The Supreme Court rejected J.F.’s appeal over the refusal of a second claim for financial losses linked to caring for his wife, A.F., who contracted Hepatitis C. It held that his accepted 1997 award was final and that a 2002 statutory amendment did not give him a new basis to claim.
J.F. had applied to the Hepatitis C Compensation Tribunal in 1997 for losses arising from taking A.F. to medical appointments. The Tribunal made him a final award for past and future loss of earnings. He accepted it. A.F. received a provisional award, with permission to return to the Tribunal if she developed specified serious conditions.
After A.F.’s health deteriorated, J.F. gave up his employment in September 2000 to care for her. In 2003, he applied again, relying on amendments to the Hepatitis C Compensation Tribunal Act 1997. The Tribunal made an award for consortium under a new provision but refused a further award for care-related financial loss. The High Court dismissed his appeal.
J.F. argued that the 2002 insertion of the words “or will incur” into the provision for care-related claims created a fresh basis for claims arising from new losses. He also relied on Fitzgerald v Kenny, in which the Supreme Court had allowed fresh evidence about events arising after a trial while an appeal was pending. The Minister argued that J.F. had already accepted a final award that covered future losses, and that the statutory scheme allowed a further award only in limited circumstances, including where a person with Hepatitis C had received a provisional award.
The Supreme Court agreed with the Minister. It said the scheme required a claimant to choose whether to accept, reject or appeal an award, and that acceptance brought finality to claims arising from the same circumstances. The 2002 amendment clarified the Tribunal’s existing power to award future losses; it did not create a new basis of claim. Fitzgerald v Kenny concerned events arising before an appeal was determined and did not allow a series of claims after a final award.
The court answered the four certified questions: yes to whether the High Court was correct to refuse the further claim; no to whether a claimant who had recovered under the provision could pursue a further claim for losses not contemplated earlier; yes to whether the accepted 1997 award barred a later claim; and no to whether the court could use its discretion under Fitzgerald v Kenny to award compensation. The appeal was therefore dismissed.