Tuesday 20 March 2018

Damages claim over Hepatitis C dismissed because of delay

Tim Healy

THE High Court has dismissed an man's damages claim against the State over an alleged failure to inform him that he had tested positive for Hepatitis C in the early 1990's.

Mr Justice Sean Ryan dismissed the claim on the grounds including that a six year delay in advancing his case meant that there was a substantial risk of an unfair trial. The Judge added that it was unacceptable that "such an extreme and continuing delay should be tolerated." and that the claim was "speculative".

The man, who cannot be identified, sued the Minister for Health The Irish Blood Transfusion Services (IBTS), Ireland and the Attorney General. His claim arose out blood donations he made to the IBTS predecessor the Blood Transfusion Services Board (BTSB) in 1992 and 1993. He claims that on each occasion his blood tested positive for Hepatitis C C on each occasion.

He was not informed about the positive test until October 1993. He claimed the failure represented a variety of legal wrongs and sought damages for personal loss.

The man received an apology from the IBTS in August 2005, following the publication of an expert report procured by the BTSB. Shortly afterwards he instigated proceedings against the defendants seeking damages for negligence, breach of duty, trespass and breach of his constitutional rights.

The State defendants, supported by the IBTS, sought an order dismissing the case for want of prosecution. The man had brought a motion seeking to dismiss the states application and sought an order for the extension of time in which to serve his statement of claim.

The claimed that it was not till 2011 when the man served notice of his intention to proceed with his case. The man opposed the action on the grounds that between 2005 and 2011 he had physical and mental health problems, during that time he underwent a liver transplant.

In his judgment today Mr Justice Ryan dismissed the man's motion and made an order in favour of the defendants striking out the claim. The Judge found that the delay in this case and consequential prejudice made it unfair on the defendants to go ahead with the case. It was just to strike out the action, the Judge added.

The Judge found that the man had failed to explain why his lawyers were inactive over the period between 2005-11. The Judge also added that the claim was "speculative," and that there was nothing in the mans statement of claim lacked details of of the personal injuries alleged to have been suffered.

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