In the matter of an appeal pursuant to section 15(5) of the Hepatitis C Compensation Tribunal Act 1997.

O'C (appellant) v The Minister for Health (respondent).

Tort - Hepatitis C - Damages for loss of earnings - Whether jurisdiction to order interest on award from tribunal - Statutory interpretation - Literal interpretation - Purposive interpretation - Courts Act 1981, section 22 - Hepatitis C Compensation Tribunal Act 1997.

The Supreme Court (Mrs Justice Denham; Mrs Justice McGuinness and Mr Justice Fennelly); judgment delivered 31 July 2001.

On a literal interpretation, section 5(1) of the Hepatitis C Compensation Tribunal Act 1997 vested in the Hepatitis C Tribunal the jurisdiction under section 22 of the Courts Act 1981. The purpose and intent of the Hepatitis C Compensation Tribunal Act 1997 was to put the tribunal in the same position as the High Court in making awards.

To exclude the right in appropriate cases to apply for interest would be to the disadvantage of the tribunal and would conflict with the apparent intention of the Hepatitis C Compensation Tribunal Act.

That being so, the tribunal may make an order for interest pursuant to section 22 Courts Act 1981.

The Supreme Court so held in remitting the matter to the High Court.

John Gordon SC and Michael Tuite BL for the appellant; Michael Carson SC and Emile Daly BL for the respondent.

Mrs Justice Denham said that this was an appeal by the appellant from part of a judgment of the High Court in July 2000. The issue on appeal was as to whether there was jurisdiction to order interest pursuant to section 22 of the Courts Act 1981 ("the Courts Act") on an award under the Hepatitis C Compensation Tribunal Act 1997 ("the Tribunal Act").

The appellant's wife, who had contracted Hepatitis C as a result of an injection of contaminated Anti-D and had been awarded compensation by the Hepatitis C Compensation Tribunal ("the tribunal"). The appellant claimed in respect of loss of earnings resulting from the fact that he had been obliged to curtail his career due to the demands made on him in caring for his wife. This claim was refused by the tribunal but, on appeal, was allowed by the High Court. Accordingly, the High Court awarded the appellant £60,559.00. There was no appeal from this award.

The High Court had refused the appellant's claim for interest under the Courts Act, on the basis that the tribunal had no jurisdiction to order the payment of interest. The appellant was granted an appeal to the Supreme Court pursuant to section 5(19) of the Tribunal Act.

Mrs Justice Denham stated that section 22 of the Courts Act provided as follows:

22. (1) Where in any proceedings a court orders the payment by any person of a sum of money (which expression includes in this section damages), the judge concerned may, if he thinks fit, also order the payment by the person of interest at the rate per annum standing specified for the time being in section 26 of the Debtors (Ireland) Act 1840, on the whole or any part of the sum in respect of the whole or any part of the period between the date when the cause of action accrued and the date of the judgment.

(2) Nothing in subsection (1) of this section -

(a) shall authorise the giving of interest on interest, or

(b) shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise, or

(c) shall affect any damages recoverable for the dishonour of a bill of exchange, or

(d) shall authorise the giving of interest in respect of a period before the passing of this Act, or

(e) shall authorise the giving of interest on damages for personal injuries, or in respect of a person's death in so far as the damages are in respect of -

(i) any loss occurring after the date of the judgment for the damages, or

(ii) any loss (not being pecuniary loss) occurring between the date when the cause of action to which the damages relate accrued and the date of the said judgment.

(3) In this section -

"damages for personal injuries" includes damages for personal injuries arising out of a contract;

"pecuniary loss" means loss in money or money's worth, whether by parting with what one has or by not getting what one might get;

"personal injuries includes any disease and any impairment of a person's physical or mental condition;

"proceedings" includes proceedings to which the State or a State authority (within the meaning of the Act of 1961) is a party .

Mrs Justice Denham stated that the Tribunal Act provided at sections 4 and 5 as follows:

4. (1) The following persons may make a claim for compensation to the Tribunal -

(a) a person who has been diagnosed positive for Hepatitis C resulting from the use of Human Immunoglobulin Anti-D within the State,

(b) a person who has been diagnosed positive for Hepatitis C as a result of receiving a blood transfusion or blood product within the State, . . . .

(d) any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c), and who has incurred financial loss or expenses as a direct result of providing such care arising from the person being cared for having contracted Hepatitis C.

5. (1) An award of the Tribunal to a claimant shall be made on the same basis as an award of the High Court calculated by reference to the principles which govern the measure of damages in the law of tort and any relevant statutory provisions (including Part IV of the Civil Liability Act 1961), and including, subject to section 11, consideration of an award on the basis which reflects the principles of aggravated or exemplary damages.

The appellant submitted that the claim for interest raised the amount of the claim to £117,534.00 and that the High Court should have exercised its discretion as to whether or not to allow interest on the loss of earnings suffered.

Mrs Justice Denham said that the issue was whether section 5(1) of the Tribunal Act vested in the tribunal the jurisdiction under section 22 of the Courts Act, and was therefore a question of construing the section of the statute.

She said that the law as to awards was set out in section 5 of the Tribunal Act and that section 5(1) provided: "An award of the Tribunal to a claimant shall be made on the same basis as an award of the High Court calculated by reference to the principles which govern the measure of damages in the law of tort and any relevant statutory provisions (including Part IV of the Civil Liability Act, 1961), and including, subject to section 11, consideration of an award on the basis which reflects the principles of aggravated or exemplary damages."

Mrs Justice Denham said that it was well established that effect should be given to clear and unambiguous words and that the words of the statute declared best the purpose of the act.

Mrs Justice Denham said she was satisfied that the words of section 5(1) were clear and unambiguous and she considered them word by word.

An award was to be "on the same basis as the High Court" and this placed the awards of the tribunal on the same basis as High Court awards. Awards of the tribunal were to be similar to those of the High Court. The words " calculated by reference to the principles which govern the measure of damages in the law of tort" explained the fundamental principles to apply. The amount of "compensation" was to be "calculated by reference to the principles which govern the measure of damages in the law of tort".

Mrs Justice Denham said that the word "and" which followed was a disjunctive term. The section set out the full parameters of the jurisdiction. The award was to be calculated not only by reference to the principles which governed the measure of damages in the law of tort but also by reference to "any relevant statutory provision". The remainder of the wording of the subsection specified that these "relevant statutory provisions" were to include Part IV of the Civil Liability Act, 1961. It also specified that the tribunal may consider (as may the High Court) the making of an award which reflected the principles of aggravated or exemplary damages.

Mrs Justice Denham said that the wording of the subsection set out in some detail the power of the tribunal to make awards on the same basis as an award of the High Court and "any relevant statutes" were to be applied to the calculation of these awards. Clearly, she said, section 22 of the Courts Act was a relevant statutory provision in this sense. On a literal interpretation, section 5(1) of the Tribunal Act vested in the tribunal the jurisdiction under section 22 of the Courts Act. Consequently, it was not necessary to take any further approach.

However, Mrs Justice Denham said she was satisfied that a purposive approach would yield a similar result. In the Law Reform Commission Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61 -2000) at page 10, paragraph 2.03, as to the relationship between the literal and purposive approaches to interpretation, it was stated:

". . . the literal rule is, and must remain, the general governing principle in this area: anything else would lead to chaos. Moreover, in most cases a literal construction will lead to the same result as a purposive construction. However, the central question in this chapter is whether a court, in the minority of cases in which the literal meaning of a provision is not consistent with the purpose of the relevant Act, should look beyond the literal meaning, in order to give expression to the intended effect of the Statute."

Having considered the matter, including analysing case law in Ireland and abroad, the Commission had recommended at page 21:

". . . a provision which retains the literal rule as the primary rule of statutory interpretation. The other significant feature of our proposed formulation is that it specifies exceptions to this primary approach, not only in cases of ambiguity and absurdity , but also - and here is the slight change from the common law as expressed in some judgments - where a literal interpretation would defeat the intention of the Oireachtas. The draft provision which we propose also indicates that such an exception should only apply where, in respect of the issue before the court, the intention of the Oireachtas is plain."

Mrs Justice Denham said that the Act in issue was entitled "Hepatitis C Compensation Tribunal Act 1997" and that the essence of the act was to provide a system for the payment of compensation and that the appellant was a valid claimant.

Mrs Justice Denham said that applying a purposive interpretation to the Tribunal Act it was clear that the fundamental purpose of the Act was to compensate the claimants.

Further, it was intended that the tribunal would make these awards and that an award of the tribunal would be made on the same basis as an award of the High Court, calculated by reference to any relevant statutory provisions. Relevant statutory provisions included the Courts Act 1981. Consequently it followed that the purpose and intent of the Tribunal Act was to put the tribunal in the same position as the High Court in making awards. It was implicit in the machinery for the making of the award, for its computation on normal tort principles and by the choice afforded to a claimant to proceed with any right of action, that, so far as reasonably possible and certainly so far as amount is concerned, a tribunal award should be comparable with a judgment of the High Court. She said that to exclude the right in appropriate cases to apply for interest would be to the disadvantage of the tribunal and would conflict with the apparent intention of the Act.

That being so, the tribunal may make an order for interest pursuant to section 22 Courts Act, 1981. Therefore, the High Court, on appeal from the tribunal, may if it thinks fit, make an order for interest in accordance with the terms of section 22 of the Courts Act 1981 as it had the same jurisdiction as the Tribunal. The making of such an order for interest was, of course, discretionary.

Mrs Justice Denham said in conclusion that she was satisfied that the matter should be remitted to the High Court, so that the learned High Court judge may exercise the discretion provided for in section 22 Courts Act 1981, incorporated in the jurisdiction of the Hepatitis C Tribunal by section 5(1) of the Hepatitis C Tribunal Act 1997.

Mrs Justice McGuinness and Mr Justice Fennelly concurred.

Solicitors; Ivor Fitzpatrick & Co., (Dublin) for the appellant; the Chief State Solicitor for the respondent.