Court overturns Hepatitis C and HIV Tribunal compensation ruling. The Hepatitis C and HIV Compensation Tribunal’s refusal to compensate a woman who suffered a psychiatric illness after her father died from an AIDS-related illness 30 years ago, has been overturned in a landmark High Court decision by Mr Justice Bernard Barton.
The ruling leaves the door open for a number of similar claims that are before the tribunal which was set up in 1995 to compensate anyone infected with Hepatitis C as a result of the use of infected blood products.
Judge Barton said the woman suffered “nervous shock” or Post Traumatic Stress Disorder (PTSD) caused by her late father’s death from a HIV related infection which he contracted through the administration of contaminated blood products.
The Judge said he was satisfied to set aside a 2015 decision of the tribunal that she was not entitled to compensation and has remitted her application to the tribunal for assessment and an award of compensation.
Judge Barton heard that the woman’s father, who was a haemophiliac, was one of the first people in Ireland to die after contracting HIV/AIDS. His daughter’s identity cannot be revealed for legal reasons.
The tribunal, while making an award to the woman for the loss of society and opportunity, had dismissed her claim for PTSD.
The woman, who was represented by Gerry Danaher SC, had appealed the tribunal’s decision to the High Court.
The State opposed the appeal.
Judge Barton said the tribunal’s rationale for the dismissal was based on grounds that, while the experience of her father’s illness had been distressing and traumatic, there did not appear to have been one particularly horrifying or traumatic event or series of events which she experienced which had caused her illness.
The judge said that the tribunal’s conclusion was difficult to reconcile with findings it made in respect to a claim made by the woman’s mother who also suffered PTSD following her husband’s death. He said the tribunal had compensated the woman’s mother for the PTSD she suffered arising out of her husbands’ illness and death.
Judge Barton said he accepted medical evidence that the events leading up to her father’s death caused a recognised psychiatric illness which emerged after the woman had been admitted to hospital with depression.
The woman, as a very young teenager, had overheard her mother and a doctor talk about AIDS which she knew was bad news. Freddy Mercury had come out to say he was dying of Aids and she was also aware that the actor, Rock Hudson, had already died from the same illness.
“The appellant literally watched her father waste away. Her mother allowed short visits to his bedroom and at night she could hear him crying,” Judge Barton said.
She had been just 16 when her father died. She recalled her mother telling her she should say goodbye and take her 11 and seven year old brothers home from the hospital. She had gone over to her father, gave him a kiss and told him she would see him the following day. He had died that night.
Judge Barton said that the circumstances of her father’s death were anything but normal describing them as “horrific” and “harrowing”. He said the woman, now in her 40s, had been close to her father who had “wasted away” due to complications from his illness.
“There was at the time of his death in the 1980’s a stigma attached that was not just social but also medical,” the Judge said.
“The policy of patient isolation, the face masks, the hand washing and the way the corpse was dealt with were examples of that,” the Judge added.
He said the woman’s mother had told other people that her father had died of cancer and following his death he was not laid out, but had been zipped into a body bag and placed in a sealed coffin.
The judge noted that the woman, who was in her teens at the time of his death, knew he had contracted HIV but did not discuss this with anyone for many years. She never told her mother, who was determined to keep her father’s cause of death hidden from everybody, that she knew the truth.
Judge Barton said he found the woman to be a truthful witness and accepted her account of the loneliness, reoccurring nightmares and devastating emptiness she suffered arising out of her father’s death.
In setting aside the tribunal’s dismissal of her claim and remitting it to the tribunal for fresh consideration, Judge Barton adjourned the proceedings to a date in October for final orders in the case