The High Court increased B. O’K.’s general compensation on a return application from €150,000 to €200,000 after finding that her cirrhosis and hepatocellular carcinoma, and the resulting reduction in her life expectancy, warranted a higher award.
Mr Justice Bernard J. Barton delivered the judgment on 24 May 2019 in an appeal under the Hepatitis C Compensation Tribunal Acts 1997–2006. The appeal proceeded de novo on the compensation issue. The court said it was not deciding whether the Tribunal had made proper provision for shortened life expectancy in its earlier award.
B. O’K. contracted hepatitis C in 1977 after receiving an infected batch of Anti-D immunoglobulin following her daughter’s birth. In 2010, the Tribunal awarded her €275,000 and made the award provisional for specified serious conditions, including cirrhosis and hepatocellular carcinoma. After developing both conditions, she returned to the Tribunal and received a further €150,000 award.
The parties agreed that the conditions had shortened her life expectancy by seven to eight years. The Minister argued that the award should stand and that her decision to decline earlier medical advice and treatment could be considered as a failure to mitigate her loss. Her counsel argued that the award was insufficient and had not adequately accounted for her reduced life expectancy.
The judge held that a negligent or careless failure to mitigate loss is treated as contributory negligence under the Civil Liability Act 1961. But the compensation scheme did not permit contributory negligence to reduce an award: doing so would introduce questions of legal liability and apportionment that the scheme was designed to remove. The judge also said that, even if such a reduction were legally available, B. O’K.’s refusal of treatment in 2008 and 2012 was not unreasonable in the circumstances described in the evidence.
The court assessed fair and reasonable compensation for the conditions and their consequences at €225,000. It deducted €25,000 to account for an average life expectancy element already included in the 2010 award, leaving €200,000. The court ordered that net amount and said the terms and final form of the order would be discussed with counsel.