Hepatitis C Compensation Tribunal (Amendment) Act, 2002
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Amendment of section 5 of Principal Act. |
5.—Section 5 of the Principal Act is hereby amended— | |
(a) by the insertion of the following subsection after subsection (2): | ||
“(2A) Notwithstanding subsection (1)— | ||
(a) section 49 of the Civil Liability Act, 1961 , shall apply in relation to the assessment of the amount of the award to a dependant referred to in paragraph (e) or (j) of section 4(1) with the modification that the reference in subsection (1)(a)(i) of the said section 49 to the death shall be construed as a reference to the injury to the deceased and the death of the deceased, | ||
(b) the Tribunal may make an award to a dependant referred to in paragraph (e) or (j) of section 4(1) consisting of an amount equal to the amount of the general damages including damages for pain and suffering, personal injury, loss or diminution of expectation of life or happiness which the deceased suffered during his or her lifetime and to which the deceased would have been entitled if he or she had survived and brought a claim for compensation to the Tribunal, and where there is more than one such dependant, the amount aforesaid of the award shall be divided among those dependants in such manner as the Tribunal thinks just, and | ||
(c) the Tribunal may make an award to a dependant referred to in paragraph (e) or (j) of section 4(1) in respect of aggravated or exemplary damages where the dependant establishes that the deceased would have had a legal entitlement to such damages against a relevant agency or the Minister had he or she survived and brought a claim for compensation to the Tribunal, and where there is more than one such dependant, the amount aforesaid of the award shall be divided among those dependants in such manner as the Tribunal thinks just.”, | ||
(b) by the insertion of the following subsections after subsection (3): | ||
“(3A) (a) Where a dependant referred to in paragraph (e) or (j) of section 4(1) is the child, spouse, father or mother of the person who died (‘the deceased’) as a result of having contracted HIV or Hepatitis C, or where HIV or Hepatitis C was a significant contributory factor to the cause of death, the Tribunal may make an award to that dependant in respect of post-traumatic stress disorder or nervous shock if he or she satisfies the Tribunal that he or she has suffered or is suffering from that condition as a result of the death. | ||
(b) In determining whether to make an award under this subsection, the Tribunal shall have regard to any decisions of the High Court or the Supreme Court enunciating principles of law relating to the award of damages for post-traumatic stress disorder or nervous shock, as the case may be. | ||
(3B) (a) The Tribunal may make an award to a person referred to in section 4(1)(h) in respect of the loss of consortium of a person referred to in paragraph (a), (b) or (f) of section 4(1), including the impairment of sexual relations with the person, if the Tribunal is satisfied that there has been such loss or impairment arising from the risk of transmission of Hepatitis C or HIV. | ||
(b) Where a dependant referred to in paragraph (e) or (j) of section 4(1) is the child, spouse or parent of the person who died (‘the deceased’) as a result of having contracted Hepatitis C or HIV, or where Hepatitis C or HIV was a significant contributory factor to the cause of death, the Tribunal may make an award to that dependant in respect of loss of society of the deceased including the loss of the care, companionship and affection of the deceased as a result of the death. | ||
(3C) For the purposes of subsections (3A) and (3B) ‘spouse’ in relation to the deceased, means— | ||
(a) a person who was married to the deceased, or | ||
(b) a person who was not married to the deceased but who, until the date of the deceased's death, had been living with the deceased as husband or wife for a continuous period of not less than three years. | ||
(3D) (a) In considering the claim of a person referred to in paragraph (f), (g) or (i) of section 4(1), the Tribunal may consider any payment made to the person under the 1991 settlement. | ||
(b) In considering the claim of a dependant referred to in section 4(1)(j), the Tribunal may consider any payment made under the 1991 settlement to that dependant or to the person whose death has given rise to the dependant's claim for compensation to the Tribunal.”, | ||
(c) by the insertion of the following subsection after subsection (5): | ||
“(5A) For the avoidance of doubt, it is hereby declared that the making of an award to a claimant under this section shall not revive any claims heretofore discharged or waived by the claimant pursuant to the 1991 settlement, and is without prejudice to any indemnity given by the claimant under the 1991 settlement.”, | ||
(d) by the insertion of the following subsection after subsection (6): | ||
“(6A) The Tribunal may correct any clerical mistake or omission in a decision made by it within one month of the making of the decision.”, | ||
(e) in subsection (7)(a), by the insertion of “or HIV or both” after “Hepatitis C”, | ||
(f) in subsection (8), by the substitution of “before the conclusion” for “up to the commencement”, and | ||
(g) by the insertion in subsection (13) after “one month” of “or such longer period as may be prescribed” in each place where it occurs. |