In certain circumstances where a person dies as a consequence of the wrongful act of another a fatal injury action can be pursued.
There is statutory provision for this in Part IV of the Civil Liability Act 1961. This abolished the general common law rule that a person injured by the wrongful act of another and died before obtaining a final settlement or judgment brought an end to the matter.
It is a type of class action and only one such action can be taken against the same person and it is brought on behalf of the deceased’s dependants.
Bringing the action
Only the personal representative can bring a fatal injury action within 6 months of the death.
After 6 months any of the dependants can bring such an action. The action must be brought within 2 years of the deceased’s death.
Dependants
The appropriate plaintiff will be by the personal representative or a dependant. Dependants include spouse, parent, grandparent, step-parent, child, grandchild, brother, sister, half-brother, half-sister.
Many fatal injury claims will be dealt with by the Injuries Board and then a personal injury summons once the Injuries Board issues the necessary authorisation.
Heads of damages
The heads of damages for each dependant include
- Mental distress/solatium (maximum collective amount is €35,000)
- Funeral and other expenses
- Pecuniary loss
Pecuniary loss is the principal head of damages. The dependant must prove pecuniary loss-that is the pecuniary benefits each dependant could have expected to receive from the deceased had the deceased not died.
An actuary will be needed to do the calculations and information needed will include
- Deceased’s date of birth and date of death
- The income-gross and net-received by the deceased on a weekly basis
- Details of the deceased’s assets
- Bonuses and benefits in kind of the deceased
- marital status and details of the support which he gave to his dependants
- His expenditure on mortgage, clothing, food, rent, etc.
- Age and date of birth of each dependant, employment status, income, prospects, special needs, education
- Details of all deductible gains received by each dependant on the death of the deceased
Future pecuniary losses will also be considered by the actuary.
When calculating pecuniary loss certain sums will be deducted and certain sums-for example any sum payable on the death of the deceased under any contract of insurance and any pension or like benefit-are non-deductible.
Contributory negligence
Contributory negligence will provide a partial or full defence to a fatal injury action. The amount to be awarded in respect of the fatal injury will be reduced in proportion to the finding of contributory negligence of the deceased.
Disclaimer
Please note this is not intended as legal advice but a general overview of the topic. If you require legal advice you need to consult with a solicitor or other legal professional.