thefirmmagazine 13 Aug 2008
A widow, whose gardener husband died after contracting hepatitis C from infected blood has lost her action to overturn their decision that denied her compensation, because her husband died 5 months prior to the cut off date for qualification.
George Fargie died on 7 March 2003 and it was established that he had contracted hepatitis C from infected blood. The compensation fund, run by a private company which administers the ex gratia scheme on behalf of the Department of Health, makes payments to "all people who could demonstrate, on the balance of probabilities, that they had received blood, blood products or tissue from the NHS in Scotland and were subsequently found to be infected with the Hepatitis C virus," but only to those who were still alive at a selected cut off date, which was 29 August 2003.
"The burden of the submission for the petitioner was that the only reason for the cut-off date of 29 August 2003 being fixed by the respondents was because they took the view that victims alive on that date had a legitimate expectation to an award," said Lord Uist in his judgement.
"I do not think that view, which seems to proceed upon a narrow reading...is correct. It seems to me plain that another, and at least equally significant, consideration for the respondents was the need to have regard to limited financial resources when fixing the eligibility criteria of the scheme,"
"It is obvious that having a cut-off date would be bound to result in some savings to public funds, as otherwise claims on the fund could be made by all those who had been infected by the virus in the course of NHS treatment."
"I appreciate that on 29 January 2003 the Minister stated: "If somebody is alive now and has the virus because of NHS treatment they will get the initial payment." Despite the apparently clear nature of that statement, I do not think it can be taken to have conferred upon a person alive on 29 January 2003 who had the virus because of NHS treatment a legitimate expectation to an initial payment out of any fund to be established."
Fargie's widow had sought a judicial review of the decision to restrict payments in this fashion, but the action was today dismissed by Lord Uist.
The full judgement can be read here: http://www.scotcourts.gov.uk/opinions/2008CSOH117.html
