THE first case challenging an award given at the compensation tribunal for people infected with hepatitis C began in the High Court yesterday.
A 47 year old mother of 11 children from Co Limerick has taken the action against the tribunal and the State.
The tribunal awarded her £140,000 in general damages, £25,000 for loss of earnings and £5,000 for nursing care during the last year of her life. It rejected her claim for £244,000 for home help services for the rest of her life and reduced her claim for domestic help to £35,000.
She is challenging the awards and the tribunal's rejection of her application for £244,000 for the home help services. She is seeking to have her case returned to the tribunal for reassessment.
The defence denies her claims and states that she was awarded the appropriate level of compensation. It denies that the tribunal erred in law.
It also states that the law has since changed and people such as the applicant would be entitled to home help. As a result, the tribunal was not making any assessments on home help any more.
Mr James O'Driscoll SC, for the woman, said he had been asked if the judge would request the press not to publish her name. The President of the High Court, Mr Justice Costello, said it would be highly desirable if the press did not mention her name.
Mr O'Driscoll said his client contracted hepatitis C because of contaminated blood from a transfusion in 1978. The medical specialist for the woman had indicated at the tribunal last July that the relevant liver function tests were grossly abnormal and she was considerably disabled. Her life expectancy was 20 years or less and she would require assistance and home help.
She now suffered from fatigue and aches and pain. She also suffered from reactive depression. She was capable of doing little in the way of housework and looking after her family.
He said the tribunal erred in law in rejecting her application for home help. The reason given for the reduction in her claim was that it was exaggerated.
In the tribunal judgment, it was stated that her claim ignored the fact that her children were getting older and there would be a diminishing need for child minding. Also, as the children got older they were more capable of assisting their mother at home.
Mr O'Driscoll said this was note the law. Irish law did not recognise this aspect of what was, in effect, charity. There had been no evidence that the woman's children would look after her. He would claim that children tended to leave home as they got older.
Referring to loss of earnings, he said the woman had been working for FAS during 1995. She was paid £126 per week after tax. She also received a single parents allowance and a deserted wives' allowance which totalled £72. FAS, due to its own peculiarities, had deducted her social welfare payments from her net pay and so paid her over £50.
Mr O'Driscoll said they were not entitled to calculate her loss of earnings on the sum of over £50 per week. The social welfare payments were unrelated to her condition. They were not to do with the hepatitis C.
The tribunal had calculated damages for future earnings by deducting benefits from her net weekly earnings. It was not entitled to do that under the Civil Liability Act 1964. It could only deduct monies paid in social welfare as a result of her condition.
Mr John Hedigan SC, for the tribunal and State, said that regarding the home help assessment, the law had now been changed to provide that persons such as the applicant would be entitled to home help.
He was instructed that the tribunal did not make any assessments on home help any more as there was no need. It rendered a reference back to the tribunal pointless and if she did go back, she would not get any damages under that heading.
Mr Justice Costello asked if he was saying that she had this award now and if she went back to the tribunal she would not get the award. Mr Hedigan said he was.
Mr Hedigan said that on loss of earnings, the tribunal was faced with directly relevant evidence. It acted on the applicant's own evidence in effect. The application form she filled out said she earned over £50 per week. In evidence she had said about £55 to £60.
The claim regarding general damages was a wholly unsustainable one. It may well be disappointing to the applicant but that was very different from saying that it was far removed from rationality and common sense.
Judgment was reserved.