Analysis: If compensation tribunals are to work, they must award at least what would be available from the courts, writes Carol Coulter, Legal Affairs Correspondent
The setting up of compensation tribunals has always had to contend with one difficulty - the fact that in Ireland there is a constitutional right to access to the courts to vindicate the rights guaranteed under the Constitution.
Thus no one can be forced to use any alternative to the courts that may be set up. This includes compensation tribunals where the State was ultimately responsible for the injury, like the one for people contaminated with infected blood or those damaged by abuse in children's residential institutions.
It also includes tribunals adjudicating on compensation for those injured by private organisations or individuals, like the new Personal Injuries Assessment Board, and various other proposals currently under discussion aimed at compensating the victims of medical negligence, for example.
Given the fact that no one can be forced to use such tribunals, the only way they can be made attractive is for the awards they make to be equivalent to what would be available in the courts. Then the attraction of going to such a tribunal would be the avoidance of the stress and trauma of going to court and the absence of the need to prove liability.
However, the danger always exists, both before tribunals and in court, that the extent of the injury and cost of treatment may not become apparent until the compensation has been ordered or agreed.
For such tribunals to be cost-effective they must offer finality, especially to the State. If they come to form yet another layer in the compensation system, they risk adding to its overall cost and making the process interminable.
The Act setting up the Hepatitis C Compensation Tribunal, which is a template for other compensation tribunals, sought to deal with this by setting out a clear regime where a person accepted, rejected or appealed against an award.
Acceptance within a specified time - in this case, a month - involved giving up the option of going to court to seek compensation. The individual who goes to the tribunal also has the option of rejecting the award and pursuing his or her claim in other arena.
In this case the claimant had accepted an award from the tribunal within the specified time, and did not appeal it. However, he argued successfully in the High Court that he should have had an extended right of appeal.
The man brought his case following the award by the High Court of considerably bigger sums than those paid by the compensation tribunal.
Had he won his case, several other people who were "early settlers" of their claims through the tribunal would also have appealed to the courts.
Mr Justice O'Neill said in his judgment that the purpose of the Act was to provide for the awarding of compensation to the victims of a public health disaster.
It was not reasonable, given the likely time between an award of compensation and the hearing of an appeal, that a claimant should have no access to any compensation during that time, he said. Therefore it must have been the intention of the Oireachtas that claimants could, if they wished, have access to compensation and also appeal the amount.
The Supreme Court did not agree. According to the lead judgment from Ms Justice Denham, the words of the Act meant what they said and once an award was made to a claimant, the claimant had a specified time in which to stay within the tribunal system or not. If he or she opted to do so, accepted the award and signed the appropriate documents, then the claimant could not later appeal.
This clearly has implications for the "early settlers" who find themselves with less compensation than some later claimants who went to court.
The Fine Gael spokeswoman on health, Ms Olivia Mitchell, has called for the legislation to be amended to allow those who may have settled before realising the full consequences of their medical condition an opportunity to appeal.
This is unlikely. Already under the Act there can be a provisional award, allowing the claimant to seek a further award if the condition worsens. The claimant must choose either a provisional or a lump-sum award.
However, the whole saga begs the question - is a once-off compensation payment the best way to deal with an injury whose full impact may only become apparent years later or should there be provision for a system of ongoing support instead?