Most commonly, fatal injury cases arise due to medical negligence, accidents in the workplace, road traffic accidents, murder or manslaughter.
Bringing a case
A fatal injury action is usually brought by a ‘Statutory Dependant’. The phrase ‘statutory dependant’ includes a spouse, a divorced spouse or a cohabiting partner where that person and the deceased lived together as a married couple might for 3 years or more before the death. It also includes parents, grandparents, step-parents, siblings and half-siblings, children, grandchildren and stepchildren. Only one case may be brought in respect of each fatality and all statutory dependants must be named in that single case.
An inquest is held into all unnatural deaths. One exception to this is where the unnatural nature of the death is not apparent at first, such as in a case of medical negligence. There is nothing to prevent an inquest from taking place subsequently. You should be represented by your solicitor at the inquest as important information regarding the cause of death will be deduced and key witnesses will be present. The inquest is presided over by a Coroner (not a Judge) and there may be a Jury also. The findings at the inquest will have a significant impact on the potential success of a civil claim. There maybe other types of inquiries following a fatality also, for example the Health and Safety Authority may hold an inquiry or the Medical Council in relation to fitness to practice.
Death caused by Murder or Manslaughter
Where the death is as a result of criminal act an application for compensation may be brought to the Criminal Injuries Compensation Tribunal (CICT). The CICT pays compensation in circumstances where persons are injured or suffer loss arising from crime. They do not pay damages for pain and suffering. They only pay damages for out of pocket expenses such as funeral expenses, medical expenses and loss of earnings. However, they will pay for mental distress for immediate family of murder victims.
It is debatable whether Ireland is in compliance with a 2004 EU Directive which states that “all member states shall ensure that their national rules provide for the existence of compensation schemes which guarantee fair and appropriate compensation to victims of intentional crime”. Our European neighbors’ schemes are at variance with Ireland. In Belgium, the UK and Luxembourg, among others, there is compensation for pain and suffering under their national schemes.
The application process to the CICT can be slow but it is the compensation can be a considerable financial help to dependants of a deceased who might otherwise have no recourse to provide for their financial security following the death of a breadwinner in the family.
Damages or compensation in fatal injuries claims are determined by the Injuries Board and/or the court. There are three categories of damages:
(i) Special Damages
These are out of pocket expenses arising from the death such as travel, funeral expenses and inquest expenses.
(ii) Emotional distress
This is also called ‘solatium’, this is the latin word from which we get the English word “solace”. The amount awarded for the emotional loss or grief caused to the family of the deceased is limited to €25,394.76 and this must be divided between all statutory dependents; it is not per claimant. The High Court has expressed dissatisfaction with the law in this regard but attempts to change this figure are at Bill stage in the Dail.
(iii) Damages for loss of dependency
This is often the largest element of the compensation. The family circumstances are investigated and a calculation of the ongoing loss of income to the dependants is made. There may be loss of earnings or loss of benefits such as childcare, driving among other activities that the deceased family member provided for the dependants. This detailed calculation is presented to the court in support of the claim.
Statute of Limitations (time limit) for fatal injury cases
Strictly a claim must be brought within two years. The “clock starts to tick” after the ‘date of knowledge’ which is the date of the accident or the date of the victim’s death. In situations where it is discovered some time after the death that it was due to negligence the time period for making a claim may fall beyond the Statute of Limitations. Therefore, even if the fatality was more than two years ago it may be in the dependants interest to take legal advice about bringing a claim.