Tort - Fatal Injuries Cases

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Fatal Injuries Cases - Introduction

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s. 48 (1) of the Civil Liability Act 1961: fatal injuries action possible where a tort leads to death, and the deceased would have had an action against the Pl.

The action is taken either by the deceased’s estate or by the deceased’s dependents.

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Section 48 Civil Liability Act 1961 - Procedure for Bringing an Action

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s. 48: either

(a) the personal representatives of the deceased take an action on behalf of the dependents as a class within 6 months of death, or – if this does not occur – then,

(b) any or all of the dependents can take an action, which must be for the benefit of the dependents as a class.

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Section 48 Civil Liability Act 1961 - Definition of Dependent

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Spouse; parent, grand-parent, step-parent; child, grand-child, step-child; brother, sister, half-brother, half sister.

Divorcee under (a) Irish law, or (b) foreign law recognised in Ireland.

Illegitimate child, adopted child, child for whom the person was in loco parentis.

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Liability

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An action lies only where the deceased would have had a claim.

If deceased had settled a claim before death, no cause of action Mahon v. Burke (1991)

The approach is arguably unfair, given that the deceased will not usually have realised the extent of the damage – i.e. death; especially given that the purpose of s. 48 is to compensate depedents.

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Mahon v. Burke (1991)

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Where the deceased had entered settlement with the potential Def before death (even if it is only partly satisfied) a fatal injuries action is excluded.

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Section 48 Civil Liability Act 1961 - Contributory Negligence

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s. 35(1)(b) deems the Pl “responsible” for the acts of the defendant, thus implicitly applying the principles of CN to fatal injuries cases. Seat belts: most common area of CN; legal requirement to wear seat belts has strengthened it; Hamill v. Oliver (1977).

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Hamill v. Oliver (1977)

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Failure to wear seat belts represents the most common area of contributory negligence; legal requirement to wear seat belts has strengthened it;

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Section 49 Civil Liability Act 1961 - Damages

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s. 49 provides that the court will award damages to each of the dependents, reflecting what it proportionate to the injury resulting from the death. The depedents may claim under any of the following three headings:

1. Loss of Financial Dependency;
2. Mental Distress;
3. Funeral and Other Expenses.

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Loss of Financial Dependency

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This concerns the loss of pecuniary benefits which the depedents had a reasonable expectation of receiving from the deceased until his death.

Calculating loss: yearly average multiplied by the number of years the dependency was likely to continue. The court considers possible career advancements and pay rises, and also services for which the deceased was likely to pay (e.g. house maintenance). For a young person, married with children, damages can be high, e.g. Furey v. Suckau (2002): £247,000 (- 80% for CN).

The sum is reduced to reflect money received as a direct result of death, e.g. inheritance, but under s. 50 things such as pensions, insurance contracts or benefits payable under statute cannot be taken into account.

Time of calculation: the issue is: time of death or time of trial? Suggestion that situation at trial is the dominant factor:

Tax liability: British Transport v. Gourley (1956): held that income tax should be deducted from potential earnings; this approach is adopted in Ireland, thus net earnings are key.

Under s. 34(2)(b), the Pl is under a duty to take reasonable steps to mitigate his loss.

Undeclared income: income of the deceased which is undeclared for tax purposes can also be accounted for by the court; Fitzpatrick v. Furey (1998).

Downing v. O’Flynn (2000): SC overturned Fitzpatrick reasoning, and was willing to consider undeclared income, but only because this could quantified precisely in this case, and was evidenced by regular fixed payments to the dependents prior to the deceased’s death. However, per Denham J: how the undeclared income was obtained is crucial – income on foot of crime will not be considered. Public Policy seems to be the key issue here, case-by-case.

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Civil Liability Act 1961, Section 50 - Pensions, insurance, statutory benefits

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Under s. 50 things such as pensions, insurance contracts or benefits payable under statute cannot be taken into account.

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Hayes v. Ennis (2005)

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The deceased was killed in an accident; his wife was already dead; they left two dependent adopted children behind, one of whom would have still been living with them; the court awarded €400,000 for loss of dependency.

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Cooper v. Egan (1990)

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Pl’s wife died at 27; since the death, child had been living with maternal grand-mother, but Pl wanted the child to live with him and continue working, thus he needed a child-minder; he assured the court he had no plan to remarry; the court considered the loss of services of the deceased as a wife and mother, and accounted for child-minder costs, but reduced the damages slightly to account for the possibility of remarriage.

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Fitzpatrick v. Furey (1998)

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Pl argued that undeclared income should be considered, unlawful thought it may have been, as the dependents would have had access to it; court held that this would be contrary to public policy.

The decision was criticised for penalising the innocent dependents.

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Downing v. O’Flynn (2000)

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SC overturned Fitzpatrick reasoning, and was willing to consider undeclared income, but only because this could quantified precisely in this case, and was evidenced by regular fixed payments to the dependents prior to the deceased’s death.

However, per Denham J: how the undeclared income was obtained is crucial – income on foot of crime will not be considered. Public Policy seems to be the key issue here, case-by-case.

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Mental Distress

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£20,000 limit of total money awarded to all dependents.

Dowling v. Jedos (1977): SC held that the court should first assess the sum due to each dependent, and if the limit is exceeded, the amounts should be reduced proportionaely so that they total the upper limit.

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Dowling v. Jedos (1977)

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SC held that the court should first assess the sum due to each dependent for mental distress, and if the limit is exceeded, the amounts should be reduced proportionaely so that they total the upper limit.

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Funeral and Other Expenses

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Reasonable funeral expenses will be covered, e.g. cost of coffin and gravestone.

Extravagant funeral expenses will not be financed by damages.

“Other expenses” include, for example, the cost of the dependents visiting the deceased’s body, mass cards, and a wake.