The Supreme Court allowed an appeal by the Hepatitis C and HIV Compensation Tribunal over how compensation for a deceased person’s injuries should be awarded among dependants. In a judgment delivered on 7 May 2008, Mr Justice Kearns concluded that the relevant provision provides for a single award, divided among dependants as the Tribunal considers just, rather than separate awards for each dependant.
The award concerns general damages the deceased would have been entitled to claim for pain and suffering, personal injury, or loss or diminution of life or happiness, had they survived and brought a claim before the Tribunal. Justice Kearns said the provision describes the award in the singular and closely follows the approach under the Civil Liability Act 1961. He said separate claims would have required clearer statutory wording.
The judgment described possible consequences of treating dependants as separate claimants. Those could include repeated appeals about the same lump-sum award, challenges that put other dependants’ shares at risk, and delays to payment for dependants who accepted their allocations. Justice Kearns said that, in this case, an appeal by a dependant had delayed payment to others. He also outlined the risk that a dependant’s rejection of an allocation, without an appeal, could leave a spouse or child deemed to have rejected the award and confined to a common-law remedy, potentially losing any share if that claim had no prospect of success.
Justice Kearns considered those outcomes absurd, illogical and unworkable interpretations of the statutory scheme. He noted that the legislation contained anomalies and said constitutional questions about whether an appeal right available to a claimant but not other dependants was valid were not at issue in these proceedings.
The Court’s order was to allow the Tribunal’s appeal and answer the specified questions “No”, “Yes” and “Does not arise”. The judgment does not set out the questions themselves in the supplied text. Justice Kearns said the legislation should not be read as intending an absurd result, while acknowledging that the statutory scheme required reconsideration in light of differing views expressed by members of the Court about section 5(2A)(b).