HC 154/04
THE HIGH COURT
Record No. 1999/91CT
IN THE MATTER OF THE HEPATITIS C COMPENSATION TRIBUNAL ACT 1997 AND 
IN THE MATTER OF AN APPEAL PURSUANT TO THE PROVISIONS OF SECTION 6 (3) E 
BETWEEN
L.B.
APPELLANT
 AND 
THE MINISTER FOR HEALTH AND CHILDREN
	RESPONDENT
JUDGMENT of O’Neill J. delivered the 26th day of March, 2004.
	The appellant in this case L.B. is now deceased having died on 9th April, 2002.  This motion is brought by his widow to reconstitute that appeal in order to replace the deceased by his widow, who is also the executrix of his will, as the appellant in these proceedings.  The appeal is taken against both the general damages and special damages aspects of the award of the Tribunal.  
Thus what is sought in this notice of motion is to reconstitute the appeal so as to enable the recovery through the appeal of damages which fall into essentially two categories, namely those damages which have survived the death of the deceased and are recoverable pursuant to s. 7 (1) of the Civil Liability Act, 1961 and those damages arising from the death of the deceased and which are recoverable by the dependants of the deceased.
This application is opposed by the respondent on the grounds that it is misconceived, as stated in the notice of motion, that no legal basis has been demonstrated for the continuance of an appeal in this case by a personal representative on behalf of the estate of a deceased person and no provision of law has been put forward which permits an appeal from the non-statutory Tribunal, to be reconstituted and continued following the death of the appellant in the manner now sought by the applicant in this notice of motion, and finally an appeal brought by the appellant is not an “action” within the meaning of O. 125 of the Rules of the Superior Courts and therefore any reliance on rules which permit an action to be continued following the death of a plaintiff, give no assistance to the personal representatives and/or the estate and/or dependants of the appellant in this case.  
The right to appeal from a non-statutory Tribunal is a statutory right conferred by s. 6 (3) (e) of the Hepatitis C Compensation Tribunal Act, 1997.  The procedure for such an appeal is set out in O. 105A of the Rules of the Superior Courts under the specific provision of O. 105A Rule 2 (5). 
O. 125 of the Rules of the Superior Court defines “action” as being;
“A civil proceeding commenced by originating summons or such other manner as may be authorised by these rules, but does not include a criminal proceeding at the suit of the Attorney General.”

In my view an appeal commenced under O. 105A Rule 2 (5) to this court from the non-statutory Tribunal in the manner prescribed comes within the definition of “action” as contained in O. 125 of the Rules of the Superior Court.  
That being so it necessarily follows that such an appeal is amenable to the Rules of the Superior Court and hence such an appeal is capable of being reconstituted under the provisions of O. 17 Rule 4.
The question of whether that appeal is to be reconstituted in the name of the personal representative or for the dependants, within the meaning of Part IV of the Civil Liability Act 1961, depends upon the issues raised in the appeal.
In this case a full appeal is taken both against the general damages and the special damage aspects of the award of the non-statutory Tribunal.  
Insofar as the special damages are concerned, any appeal which would raise issues concerning entitlement to and the quantum of special damages to date or for the future, such as, loss of earnings and damages in respect of lost years, would rightly concern the personal representative, as the beneficiary of any award of damages in respect of these matters would be the estate of the deceased.  In this case such an appeal exists in respect of those issues and hence in my view the personal representatives of the estate of the deceased has an interest in such an appeal and in my view the appeal ought to be reconstituted to permit the personal representative to litigate the appeal in respect of those matters on behalf of the estate of the deceased.  
This conclusion would be sufficient to dispose of the application to reconstitute the appeal.  However in deference to the learned submissions made, on the question of whether or not, the applicant in this motion namely the widow of the deceased, either in her capacity as personal representative or as a dependent or on behalf of the dependants of the deceased, can recover the general damages to which the deceased would have been entitled to claim had he not died, I propose to express an opinion on that question.
Section 7 (2) of a Civil Liability Act precludes the recovery of exemplary damages or damages for any pain or suffering or personal injury, loss or diminution of expectation of life or happiness, where the alleged sufferer dies prior to recovery of damages.  
Section 5 (2A) (b) of the Hepatitis C Compensation Tribunal (Amendment) 2002 creates an exception to the above statutory prohibition and is in the following terms;
“(2A) 	notwithstanding sub-s.1 … 
(b) 	the Tribunal may make an award to a dependant referred to in paragraph (e) or (j) of s. 4 (1) consisting of an amount equal to the amount of the general damages including damages for pain and suffering, personal injury, loss or diminution of expectation of life or happiness which the deceased suffered during his or her lifetime and to which the deceased would have been entitled if he or she had survived and brought a claim for compensation to the Tribunal, and where there is more than one such dependant, the amount aforesaid of the award shall be divided among those defendants in such a manner as the Tribunal thinks just….”  

In this case the deceased had applied to the non-statutory Tribunal and had been awarded a sum in respect of general damages which was the subject of the appeal to this court at the time of the deceased’s death.  
The respondent urges a literal approach to the interpretation of this subsection and submits that the wording of the subsections is perfectly clear, free of any ambiguity and is to the effect that there cannot be a reliance upon this subsection where the deceased had already applied to the Tribunal and been awarded general damages and in this regard he points to the phrase: 
“And to which the deceased would have been entitled to if he or she had survived and brought a claim for compensation to the Tribunal…”.   

Thus it was submitted for the respondent that because the deceased had made an application to the Tribunal, it was not now open to his widow in any capacity to pursue an appeal in respect of the general damages awarded to the deceased during his life time.  
For the applicant it was submitted that the subsection was intended to benefit all sufferers from Hepatitis C without regard to the time of the infection.  Thus the subsection was clearly not intended merely to benefit those who were infected with Hepatitis C or who became aware of their infection with Hepatitis C after the enactment of the Act of 2002.  It was submitted, that it necessarily followed that if a claim could be made in respect of general damages, when the deceased had died, under the provisions of the 2002 Act, there was a right of appeal in respect of an award of the Tribunal in regard to those general damages.  In other words it was submitted that the appeal was part and parcel of the statutory procedure provided for the purpose of bringing to ultimate fruition a claim for damages under both the Act of 1997 and the Act of 2002.
It was submitted that if the respondent was correct in his submission, then either the estate of the deceased or his dependants would be deprived of the benefit of the statutory reform contained in s. 5 (2A) (b) as quoted above, by the accident of the untimely death of the deceased.  It was submitted that the dependants of the deceased were persons, manifestly intended to be benefited by s. 5 (2A) (b) and that the procedures prescribed to give effect to the claiming of that benefit should be construed in a purposive way so as to enable a person or persons clearly entitled to the benefit, to claim the benefit and should not be construed, as contended for by the respondent in a literal way so as to defeat the claim of a person clearly intended to benefit from the subsection.  
Although peripheral to the main question it would seem to me to be appropriate to first address the precise status of a claim under s. 5 (2A) (b) i.e is it a survivor claim under s. 7 of the Civil Liability Act 1961 or is it to be regarded as a dependants claim under Part IV of the Civil Liability Act 1961.  
In my view it is neither.  The persons who can benefit from such a claim are the dependants who are the same as the dependants set out in Part IV of the Civil Liability Act, 1961 as amended, but notwithstanding that, a claim by such a dependant under the Hepatitis C Compensation Tribunal Acts 1997 to 2002 stands on its own but could be said to be analogous to a dependants claim under Part IV of the Civil Liability Act 1961.  
In my view a claim by a dependant under s. 5 (2A) (b) is clearly not a claim under s. 7 of the Act of 1961, for the benefit of the estate of the deceased.  It is quite clear that the estate of the deceased is not the intended beneficiary of this relief.
There is no doubt that the deceased was a person who had Hepatitis C and was entitled to claim compensation initially under the non-statutory scheme and he was entitled to claim the appropriate reliefs under the Act of 1997.  Thus he was clearly in the class of persons intended to be the beneficiaries of this legislative scheme.  Part and parcel of the legislative scheme comprised in the Act of 1997 is the right of appeal from the Tribunal to this court. 
Had the deceased died prior to the date of the award of the Tribunal to him, there could be no doubt but that his dependants would now be entitled to pursue a claim for his general damages before the Tribunal and if dissatisfied with the award of the Tribunal in that regard to appeal to this court.  
What is crucial in my view is that the relief now conferred in s. 5 (2A) (b) is not prospective in time.  Thus the dependants of a sufferer from Hepatitis C is entitled to avail of the relief regardless of when the sufferer was infected with Hepatitis C or became aware that they were infected with Hepatitis C.  The relief conferred by this subsection therefore operates retrospectively subject to the time limits in s. 4 (14A) (c), of the Act of 1997.  
Thus it is correct for the applicant to submit that it was the timing of the death of the deceased which separated his dependants from all other dependants who would be entitled to avail of the relief in s. 5 (2A) (b), rather than there being any difference of substance between the dependants of the deceased in this case and all other dependants who would be entitled to avail of the relief in the subsection. 
The scheme of the Acts of 1997 and of 2002 is to provide compensation to those who have suffered from Hepatitis C or their dependants, under a variety of headings as set out in the Acts.  The claim that is now sought to be advanced in this appeal is one which could undoubtedly be pursued in that way had the deceased died at a different time i.e. before his claim for general damages was determined by the non–statutory Tribunal, or put another way if the deceased had not bothered to have pursued his claim to the Tribunal prior to his death the claim in respect of general damages could now be pursued at first instance, before the statuary Tribunal and thereafter on appeal to this court unless excluded by the time limit in s. (14A) (c) of the 1997 Act as inserted by s. 4 of the Act of 2002.
In this case, it cannot be said that the claim, now sought to be made on appeal for general damages would be statute barred if it was now made at first instance to the Tribunal.  Thus the dependants, not being statute barred at first instance, are in no different a position to any other members of the class to be benefited by s. 5 (2A) (b).
In my view a segregation of the dependants of the deceased in this case so as to deny them an appeal from the award of the non-statutory Tribunal can only be sustained by the extreme rigour of a literal interpretation of s. 5 (2A) (b).  
Faced with what appears to me to be a conflict between such a literal interpretation, and the undoubted scheme and purpose of the legislation and bearing in mind that there is no difference in the circumstances of the dependants in this case justifying their treatment in a different way to the dependants of another person who had died as a result of Hepatitis C, then in my view the literal approach to the interpretation of this subsection must give way to a purposive construction so as to render its construction in harmony with the true purpose and scheme of these Acts.  
The respondents have argued, relying upon the case of Veronica Mahon Plaintiff v. Gerard J. Burke and the Midland Health Board 2 I.R. at 495, that where a claim has already been made to the non-statutory Tribunal and an award made, that by analogy with the principle set out in that case, the dependants of the deceased cannot after death pursue by way of an appeal in this case a claim pursuant to s. 5 (2A) (b) of the Act of 2002.  
In my view that case is to be properly distinguished from the circumstances of this case, because in that case the court was concerned with the situation where the action brought by the injured party during life was compromised or brought to judgment and the court did not consider the situation that would have pertained had a judgement being under appeal at the time of death.
I have been referred to a judgment of my own in the case of JGH v. The Minister for Health and Children 1999/11 CT in which I refused an extension of time.  In that case the applicants primary concern was to obtain an order which would ensure on a subsequent application to the Tribunal in respect of a claim for damages in respect of the HIV virus, that the applicant would not be faced with a situation where there was a risk that the Tribunal might decide that the appeal, sought to be reconstituted, was the proper recourse open to the applicant and should accordingly be pursued.  Furthermore it was contended in that application that the general damages in respect of which an appeal was sought to be pursued could in any event be claimed as part of the HIV claim before the Tribunal in circumstances where the avenue of appeal was not open.
For these reasons this case is distinguishable from the case now before me.
In conclusion therefore I am of opinion that the applicant in this motion is entitled to pursue the appeal in respect of special and general damages.