A.M. V. The Minister For Health

This case is an appeal from an award of damages granted to the appellant pursuant to the Hepatits C Compensation Tribunal Acts.

The appellant contracted hepatitis C in 1977 after being given an anti D injection that “came from a batch infected with hepatitis C.” In 1998, pursuant to the Hepatitis C Compensation Tribunal Acts, the appellant was awarded €283,500, which included €120,000 for general damages, based on her contraction of and suffering from the disease. However, the tribunal specified that if the appellant’s condition ever “deteriorat[ed] to decompensated cirrhosis” she would be free to return to the tribunal to seek further compensation.

In 2013, the appellant underwent treatment that was deemed necessary that resulted in her developing decompensated cirrhosis. From the decompensated cirrhosis, appellant developed encephalopathy. Symptoms of the condition suffered by the appellant included increased sleepiness and forgetfulness. The symptoms severely impacted her ability to enjoy an independent lifestyle and to enjoy many of the associations she previously enjoyed.

In 2015 the appellant returned to the tribunal to seek additional compensation for her deteriorated condition. The tribunal awarded €180,000, including €150,000 of “general damages.” The appellant then appealed to the High Court because she was dissatisfied with general damages portion of her award.

The Court held that the lower Tribunal’s award was inadequate to match the suffering incurred by the appellant and increased the award to €250,000. The Court reasoned that the previous awards were unreasonable because they did not include compensation for the possible future development of decompensated cirrhosis and its consequences. The Court relied upon medical evidence of the hepatologist who took over the management of the appellant’s condition. He gave evidence that the the appellant continues to have decompensation cirrhosis and further it had led to the development of hepatic encephalopathy. He also stated that there was a 20% chance that the encephalopathy could progess to stage 2.

“Whilst it is apparent, for the reasons given in the evidence of Dr. Houlihan to the court, that it is unlikely that the appellant would be offered transplantation in the future, it is also clear from his evidence that the consequences of the encephalopathy went far beyond the psychological. They were organic directly affecting the brain so as to have resulted and likely to result in ongoing functional impairment. The significance of that for the appellant cannot be understated particularly and especially in circumstances where, although impaired, her cognition is such that she has an appreciation, to use her words, of the predicament in which she now finds herself. Psychologically, the mental anguish and effect that that has had on the appellant was abundantly clear from her evidence and the way in which that evidence was given.” (Para 32)

“Under the scheme established by the Acts the court is required when applying the principles of tort law concerning the assessment of compensatory damages in the circumstances of a case such as the present, involving as it does a return to the tribunal, to have regard to the fact that an award of general and special damages has already been made in respect of the injuries and loss suffered and likely to be suffered by the appellant as a result of having contracted hepatitis C and which included cirrhosis .” (Para 33)

“The court is concerned on this appeal, as was the tribunal on the application before it, with the assessment and making of an award of general damages in respect of the present and future pain and suffering arising as a result of the development of decompensated cirrhosis of the liver which, at the time of the original hearing in 1998, was considered, on the evidence as it then was, to have been no more than a possibility and for which the applicant was not compensated in 1998.” (Para 34)

"I am satisfied that as a direct result of her decompensated cirrhosis the appellant developed encephalopathy which has and is likely to permanently affect her both psychologically and functionally, moreover, I am satisfied that this condition is, as a matter of probability, irreversible. It follows that apart altogether from the suffering caused by the other side effects of the anti viral treatment, the appellant has suffered a serious and permanent injury to her brain.” (Para 45)