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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'N. (M.) v. Minister For Health And Children [1999] IEHC 36 (19th October, 1999) URL: http://www.bailii.org/ie/cases/IEHC/1999/36.html Cite as: [1999] IEHC 36 |
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BETWEEN
JUDGMENT of Mr Justice O'Neill delivered the 19th day of October, 1999.
1. The Plaintiff in this case seeks an award of compensation by way of an appeal pursuant to Section 6(3)(e) of the Hepatitis C Compensation Tribunal Act, 1997. The Plaintiff appeals against an award of compensation made to her on the 20th day of January, 1997 by the former non-statutory Tribunal. The Plaintiff's appeal is confined to the general damages portion of the award which was a sum of [sterling]130,000.
2. The Plaintiff was born on the 28th day of June, 1958. She married her husband P O'N in 1978 and they have three living children. Her first child M was born on the 16th day of February, 1979. On the 24th day of January, 1983 the Plaintiff gave birth to a daughter M who was stillborn. Her son L was born on the 15th July, 1984 and her only daughter K was born on the 22nd May, 1990.
3. Prior to the time of her marriage and for a short time thereafter the Plaintiff had been employed as a clerical assistant in the then Department of Posts and Telegraphs as a telephonist.
4. The Plaintiff had the Anti-D injection on a number of occasions. The first of these was on the 16th February, 1979 in Holles Street. Subsequently she had other Anti-D injections on or after the 25th December, 1982, the 24th January, 1983, the 15th July, 1984, the 2nd January, 1990 and the 22nd day of May, 1990 all administered in Holles Street Hospital. In addition to the foregoing the Plaintiff had a blood transfusion early in 1983 when after the birth of her stillborn child she had bled profusely and had to get eight units of blood.
5. The investigations that have been conducted into her case have since revealed that one of the units of blood given to her in 1983 came from a donor who was infected with the Hepatitis C virus.
6. The story however, of the Plaintiff's illness appears to begin somewhat earlier. The Plaintiff has given evidence to me and indeed gave evidence to the Tribunal that from soon after the birth of her first child M she began to suffer from unusual or unnatural fatigue. She described in vivid detail how this from early 1980 compelled her to rest every day by lying down on a couch or in a chair and sleeping. From that time she started curtailing her social life so as to ensure that she did not attend social function or gathering which would have resulted in her being kept up late.
7. After the birth of her son M she went back to work but found she could not cope with the exhaustion that this appeared to induce. As a result of that she took six months leave in 1980 or 1981. When she went back to work at the end of this period she was only able to sustain work for a matter of a few weeks at the end of which she found herself unable to cope with the exhaustion and resigned from her position. It had been her intention to work until the birth of her second child which ultimately came about in 1984 at which time it had always been her intention to give up work until her last child reached school-going years, an event which took place in 1994.
8. Her complaint in relation to suffering from exhaustion is supported and corroborated by her General Practitioner from the notes taken at the time. At that stage she was treated with iron and vitamin tablets but these had little effect.
9. From then on she settled into a pattern of life which involved her resting every day for at least one period of rest and in latter years, and certainly from the time of her last child onwards for two periods of rest during the day. In addition to this she continued the practice ofavoiding social engagements which would have kept her up late. She also adhered to a practice of going to bed very early and in latter years her evidence to the Tribunal described herself as frequently being in bed before her youngest child.
10. The upshot of all of this was to enforce upon her a lifestyle which was wholly unusual or indeed unnatural for a person of such young years. In addition of course to the deprivation of a normal domestic and social life, the continuous exhaustion enforced upon her family and in particular her husband a lifestyle which was very curtailed and in many respects unusually burdensome. In addition to her exhaustion the Plaintiff also has suffered from other symptoms in particular a skin rash. She has had headaches and in recent times pain in her eyes and a feeling of dehydration which requires her to drink a lot. She described herself to me as never having been a normal adult, the condition having started to effect her when she was little more than a child. She feels that neither her husband or her children have ever really known her as she was, that is to say as a lively and vivacious person. She feels she has missed out to a huge extent on the enjoyment of her children's upbringing.
11. In 1994 as a result of the publicity surrounding the Anti-D issue she responded to a call for nation-wide screening, believing, herself, when she heard about this, that this was the reason for her complaints and she was convinced at that time that the tests would reveal that she had the Hepatitis C virus. Initial tests confirmed in March, 1994 that she did have this virus and subsequent tests in April and a biopsy carried out in May, 1994 confirmed this.
12. She described herself to me as being devastated by the knowledge that this was in fact what she had been suffering from. Since that time she has continued to suffer from the exhaustion but she describes it to me, as getting worse, particularly so in the last six months. She has told me that, whereas before, rest would work in the sense of reviving her she has found in the last six months that this is not so and that her exhaustion no longer responds to rest or any form of recuperation.
13. In addition she has in the last few years begun to suffer from depression and she has become extremely anxious and indeed frightened about the future. In recent times whether because of her depression and anxiety or whether as a direct result of the ailment itself she has had considerable difficulties sleeping at night.
14. After the diagnosis of her ailment in 1994 the Plaintiff came under the care of Dr Saeed Al Bloushi a Registrar in the Department of Hepatology in Beaumont Hospital. In his evidence to the Tribunal, Dr Al Bloushi expressed the opinion that it was likely that the Plaintiff's infection with Hepatitis C began in 1979. He was unable to be categoric about this because the records of the batch of the injection which was administered to her have never been found. However, the type of virus that she has namely Geno Type 1 B was more typical of those earlier batches and that combined with the onset of symptoms typical of Hepatitis C from early 1980 led him to express the opinion that it was likely that the infection took place at that time. He was also of the view that it was likely that she had a further infection of Hepatitis C from the blood transfusion administered to her in 1983. In his evidence to the Tribunal he expressed as his opinion, that the type of virus she had contracted namely Geno Type 1B was the most aggressive of this type of infection and also the one most resistant to the treatments available. He went on to say that the likely progress of the disease was that within a period of five to fifteen years from that time, which was January, 1997, that she would go on to develop cirrhosis, and this in turn would lead todecompensated cirrhosis which would in all likelihood lead on to a liver transplant.
15. At the time of the hearing of the Tribunal in January, 1997 the Plaintiff had been started on a treatment involving the administration to her of a drug called Interferon. It emerged however, after a month or two of this treatment that not only did it not produce the benefits that were hoped for but the Plaintiff's reaction to it was extremely adverse resulting in skin rashes, headaches, sore eyes and even greater fatigue. Since the hearing at the Tribunal, although this was indicated to the Tribunal at the time, this treatment was discontinued.
16. It now appears that the only treatment available to the Plaintiff is what is known as combination therapy. This involves the administration of the drug Interferon with another drug. At this stage this treatment is described by Dr Rowley as experimental and on the evidence so far of its use, it benefits only 40% of those to whom it is administered, but of this group of 40% it has been found to be less beneficial to those with Geno Type 1B, and older women. Because of these factors, which would indicate in the Plaintiff's case that it was unlikely that she would derive a benefit, and also because of the likelihood of adverse factors the Plaintiff has decided that for the moment at least she will not undergo this therapy.
17. I accept in its entirety the evidence of the Plaintiff. She has struck me as an honest and accurate historian of her experience of Hepatitis C. Her evidence is corroborated in many respects by her General Practitioner and of course the complaints which she makes are typical of those resulting from Hepatitis C.
18. I approach the assessment of her damages on the basis that she has had, to date, the best years of her life ruined by this complaint. As she herself says she contracted this ailment when she was no more than a child and her entire adult life to date has been ruined by this disease.
19. In my opinion the appropriate general damages to compensate her for her pain and suffering to date is the sum of [sterling]100,000.
20. Looking to the future the outlook is bleak indeed, the symptoms from which she has suffered over the past 20 years appear to be deteriorating significantly particularly in the last six months, in addition she is afflicted with anxiety and depression and I am quite satisfied that she does her level best to struggle with these conditions but as time goes on and her physical illness deteriorates this will be a very great struggle indeed for her. I must deal with the future on the basis of what is likely to happen. I accept in its entirety the evidence of Dr Al Bloushi and on the basis of his evidence it appears to me that the next 20 years or so will be very difficult for the Plaintiff. It appears now likely that at some stage during this period the Plaintiff may be faced with a liver transplant with all of the uncertainties and dangers that process will involve. Taking that into account and also the likely deterioration in her health over the next 20 years or more, in my view the appropriate sum of general damages to compensate the Plaintiff for what is likely to befall her in the future is the sum of[sterling]150,000.
21. Therefore in my view, the overall award to the Plaintiff in respect of general damages should be [sterling]250,000.
22. I am mindful of Mr Hanna's submission to the effect that I must follow the decision of the Supreme Court in Synnott -v- Quinnsworth [1984] ILRM 532, and having decided upon an appropriate award in respect of general damages, must then look at the overall award to the Plaintiff which would include the [sterling]150,000 awarded to the Plaintiff in respect of financial losses. I am not convinced that this line of authority is appropriate to an assessment of damages on an appeal such as this but even if I were so convinced, and indeed, I have conducted the exercise of considering the entirety of the award and it appropriateness as compensation for what has taken place, I have come to the view that a total award of[sterling]400,000, in circumstances where the Plaintiff's life has for the entirety of her adult life been devastated by this ailment and where it is likely to continue to be grossly affected by this disease, is not inappropriate.
23. In all the circumstances therefore, I am satisfied that I should not diminish what I consider to be an appropriate award of general damages namely [sterling]250,000. As the Plaintiff has already been paid the sums awarded by the Tribunal there will be judgment on this appeal for [sterling]120,000.