High Court of Ireland Decisions

1. The within proceedings are an appeal against a decision of the Hepatitis C and HIV Compensation Tribunal (''the Tribunal") made on 26th July, 2010.

2. The appellant J.M. is co-infected with HCV and HIV. Consequently, he brought separate claims for compensation before the Tribunal in respect of each infection. This judgment is in respect of his appeal from the decision of the Tribunal in relation to his HIV claim wherein the Tribunal assessed his general damages in a sum of €300,000 prior to exercising its discretion to deduct what are commonly referred to as the "Murphy Monies" in the sum of €93,172. The Tribunal awarded a sum of €60,000 in respect of past loss of earnings but disallowed the claim for future loss of earnings on the basis that this loss had been fully compensated for in the applicant's earlier HCV claim which was determined by the High Court on appeal on 30th May, 2001.

Factual Background
3. J.M. was born on 6th July, 1963 and is a haemophiliac. He contracted HCV and HIV as a result of contaminated blood products administered to him in respect of this condition. The evidence suggests that J.M. was infected with HCV in 1974 and with HIV by 1985.

4. Due to J.M's haemophilia, he missed substantial amounts of schooling in his teenage years. Nonetheless, he managed to pass his Leaving Certificate in 1982. At that stage, the economy was in a depressed state and as a result, J.M. found it difficult to get sustained employment. He did an ANCO course, a mechanical engineering course, then obtained some work experience in Aer Lingus but remained substantially unemployed between 1984 and 1987. My colleague O'Neill J., when hearing J.M's HCV appeal concluded that this period of unemployment should be ascribed to economic factors rather than any want of application or dedication on his part, a view which I also take on this appeal.

5. In 1986, at 23 years of age, shortly after he became engaged to be married, J.M. received a letter asking him to attend at St. James's Hospital. He went there on the bus on his own to be told that he had HIV. He was told he had a 2% chance of going on to develop AIDS. He was also advised that because of the possibility of transmitting infection, that his intimate life would have to be confined to what was described as "safe sex". He left the hospital in a state of complete confusion. Later the same day, he told his then fiancée and father of his diagnosis.

6. J.M. married his wife, Barbara, the following year, and the couple settled down to a life, which, regrettably, was to be childless by reason of his HIV infection.

7. By the late 1980s, J.M. had started to develop symptoms referable to his HIV. He had skin infections, respiratory problems, candidiasis and diarrhoea. During this period, he was commenced on treatment for HIV and had to attend regularly at various medical appointments.

8. In 1988, J.M. was offered employment as a security officer with Securicor. This was work he did at night and which he stated was convenient from a HIV perspective. He told me that he would not have continued with this work had it not been for his HIV diagnosis and that be probably would have sought out work as a factory worker because both of his parents and some of his friends had been involved in this type of work.

9. In 1992, J.M. developed serous respiratory problems which triggered a pneumonia that led to his hospitalisation. He was more or less advised to give up work at that time because his HIV complications. In February 1993, J.M. was diagnosed with HCV and undoubtedly that condition not only complicated the management of his HIV but also caused him significant fatigue and depression.

10. At the time of his HCV appeal in May 2001, medical opinion was to the effect that J.M. had compensated cirrhotic disease and that his liver would probably decompensate by 2006. At that stage, it was anticipated that J.M. would require a transplant, that his new liver would become re-infected and that he would live with the consequences of HCV for the rest of his life. Thankfully, that prognosis has not transpired and as yet decompensation has not as yet occurred. It should further be stated that at the time of the hearing of his HCV appeal, J.M's HIV viral load was undetectable and his CD4 counts were close to normal. Accordingly, the evidence was that his immune system from a HIV perspective was strong and that HCV was the more significant of his two conditions at that time. In 2002, J.M. was treated with Interferon and Ribaviron for his HCV but unfortunately that treatment was not successful and he has remained PCR positive.

11. Over a long number of years, J.M. has had to take large numbers of tablets daily to maintain his HIV status. In the early years, he was taking as many as twenty tablets of a size that were difficult to ingest on a daily basis and these drugs caused substantial side effects. Now he is on a much more palatable and reduced drug regime. Notwithstanding his complete compliance with his drug regime, regrettably J.M's CD4 counts have occasionally plummeted causing some concern to his medical advisers. His drugs have been changed on a number of occasions to combat the occasional increase in his HIV viral load but regrettably, he has what is described as multi-drug resistant virus. Thankfully, from a HIV perspective, at this point in time, J.M's CD4 counts are not of concern and his virus appears to be fully suppressed.

12. In the course of the present appeal, Dr. Colm Bergin, Consultant in Infectious Diseases, advised the court that J.M. will soon require liver transplantation and that his HIV status will have a significant impact on the likely success of that surgery. J.M. will have to start another course of treatment with Interferon and Ribavirin and this could destabilise his HIV status. He will have to remain on that treatment for a period of one year in advance of transplantation. Assuming that J.M. survives his liver transplant, he will remain on HIV treatment for the rest of his life and Dr. Bergin believes that, taking into account the interplay between his two viruses, J.M. is likely to enjoy a life expectancy of a further twenty years. It goes without saying that the sum awarded to J.M. in respect of general damages in his HCV claim took into account not only the symptoms of fatigue and depression already referred to but also the probability of transplantation, re-infection of his new liver and likely continuation of symptoms referable to HCV.

13. As to the day-to-day life which J.M. has endured from 1992 to date, the most significant symptom which he has had to deal with arising from his HIV has been a constant problem with diarrhoea. This was a seven day a week issue for J.M. until recent times. The present drug regime is causing somewhat less problems in this regard but for very many years he always needed to be within running distance of a toilet. He still has problems with diarrhoea several days a week. J.M. takes Imodium to suppress the diarrhoea However, he then experiences nausea and has to take Motilium to ease those symptoms. He has a choice between running to the toilet and vomiting. If he has to go anywhere he does not eat for several hours in advance and this makes him weak.

14. J.M. also had difficulties with depression, anxiety and sleeplessness. Some his depression is related to his HCV which, according to Dr. Bergin, is the infection which is causing the greater concern at this time. His intimate relationship with his wife has been affected by both viruses and he describes himself as an observer in the world. Another matter of regret for J.M. is the fact that in the course of the Lindsay Tribunal hearing, he came to learn that he probably should never have been infected with HIV in circumstances where he had been administered batches of non-heat treated factor 9 concentrate after a decision had been made by the Department of Health to abandon that practice.

15. It is undoubtedly the case that J.M. has endured great physical and psychological problems as a result of his HIV infection and that his virus has impacted on every aspect of his life including his capacity to work and his social and family life. All of the problems to which I have already referred in this judgment are likely to continue for the rest of his lifetime and from time to time are likely to become acute

The Specific Issues to which this Judgment is Addressed
16. As already stated J.M's claim for compensation in respect of his HCV was dealt with on appeal by O'Neill J. on 30th May, 2001. At that time, there was no scheme in being to provide compensation to those such as J.M., who had also sustained HIV infection. Thus, J.M. must be compensated for those injuries in the context of the present claim.

17. This appeal raises the question as to how the Tribunal, at first instance, and the Court, on appeal, should approach the issue of damages in a HIV claim where there has been a prior claim brought in respect of HCV infection. The reason the issue is addressed briefly in this judgment is that the respondent has submitted that this Court should reduce rather than increased the award of general damages made by the Tribunal in respect of J.M's HIV condition having regard to the amount recovered by him in his HCV claim. Regardless of the failure of the respondent to deliver a notice of cross-appeal within the permitted time, Mr McEochaidh S.C., has submitted that the court is at large on this appeal as to the amount that it may award in respect of general damages as J.M. rejected the award of the Tribunal at the time he lodged his appeal.

18. In essence, the respondent submits that while there may be no cap on the general damages that may be awarded to J.M. on the facts of this claim, the court must take into account the sum awarded by the court in his HCV claim and that when one does so it is difficult conclude that he should receive an award of general damages in a sum equivalent to that made by the Tribunal regardless of the serious consequences of his HIV infection.

19. Mr. McEochaidh relied upon a decision of this Court in J.R. v. Minister for Health and Children and the Hepatitis C and HIV Compensation Tribunal. He submitted that the court, when considering the issue of general damages in respect of J.M's HIV claim, should consider the likely sum that the claimant would be entitled to in respect of all of the pain and suffering brought about by the two infections if it was assessing general damages in respect of those injuries at this point in time. The court should then have regard to the sum already awarded to J.M. in his HCV claim and make an allowance for that award in order to ensure there was no element of double collection in the present claim. He also submitted that in the context of other decisions of the High Court and Supreme Court that the totality of J.M's injuries deriving from both infections do not place him in the category of person entitled to damages which are considered appropriate in catastrophic injury cases.

20. Mr. Hayden, S.C., on behalf of J.M. submitted that the respondent had no locus standi to make any argument in favour of the reduction of damages as no cross appeal was lodged within the permitted time. Further, whilst accepting that the court was entitled to have regard to the earlier award of general damages made to J.M. in respect of his HCV claim, this was a case where the court was not curtailed by any cap on the general damages and that on the evidence as to the severity of J.M's injuries and their likely duration that those injuries fell to be compensated at a level consistent with awards of general damages in cases of catastrophic injury. Accordingly, counsel submitted that the court should increase the award of general damages that had been made by the Tribunal.

21. In particular, Mr Hayden relied upon the decision of Hanna J. in D.S. v. Minister for Health and Children, 14th March, 2008, a case in which the learned trial judge heard argument as to the approach to be adopted when awarding general damages for HIV in the face of an earlier award in respect of HCV. In particular, he relied upon the following quotation:-

"In my view, I cannot disregard the fact that this applicant has already received a substantial award of general damages from my colleague, O'Neill J. However, I do not think that one can engage in a crude arithmetical calculation by simply adding the two sums together and pointing out that the overall total is rather large. The Oireachtas created a specific form of relief in providing for compensation of HIV infection. It is separate and distinct injury that should be so treated. Any previous award in respect of Hepatitis C cannot be ignored but should be viewed in the context of the overall circumstances of the applicant. It must, therefore, have some degree of bearing, but this is something that can only be assessed, as I have said before, on a case-by-case basis."

23. Mr. Hayden, S.C., submitted that J.M. had not recovered all of his loss of earnings referable to both infections in the award made by O'Neill J. on 30th May, 2011. He submitted that under the statutory scheme available at the time of the HCV claim that J.M. was restricted in relation to the claim he was in a position to advance. J.M's potential earnings, he submitted had been restricted as a matter of fact as a consequence of his HIV infection and that his loss of earnings claim in his HCV claim was accordingly artificially depressed to take into account his limitations in the face of HIV infection. He submitted that J.M would not have been doing security work over the period 1988 to 1992 were it not for his HIV. He would have become a factory operative during that period and he would have remained in that type of employment up until retirement date. It was therefore necessary for the Court to assess what J.M. would have earned as a factory worker during all of the period of his unemployment to retirement age and then to deduct what had been previously awarded in respect of loss of earnings by O'Neill J.

24. In reaching my conclusions on these issues, I have fully considered not only the oral submissions made by the parties but also the witness submissions filed on behalf of J.M.

General Damages
25. In my judgment, in J.R., I dealt with two issues. Firstly, I considered whether there was a cap on general damages in the circumstances of that claim. Secondly, I considered the approach to be adopted by the Tribunal and/or the court on appeal in a case where a claimant who had brought a claim in respect of one infection returned to seek additional compensation under the terms of an original provisional award wording in circumstances where they had gone on to develop a complication of that infection which, at the time of the making of the original award, was considered to be a mere possibility.

26. In JR., the applicant had contracted HCV when he was 32 years of age as a result of a blood transfusion received following a stabbing incident. In December 2008, the High Court awarded him €350,000 general damages on the basis that he would endure his then very significant physical and psychological symptoms for the rest of his life. It concluded that it was unlikely that J.R. would develop either Cirrhosis or a liver cancer, and accordingly, made a provisional award permitting him to return to seek additional compensation in the event of his developing either condition. I will not recite the extraordinarily disturbing facts of that case as they are set out in great detail in my judgment. Suffice to state that the side effects of J.R's diagnosis were extremely severe from a physical and psychological prospective.

27. Regrettably in 2008, J.R., contrary to his expected prognosis, went on to develop a liver cancer destined to bring his life to an end within two years. Accordingly, he returned to the Tribunal and later to the High Court on appeal to seek additional compensation. For the reasons set out in my judgment, I awarded him a further sum of €150,000 by way of general damages.

28. In the course of my judgment, I considered the approach to be taken by the High Court on revisiting the consequences of an infection which had already been the subject matter of an award of general damages under the relevant statutory compensation scheme. I concluded that the court should look to the totality of the injuries visited upon the applicant as a result of having contracted the relevant virus and then try to assess how the entirety of his injuries, if they were the subject matter of one application for compensation, would be valued. I also referred to the fact that under the statutory scheme, I was obliged to have regard to the principles of law that would apply in an action for damages in the High Court. Accordingly, the award had to be proportionate having regard to the damages currently awarded in respect of injuries of a serious or catastrophic nature whilst being fair to both parties and also had to have regard to the value of the sum awarded in the prevailing economic climate.

29. The issue that arises for consideration in relation to the award of general damages on this appeal is somewhat different from that which was dealt with in JR., in that in the present case, the appeal is considering a different infection than that which was the subject matter of the Court's award of general damages in May 2001. Accordingly, this Court, not having heard all of the relevant evidence in that case, cannot, so to speak, reopen that valuation. The evidence in the present proceedings did not fully explore the effects of HCV on J.M. up to the present point in time, even though the Court was given very significant evidence as to the interplay between these two infections including evidence which suggests that J.M's HCV is likely to be the more dominant cause for concern at least in the immediate future.

30. Even though this claim is in respect of a different infection than that which was the subject matter of J.M's earlier claim, I am quite satisfied that the court must nonetheless have significant regard to the general damages awarded to J.M. in respect of his HCV claim particularly in circumstances where the pain and suffering endured by him in respect of both viruses essentially cover the same period. He became symptomatic in respect of HIV in the late 1980s and symptomatic from Hepatitis C in the early 1990s. Whilst HIV initially took him out of the workforce in 1992, it is clear from the judgment of O'Neill J. that it was fatigue from Hepatitis C that precluded him returning to work in the mid 1990s. Hence, this is not a case where a claimant has sustained two separate injuries at different times in their life with independent consequences. Accordingly, I accept that when the court comes to award a sum in respect of general damages in respect of the applicant's HIV infection, it must then, consider the sum it proposes to award against the backdrop of the sum which has already been awarded in respect of the injuries deriving from the claimant's other infection.

31. I have to say I feel privileged to have heard the evidence of J.M in the course of the present appeal level. He gave his evidence with a dignity, composure and an acceptance that was quite remarkable having regard to the pain, suffering and distress which he has experienced in the past and will experience in the future by reason of his HIV and HCV infections. I am satisfied that he has experienced extraordinary physical and psychological hardship since he was diagnosed with HIV at 23 years of age. Having regard to the age at which he became symptomatic in respect of this infection, his loss of any prospect of a family life and all of what he will have to endure in the future, I believe it is not unreasonable taking the consequences of his HCV infection into account to treat him as somebody who has been catastrophically injured. However, having regard to the sum of general damages already awarded to J.M. in respect of his HCV proceedings, it would, in my view, be disproportionate and not in accordance with the principles which must guide this Court in relation to its assessment of damages, to award him a sum in excess of that which was awarded by the Tribunal when dealing with this matter in 2010. I am accordingly satisfied that an award of €300,000, less the Murphy Monies, is an appropriate award of compensation in respect of general damages. In this regard all concerned with this appeal well know that such a sum of money in the present economic climate is very significant indeed.

The Loss of Earnings Claim
32. In coming to my conclusions on this aspect of J.M.'s claim, I have carefully considered the judgment of O'Neill J. in dealing with the loss of earnings issue in May 2001. I have also considered the transcript of the evidence in relation to not only J.M's medical condition at the time of that hearing but also the evidence submitted in respect of the loss of earnings claim.

33. It is important to record that the evidence put forward from a vocational point of view was to the effect that but for HCV, J.M. would have been capable of carrying out a wide range of different types of employment with normal working hours. It is to be noted that Mrs. Tolan, Vocational Assessor, specifically gave evidence that J.M. could have worked in a call centre, in telly sales, light retail sales, factory work and many other areas. There was no medical or vocational evidence to suggest that J.M. was or would be curtailed in the type of work he could do because of his HIV infection.

34. In coming to his decision in relation of loss of earnings, O'Neill J. made the following assumptions:-

(a) That all losses up to 1988 were due to economic factors rather than J.M's health.

(b) That in the early 1990s, and certainly for 1992 and 1993, HIV was the principal reason why J.M. was not in a position to work but that thereafter all of ills loss of earnings should be attributed to fatigue and depression related to HCV. He concluded that HIV would not be a factor in ills income generating capacity.

(c) That the total sum in respect of loss of earnings from 1992, when J.M. ceased employment, up to the date of the appeal was a sum of £73,972.

(d) That a deduction of £38,972 from the total sum of £73,972 had to be made to reflect J.M's loss of income attributable to HIV for the period 1992 to May 2001. He accordingly awarded a sum of £35,000 in respect of loss of income during this period.

(e) That J.M., were it not for severe fatigue referable to his HCV in 2001 would have been in a position to earn £260 per week.

(f) The total capital value of J.M's future loss of earnings claim from 30th May, 2001, was £200,844. That sum was reduced to €150,000 because of the doctrine in Ready v. Bates and this deduction did not include J.M's HIV condition.

"I would take the view that but for the fatigue associated with the Hepatitis C and the depression that has now set in on him that he would almost certainly be at work today and would have a normal working life. I think the reason he does not have that is because of the problems associated with Hepatitis C. I think that is going to be the way it will be in the future. Assuming his HIV remains well controlled, there would be absolutely no reason why he could not work with that."

"I think if he didn't have Hepatitis C that it would be possible for this man to undertake training and to work in a number of areas. He could try and get work as an unskilled man but given the fact that he hasn't work for the last nine years, it could be difficult to secure work. But if he went through work activation, if he went through a training course, I feel that he could work in a call centre, if he was computer literate doing telly sales or customer service, he could do light retail sales, he could work in a storeroom, he could work in a factory, there are quite a number of areas."

38. For the aforementioned reasons, it is now not open to J.M. to seek to rerun the same case for a second time but on this occasion contend that he was unable to do factory work as opposed to a lesser type of work by reason of symptoms attributable to HIV.

39. Whilst in many cases the Tribunal or the court may have to reopen the issue of loss of earnings when dealing with a claim for compensation in respect of HIV due to the fact that the claimant put forward a reduced loss of earnings claim in their earlier HCV application by virtue of a reduction in their income generating capacity due to HIV symptoms, this is not such a case. O'Neill J. awarded J.M. his full loss of earnings from the mid 1990s up to retirement age of 65 based on a finding that he would have been earning £260 per week as of May 2001 were it not for his HCV infection. J.M. recovered all of his future loss of earnings which had a capital value of £200,844 less £50,844 in respect of Ready v. Bates considerations which did not include the appellant's HIV infection.

40. In the foregoing circumstances, there are only two matters which concern the court in relation to the present loss of earnings claim. The first is that having regard to the present economic climate, Mr. Logan, Actuary, advised the court that on the balance of probabilities J.M., if he were still working, but for his HIV and/or HCV would probably have worked beyond 65 to the new pension age of 68. Clearly, J.M. must on this appeal be compensated for these losses which he did not recover in his earlier claim. In valuing this loss, I have been guided by Mr. Logan's most recent report of 27th January, 2011 and I will allow a sum of €42,000 in respect of the same.

41. The second matter of concern is that O'Neill J. made a deduction of £38,000 in respect of J.M's past loss of earnings claim and he ascribed that deduction to his HIV condition. That sum was in respect of the period between 1992 and 2001. However, I also heard evidence in the course of the present appeal to the effect that J.M. would not have continued to work as a security officer between 1988 and 1992 were it not for his HIV symptoms and this is an element of his present claim that was not dealt with by O'Neill J in his decision. Accordingly I must consider whether, on the evidence I am satisfied that J.M. sustained any loss of earnings due to his HIV over this period.

42. On the facts it is clearly the case that J .M. had had a sustained period of unemployment prior to 1988 and I cannot accordingly accept his evidence that but for his HIV infection, he would only have stayed a few weeks in his newly found employment with Securicor. Further, I think its unlikely that he would have found it easy to move to an alternative much better paid job due to the then prevailing economic circumstances and his prior history of unemployment. However, as the economy picked up, I dare say he might have improved his position and managed to get employment that was somewhat better paid over that three to four year period. Doing the best I can, I will award him a further sum of €25,000 to include some element of interest in respect of loss of earning over this period.

43. While this is a rehearing of J.M's HIV appeal, it is clear that the Tribunal in its award dated 26th July, 2010, awarded J.M. a sum of €60,000 in respect of past loss of earnings. It seems to me that this sum was designed to compensate J.M. for the deduction of£38,000 made by O'Neill J. in his decision of 30th May, 2001. Having heard the evidence of Mr. Logan in relation to this period of time and taking into account the decision of O'Neill J. made on 30th May, 2001, I will allow a sum of €62,000 in respect of past loss of earnings and this loss is in respect of the period which was not compensated for by O'Neill J. by reason of J.M's HIV in the early 1990s in his judgment of 30th May, 2001.

44. Accordingly, on this appeal I will allow J.M. in respect of his general damages claim, a sum of €300,000 less the Murphy Monies of €93,172. I will allow a sum of €25,000 in respect of loss of earnings, for the period 1988 - 1992. I will allow a further sum of €62,000 in respect of past loss of earnings, being the sum already awarded by the Tribunal but uplifted by a small sum in respect of interest to cover loss of income as a result of HIV for the period 1992 - 2001. I award a further sum of €42,000 in respect of future losses.

45. The provisional award wordings of the Tribunal will also form part of the court order on this appeal.

APPROVED: Irvine, J