. Despite this, medical advice

was that the appellant should persist, if at all possible, with the treatment because she was a responder. No doubt buoyed up by the

effective clearing of the virus to her credit the appellant, notwithstanding the awful side effects, persisted with the treatment which

was successful and as a result of which she remains PCR negative to date.

39. There was also the hope that, as explained by Dr. Houlihan , clearing the virus would reduce the appellant’s mortality risk in

percentage terms significantly below that which would otherwise have been the case had she not commenced treatment, moreover,

although the disease had progressed to decompensated cirrhosis, it was his opinion that in the absence of the insult to her liver

caused by the virus there was the prospect of tissue regeneration resulting in her liver function improving to the point where it was

again compensating. As if the appellant had not already suffered enough that hoped for outcome was not achieved and having regard

to the time which has already elapsed since she first became PCR negative it is now unlikely ever to occur which means that the

consequences of her decompensated cirrhosis, including her encephalopathy, will persist.

40. Insofar as the provisional award of 1998 was concerned with the assessment of general damages that clearly did not include any

award for the occurrence or consequences of decompensated cirrhosis. One of the conditions of the provisional award and upon

which the appellant was entitled to return to the Tribunal was the development of that condition. I accept the medical evidence of

Dr. Houlihan that had the appellant already developed and had been diagnosed with decompensated cirrhosis of the liver in 2013 she

would not have been offered the treatment since one of the risks of that is decompensation.

41. The treatment was afforded in circumstances which, on any reasonable objective assessment, amounted to medical necessity.

There is no doubt but that on the evidence, although the treatment commenced before the diagnosis, it was the trigger for a

condition which is now likely to be permanent. In such circumstances were the court to accept the submission of the respondent it

would be tantamount to depriving the appellant of compensation for the pain and suffering resulting from a treatment that itself

triggered the condition specified in the provisional award of 1998 and which entitled her to return to the Tribunal.

42. Although the trigger was pulled, so to speak, by the treatment before the development and diagnosis of the condition, it is in my

view inextricably bound up with it; accordingly, I cannot accept the respondent’s submission that the court has no jurisdiction to

compensate the appellant for the pain and suffering associated with and caused by the treatment. In my view the tribunal was

correct in taking those consequences into consideration when assessing general damages and as so appears from its award.

43. For the sake of completeness I would add that there is nothing from the findings of the tribunal in the provisional award of 1998

which would warrant a conclusion that that tribunal had considered never mind made provision for the consequences of the treatment

in anticipation that as a matter of probability the appellant would be so treated for cirrhosis at some time in the future.

44. It has to be observed that the respondent, very fairly and properly, conceded that the court is entitled to compensate the

appellant for the consequences of decompensated cirrhosis, including the encephalopathy. In that regard the court accepts the

submission of the appellant in relation to the inadequacy of the assessment of general damages by the tribunal.

45. I am satisfied that as a direct result of her decompensated cirrhosis the appellant developed encephalopathy which has and is

likely to permanently affect her both psychologically and functionally, moreover, I am satisfied that this condition is, as a matter of

probability, irreversible . It follows that apart altogether from the suffering caused by the other side effects of the anti viral

treatment, the appellant has suffered a serious and permanent injury to her brain.

Ruling.

46. In the circumstances of this case, and having due regard to the findings made herein, it is the judgment of the court, applying as

it must the well established principles of tort law to the assessment of compensation, that a fair and reasonable sum commensurate

with the appellants decompensated cirrhosis and the consequences of that for her, is €250,000 and the court will so order.

47. The court will allow the appeal and will discuss with counsel the final form of the order required.