The High Court has ruled that a widow is entitled to have the Hepatitis C and HIV Compensation Tribunal hear her argument that an earlier judgment settled whether hepatitis C significantly contributed to her husband’s death. But the court dismissed her appeal, holding that judicial review was the appropriate procedure to pursue the complaint.
The judgment, delivered by O’Neill J. on 2 March 2005, concerns P.B., whose husband L.B. died on 9 April 2002. L.B. had hepatitis C and received an award from the non-statutory Hepatitis C Tribunal in 1996. After his death, an appeal was reconstituted in P.B.’s name, and the High Court awarded her a larger sum in May 2004. In that judgment, the court determined that hepatitis C was a significant contributory factor in L.B.’s death.
P.B. later sought compensation for loss of consortium and society under the Hepatitis C Compensation Tribunal Act, and for loss of dependency under the Civil Liability Act. The Tribunal requested a report from a hepatologist about the cause of death and hepatitis C’s contribution. P.B. argued that the High Court had already decided those matters, so they were res judicata, and objected to the doctor providing a report or evidence to the Tribunal.
The Tribunal said it would not proceed with her application until it received the report, leaving the claim adjourned. P.B. asked it to hear as a preliminary issue whether the earlier judgment had settled the matter. The Tribunal replied that it had already set out how the claim would be heard.
O’Neill J. said the Tribunal’s position amounted to refusing to hear and determine an issue within its statutory competence. Requiring P.B. to abandon the res judicata contention without a hearing breached her right to fair procedures, the judge said. She was entitled to have that issue heard and determined by the Tribunal.
However, the court held that an appeal under section 5(15) of the 1997 Act could not provide the order P.B. sought: the statutory appeal jurisdiction did not extend to directing the Tribunal to hear and decide that preliminary issue. Judicial review under Order 84 of the Rules of the Superior Courts was the more appropriate route. The appeal therefore failed for want of jurisdiction. The judge said leave to seek judicial review should be granted if the appropriate application were made; the judgment does not record that such leave was granted or decide the underlying res judicata question.