Fatal Injury Claims / Wrongful Death

It is pecuniary loss which is the most difficult to calculate. Pecuniary loss includes, but is not limited to:

• Loss of services i.e. where the deceased carried out home repairs or decoration
• Childcare i.e. where the deceased looked after the children of the family on a full time basis.
• Financial contributions normally made by the deceased to the dependants
• Monetary loss in general i.e. salary of the deceased

The above are only a few of the items included in a claim for pecuniary loss. When calculating pecuniary loss the court will take into account the loss actually incurred from the date of death to the date of trial as well as losses into the future.

Under the Civil Liability Amendment Act dependents are set out as follows:

• Spouse
• Parent
• Grandparent
• Step-parent
• Child
• Grandchild
• Step-child
• Brother
• Sister
• Half brother
• Half sister
• Civil partners
• A person who is not married to the deceased but who, until the date of the deceased’s death, had been living with the deceased as husband and wife for a continuous period of not less than three years.
• A person to whom the deceased was married but the marriage was dissolved before the date of death of the deceased.

In order to qualify as a dependent, the person must have suffered financial loss or mental distress as a result of the death of the deceased. While there may be many dependents of the deceased it must be remembered that only one person can bring a fatal injury claim on behalf of all of the dependents and it is therefore vitally important to have all details of the statutory dependents before initiating a claim.

A statutory dependent that was not financially dependent on the deceased can waive their rights to be included in the fatal injury action. The figure of €35,000, if awarded, is to be split between all dependents. As stated earlier, it must be remembered that this is not an attempt to compensate for the loss of a loved one; it is merely an acknowledgement of grief. It should also be noted that there is no cap on the damages that can be recovered for financial loss or funeral & other expenses.

Although the figure allowed for mental distress is very low, it must be distinguished from a separate cause of action that can be brought for nervous shock. This cause of action is not included in the Fatal Injury Summons and instead is a standalone action brought by way of a Personal Injury Summons. In a fatal injury action only one person can bring the claim on behalf of all dependents; this is not the case where a separate cause of action arises for nervous shock.

The dependants have two years from the date of death within which to bring a fatal injury action, also known as a claim for wrongful death. It is important to note that the two year limit begins on the date of death and NOT when the accident or injury causing the death occurred. Although this may seem like a trivial point to make it must be remembered that a person may be wrongfully injured but not actually pass away on the date the injury was sustained.

Example:

Joe was injured in a road traffic accident on the 1st of January 2005. He was taken to hospital for treatment and remained in a coma until January 2007. If the two year time limit had begun on the date Joe was injured the dependants would now be statute barred from bringing a fatal injury action. In this case the two years does not begin until he passes away in January 2007, meaning the dependants now have until January 2009 to initiate fatal injury proceedings.

As a family member you may be entitled to a Fatal Injury Claim when a death is caused by the negligent, irresponsible or illegal actions of another person. The immediate family of the victim may claim for the wrongful death. The family may claim for all financial loss and expenses resulting from the death as well as general damages for the distress of bereavement.

The amount for fatal injury claims recoverable largely depends on the level of financial dependency on the deceased by the family. For example, where the deceased was the sole bread-winner with a young family then the family may claim a lump sum payment sufficient to provide an income equal to the income which the deceased could reasonably have expected to earn for his life expectancy had he lived.

When your application is received by the Board they will issue a letter called a ‘Section 50 Letter’. This letter confirms that the Board has received your application. Once this letter is issued the Statute of Limitations stops running against you. Under the Statute of Limitations a claimant has two years from the accident date within which to bring a claim. Once the two year term has expired the claim becomes statute barred, meaning the claimant is no longer able to claim for the injuries sustained. The application must be received by the Board before the expiration of the two year time period. The Statute then stops running while the claim is being assessed by the Board. If the claim does not settle at the Injuries Board stage, and the claimant is issued with an Authorisation by the Board, the claimant is given a further six months within which to issue proceedings.

1. The first step taken by the Board is to contact the respondent (the person/company you are suing) and ask them whether or not they will allow the Board to make an assessment (offer money to the claimant). The respondent is given 90 days within which to respond. If the respondent does not agree to an assessment then the Board will issue what is known as an Authorisation, allowing the claimant to issue court proceedings.
   If the respondent agrees to the Board making an assessment, the Board will notify us in writing that they will be proceeding with an assessment and provide a ‘Schedule of Special Damages Form’ and ‘Loss of Earnings Certificate’ which should be completed by the claimant. The Schedule of Special Damages outlines the claimants out of pocket expenses e.g. medical expenses, travelling expenses, car damage, or any other expense incurred by the claimant as a result of their accident. The Certificate of Loss of Earnings needs to be completed by the claimant’s employer; this will only be necessary if the claimant was out of work due to the accident and was not paid while out of work.
   If the Board is going ahead with an assessment, it has 9 months from the date of the decision to make an assessment within which to make it.
2. The next step for the Board will be to have the claimant assessed by an independent doctor in order to take up a medical legal report.
3. Once the Board is in receipt of the completed Schedule of Special Damages, Certificate of Loss of Earnings (if appropriate) and the medical report, they will proceed to make an assessment.
4. We will be notified in writing of the award being made by the Board. The claimant is given 28 days to decide whether or not they wish to accept the award. The respondent is given 21 days within which to make the same decision.
5. If both parties accept the assessment then an ‘Order to Pay’ will issue and the claimant’s cheque is usually requisitioned within 6 weeks.
6. If one or both parties reject the assessment, the Board will issue an Authorisation, allowing the claimant to issue court proceedings. Just because court proceedings are issued does not mean that the claimant/plaintiff will end up in court. If we do end up issuing proceedings on your behalf, in the majority of cases the claim settles before going to trial.