Under the Civil Liability Act, the definition of a ‘dependent’ person includes a cohabitant who is not married to the deceased but until the date of the deceased’s death had been living with the deceased for a continuous period of not less than three years.
Other dependents obviously include a spouse, parent, grandparent, stepparent, child, grandchild, stepchild, brother, sister, half-brother or half-sister of the deceased.
As set out above, a number of individuals may bring a fatal injuries claim. However only one claim can be brought and the person who brings the claim seeking damages arising out of the wrongful death of the deceased brings the action/claim on behalf of all of the statutory dependents. In order to take such a claim the consent of all of the statutory dependents is required.
When must a fatal injuries claim be taken?
You should inform your Solicitors immediately or as soon as possible after the fatal accident takes place because the Civil Liability Act requires that a letter of claim is sent to the Defendant before the expiration of two months from the date of accrual of the cause of action, i.e. the date of the accident or as soon as practical thereafter.
After the letter of claim has been sent to the Defendant, your Solicitor will make an application to the Injuries Board which will allow the Defendant an opportunity to admit liability and to consent to the claim.
In the event that the Defendant admits liability and consents to the claim being assessed by the Injuries Board, the Injuries Board may assess the claim and determine the appropriate compensation.
In the event that you are unhappy with the assessment of the Injuries Board then the Injuries Board may authorise the matter to go to Trial, generally the High Court.
Fatal injuries claims are claims of an unusual nature and do not follow the same procedural path as other injuries claims. For example in circumstances where there is a substantial loss of earnings claim which might prove difficult for the Injuries Board to assess. The fatal injuries claim may then proceed to Court for adjudication.
The time limit in order to take a fatal injuries claim is two years from the date on which the cause of action accrued i.e. two years from the date that the party taking the claim had the appropriate knowledge.
There are certain exceptions to the time limit in circumstances where the Defendant or wrongdoer is deceased or where the fatal injuries claim is against an airline operator or maritime vessel.
The Personal Injuries Assessment Board Act does not apply in those circumstances and the time does not stop for the purposes of the two year period.
Types of damages recoverable in fatal injuries claims
The types of damages recoverable in fatal injuries compensation claims are determined on the following basis:
- Special damages arising from the death to cover funeral expenses and out of pocket expenditure
- Loss of dependency
- Emotional distress
Special damages in the context of fatal injuries claims will include damages for funeral expenses and if the deceased is a foreign national it would also include the transporting of the body abroad and the air fares applicable.
Loss of Dependency Claim
This may be brought as stated above in relation to any individual who is dependent upon the deceased for their financial wellbeing. It is generally brought by a husband or wife or an immediate family member.
In recent years in circumstances where parents are not married, it is often brought by a child of the decease by his or her next friend/parent.
Certain factors will be taken into account in determining the loss of dependency claim. For example the income of the deceased at the time of his or her death and their outgoings will be taken into account in determining the loss of dependency claim.
The loss of earnings claims are generally vigorously defended by the defendant’s insurance company and it will be necessary for your Solicitor to employ an appropriate Actuary in order to present expert evidence before the Court to support the claim for loss of earnings.
The Court will also consider the children of the deceased and in particular any minor children who were completely dependent upon the deceased. As with every minor child claim, any funds will be lodged to the Court until the child reaches the age of 18.
Compensation for emotional distress
There is a statutory limit of €35,000 for compensation for emotional distress in the case of fatal injuries claims. Under the Civil Liability Act and this sum is divided between all of the statutory dependents of the deceased.
Unfortunately the sum can be very limited and reduced depending on the number of family members which fall under the heading.
There is only one statutory sum of €35,000 allowed regardless of the number of dependent relatives.