A fatal injury action is a legal action taken where a person dies as a result of the wrongful act of another.
Only one action may be taken against the wrongdoer and it must be taken on behalf of all of the deceased’s dependents. Only the deceased’s personal representative is entitled to bring this action within 6 months of the death.
If no action is taken within 6 months, or there is no personal representative, any or all of the deceased’s dependents can bring a fatal injuries action.
As only one such action may be taken, it is vitally important to identify all of the dependents of the deceased.
Actuarial evidence is usually required for fatal injuries actions to establish the loss of each dependent.
The Injuries Board
Many fatal injuries claims fall within the remit of the Injuries Board and must be referred there in the first instance.
The period within which a fatal injuries claim can be brought is either
- 2 years from the date of death or
- Two years from the date of knowledge of the person for whose benefit the legal proceedings are being brought.
However, this 2 years period is extended for people under a disability (this includes a person under the age of 18 or someone of unsound mind).
Proceedings for fatal injuries are brought by way of a personal injuries summons.
A ‘dependant’ is a person who must be related to the deceased and who has suffered a financial loss and/or mental distress as a result of the death. However, a dependant does not include
- Uncles
- Aunts
- Nephews
- Nieces.
It also includes a former spouse from whom the deceased was divorced. This is the case even where the deceased remarried or was cohabiting with another person for a period of at least three (3) years.
A dependant who has not suffered a financial loss or mental distress can waive their right.
Heads of Damages
The heads of damages for this legal action under the Civil Liability Act 1961 (as amended) are
- Financial loss
- Mental distress (solatium)
- Funeral and other expenses (travelling, acknowledgment cards, etc.) suffered as a result of the death.
There is a limit on the amount that can be awarded for mental distress of €25,394.76 which will be divided amongst the dependants, regardless of how many there are.
Under common law however, a separate head of damages exists: damages for nervous shock.
A former spouse cannot recover damages for mental distress.
The Plaintiff in a fatal injuries action must prove pecuniary (financial) loss and an actuary will virtually always be used to calculate this loss as it will take into account pecuniary losses into the future.
The actuary will use a multiplier to calculate the future loss; this will depend on the age of the deceased and the likely duration of the loss into the future amongst other factors.
Where a deceased person is found to have contributed to his own death, there will be a deduction for that element of contributory negligence. This will be at the discretion of the Court depending on the circumstances of each case.
Where a dependent was contributorily negligent, there will be a deduction in respect of that dependent’s portion of the overall award.
Any legal causes of action vested in the deceased at the time of death will survive and can be pursued by his estate/personal representative.