The Court of Appeal ruled that a provisional award under the Hepatitis C Compensation Tribunal Acts can cover possible future loss of earnings, even where the claimant’s medical condition does not worsen. It answered the relevant questions of law in favour of that interpretation, while highlighting defects in the particular award and concerns about the evidence on fatigue.
The case concerned L O’S, who had cleared a hepatitis C infection contracted around the time of his birth. The Tribunal had awarded him €125,000 in general damages and made a provisional award allowing him to return if the virus recurred or if he developed cirrhosis or liver cancer. It refused to make the award provisional for possible financial loss.
On a full rehearing of his appeal, the High Court affirmed the €125,000 award, confirmed a further €25,000 from the Reparation Fund, and extended the provisional award to cover adverse effects on his income-generating capacity caused by tiredness or fatigue attributed to hepatitis C exposure. The Minister challenged whether the statutory scheme permitted that extension.
The Court of Appeal held that “particular serious consequences” in section 5(7) are not limited to medical consequences. A possible future reduction in earning capacity can qualify, and the court or Tribunal may make an award confined to pecuniary loss without requiring deterioration in medical status. The claimant must elect between a lump sum and a provisional award; where the provisional route applies, compensation for the specified possible consequences is excluded from the initial award.
The court did not give L O’S a right to further general damages if his fatigue worsened. The trigger in the High Court’s award concerned possible loss of income-generating capacity due to ongoing fatigue. The appeal court also said the award did not comply with section 5(7), because it failed to specify the period within which he could apply for further compensation. It said an application to the High Court judge to rectify that omission would be in both parties’ interests, preferably by agreement.
The judgment separately expressed serious concerns about whether the evidence supported a finding that fatigue was caused by past hepatitis C exposure. The appeal court said the High Court’s factual finding was not within its jurisdiction to overturn on this appeal. It nevertheless observed that a future application under the provisional award would arguably require proof that the fatigue affecting earning capacity was hepatitis C related. It also said the High Court judge should have required suitably qualified medical evidence on causation; the educational psychologist’s evidence could not establish that connection.
The proceeding was an appeal on specified questions of law, not a rehearing of the underlying facts. The court stated that it had no jurisdiction to interfere with the High Court’s factual findings.