A woman whose partner contracted Hepatitis C as a baby in his mother’s womb after she received contaminated Anti-D blood product is not entitled to compensation for ‘loss of consortium’, the High Court has ruled.
Loss of consortium is the legal term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a third party.
The woman, who is not herself infected, sought compensation for loss of consortium with her partner, who was diagnosed with Hepatitis C when undergoing routine medical examinations as an adult some six years after they began living together.
Compensation Tribunal
In a recently published judgment, Mr Justice Bernard Barton dismissed her appeal against a decision of the Hepatitis C and HIV Compensation Tribunal she does not fall within the category of person who may bring loss of consortium claims under the Hepatitis C and HIV Compensation Tribunal Acts.
The judge said the question is whether the uninfected partner or spouse of an adult ‘child‘ whose Hepatitis C and/or HIV infection was contacted indirectly from their mother qualifies to make a claim for loss of consortium.
He said section 4 of the Acts make clear there is no provision for such a claim.
Victims
When the section, as amended, is considered as a whole, it is clear the Oireachtas, in conferring the right to claim compensation, distinguished between “primary” and “secondary” victims, between those who contracted infection due to an act done to them directly and those indirectly infected, he said.
While a right to claim compensation for loss of consortium is conferred on those indirectly contaminated, and on carers and/or dependants of those identified in section 4, the right to make a claim for loss of consortium is expressly restricted to those whom the tribunal identified as “primary” victims, he said.
The Oireachtas, he held, did not intend to confer a right to bring a claim for loss of consortium on the spouse or partner of an adult ‘child’ of an infected person.
Legally married
The judge added the applicable legal authorities make clear that a cause of action for loss of consortium at common law is confined to those who are legally married.
Earlier, outlining the background, he noted the appellant, in her forties, is a full-time homemaker living with her partner and their young daughter.
On a date in the mid 1990s, the appellant’s partner’s mother was found by the non-statutory Hepatitis C Compensation Tribunal to have contracted Hepatitis C as a consequence of having received contaminated anti-D blood product in the course of the deliveries of her children. The mother was awarded compensation and died from an unrelated illness later.
Some 20 years after his mother’s death, and six years after he began living with the appellant, the man was diagnosed with Hepatitis C during routine medical examinations.
He applied for compensation to the tribunal under section 4.1.c of the Acts. It was satisfied the source of his Hepatitis C infection was transmission from his mother in utero or on delivery and made a provisional award.
When the appellant sought compensation for loss of consortium, the tribunal held she did not meet the qualifying criteria.
