Download Press Release April 29, 2010

IRISH THALIDOMIDE ASSOCIATION
PRESS STATEMENT
Thursday 29th April 2010
“Irish Thalidomide Association recommends that their Members
reject the Government’s compensation offer”
IRISH CASE LAW AND PRECEDENT
Interaction with State Claims Agency/ DOH Documents
Over eight months the Irish Thalidomide Association through its solicitors has been
seeking to achieve access to the Department records associated with the Thalidomide
Arrangement/ Settlement. It should be noted that there was a refusal by the Minister
for Health and Children to deliver access to such documentation.
Access was
required for the purposes of interacting with the State Claims Agency by way of
submission to ensure that all relevant matters were addressed in relation to the State
Claims Agency’s report. It turned out that the State Claims Agency did not wish the
involvement of the Irish Thalidomide Association to occur in the circumstances that
merited a comprehensive review.
The State Claims Agency interpreted their terms of reference in a narrow and
restrictive manner. Also, the Minster for Health and Children refused access to the
relevant documentation concerned. On the date of delivery of the State Claims
Agency report by the Minister for Health and Children she indicated, for the first
time, that she was requesting advice from the Attorney General as to whether such
documentation should be released.
During the course of the meeting on Tuesday 27th April 2010, it was indicated directly
to the Minister for Health and Children that the Irish Thalidomide Association
required such documentation to be provided for the purposes of ascertaining as to
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whether the original Compensation Arrangement had been approved by the High
Court. In that regard, the Minister undertook to revert within a period, if at all
possible, of 24 hours with such detail.
It appears to the Irish Thalidomide Association, that its members who were then
children, did not have the benefit or the legal entitlement to have such a settlement
approved by the High Court for the purposes of protecting their position.
As a matter of proper practice in the courts system in this jurisdiction, it has been the
situation that for each and every type of personal injury claim where a child has been
injured (under the age of 18), that the court must approve the settlement to protect that
child from an inadequate or unfair settlement. In this instance, it is noteworthy that
the Minister for Health and Children has stonewalled in correspondence, the Irish
Thalidomide Association’s request for access to the relevant documentation. Such a
refusal has occurred in circumstances where it was clear that the Irish Thalidomide
Association required the documentation to obtain detail in relation to the original
settlement arrangement.
Also, access to the documentation was required for
discussion with the State Claims Agency i.e. to ensure parity if detail available to both
sides.
It now transpires that after the relevant report has been delivered for approval to the
Cabinet, in circumstances where there is no input from the Irish Thalidomide
Association, that a crucial issue was not disclosed.
In that regard, the Cabinet
decision may be flawed, the victims may be in a situation where they were abused as
children by virtue of the failure of the State to protect their rights. The present
Minister for Health and Children has at the very least condoned such a situation by
virtue of her refusal to deliver access to such documentation. It is interesting in the
extreme, that it was only upon delivery of the relevant report, which was a fait
accomplit in terms of what was on offer, that the Minister then said that the relevant
documentation would be provided subject to the advice of the Attorney General.
If it is a situation that these settlements were not ruled, then in those circumstances it
would appear that there is no valid original Compensation Arrangement. Also, the
children concerned did not have the protection of the courts in circumstances where
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the State took advantage of both their parents and the children concerned. The State
have neglected to disclose detail as to whether such events occurred yet the
investigations to date seem to suggest that same is the situation.
The Minister for Health and Children is required now to clarify as to what occurred
and respond in accordance with her undertaking having been appraised of the relevant
detail. In addition, if she brought incorrect information to Cabinet in circumstances
where no discussion occurred with the Irish Thalidomide Association, then it is
incumbent upon her to rectify the situation. In addition, if the State Claims Agency
report is fundamentally flawed arising out of inaccuracies contained therein and lack
of information or proper investigation occurring, then that report should be
withdrawn. For the mistakes of the past to be exacerbated by incompetence in the
present is heaping insult upon injury in circumstances where the present government
is conniving upon a conspiracy of concealment.
In the circumstances that exist, certain Irish Thalidomide Association members have
instructed their Solicitors to institute proceedings against the State. Also, it should be
noted that proper practice and procedure has not occurred i.e. disclosure of such
failures has not happened and the present Minister is still vacillating as to what to do.
It is time that an open and transparent approach was delivered by the present
government. As recently as Tuesday 26th April 2010 the government in its entirety
connived in relation to concealment by way of its Cabinet decision.
The Minister contended during the course of the meeting with the ITA that a
submission had been delivered on behalf of the Irish Thalidomide Association. Such
a perspective was yet again incorrect, in that Ciarán Breen, Director of the State
Claims Agency confirmed in writing on the 23rd April 2010 that “we note that you
have decided not to make a detailed submission, despite being requested to do so”.
Such a statement was made in the context of receiving a request at the 23rd hour when
the report, it was apparent, was already written.
The National Drugs Advisory Board
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The report as delivered to the Minister entirely ignores the regime that operated in
advance of the establishment of the National Drugs Advisory Board. In that regard,
certain drugs were required to be licenced under the Therapeutic Substances Act
1932.
The rationale delivered by the Minister for the refusal to deliver and
acknowledgement of wrong and/or an apology to Thalidomide survivors is that the
Irish State had no responsibility for the injuries sustained. The rationale for lack of
responsibility was solely based upon there being no licencing procedure applicable at
the relevant time. This perception or advice is fundamentally flawed in that there
were two reasons as to why the Irish State predominantly has a responsibility which
are as follows:-
i. An alternative statutory regimen applied i.e. under the Therapeutic
Substances Act 1932 or at the very least should have applied.
ii. The principles of negligence apply in relation to the control of
pharmaceutical products in this jurisdiction i.e. a case could have been
advanced upon old fashioned negligence principles i.e. the Department
of Health had a licencing section.
iii. It now transpires that a situation occurred where Thalidomide was left
on the market in Ireland long after it was withdrawn in other
jurisdictions. In that regard, certain Thalidomide survivors are the
victims of that particular decision not to withdraw the product because
it might cause concern to mothers who had already taken that product.
The consequence of that decision was that the product remained in
many mothers’ medicine cabinets to be used at a later date.
In short, the State knew or ought to have known that the relevant pharmaceutical
product being Thalidomide was unsafe for pregnant mothers and had not been tested
in that regard i.e. there was a risk of peripheral neuritis complications.
The Principles of Tort Law
The State Claims Agency report indicates that “it is inappropriate, in the Agency’s
view, to apply current principles of Tort Law in the quantum of damages, general and
special, to an event which took place in the years 1958 to 1962”.
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In essence, what is being said to the Thalidomide survivors is that the standards of the
past are to apply to the circumstances of the present i.e. 2010. That is patently wrong
and most inappropriate and discriminatory towards one particular section of society.
That is all the more so for the reasons that are elaborated upon below.
Marked differences between Hepatitis C and HIV Compensation Scheme/
Thalidomide Survivors
The supposed marked differences that have been highlighted by the State
Claims Agency are incorrect, flawed and without any foundation. The said marked
differences show a distinct lack of understanding of how the Hepatitis C and HIV
Compensation Scheme operates. The following inaccuracies are contained in the
State Claims Agency’s report:-
a. The original non-statutory Hepatitis C Compensation Scheme was set up
in exactly the same circumstances that exist today for Thalidomide
survivors. It was set up for the purposes of ensuring that persons received
adequate or appropriate compensation in accordance with the Law of Tort,
the Civil Liability Act 1961 as amended, Case Law etc. for the purposes of
ensuring fair and equitable compensation.
b. It is irrelevant as to whether any contribution is being made by a third
party. What we are dealing with here is the responsibility of the Irish State
to provide compensation for citizens injured as a consequence of any act
that occurred within this jurisdiction.
c. The payment of damages both general and special, do utilise the ordinary
principles of Tort Law but it is not necessary that liability is assumed on
the part of any Tortfeasor.
In the circumstances of the Hepatitis C
Compensation Scheme or what requires to be established is an injury i.e.
Hepatitis C and an exposure to a particular pharmaceutical product being a
blood product. In this instance in relation to Thalidomide survivors, it is
exactly the same situation, an injury has occurred as a consequence of an
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exposure to a pharmaceutical product being a drug i.e. Thalidomide/
Softenon in this jurisdiction.
d. The reference to a criminal prosecution in Aachen is most unfortunate and
inappropriate.
The burden of proof in a criminal case in beyond all
reasonable doubt and just because an action was unsuccessful on that
particular burden of proof, it does not mean that a similar civil action
would be unsuccessful as there is a lower burden of proof being the
balance of probabilities. What is interesting is that the consequence of that
criminal prosecution resulted in a settlement offer in relation to a civil
action or proceedings.
e. It is wrong for the State Claims Agency to indicate that it is “an impossible
exercise to compute a retrospective and prospective loss of earningsspecial damages- calculation for each Thalidomide survivor as this would
require a predictive assessment that but for the Thalidomide event the
survivor would have achieved a particular career with a particular level of
earnings”. The author of such a statement is misconceived in the extreme
in relation to the content of said statement. The State Claims Agency,
upon a daily basis, deals with claims most particularly in relation to
medical negligence circumstances or Cerebral Palsy type situations where
quantification of loss of earnings occurs in exactly that situation. Also, the
Compensation Tribunal which has been established to address the
circumstances of infection of people/ children with HIV/ Hepatitis C is
required to undertake the exact same process.
Such a statement is
misleading, unfounded and wrong in law. It is an example of the partiality
associated with the State Claims Agency’s position in relation to the
preparation of this report. The inaccuracy associated with the foregoing
statement is further indicated by virtue of a subsequent contradiction that
indicates that such calculations can be undertaken but “one would have to
have knowledge of the survivors’ parents and sibling’s careers and levels
of earnings and attached certain assumptions to these” i.e. it would be
difficult to do. Difficulty in quantification of loss of earnings does not
mean that it is impossible.
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The State Claims Agency report concludes that it does not believe that
Case Law and Precedent in relation to quantification of damages, provides
a suitable means to revisit compensation in the case of Thalidomide
survivors.
Such a categorical statement must be viewed against the
Mission Statement of the State Claims Agency itself, which indicates that
its purpose is to minimise the cost of claims to the State. It is submitted
that it is solely for that reason that the State Claims Agency has indicated
that the methods applicable day in day out in the court system in this
jurisdiction should not apply to this vulnerable section of society. Even
the Minister for Health and Children, upon delivery of the State Claims
Agency report accepted that the State Claims Agency was not impartial or
partial in relation to its views.
Contact:
Finola Cassidy
Spokesperson ITA
Ph: 086-9151235
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