Supreme Court of Ireland Decisions

The appellant applied to the Hepatitis C Compensation Tribunal on the 24th June 2003 pursuant to the Hepatitis C Compensation Tribunal Act 1997 section 4(1)(d) as amended by the Hepatitis C Compensation Tribunal (Amendment) Act 2002 section 4(a)(1)(i) in respect of financial loss or expenses incurred or to be incurred by him in the care of AF his wife who had contracted Hepatitis C. On the 27th October 2004 the Tribunal declined to make an award to him on the basis that on the 18th December 1997 an award had been made to him under section 4(1)(d) of the 1997 Act for financial loss or expenses to date and into the future. The appellant appealed the decision of the Tribunal to the High Court. On the 5th May 2005 the High Court (Hanna J.) dismissed the appeal. On the 25th May 2005 the High Court (Hanna J.) pursuant to section 5(19) of the 1997 Act gave the appellant leave to appeal that decision to the Supreme Court on the following specified questions of law:-

1. Was the court correct in refusing the appellant financial loss and expense incurred as a direct result of providing care pursuant to section 4(1)(d) of the 1997 Act as amended by the 2002 Act.

2. If a claimant has recovered financial loss and expense under section 4(1)(d) of the 1997 Act is he entitled to pursue a claim for financial loss and expense under section 4(1)(d) of the 1997 Act (as amended) in respect of financial loss and expense which was not contemplated in the previous application.

3. Was the court correct in finding that the Tribunal’s award of special damages to the claimant in 1997 acts as a bar to a future claim for special damages despite the court’s acceptance that there was a significant transformation in the claimant’s circumstances.

4. Was the court entitled to exercise its discretion pursuant to the Supreme Court decision of Fitzgerald v Kenny [1994] 2 I.R. 383 and award a claim for financial loss and expense pursuant to section 4(1)(d) of the 1997 Act as amended by the 2002 Act.

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

(d) any person who is responsible for the care of a person referred to in paragraph (a), (b) or (c), 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.”

“We are satisfied that as a result of the necessity for Mr F. to take his wife, who has contracted Hepatitis C, to and from various doctors for medical consultations arising directly as a result of her hepatic condition that he has incurred and will in the future incur loss of earnings. Accordingly we allow the sum of £………to Mr F. and this is a final award.”

Between 1997 and October 2004 the health of A.F. deteriorated significantly and led to a change in the circumstances of the appellant. He gave up his employment to care for A.F. in September 2000. The Hepatitis C Compensation Tribunal (Amendment) Act 2002 (“the 2002 Act”) amended the 1997 Act. Section 4(1) was amended as follows:

1. Section 4(1)(d) was amended by inserting after the words ‘who has incurred’ the words ‘or will incur’.

2. The categories of persons entitled to make claims was extended and relevant here is the additional category inserted into the 1997 Act at section 4(1)(d):-

“(h) Any person who is married to a person referred to in paragraph (a),(b) or (f), or who has been living with a person referred to in paragraph (a), (b) or (f) for a continuous period of not less than three years, in respect of the consortium of the person, including impairment of sexual relations with the person, arising from the risk of transmission of Hepatitis C or HIV”

“(9)(a) Subject to subsection (13), where the Tribunal makes an award to a claimant the claimant shall have a period of one month or such greater period as may be prescribed from the date of receiving notice of the making of the award during which the claimant may decide in writing either to accept or reject the award or to appeal the award under subsection (15).”

“There are three choices and they are put in the form of two main alternatives under the statute. Claimants may either accept or reject the award. Alternatively they may appeal the award under subsection (15). The words are plain and clear. The claimant must do one of these three alternatives. If he accepts the award he has taken one of the alternatives and cannot proceed otherwise. If he rejects the award he has made his choice and may then move into another arena. If he appeals then he has chosen to stay within the Tribunal Scheme: he has tribunalised his claim.”

“As I have answered the first question affirmatively, the second question does not require a decision. However, for the sake of completeness, I am satisfied that, as is apparent from the construction of the section set out previously in this judgment, applying the same construction of the section results in an affirmative answer to the question. As stated previously, under the Statutory Scheme the claimant has three choices after an award is made. These choices are in the alternative. These choices had to be made within the mandatory timeframe. The choices are to accept or reject the award. Or, alternatively to appeal the award. Consequently a claimant who has accepted an award of the Tribunal is barred from appealing the award. As the claimant accepted the award in this case he is barred from appealing the award.”

The decision of the High Court
The respondent’s notice of motion by way of appeal sought an award by way of an appeal pursuant to section 5(15) of the 1997 Act to the claimant in such amount as the court should see fit by way of compensation for future loss including future loss of earnings pursuant to section 4(1)(d) of the Act. The appellant submitted that the amendment of section 4(1)(d) by the insertion into the same of the words “or will incur” by the 2002 Act created a fresh ground upon which he can apply to the Tribunal. The time limit for such a claim is that provided in section 4(14) of the 1997 Act, namely within the period of three years of the date upon which she or he first began to incur such financial loss or expenses or the establishment day whichever is the later and the appellant applied within that time.

In the alternative the appellant relied on the decision of this court in Fitzgerald v Kenny 1994 2 I.R. 383. In that case the plaintiff had been awarded damages for personal injuries against the defendant and had appealed against the quantum of general damages awarded. He subsequently sought to amend his notice of appeal to include an appeal against the award of future loss of earnings and to introduce evidence of the following:-

(i) The loss of his job, four years after the trial, on medical grounds the possibility of his losing his job not having been raised at the hearing.

(ii) The deterioration of an arm injury subsequent to the trial.

(iii) Severe depressive illness relating to his injuries, psychiatric evidence having been adduced at the trial.

“If the evidence sought to be adduced was confined to the problem of the plaintiff’s left arm turning out to be much worse than was anticipated by the learned trial judge, and the matter of a psychiatric deterioration (it should be noted that psychiatric evidence was given on his behalf by Dr. David Dunne at the trial), I apprehend that there might be difficulties in the way of receiving such evidence.

In Dalton v the Minister for Finance [1989] I.R. 269 at p.273 Finlay C.J. speaking for the courts said:-


‘With particular regard to the assessment of damages for personal injuries, it is clear that very many plaintiffs may feel after the conclusion of their case and with the passage of years in reflecting upon the matter that they have been inadequately compensated. Many defendants may equally be of the impression, seeing the plaintiff, if they happen to do so, moving around and apparently being able to cope with life that the plaintiff has been exorbitantly compensated. To allow either of these two categories of persons subsequently to seek a variation of the assessment of damages based on after events would be to cut across the entire finality of litigation in this context.’

Dalton v The Minister for Finance was essentially an application to extend the time to appeal the damages award, nearly two years after the verdict, and the case was concerned with whether the conditions laid down in Eire Continental Trading Company Limited v Clonmel Foods Limited [1955] I.R. 170 for granting such an extension are being satisfied. The court held that, as far as two of the conditions were concerned, they had not been satisfied. It was also a case that was confined to a suggestion of deterioration in physical condition which had existed at the date of trial.

It seems to me, however, that the problem that we have to resolve in this application is presented in a more stark format. It is true that there should, as far as possible, be finality in litigation and therefore the decision as to whether to admit fresh evidence on appeal must always be one to be approached with great solicitude because if a plaintiff is to be allowed to adduce fresh evidence then, on occasion, the same must apply in favour of a defendant.”


O’Flaherty J. concluded as follows:-

“However, in my judgment, our essential task is to determine the appeal in accordance with the set of circumstances that prevails when it comes before us. Accordingly I hold as follows:

(a) The matter of the plaintiff’s job and career loss is a completely new factor arising after the trial.

(b) The evidence in regard to this matter, therefore, is to be approached as not requiring any form of special leave under the relevant rule.

(c) Nonetheless this court must apply a discretion. Like any discretion it must be exercised in a fair and just manner though it may be impossible to lay down a general rule that will cover all circumstances. Each case must be approached as requiring the exercise of the discretion in relation to its facts. In the circumstances of this case I hold that the possibility that a serious injustice would be suffered by the plaintiff must prevail over the desirability of having finality in litigation.

(d) I take the opportunity to reiterate the point that this appeal was brought in time. If the appeal had been out of time I reserve my position on whether Dalton v the Minister for Finance [1989] I.R. 269 would require any re-consideration.

(e) As regards the evidence of exacerbation of the plaintiff’s physical injuries and mental condition, if they stood alone I would not allow in this evidence. But it seems to me that the evidence in this regard is inextricably entwined with the evidence concerning the loss of the plaintiff’s job and career in the Garda Siochana and so this new evidence should be admitted too.”

The learned trial judge held that the jurisdiction of the Tribunal is circumscribed by the statutory provisions. The scheme does not provide for provisional awards other than for persons directly affected by Hepatitis C. The award to the appellant accordingly was a final award. He held that section 4(1)(d) inserted by the 2002 Act did not create a new and discrete cause of action but clarified what had been held by O’Neill J. in D.R. v The Minister for Health and Children namely that the 1997 Act enabled the Tribunal on a claim under section 4(1)(d) to make an award for future financial loss or expenses. He further held that Fitzgerald v Kenny could have no application to the statutory scheme.

1. This is an appeal by Mr. F., the appellant, on specified questions of law from the High Court, pursuant to s.5(19) Hepatitis C Compensation Tribunal Act, 1997.

2. In 1997 the appellant brought a claim before the Hepatitis C Compensation Tribunal, hereinafter referred to as 'the Tribunal', pursuant to s.4(1)(d) of the Hepatitis C Compensation Tribunal Act, 1997. His wife brought an application under s.4(1)(a) of the Act of 1997. Both applications were heard by the Tribunal on the 18th December, 1997.

3. The Tribunal made an award to the appellant, stating:

"We are satisfied that as a result of the necessity for [the appellant] to take his wife, who has contracted hepatitis C to and from various doctors for medical consultations arising directly as a result of her hepatic condition that he has incurred and will in the future incur loss of earnings. Accordingly, we allow the sum of £5,000 to [the appellant] and this is a final award."

4. The appellant submits that because of his wife's deteriorating health he had to leave his job in 1999 and to care for her full time from 2000.

5. On the 12th March, 2003 the appellant made a claim pursuant to s.4(1) of the Hepatitis C Compensation Tribunal Act, 1997, as amended, under two headings; (a) as someone responsible for the care of a person who was diagnosed positive for Hepatitis C, i.e. under s.4(1)(d); and, (b) as someone married to a person who was diagnosed with Hepatitis C, i.e. under s.4(1)(h).

The claim under s.4(1)(d) was for the loss of earnings he claimed he suffered to that date, and into the future, by reason of his need to care for his wife on a full time basis. He informed the Tribunal that he had made a previous claim and referred to the hearing of 18th December, 1997.

6. On the 27th October, 2004 the appellant's claim was heard by the Tribunal. The Tribunal awarded the appellant €100,000 in respect of loss of consortium. However, the Tribunal dismissed the appellant's claim for loss of earnings, holding that because of the earlier award to the appellant in December, 1997 he was not entitled to succeed on a second claim for loss of earnings.

7. The Tribunal stated:-

"The [appellant] claiMS. pursuant to the provisions of Section 4(1)(d) of the principle (sic) Act, as amended, for financial loss or expenses incurred as a direct result of providing care for his wife who had contracted Hepatitis C and for who's (sic) care he was responsible for.

Section 5.1 provides that an award is to be made on the same basis as an award of the High Court calculated by reference to the same principles which govern the measure of damages in the Law of Tort.

In this case on 18th December 1997 the [appellant] through his counsel opted to have his personal losses dealt with at that time, see question 149, page 69 of the transcript.

The matter was further discussed by counsel and the Tribunal at pages five, six and seven of the transcript [and] it is quite clear that the [appellant] determined at that time to have the Tribunal compensate him for loss and expenses past and future.

There appears to have been some reluctance on the part of the Tribunal to do so but it complied with the [appellant's] request. A sum of approximately, £3,500 for past losses and £1,500 for future losses was awarded. The Tribunal stated at page 79 that the award was final. The award was not appealed.

We are satisfied that the Tribunal at the time of making that award acted within its power and had power to make an award which would cover future loss."

"The scheme provides for provisional awards for sufferers, such awards not being available in personal [injuries] actions. These awards are limited to direct sufferers. No such provision is made for carers. This is unfortunate and is highlighted by the tragic circumstances in which [the appellant] finds himself, yet even the most purposive interpretation of the legislation cannot put into it what is not there. With regard to the amendment of Section 4 (1) (d) of the act, I am of the view that this does not create a new and discrete cause of action but rather clarifies what in fact was already clarified by O'Neill J in [R] unreported, 19 January 2001, namely that the provisions for carers encompassed future loss. In any event, it is apparent from the transcript from 1997 that the Tribunal and [the appellant] proceeded on the basis that the Tribunal had jurisdiction to award compensation for future loss. With very great regret I must dismiss the appellant's appeal."

1. Was the High Court correct in refusing the appellant financial loss and expense incurred as a direct result of providing care pursuant to Section 4 (1) (d) of the 1997 Act as amended by the 2002 Act?

2. If a claimant has recovered financial loss and expense under section 4 (1) (d) of the 1997 Act, is he entitled to pursue a claim for financial loss and expense under section 4(1)(d) of the 1997 Act (as amended) in respect of financial loss and expense which was not contemplated in the previous application?

3. Was the High Court correct in finding that the Tribunal's award of special damages to the appellant in 1997, acts as a bar to a future claim for special damages despite the Court's acceptance that there was a significant transformation in the appellant's circumstances?

4. Was the High Court entitled to exercise its discretion pursuant to the Supreme Court decision of Fitzgerald v. Kenny [1994] 2 I.R. 383 and award the appellant financial loss and expense pursuant to Section 4 (1) (d) of the 1997 Act as amended by the 2002 Act?

The relevant law is to be found in the Hepatitis C Compensation Tribunal Acts, 1997 to 2006.

The first issue relates to the Act of 1997 and its subsequent amendment. In 1997 the Act provided in s.4(1):-

"The following persons may make a claim for compensation to the Tribunal—

(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 expense as a direct result of providing such care arising out of the person being cared for having contracted Hepatitis C"

"The issue boils down to, in my view, a proper construction of section 4(1)(d). There the words used are: '… and who has incurred loss …' And it was these words that appeared to have impressed upon the Tribunal and the only loss which could be compensated for was a past loss or a loss which had accrued up to that point in time. I must respectfully disagree with the Tribunal in its construction because, for this reason, if one reads on in the Section it goes on to say: '… who has incurred financial loss or expense as a direct result of providing such care arising from the person being cared for having contracted Hepatitis C'. In other words the care and respect which the loss incurs is an on-going care. It is not a past care and then it seeMS. to me to be quite explicit in the Statutory Provision that the care is one which is on-going. That being so it must in my view necessarily follow that the Section ought to be construed as including loss in respect of that on-going care, which is the case in this instance."

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

The amendment in 2002 expressed explicitly what had been inferred as the law before. It did not create any new cause of action. Thus the appellant was in the same position after the amendment as before - he had brought his claim and received compensation.

12. It is clear from the transcript of the 1997 Tribunal hearing that the Tribunal made an award for damages for loss of earnings and travel into the future. Further, the appellant was not encouraged to press his claim at that time.

13. The cautious approach taken by the Tribunal is apparent from exchanges before the Tribunal. During his evidence to the Tribunal the following exchange took place between the appellant and his counsel:-

"MR. CONDON: We have a list of your personal losses and I understand from you that you are anxious that this should be dealt with today, that you do not anticipate that you are going to have any detriment in your future which would mean having that postponed?

MR. F.: That is my belief yes"

"MR. CONDON: There is a good deal of money in the nature of special damage but that is easy enough to calculate. We can make a calculation as best as possible into the future. I should mention that her husband has an application too and I am not sure whether you would like to deal with that now or whether it should go back to another occasion?

MS. F.: The claim for [the appellant] relates to loss of earnings and the travel

MR. CONDON: Loss of earnings and bringing her, for the most part, to Dr Kenny

THE CHAIRPERSON: It is limited to just those two aspects?

MR. CONDON: Yes. I am a little bit concerned about it because of recent times he has had an examination and is has showed some abnormal liver cells.

THE CHAIRPERSON: Yes. On blood tests. That was in his own company; is that right? They were to be investigated. I don't think it was quite abnormal liver function testes, but just abnormal blood tests on it.

MS. CREAN: No, it was liver function tests.

MR. CONDON: It appears in the papers as liver function.

MS. CREAN: But he has not had any further investigation, has he?

MR. CONDON: No, it is a comparatively recent situation, a comparatively recent test and I feel a certain amount of apprehension about this.

THE CHAIRPERSON: Is his medical condition clarified at this stage, MR. Condon?

MR. CONDON: I do not think it is fully clarified. There has been no interference with his work or anything of that kind.

THE CHAIRPESON: Would it be a bit premature, maybe, to proceed with it?

MR. CONDON: I thought perhaps it would be.

THE CHAIRPERSON: We have not received any papers, except his own statement in the booklet of papers.

MS. CREAN: In his own statement, he said that he was going to take the matter up with his general practitioner.

MR. CONDON: He was tested for hepatitis C and was clear so I am not even sure what this diagnosis is all about. But as I say, he was tested for hepatitis C and was clear so it may be that it is not a matter of any consequence.

THE CHAIRPERSON: He is clear both of the virus and the antibody?

MR. CONDON: Apparently so, yes.

THE CHAIRPERSON: But when was he last tested? When was he tested for Hepatitis C?

MR. CONDON: At the same time as the liver function question mark arose.

THE CHAIRPERSON: I see. We just have his form before us.

MR. CONDON: Yes. Really, all we are concerned with for him was a comparatively modest amount of going with her to various doctors.

THE CHAIRPERSON: And are you confident that that is all that will ever amount to, that if we deal with that today that he is not going to be prejudiced at any future stage?

MR. CONDON: That is my concern. We can go ahead now anyway but perhaps I will talk to him at lunch time and see if I can get something more concrete from him because what is in the papers is directed to the probleMS. his wife has had, as you will see.MS. CREAN: Exactly."

On the resumption of the hearing MR. Condon stated:-

"Just at the outset, I should say that I have discussed, as I suggested I would, with MR. F. what the situation is and he has had some further medical contact since. He is personally quite satisfied from that that he should not necessarily be deferred. In other words, all his claim amounts to now is the absences from work and the travelling expenses that are listed."

The appellant gave evidence as follows:-

"Q. MR. Condon: MR. F., as I have told you at lunchtime, I have mentioned to the Tribunal the matter that had come up in the medical examination about something in relation to your liver?

A. Yes.

Q. You have told me in the meantime that you have had this checked through and that it is not a factor any more?

A. That is correct. It is a side effect of Zoton which I am taking for my stomach.

Q. We have a list of your personal losses and I understand from you that you are anxious that this should be dealt with today, that you do not anticipate that you are going to have any detriment in your future which would mean having that postponed?

A. That is my belief, yes."

"The Chairperson: The applicant in this case is [Mr. F.] who lives with his wife and family in --------- . He brings this application under Section 4(1)(d) of the 1997 Act which provides:-

The following persons may make a claim for compensation to the Tribunal

(1)(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."


We are satisfied that as a result of the necessity for Mr. F. to take his wife, who has contracted hepatitis C, to and from various doctors for medical consultations arising directly as a result of her hepatic condition that he has incurred and will in the future incur loss of earnings. Accordingly, we allow the sum of £5,000 to Mr. F. and this is a final award."

15. This is a very sad case. However, the Court has to address issues of law and not social policy.

16. The first question of law, as set out in paragraph nine above, is whether the High Court was correct in refusing the appellant financial loss and expenses incurred as a direct result of providing care pursuant to s.4(1)(d) of the Act of 1997, as amended. I am satisfied that the High Court was correct. The appellant had brought an application pursuant to s.4(1)(d) and obtained a sum which included future losses of earnings. The Tribunal expressed concern about the claim progressing at that time. But Mr. F., who had counsel, was anxious to have the claim dealt with that day and he did not anticipate that he was going to have any detriment in his future which would mean postponing the matter.

The law applied did not change between 1997 and either 2002 or later on this issue relevant to the appellant's claim. The law was interpreted as including future damages and that was awarded by the Tribunal.

The High Court held:-

"With regard to the amendment to Section 4(1)(d) of the act, I am of the view that this does not create a new and discrete cause of action but rather clarifies what in fact was already clarified by O'Neill J. in [R] unreported, 19 January 2001, namely that the provision for carers encompassed future loss. In any event it is apparent from the transcript from 1997 that the Tribunal and Mr. F. proceeded on the basis that the Tribunal had jurisdiction to award compensation for future loss. With regret I must dismiss the appellant's appeal."

17. Ambiguity

Counsel for the appellant skilfully referred the Court to the transcript so as to argue that a doubt was raised as to what had in fact been the order of the Tribunal. He referred the Court to words which, he submitted, referred to the appellant's own health and argued that that was what was in issue in 1997.

There is no doubt that there was a reference to the appellant's health, notably his liver function tests. However, the exchange relates to the fact that it was not fully clarified and that it would be premature to proceed on that issue and it did not. The Tribunal proceedings then reverted to the issue of a modest claim by the appellant of his cost of bringing his wife to various doctors. The chairperson specifically asked if whether that is all it would amount to, and queried whether if they dealt with it that day the appellant is not going to be prejudiced at a future date. Counsel indicated his concern and that he would talk to the appellant over the lunch break. After lunch counsel informed the Tribunal that he had discussed the matter with the appellant. He informed the Tribunal that it should not be deferred - that all his claim amounted to was the absences from work and the travelling expenses.

With hindsight, and the 20/20 vision which this brings, it is most unfortunate that the appellant proceeded with his claim at that time. While there were references to his health, it is clear that the claim he was advancing focused on his loss, past and in the future, relating to his care of his wife and not to his health. There was no ambiguity before the Tribunal. I am satisfied and it is clear from the transcript as a whole, especially the terms of the award, that the Tribunal was addressing a claim under s.4(1)(d) of the Act of 1997 and the loss of earnings past and future of the appellant.

18. While the legislation provides that a provisional award could be made to those persons who have contracted the disease, the Act of 1997 does not provide for provisional awards of the type claimed by the appellant. Thus there is no such jurisdiction for a court to exercise. Perhaps it is a matter the Oireachtas may address, but it is not a matter for a court of law.

19. The fact that the appellant did not, unfortunately, contemplate the future financial loss and expense which he would suffer does not enable a further claim. Once the claim is made and adjudicated upon there is no return. The High Court was correct in finding that the making of an award by the Tribunal in 1997 acts as a bar to a future such claim.

20. As to the query whether the High Court was entitled to exercise its discretion pursuant to Fitzgerald v. Kenny [1994] 2 I.R. 383 and award the appellant financial loss and expenses pursuant to s.4(1)(d) of the Act of 1997 as amended by the Act of 2002, I am satisfied that the submissions made on behalf of the Tribunal were correct and I would distinguish that case. At issue in that case was whether this Court could exercise its discretion to receive fresh evidence of matters arising after the decision to appeal from the High Court to the Supreme Court. There is an entirely different situation before the Court. The claim of 1997 was completed and was not appealed. At issue in this case is the appellant's claim to re-litigate an issue under a statutory scheme where he has already received an award for the same damages, which he did not appeal. Consequently, Fitzgerald v. Kenny is not a case of assistance to the appellant.

21. Conclusion

At issue in this appeal is the construction of a statute, and whether or not the High Court fell into error in its judgment. I am satisfied that the words in issue, and as inferred, and later clarified by the Oireachtas, are clear and unambiguous. The appellant had a right to apply under s.4(1)(d), he did so, and he received an award including future damages. It now transpires that the appellant has suffered much greater losses, which he did not contemplate in 1997. However, the legislation does not provide for a provisional award to the appellant, and the appellant did not receive a provisional award.

The decisions of the Tribunal are on the same basis as an award of the High Court. Thus while it is the specific statutory scheme which applies, it is assisted where relevant by the general law of tort. There is a well established principle that a litigant may not re-litigate the same matter a second time. In this case the appellant brought his case in 1997, succeeded, was awarded a sum of money, and did not appeal the award. Thus the litigation is concluded and may not be reopened in a new claim by the appellant.

I agree with the judgment of Finnegan J. and his analysis of the law.

I would answer the questions of law posed on this appeal (1) Yes, (2) No, (3) Yes, and (4) No.

I am keenly aware of the difficulties this decision causes for the appellant. However, it is not a decision resting on the exercise of any discretion. This is, without doubt, a very sad situation for the appellant. I would dismiss the appeal with regret for the appellant's personal circumstances.