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FATAL INJURY ACTIONS – recent increase for mental distress awards capped at €35,000 – too little, too late

Posted in [Blog New Legal Developments ] on Wednesday, February 12th, 2014

* As of January, 2014, the Minister for Justice, Equality and Defence, Alan Shatter T.D., increased to €35,000.00 the maximum amount that can be awarded for mental distress to the dependants of someone who has been fatally injured. Prior to this, that figure had been capped at €25,394.76 since 1996. Although a welcome and long overdue increase, one’s angst at the level of the increase could justifiably be forgiven – the increase does not in any way reflect the loss of a loved one. In truth no amount of compensation can. However it should be noted that this head of damages or compensation within a fatal claim is but one such heading and there are other forms of damages or compensation which can be claimed in such an action.Fatal accident claims or fatal injuries actions as they are also known, arise in situations where dependants of a deceased person, who has died as a result of the wrongful act of another person, institutes a fatal injury claim against that wrongdoer.  Part 4 of the Civil Liability Act, 1961 is the relevant legislation for fatal injury claims.     This legislation permits one action to be brought on behalf of all the dependants as a result of the deceased’s death under three headings – (a)   Financial Loss, (b)   Funeral Expenses and (c)    Mental DistressFinancial Losses or pecuniary losses as this heading is also known as, typically arise in respect of any dependant who is financially dependent on the deceased.  This is usually the surviving husband or wife and the immediately family. The onus lies on the person bringing the claim to prove, on behalf of each dependant, the loss of pecuniary benefits which each dependant could have reasonably expected to receive had the deceased lived.    Funeral Expenses can include all the usual costs of burial or cremation including the costs of the religious service and a head stone.  Other expenses may include travelling expenses incurred by the dependants and attending the funeral, the cost of acknowledgment cards, a wake and mourning clothes etc.  The final head of damages is for Mental Distress. This is also known as solatium.  Up until January, 2014 solatium was capped at €25,394.76.  That has now been increased to €35,000.      Announcing the increase, Minister Shatter said:-“The amount of compensation for mental distress that can be paid to dependants of someone who has been fatally injured has remained unchanged since 1996.  While money cannot compensate for the loss of a loved one, it is important that recognition be given to the significant loss that families have suffered.  The increased limit of €35,000 restores the value of the payment and takes account of the significant increases in the cost of living since 1996.” This figure if awarded must be divided between all the dependants. Notably of all of the three headings for damages in a fatal claim, this is the only heading wherein the level of damages is capped.     There is one further issue which should be noted in the context of the figure for solatium.  To be fair, the solatium awarded is intended as an acknowledgment of grief rather than any attempt at compensation for it and in that regard must be distinguished from a separate cause of action which may arise involving nervous shock or an abnormal grief reaction which a dependant may have suffered as a result of the wrongful death. This in effect would comprise a separate personal injury action on behalf of that dependant  The full monetary remit of the Circuit Court or High Court jurisdiction becomes available then to an individual dependant in the context of such a separate personal injury action. No amount of damages can ever compensate for the loss of a loved one but financial stability or at the very least advice regarding the availability of possible financial stability around the time of death of a loved one can be an ease, particularly where there are financial concerns at this sensitive time. It is helpful to know that any such claim is not merely limited to the sum of €35,000.00 and that there is certainly far more to a fatal injuries claim than merely damages for mental distress. Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or if you would like more information.* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement. Share on Social

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