Judgment is reserved in hepatitis C test case

The Supreme Court yesterday reserved judgment on a test case to determine whether the High Court was correct in deciding that a man, who had contracted Hepatitis C from infected blood products and accepted an award from the hepatitis C compensation tribunal, could appeal that award to the High Court.

The outcome of the case is being awaited by other hepatitis C victims who have accepted compensation awards from the tribunal, which has paid out some €290 million to date. If the Supreme Court upholds the High Court decision, they will be entitled to go to the High Court with a view to seeking higher awards.

The test case relates to a man with HIV who contracted hepatitis C from infected blood products. The tribunal determined in late 1997 that he was entitled to £250,000 compensation, less £125,000 as a result of his co-infection with HIV, leaving a total of £125,000.

In the High Court last July, Mr Justice O'Neill ruled that the man's acceptance of an award from the tribunal did not exclude an appeal against that award to the High Court.

The Minister for Health and Children and the hepatitis C tribunal have appealed the High Court decision to the Supreme Court. The appeal concluded yesterday and the five-judge court, presided over by Ms Justice Denham, reserved its decision.

The case centres on interpretation of sections of the Hepatitis C Compensation Tribunal Act, 1997. The Supreme Court has to decide whether a claimant who wishes to appeal an award by the tribunal is barred from doing so after the time specified has passed.

The Act provides a claim may be made within one month of the date of the tribunal making an award or such other period as may be prescribed by the Minister. In the case before the court, the tribunal's award was made in November 1997 but no appeal was brought by the man until April 1999.

If the Supreme Court holds a claimant is not barred from appealing to the High Court under the time provisions, it must decide whether a claimant who has accepted an award is barred from also appealing that award. A further issue is whether the tribunal has the required legal standing to appear in an application to the Supreme Court or an appeal.

In submissions yesterday, Mr Denis McDonald SC, for the Minister, said the statutory tribunal was an alternative means of getting compensation. If people proceeded under the 1997 Act, and accepted the remedies under that, they were subject to the conditions of the Act. When this claimant accepted his award in November 1997, no intimation was given that he was unhappy with it or that he would like to appeal.

Counsel argued the 1997 Act was clear and should be interpreted literally. It allowed one month within which to appeal. While it was argued that period was "draconian", there was no constitutional challenge to it.

Mr Donal O'Donnell SC, for the tribunal, said the High Court had failed to interpret the words of the statute and instead speculated on the intention of the Oireachtas in relation to the hepatitis C compensation scheme. That approach flew in the face of several Supreme Court decisions. The intention of the relevant sections of the Act was obvious.

When a person accepted an award, they waived their legal rights.

Opposing the appeal, Mr Richard Nesbitt SC, for the claimant,said the court should look to the essential purpose of the 1997 Act which was to provide "just" and "appropriate" compensation for loss suffered.