The High Court found that fatigue and tiredness experienced by an anonymised appellant were probably attributable to exposure to hepatitis C. It confirmed the existing €125,000 award and said it would make a further provisional award covering possible future loss of earnings or job opportunities, with the wording to be settled after submissions from counsel.
The judgment, delivered by Mr Justice Henry Abbott on 20 December 2013, concerned an appeal under the Hepatitis C Compensation Tribunal Acts 1997–2006. The appellant, who was then a minor, had been awarded €125,000 by the Tribunal after it found on the balance of probabilities that he had been exposed to or contracted hepatitis C in utero or at birth through transmission from his mother. The Tribunal had also allowed him to return for further compensation if he later became PCR positive or developed specified serious liver conditions as a direct consequence of the infection. That award had been rejected by Hanna J.
The appeal was heard as a rehearing because the notice of appeal challenged the award generally and did not identify which parts were not in dispute. The Minister for Health and Children was therefore permitted to defend the case as if a cross appeal had been served. The Minister contested the scientific basis for finding infection or entitlement to compensation. The appellant also argued that the award was inadequate and that the Tribunal should have considered a provisional award for future economic loss.
On the testing issue, the judge heard evidence from Dr Liam Fanning and concluded that the ELISA method was more thorough and more likely to give an accurate reading than the test relied on in a report by Professor Crowe for the Minister. The judge also considered the RIBA test. He said this conclusion was not determinative of the appeal.
On causation, the judge considered the Tribunal transcript, including evidence from Professor Burke that had not linked the appellant’s tiredness and fatigue to the infection. He found that evidence from Dr William Kinsella, an educational expert, materially changed the position. Having considered the appellant’s academic performance, the expert evidence, and the credibility of the appellant and his mother, the judge was satisfied that fatigue could be attributed to hepatitis C exposure on the balance of probabilities.
The court declined to increase the €125,000 award for past and present fatigue, finding that the amount remained appropriate and noting the possibility of a significant award under a further provisional award. It confirmed the Tribunal’s provisional award for possible future infection. The further provisional award was not yet drafted: the court awaited counsel’s submissions on terms addressing possible future loss of earnings or job opportunities if the fatigue continued.