Neutral Citation No: [2005] IEHC 58
[2004 No. HP16CT]
BETWEEN
APPLICANT
RESPONDENT
JUDGMENT of O'Neill J. delivered the 2 nd day of March, 2005.
The applicant in this case applied to the Hepatitis C Compensation Tribunal (hereinafter referred to as the Tribunal) for compensation under two headings first, loss of consortium and secondly for compensation for losses incurred by the applicant as a carer under the provisions of s. 4 sub-s. 1 (d) of the Hepatitis C Compensation Act 1997, (hereinafter referred to as the Act). The applicants claim for compensation for loss of consortium was successful and an award was made to him but his claim for compensation under s. 4 sub-s. 1 (d) of the Act was refused by the Tribunal.
The applicant appealed to this court. At the commencement of the hearing of that appeal the Minister for Health and Children (hereinafter referred to as the respondent), surprisingly raised as an issue the question of whether or not the respondent was entitled to cross-examine the applicant in the appeal. I say surprisingly, because appeals as provided for in the Act have been heard by this Court, now, for in excess of five years and I personally have heard in excess of 250 of these appeals, all of which have proceeded on the basis, frequently acknowledged by the respondent that the respondent didn't have an entitlement to cross-examine an applicant.
Nevertheless be it late in the day it was quite clear that the respondent had raised an issue of great substance and a separate hearing in relation to same took place on 16 th December, 2004.
Before considering the submissions of both sides it is well to set out the relevant statutory provisions and part of the Rules of the Superior Courts (No. 7) (appeals from the Hepatitis C Compensation Tribunal) [1998] S.I. No. 392 of 1998.
Article 5 of S.I. No. 392 of 1998 is as follows:
Counsel for the respondent submits as follows:
For the applicant it was submitted by Counsel as follows:
DECISION
I am satisfied applying the literal approach to its construction, that s. 3 (17) does prohibit cross-examination in the Tribunal hearing, of a claimant and that the reference to sub-s. 3 (16) in sub-s. 3 (17) is there to remove any doubt that might arise from the availing of the assistance of Counsel by the Tribunal under s. 3(16), as to the extent of that prohibition.
The question of whether and to what extent that prohibition effects the position of a party referred to in sub-s. 3 (16) (a), must be reserved to a case in which any of these parties raises that issue.
However it could be said that it is unnecessary for me to decide whether the appropriate construction of sub-s. 3 (17) is the one contended for by the applicant or the narrower construction contended for by the respondent because the real issue here is not the extent of the prohibition of cross-examination in the Tribunal but whether or not a similar prohibition on cross-examination in an appeal, exists.
The Act itself does not refer at all to cross-examination in an appeal nor is there any reference to this topic in S.I. No. 392 of 1998, i.e. Order 105 A of the Rules of the Superior Court.
It was submitted for the applicant that this court on appeal couldn't assume a greater jurisdiction than the Tribunal had and hence if the facility of cross-examination was denied in the Tribunal, it could not be permitted on appeal.
In my view this submission confuses jurisdiction and procedure. The jurisdiction of this court on appeal is exactly similar to that of the Tribunal in the sense that it has the same jurisdiction to make awards of compensation as provided for in s. 5 of the Act, as amended. A right of cross-examination in appeal would not alter that jurisdiction at all. Such a right of cross-examination on appeal would of course be a different procedure to that permitted in the Tribunal, and no doubt the existence of such a right of cross-examination, on appeal in the respondent might be seen as a deterrent to appeal. I would be easily persuaded that for persons who have hepatitis C or HIV infection, the vast majority of whom suffer from a sense of stigma and many of whom have kept their infection secret from all but their closest relatives, the prospect of having to face cross-examination with all that goes with that, namely the building of a case by the respondent against them, would indeed be a very real deterrent to exercising their right of appeal.
No doubt it was considerations such as these that led the Oireachtas in the first place to prohibit cross-examination as was provided for in s. 3 (17) of the Act.
However as the Act is entirely silent on the subject of cross-examination in an appeal and as the right of cross-examination would not at all enlarge the jurisdiction of this court on an appeal as compared to the Tribunal and bearing in mind the fact that the respondent like every other litigant has a constitutional right to cross-examine in defence of his interest, it would seem to me that it is not open to this court to conclude that the Act of 1997 or S.I. No. 392 of 1998 have had the effect of prohibiting that right on an appeal to this court. It would seem to me to be quite impermissible to construe the complete absence of statutory provision on this subject as having the effect of either eliminating entirely or substantially curtailing a right which though not an absolute right is in general terms a right protected by the Constitution.
Accordingly I must conclude that the respondent does have a right to cross-examine the appellant in this case.
Approved: O'Neill J.