THE first court challenge to an award made by the Hepatitis C Compensation Tribunal failed in the High Court in Dublin yesterday.
A 47 year old Limerick mother of 11 challenged tribunal awards of £140,000 general damages, £25,000 for loss of earnings and, £35,000 for home help.
The President of the High Court, Mr Justice Costello, refused her application, saying no, order would be made up until the counsel for the woman and the tribunal had considered his findings.
He put the matter in for mention on November 25th to consider who should pay legal costs. Mr John Hedigan SC for the tribunal said he was instructed, if the woman's application was refused, not to apply for costs.
Mr Justice Costello, in his judgment, said the High Court had to decide whether the tribunal's decision was lawful, not right or wrong in the award amount. The woman's challenge was that the tribunal exceded its powers.
The judge said the tribunal decision said the woman's life expectancy was about 20 years and awarded £205,000 (which included £5,000 for nursing care in the last year of her life).
Dealing with the claim that £35,000 was not enough for home help, Mr Justice Costello said the woman's lawyers claimed the tribunal erred in law in taking into account the voluntary assistance which the applicant would receive from her children as they grew older. The judge could not agree with this criticism nor that the tribunal failed to apply correct legal principles in arriving at the £35,000 award.
The tribunal lawyers, said the judge, accepted that in compensating the woman, it did not merely award a sum to pay for her personal assistance in the home. Compensation should also be based on the cost of assistance to provide the services to her family which she could no longer provide.
On compensation for the future, the tribunal could take into account that services provided by the mother would decline as her children grew up and helped in the home or left home.
The tribunal would then decide on the extent of future services which would have been rendered by the woman to her family but for her disablement. It would then cost these prospective services.
After the tribunal gave its decision, the judge said, a new piece of legislation, the Health (Amendment) Act 1996, was enacted under which hepatitis C sufferers could receive home help.
The tribunal lawyers had submitted this legislation meant that should the woman succeed and the case be returned for reconsideration then the tribunal would award no compensation under the home help heading because the health board would provide it.
Mr Justice Costello agreed with this submission. Even if the tribunal had erred in law there would be no benefit to the woman in quashing the tribunal's findings. The tribunal would most likely take into account the provision of the 1996 Act when a compensation claim based on the need for home help was advanced.
Mr Justice Costello said the woman claimed she was entitled to an award of £244,053 for a full time housekeeper. The tribunal concluded the claim was exaggerated and it had not acted beyond its powers in reaching its conclusion.
On the woman's earnings, the judge said the tribunal was free to decide on the evidence what her earnings would have been had she not suffered her disability and it did not act unlawfully in its assessment.
In relation to the £140,000 general damages, Mr Justice Costello said the tribunal was experienced. It would require compelling reasons to justify a conclusion that it acted irrationally. None existed. That the woman's lawyers thought the award should be higher was not a reason.