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Cite as: [2001] IESC 72, [2002] 1 IR 234

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O'C. (M.) v. Minister for Health [2001] IESC 72 (31st July, 2001)

THE SUPREME COURT

Denham J.

McGuinness J. 306/00

Fennelly J.

IN THE MATTER OF AN APPEAL PURSUANT TO

S. 15(5) OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT, 1997

BETWEEN/

M. O’C

APPELLANT

and

THE MINISTER FOR HEALTH

RESPONDENT

Judgment delivered by Mrs. Justice Denham on the 31st day of July, 2001. [nem. diss.]

1. Appeal

1. This is an appeal by the appellant from part of a judgment of the High Court (O’Neill J.) delivered on 28th July, 2000. The issue on appeal is net - it is as to whether there is jurisdiction to order interest pursuant to Section 22 of the Courts Act, 1981 on an award under the Hepatitis C Compensation Tribunal Act, 1997.

2. The High Court

2. M. O’C is the husband of B. O’C who contracted Hepatitis-C as a result of an injection of contaminated Anti-D on or about the 18th May, 1977. B. O’C was made an award of compensation on the 24th February, 1998 by the Hepatitis-C Compensation Tribunal. The appellant claimed in respect of loss of earnings resulting from the fact that he was obliged to curtail his teaching career due to the demands made on him in caring for B. O’C due to her Hepatitis-C infection. This was refused by the Tribunal but on appeal allowed by the High Court which assessed compensation in the sum of £60,559.00 in respect of the losses suffered by the appellant as a result of curtailing his work and ultimate retirement in 1989. Accordingly, the High Court awarded the appellant £60,559.00. There is no appeal from this award.

3. On M. O’C’s claim to be entitled to interest pursuant to section 22 of the Courts Act, 1981, the High Court held:

“The first thing to be noted about the Section is that the jurisdiction to order the payment of interest is expressly reserved to a ‘Court’. In my view the Tribunal as set up by the Hepatitis-C Compensation Tribunal Act 1997, and its non statutory predecessor were not a ‘Court’ within the meaning of Section 22 of the Courts Act 1981. Had it been intended by the Oireachtas to give to the statutory Tribunal a jurisdiction to order the payment of interest it would in my view have been necessary to make express provision in the legislation for that. That was not done and hence I have come to the conclusion that the Tribunal had no jurisdiction to order the payment of interest. The proceeding before this Court is an appeal from the Tribunal pursuant to Section 15(5) of the Hepatitis-C Compensation Tribunal Act 1997. These appeals are essentially in the nature of a re hearing of the case and in my view this Court on such appeals cannot assume a greater jurisdiction that that which the Tribunal has. Were it the case that this Court were to take upon itself in such appeals the granting of remedies which were not available at the Tribunal, the inevitable result would be that all cases in which there was a potential claim for interest would have to be appealed to this Court in order to do justice to a Claimant. I am satisfied that such a result would be contrary to principle and impractical.

That being so in may ( sic) view the claim for interest pursuant to Section 22 of the Courts Act 1981 must fail.”

4. On application by the appellant, the learned High Court Judge permitted an appeal to this Court pursuant to section 5(19) of the Hepatitis C Compensation Tribunal Act, 1997.

3. Law

5. Section 22 of the Courts Act, 1981, provides:

“22. -(1) Where in any proceedings a court orders the payment by any person of a sum of money (which expression includes in this section damages), the judge concerned may, if he thinks fit, also order the payment by the person of interest at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act, 1840, on the whole or any part of the sum in respect of the whole or any part of the period between the date when the cause of action accrued and the date of the judgment.

(2) Nothing in subsection (1) of this section -

(a) shall authorise the giving of interest on interest, or

(b) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise, or

(d) shall authorise the giving of interest in respect of a period before the passing of this Act, or

(e) shall authorise the giving of interest on damages for personal injuries, or in respect of a person’s death, in so far as the damages are in respect of -

(i) any loss occurring after the date of the judgment for the damages, or

(ii) any loss (not being pecuniary loss) occurring between the date when the cause of action to which the damages relate accrued and the date of the said judgment.

(3) In this section -

‘damages for personal injuries’ includes damages for personal injuries arising out of a contract;

‘pecuniary loss’ means loss in money or money’s worth, whether by parting with what one has or by not getting what one might get;

‘personal injuries’ includes any disease and any impairment of a person’s physical or mental condition;

‘proceedings’ includes proceedings to which the State or a State authority (within the meaning of the Act of 1961) is a party.”

6. The Hepatitis-C Compensation Tribunal Act, 1997 provides at section 4:

“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,

. . .

(d) any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c) , and who has incurred financial loss or expenses as a direct result of providing such care arising from the person being cared for having contracted Hepatitis C.”

At section 5:

“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.”

4. Submissions

7. Counsel on behalf of the appellant, Mr. John Gordon, S.C., submitted that the learned judge erred in law in finding that the Hepatitis C Tribunal had no jurisdiction to direct a payment of interest pursuant to Section 22 of the Courts Act, 1981. It was accepted that the power of the High Court to award interest on appeal derived from the Tribunal’s power to award interest.

8. The Actuarial Report which accompanied the claim set out the calculations of past loss of earnings. This amounted to the sum of £60,559.00. The claim for interest pursuant to the provisions of section 22(1) of the Courts Act, 1981 raised the amount of the claim to £117,534.00. It was submitted that the High Court should have exercised its discretion as to whether or not to allow interest on loss of earnings suffered by M. O’C.

9. Counsel on behalf of the Minister, Mr. Michael Carson, S.C., submitted that s. 22 of the Courts Act, 1981 does not apply to a Tribunal, but only to a court. That the Tribunal is not a court, its members are not judges and that a hearing in the Tribunal was not proceedings within the definition of s. 22 of the Courts Act, 1981. He referred to Mellowhide v. Barry [1983] I.L.R.M. 152. He argued that an award of compensation is not inclusive of interest, that interest is a consequential relief. He submitted that an award is restricted to compensation in the specific damages sense. He argued that it was strange that if the legislature intended that interest may be paid that it was not set out expressly in the statute. He referred to s. 21 Courts and Court Officers Act, 1995 which expressly enabled the Master award interest. He referred to s. 11(4)(a) Unfair Dismissals Amendment (Act) 1993 which enabled the Circuit Court on appeal from the Unfair Dismissals Tribunal to award interest pursuant to s. 22 Courts Act, 1981. He submitted that the Hepatitis C Compensation Tribunal Act, 1997 dealt with many incidental matters but it did not include the matter of interest.

5. Decision

10. The issue is whether s. 5(1) of the Hepatitis-C Compensation Tribunal Act, 1997 vests in the Hepatitis-C Tribunal the jurisdiction under s. 22 of the Courts Act, 1981. Thus it is a question of construing the statute.

11. The law as to the awards is set out in s. 5(1) to (19). S. 5(1) provides:

“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.”

12. It is this section which falls to be construed. It is well established that effect should be given to clear and unambiguous words. The words of the statute declare best the purpose of the act.

13. I am satisfied that the words of s. 5(1) are clear and unambiguous. I shall consider them word by word. An award is to be “. . . on the same basis as the High Court . . .”. Clearly this places the awards of the Tribunal on the same basis as High Court awards. Awards of the Tribunal are to be similar to those of the High Court. The words “. . . calculated by reference to the principles which govern the measure of damages in the law of tort” explain the fundamental principles to apply. The amount of “compensation” is to be “calculated by reference to the principles which govern the measure of damages in the law of tort”. There then follows the word “and”. I am satisfied that it is a disjunctive term. The section sets out the full parameters of the jurisdiction. The award is to be calculated not only by reference to the principles which govern the measure of damages in the law of tort but also by reference to “. . . any relevant statutory provision . . .” The remainder of the wording of the subsection specifies that these “relevant statutory provisions” are to include Part IV of the Civil Liability Act, 1961. It also specifies that the Tribunal may consider (as may the High Court) the making of an award which reflects the principles of aggravated or exemplary damages.

14. The wording of the subsection sets out in some detail the power of the Tribunal to make awards on the same basis as an award of the High Court. “. . . [A]ny relevant statutes . . .” are to be applied to the calculation of these awards. Clearly s. 22 of the Courts Act, 1981 is a relevant statutory provision in this sense. On a literal interpretation s. 5(1) of the Hepatitis C Compensation Tribunal Act, 1997 vests in the Hepatitis C Tribunal the jurisdiction under

s. 22 of the Courts Act, 1981. Consequently, it is not necessary to take any further approach.

15. However, I am satisfied that a purposive approach would yield a similar result. In the Law Reform Commission, Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61 - 2000) at page 10, paragraph 2.03, as to the relationship between the literal and purposive approaches to interpretation, it is stated:

“It is important to state, at the outset, that the literal rule is, and must remain, the general governing principle in this area: anything else would lead to chaos. Moreover, in most cases a literal construction will lead to the same result as a purposive construction. However, the central question in this chapter is whether a court, in the minority of cases in which the literal meaning of a provision is not

consistent with the purpose of the relevant Act, should look beyond the literal meaning, in order to give expression to the intended effect of the Statute.”

16. Having considered the matter, including analysing case law in Ireland and abroad, the

17. Commission recommended at page 21, paragraph 2.42:

“. . . a provision which retains the literal rule as the primary rule of statutory interpretation. The other significant feature of our proposed formulation is that it specifies exceptions to this primary approach, not only in cases of ambiguity and absurdity, but also - and here is the slight change from the common law as expressed in some judgments - where a literal interpretation would defeat the intention of the Oireachtas. The draft provision which we propose also indicates that such an exception should only apply where, in respect of the issue before the court, the intention of the Oireachtas is plain.”

18. The act in issue is entitled ‘Hepatitis C Compensation Tribunal Act, 1997’. The long title states that it is:

“An Act to provide for the establishment of a tribunal to be known as the Hepatitis C Compensation Tribunal to award compensation to certain persons who have contracted Hepatitis C within the State from Anti-D Immunoglobulin, other blood products or blood transfusion and to provide for connected matters.”

19. Thus, the essence of the act is to provide a system for the payment of compensation. The term “award” means an award of compensation: s. 1(1). A tribunal is provided pursuant to

s. 3. S. 3(1) states:

“On the establishment day there shall stand established a Tribunal to be known as the Hepatitis C Compensation Tribunal to award compensation to claimants . . .”

20. Claims may be made by the persons described in s. 4(1). The appellant has applied under the

carer’s section, being s. 4(1)(d), which states:

“any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c) , and who has incurred financial loss or expenses as a direct result of providing such care arising from the person being cared for having contracted Hepatitis C.”

21. The appellant comes within s. 4(1)(d) and is a valid claimant. S. 5 has been set out earlier in

this judgment and construed literally.

22. Applying a purposive interpretation to s. 5(1) of the Hepatitis C Compensation Tribunal Act, 1997 it is clear that the fundamental purpose of the act is to compensate the claimants. Further, it is intended that the Tribunal shall make these awards and that an award of the Tribunal shall be made on the same basis as an award of the High Court, calculated by reference to any relevant statutory provisions. Relevant statutory provisions include the Courts Act, 1981. Consequently it follows that the purpose and intent of the Act is to put the Tribunal in the same position as the High Court in making awards. It is implicit in the machinery for the making of the award, for its computation on normal tort principles and by the choice afforded to a claimant to proceed with any right of action (s. 5 subsections 9 to 14) that so far as reasonably possible and certainly so far as amount is concerned, that a Tribunal award should be comparable with a judgment of the High Court. To exclude the right in appropriate cases to apply for interest would be to the disadvantage of the Tribunal and would conflict with the apparent intention of the Act. That being so, the Tribunal may make an order for interest pursuant to s. 22 Courts Act, 1981. Therefore, the High Court, on appeal from the Tribunal, may if it thinks fit, make an order for interest in accordance with the terms of s. 22 Courts Act, 1981 as it has the same jurisdiction as the Tribunal. The making of such an order for interest is, of course, discretionary.

6. Conclusion

23. I am satisfied that the matter should be remitted to the High Court, so that the learned High Court judge may exercise the discretion provided for in s. 22 Courts Act, 1981 incorporated in the jurisdiction of the Hepatitis C Tribunal by s. 5(1) of the Hepatitis-C Tribunal Act, 1997.