Wrongful Death Actions

On 17th November 2015, the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report on the treatment of persons in Irish prisons and their conditions of detention. The report follows a visit to several prisons and Garda stations in September of last year.  The CPT delegation criticised a number of practices it observed, including the detention in prison of psychiatric patients and immigrants refused the right to remain in Ireland.

One particular issue covered by the report was that of deaths occurring while in custody. The delegation considered four recent instances of such deaths, two involving assaults on prisoners who subsequently died, and two cases where prisoners took their own lives. In one case, an infirm and elderly man (referred to as ‘prisoner SL’) was found dead in his cell at Midlands Prison having suffered several injuries to the head, chest and arms. Two weeks beforehand, SL had been moved to a double occupancy cell against the recommendation of the prison GP, who had advised that he be placed in a cell on his own given his vulnerable condition. His new cellmate had been known to prison management as a violent individual, and it seems that no formal risk assessment took place as to whether SL should share a cell, or with whom. Furthermore, prison management could not provide the CPT with a timeline of who had entered the cell at what time on the day of death, or when SL was last seen alive.   In this case, as with the three other cases examined, the CPT “was concerned that the Irish Prison Service may have failed in its duty of care to these individuals”.

Wrongful Death

Where it could be confirmed that a person’s death in custody was in fact the result of a failing on behalf of the prison services in their duty of care, or indeed where any death has been the result of wrongdoing (e.g. medical negligence, car accidents), dependants of the deceased have a statutory right under the Civil Liability & Courts Act 1961 (‘the 1961 Act’) to bring a claim in respect of the death. This type of action is known as a wrongful death or fatal injuries action.

In order to bring an action in wrongful death the dependant(s) must have suffered financial loss or mental distress as a result of the deceased’s death. Only one action can be brought against the same wrongdoer in relation to the death, and it must be brought on behalf of all the deceased’s dependants. The definition of a dependant as laid out in section 47 of the 1961 Act (as amended by the Civil Liability (Amendment) Act 1996) is broad and includes any family member of the deceased who suffers mental distress, and includes non-married cohabitees who have lived with the deceased for at least 3 years. As such the dependants of the deceased in respect of a wrongful death action may be quite numerous.

The limitation period for bringing an action in wrongful death is two years from date of death, or date of knowledge of the person for whose benefit the action is brought (section 6, Statute of Limitations Act as amended by section 7, Civil Liability & Courts Act 2004). The action can be brought be the personal representative of the deceased or, if after 6 months has passed no representative has been appointed or no action has been taken, by one of the dependents (section 48(3), 1961 Act).

Following the decision in Joseph Hewitt v the HSE [2014], it is now clear that where the date of death is distinct from the date of the wrongdoing that caused the death, the time clock for a wrongful death action starts from the date of death. In other words, an action in wrongful death cannot become statute barred before the date of death.

The damages that are recoverable in fatal injury or wrongful death action are those for mental distress, financial loss and funeral expenses. Compensation for financial loss is only available to financial dependants, usually spouses and children, and is calculated according to the contribution the deceased would have made had they not died e.g. household contribution, services contribution, childrearing costs. Such financial losses can be quite significant and may result in high awards being paid out.

With effect of 11th January 2014 the maximum compensation available for mental distress stands at €35,000.00, having been increased under S.I. No.6 of 2014. Any award must then be split between all the statutory dependants. As such, there is a risk of receiving a very low amount for individual dependants under this heading. However, in practice this award is usually just given to the closest dependent(s), as others often waive their right to a portion of it. It should also be noted that the maximum figure of €35,000 is intended to be an acknowledgement of loss only, and not a price placed on the life of the deceased – it is intended as a modest solatium rather than compensation.

Patrick McNestry & Katie Nugent

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