K.B. v The Minister for Health [2019] IEHC 905 (18 October 2019)

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IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 5 (15) OF THE HEPATITIS C

IN THE MATTER OF A DECISION OF THE HEPATITIS C AND HIV COMPENSATION

JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 18th day of October, 2019

1. This is an appeal by the Appellant from the decision of the Tribunal made the 23rd day of

July, 2018, whereby she was awarded €85,000 in respect of her claim for post-traumatic

stress disorder, €90,000 in respect of her claim for loss of society and €155,000 in

respect of her claim for loss of opportunity. The appeal is brought pursuant to s.5 (15) of

the Hepatitis C and HIV Compensation Tribunal Acts 1997 to 2006 (the Acts). There is no

issue on causation. While the appeal is taken against the amounts awarded in respect of

each claim it was very fairly accepted by Ms. McCrann S.C. on behalf of the Appellant that

the central controversy between the parties concerns the amount of the award in respect

of the claim for Loss of Opportunity. It was acknowledged that the amount of the award

in respect of Post-Traumatic Stress Disorder (PTSD) was within the appropriate range of

compensation for the disorders of the type suffered by the Appellant as, indeed, was the

award for Loss of Society albeit that in the circumstances of the case the award in respect

of that claim was at the lower end of the range, particularly having regard to the

judgement of the Court in J.Q. v. the Minister for Health [2017] IEHC 4.

2. The Appellant was born in March 1983, and is the eldest daughter of her father, who died

in August, 2008. He was born in September 1969, and suffered from severe haemophilia

A, a life-long condition for which he received blood and blood products within the State,

including factor VIII, which was first administered in March 1976. It is known that during

the 1970’s and 1980’s blood and blood products administered in the State were

contaminated with the Hepatitis C (HCV) and Human Immunodeficiency (HIV) viruses.

Unfortunately for the deceased he contracted co-infection through this route and was first

diagnosed antibody positive in 1993. He was found to be virus positive by Polymerase

Chain Reaction (PCR) testing in November 1995 and it is accepted HCV was a significant

3. Although the appeal is a re hearing de novo of the application for compensation, no issue

arises in relation to the findings of fact made by the Tribunal in respect of the claim for

PTSD or in respect of the claim for Loss of Society. Indeed, it is apparent from the

transcript that the Tribunal accepted the evidence of the Appellant and the experts called

on her behalf; the claims were dealt with sympathetically and with sensitivity. It is not

intended to summarise the findings and conclusions reached; suffice it to say the Tribunal

was satisfied the Appellant had suffered a PTSD and loss of society as a consequence of

her father’s death. The Tribunal was satisfied, as is the Court that a very close emotional

and psychological bond developed between father and daughter, that she adored her

father and that his PTSD and the loss of his society had a profound and long lasting

impact upon her capacity to function, particularly in her vocational life.

4. While the Appellant also had a loving relationship with her mother it was to her father she

turned for advice, particularly with regard to her educational path and subsequently for

her career options. He was the ‘go to’ parent when she had a problem and the one with

whom she developed a strong intellectually engaging relationship; she is a highly

intelligent individual, as was he. Vocationally there is no reason to suppose she would not

have been able to pursue her first choice career, veterinary medicine; she developed an

affinity with horses from an early age. Her failure to follow her preferred career path and

qualify as a veterinary surgeon is at the heart of the claim for loss of opportunity.

Although the claims for PTSD and loss of society fall to be considered as separate claims,

the consequences thereof have also had a negative impact on the Appellant’s academic

5. In the years preceding his death the Appellant’s father experienced multiple physical and

psychological problems associated with his infections; the sequelae were attributed to

arthritis. The true cause was never confronted, instead, the Appellant’s knowledge of the

truth evolved over time, generally indirectly. She first became aware that her father was

co-infected with HCV through the fact of his giving evidence to the Lindsay Tribunal, a

discovery which coincided with her leaving certificate year. She was very confused and

upset; her parents appeared to be constantly stressed. She became distracted and

described herself as having “taken her eye off the ball” academically for much of the year.

Notwithstanding, she achieved 450 points in the Leaving Certificate, a result with which

most pupils would be pleased, however, the result brought disappointment to the

Appellant, falling some 100 points below what was required to secure a place in

veterinary medicine. She had secured an exceptional Junior Certificate and believes she

would have been able to repeat this achievement in the Leaving Certificate had it not

been for the emotional turmoil which developed on discovering the seriousness of her

father’s illness; she certainly had the intellectual capacity to achieve that goal.

6. In this regard Dr. William Kinsella, Educational Psychologist, assessed the Appellant in

October 2014; she achieved a full scale I.Q. score of 133. It follows she was performing

intellectually at the 99th percentile or top 1% of the population. As a result of the

psychological issues with which she was struggling at the time, the Leaving Certificate

result fell well short of the Appellant’s intellectual and academic ability; addressing these

issues is the key to unlocking the door to achieving her full potential.

7. The Appellant discussed her options with her father, either to repeat the leaving

certificate or leave school and go to college with a view to taking the graduate entry route

to veterinary medicine. In this regard her third CAO choice was science at UCG, where

she was offered a place. In order to be sure whether veterinary medicine was really the

career she wanted to pursue the Appellant decided to get some practical experience and

worked for a year in a rural veterinary practice. Confirmed in her choice, she decided to

pursue the graduate entry option to veterinary medicine and accepted the offer of a

place UCG, where she read science, qualifying with a 2 (1) honours degree. Like so many

of her contemporaries, the Appellant wanted to travel abroad for a year or two before

commencing her post graduate studies. Encouraged by her father she decided to take a

year or so to travel and work abroad following which her plan was do a masters and sit

8. Once on her travels the Appellant kept in touch with home through emails and Skype. As

mentioned earlier, her father had hidden from his children the seriousness and extent of

his illness. The Appellant was ill prepared for the news of her father’s final illness and the

need to come home urgently, which she received while travelling on the American

continent. Getting home turned out to be a particularly traumatic ordeal and when she

eventually got home she was unable to see her father for a few days because of a chest

infection, which added to her suffering. Although told at that stage her father would not

be coming home from hospital she couldn’t accept he was going to die, an event which

9. The Appellant was shocked and traumatised by the death. In the months that followed

she developed feelings of disassociation, disinterest and despair which she associated in

part with living at home. In an attempt to escape the emotional turmoil and get on with

life she moved out of home and went to live with her boyfriend, but to no avail,

moreover, she became socially withdrawn and abandoned her academic plans. Apart from

a severe grief reaction, Professor Corvin diagnosed Post Traumatic Stress and Social

Anxiety Disorders. In his opinion the Appellant’s bereavement evolved into a severe major

10. Her psychological sequelae impacted on her relationship with her fiancée and, ultimately,

she cancelled her wedding plans. In the belief she would be unable to cope with the

demands of a veterinary medicine degree the Appellant decided to study for veterinary

nursing. She undertook counselling while attending this course. She freely acknowledges

that the college authorities accommodated and supported her in coming to terms with her

many psychological problems. Academically, she found herself well able for veterinary

nursing and is due to qualify shortly. Nonetheless, her perception is that her father’s

death has had a profoundly negative impact on her experience of life vocationally and

socially; she lost a long term relationship. Feelings of severe guilt became entrenched;

11. She became aware he had wanted her to be courageous in facing up to the inevitable, a

view which she equated with not breaking down and hiding her true feelings; she found

herself unable to deal with the grief and the emotional turmoil which she experienced.

The Appellant believes she would never have suffered from depression or lost her

confidence had it not been for her father’s death, furthermore, she is convinced that by

now she would have qualified as a vet and be married with her own family; she is still

coming to terms with the vocational, social and personal relationship consequences.

12. In 2013, she went abroad to work for a year, training and breaking horses, returning

home when her visa expired. Although she thoroughly enjoyed the experience at the

time, as a result of subsequent experiences the Appellant acknowledges that going

abroad was a flight from the psychological consequences of her father’s death and the

loss of his society. On returning home she was once again afflicted by loss of confidence,

social anxiety and panic attacks the consequences of which militated against her sitting

the GAMSTAT and returning to college to read veterinary medicine, as she felt she would

have been unable to tolerate the associated stress and pressure involved. Instead, the

Appellant chose to read veterinary nursing a course in which she attained excellent

13. I am satisfied and the Court finds that her first choice career choice was veterinary

medicine and that it was her father’s illness and ultimate death that ‘blew her off course’.

All things being equal it seems to me that she would have achieved the required points in

the Leaving Certificate for a college place in veterinary medicine; she undoubtedly had

the intellectual capacity to do so. I am fortified in this view by the fact that she had

achieved an outstanding Junior Certificate, consistent with the results of the IQ

14. Accepting the medical and other expert evidence which has been as I do the Court finds

that the Appellant’s academic underperformance in the Leaving Certificate was

attributable to the consequences of the emotional turmoil and disruption she experienced

by as a result of and the means or manner by which she found out about her father’s

illness. Critically, had it not been for the death of her father and the consequential loss of

society involving as it did the loss of his love, emotional support and advice, I am

satisfied on the evidence of the Appellant and the expert evidence that she would have

been well capable of qualifying and reading for veterinary medicine and the Court so

15. In reaching this conclusion the Court has not lost sight of the very forceful submission

made by Mr O’Scanaill S.C., namely, that the Appellant never tried to read for veterinary

medicine, rather, she went abroad to work on a ranch, training and breaking horses, an

experience she thoroughly enjoyed, returning home to college where she excelled in

veterinary nursing. Had she really wanted to pursue her first choice career there was

really no substantive and certainly no lasting reason why she should not have done so;

for the reasons already indicated I cannot accept this submission.

16. I am not satisfied that this is a case where the Appellant’s decision to abandon her

chosen career is attributable to a subjective decision divorced from the consequences of

her father’s death. Nevertheless, while the Court does not accept the proposition

advanced, the submission is not without merit, particularly in the context of the claim for

pecuniary loss, when it comes to assessing the Appellant’s future vocational capacity, in

respect of which her evidence is material. In this regard, and to her credit, she believes

that in time she will achieve her full potential; she is determined not to let what has

happened prevent her from pursuing a career as a vet. In the circumstances it would be

unjust to approach the claim for of loss of opportunity on the basis that the Appellant is

likely to remain employed as a veterinary nurse rather the claim must be approached

having due regard to her stated aspirations and intentions for the future.

17. The claim for pecuniary loss is advanced as a claim for general compensation for loss of

opportunity rather than an actuarilised capital loss claim. However, actuarial figures,

prepared by Mr Logan, Consultant Actuary retained on behalf of the Appellant, were made

available by way of assistance to the Court is assessing the appropriate level of general

compensation for loss of opportunity. The figures are indicative of the differential loss in

earnings based on certain assumptions between a veterinary nurse and a veterinary

surgeon. Account is taken, as it had to be, of the Appellant’s income derived from

different employments since she left school as well as the delayed qualification dates

arising from the planned deferral of college entry until return from her international

18. At this juncture it might fairly be said that had things gone to plan the assumption made

is that the Appellant would have qualified 4 to 5 years ago; as appears from the actuarial

report there is a significant difference in salary between being a vet and a veterinary

nurse. Depending on the assumptions taken the capital loss value of the salary

differential, without allowance for Reddy and Bates contingencies, ranges between

€600.000 and just over €900.000, however, as already mentioned the Appellant does not

19. The Court must approach the carrying out an assessment of general compensation for the

loss of opportunity claim in accordance with certain well settled principles of law;

compensation must be fair and reasonable, meaning it must be commensurate with and

proportionate to the loss. It follows in the circumstances that the claim must be

approached on the basis of what is reasonably likely to occur in terms of the Appellant’s

career. While she is undoubtedly well able for and enjoys working as a veterinary nurse, I

am satisfied on her own evidence she will find a way, in due course, to achieve her full

potential and reach her stated goal of becoming a veterinary surgeon, a finding which has

20. Having considered the indicative material contained in the actuarial report, the income

received from previous employments, the findings made herein and applying the

principles to which I have already alluded, I am satisfied that the sum awarded by the

Tribunal for loss of opportunity falls considerably short of what is fair and reasonable. In

all the circumstances of the case the sum which the Court considers appropriate in

respect of this claim is € 255.000, an increase of €100.000; the award of the Tribunal will

21. In relation to the other two claims, I did not understand the opening remarks of Ms.

McCrann SC to be an abandonment of the appeal in relation the awards, particularly the

award for loss of society, accordingly, these claims fall to be assessed In this regard

when account is taken of previous decisions of the court in respect of such claims I

consider that a fair and reasonable the award for loss of society in the circumstances of

the case is €100,000. I do not propose to disturb the award for post traumatic stress

disorder. Accordingly, the Court will allow the appeal and will vary the awards in respect

of the claims for loss of opportunity and loss of society by substituting therefore the

amounts assessed herein and will otherwise affirm the terms of the orders made.

Result: Compensation was awarded to the plaintiff for loss of opportunity and loss of society.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K.B. v The Minister for Health [2019] IEHC 905 (18 October 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC905.html Cite as: [2019] IEHC 905

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