A bereaved person’s primary concern is dealing with the loss and grief following the death of a loved one. However, dependants of a deceased person who has died as a result of the wrongful act of another person may institute a *fatal injury claim against that wrongdoer. Part IV of the Civil Liability Act 1961 (“the Act”) is the principal relevant legislation for *fatal injury claims. This legislation allows for an action to be brought and a claim to be made for financial loss, funeral expenses and mental distress on behalf of all the dependants as a result of the deceased’s death.
Who is entitled to bring a claim?
Within the first six months after the death of the deceased, the dependants cannot bring a *fatal injury claim. It is the personal representative who must bring the claim on behalf of the dependants by virtue of S48 (3) of the Act. If the personal representative does not do so or there is no personal representative, then after the expiration of six months, any or all of the dependants are entitled to bring the action.
However, S48 (2) of the Act provides that “only one action for damages may be brought against the same person in respect of the death”. The consequence of this provision is that each dependant cannot institute a separate claim against the wrongdoer. There must be a single claim taken by one dependant or collectively by the dependants and therefore it is of paramount importance that each dependant be identified.
What is the definition of a dependant?
S47 of the Act (as substituted by S1 of the Civil Liability (Amendment) Act 1996) sets out the definition of a dependant. To qualify as a dependant a person must firstly, have suffered financial loss or mental distress as a result of the deceased’s death and secondly, be related to the deceased as spouse, parent, grandparent, step-parent, child, grandchild, brother, sister, half-brother, half-sister, an adopted child, or be a person in loco parentis to another.
In certain circumstances, a divorced spouse or person who cohabited with the deceased as husband or wife can be categorised as a dependant also. A divorced spouse can recover for financial loss but not compensation for mental distress. The former spouse remains a dependant even if they have remarried or are currently cohabiting with another at the time of the deceased’s death. A cohabitee/ non-marital partner can be classified as a dependant where that person had been living with the deceased as husband and wife (although not married) for a continuous period of not less than three years.
Time Limits on *fatal injury claims
There is a limitation of the length of time the dependants have to bring a *fatal injury action. It cannot be brought after the expiration of two years either from the date of the death of the deceased or the date of the knowledge of the person for whose benefit the action is brought, whichever is the latest. This is by virtue of S6 of the Statute of Limitations (Amendment) Act 1991 as amended by the Civil Liability and Courts Act 2004. Any claim taken outside of this time period will be statute barred and as a result, the dependants will not be able to recover damages. However, there is an exception to this rule, that being where a person was under a disability when that right accrued to them. In these circumstances, the time limit of two years will not begin until they cease to be under a disability or die, whichever occurs first.
What type of compensation is recoverable?
S49 of the Act specifies the types of damages which are recoverable in *fatal injury claims. The dependant can recover pecuniary loss, damages for mental distress and compensation for funeral and other expenses incurred as a result of the death of the deceased for example the cost of burial or cremation.
S49(1)(a) of the Act provides for recovery for pecuniary loss, which are the benefits that each dependant expected to receive had the deceased not died as a result of the defendant’s wrongful act. Such losses include for example loss of services provided by the deceased in home repairs, decoration, benefits in kind received from third parties, rearing and caring for children and loss of goods provided for by the deceased. An actuary plays a large role in determining the pecuniary loss suffered and there will have to be actuarial evidence of the loss suffered by each dependant. It can prove more difficult to calculate the dependants claim for future losses and again, an actuary will carry out this task.
There is a collective monetary limit on the compensation that dependants can recover for mental distress, which dependants suffer as a result of the death of the deceased. At present, this figure is €25,394.76 and applies regardless of the number of dependants who make a claim.
Funeral and other expenses are recoverable under S42 (2) of the Act; however if the dependants receive a death grant then this sum must be deducted when calculating the expenses incurred.
* 149. (1) A legal practitioner shall not charge any amount in respect of legal costs if—
(a) they are legal costs in connection with contentious business expressed as a specified percentage or proportion of any damages (or other moneys) that may be or become payable to his or her client, other than in relation to a matter seeking only to recover a debt or liquidated demand, or
(b) they purport to set the legal costs to be charged to a junior counsel as a specified percentage or proportion of the legal costs paid to a Senior Counsel.
(2) A legal practitioner shall not, without the prior written agreement of his or her client, deduct or appropriate any amount in respect of legal costs from the amount of any damages or moneys that become payable to the client in respect of legal services that the legal practitioner provided to the client.