Tort and Death
Survival of Actions
At common law, most personal civil claims by or against the deceased ceased on his or her death. This position was reformed by statute in many types of cases.
Ultimately, the Civil Liability Act 1961 provided that all claims, both against and in favour of the deceased, survived for the benefit of his representatives. Defamation had been excepted, but this position was changed under the 2009 Act.
Even where a claim survives, damages for personal loss to the deceased may not be recovered by the estate. This covers damages for personal injury, including damages for pain and suffering, loss of life and exemplary damages.
Claims against a deceased estate also survive. A shorter limitation period applies. Claims must be initiated within two years of death or within the ordinary statute of limitations period, whichever period is shorter.
It is necessary to obtain a grant of probate or letters of administration in order to take or defend legal proceedings on behalf of a deceased’s estate.
Proceedings by or against a deceased estate require a grant of probate or letters of administration. Actions may not be taken by beneficiaries against the personal representative within a year of the date of death. Creditors may take action within that period.
Claims for the Estate
Claims may be taken on behalf of the deceased’s estate in respect of the matters which caused the death. The Civil Liability Act, in accordance with the general collateral benefits rule, provided that the proceeds of insurance policies are not taken into account. This does apply to policies for funeral expenses.
Claims may be made by dependents who have suffered loss by reason of wrongful death. The claims for loss of dependence are based on loss of support, usually reflecting lost working years. The amount of compensation is commonly earnings net of personal maintenance and like costs. There is a special limited right for dependents to take action in respect of grief and mental distress, which is set out below.
Where the death of a person is caused by the wrongful act of another, which would have entitled the deceased, but for death, to claim damages, the person who would have been so liable may be sued for damages by the dependents of the deceased. A single action only may be brought with respect to the death.
The personal representative should bring the claim. If he does not do so within six months of death or whether there’s no personal representative, it may be commenced by any dependent. The claim is effectively a class action for the benefit of all dependents. The claim must be brought in three years and the date of death or date of knowledge.
It is not clear whether the statutory provisions have subsumed the possibility of a claim on common law first principles. Such claims were not recognised by older common Law, but arguments have been made such a claim might still be possible in principle.
Dependents
The dependents may bring a wrongful death claim for loss of dependency and other quantifiable losses. Under the Civil Liability Act, they may claim for mental distress, subject to a relatively modest maximum amount. The wrongful death proceedings must be commenced within two years from the date of death or the date of knowledge of the person whose benefit the claim is made.
The legislation provides a right to sue for dependents as defined. This includes the spouses’ parents, grandparents, step-parents, grandchildren, step-children, brother, sister, half-brother and half-sister. It also includes the deceased’s former spouse and certain others who suffered injury or mental distress as a result of death.
The Act defines relationships to include relationships through adoption. Non-marital children are deemed to be the offspring of their mother and reputed father. Persons in loco parentis are considered the parent of that other.
The deceased must have had a claim for a civil wrong, breach of contract or trust. Therefore, any defence available against the deceased in a personal action or equally available in an action by the dependents. A reduction in recovery may apply because of contributory negligence on the part of the deceased.
Damages
The loss must arise out of the familial relationship. The damages recoverable are damages with respect to
- the funeral and other expenses actually incurred by reason of the wrongful act
- a maximum sum of €35,000 by way of reasonable compensation from mental distress resulting from the death to such dependents;
- total amounts as is considered proper and proportionate to the loss or damage resulting from death to each of the dependents. This includes financial loss of benefits, loss of service and other losses that can be reduced to monetary terms.
Funeral expenses include funeral costs and associated expenses. The cost of a normal and reasonable headstone may be allowed. Certain expenses associated with the funeral may also be allowed.
Mental distress damages are capped at a maximum of €35,000. Generally, there is no recovery under tort law for mental distress. The courts make a notional award in an amount that is justified to persons who suffer from mental distress.
The maximum amount is not regarded as a figure for the worse case. The cap is a total maximum amount and is not per person.
Financial Loss to Survivors
The principal claim for damages usually arises from financial loss caused by death. There is no cap applicable.
The measure of dependency is a question of fact. It will depend on the actual financial loss of dependence. This will, in turn, depend on the earning capacity of the deceased. It is based on the deceased’s prospective earnings and other benefits.
It will take into account the proportion of this income which would have been received by dependents. As well as covering tangible financial loss, it may also cover a loss of services, which are reducible to monetary form if they have to be purchased from somebody else.
The courts attempt to assess the future loss. It appears that the courts should take into account the effect of taxation on future earnings.
Until recent changes, a capital sum amount is awarded. In principle, the capital sum should be such as to yield an income representing the dependency.
Dependence Issues
The court will make a hypothetical assessment of the net contribution that the deceased would have made to the dependents. Of its nature, this may be conjectural, based on probabilities and judgment. The principles are broadly similar to those which apply in cases of serious injury, which impair future earning capacity.
Where the dependents receive benefits on death such as accelerated inheritances, account will generally be taken of them. The court may also allow, hypothetically, the increase in inheritance had the deceased survived.
The Civil Liability Act provides that no account be taken of sums payable on the death under an insurance policy or any pension gratuity of like benefit under statute or otherwise in consequence of the death of the deceased.
The courts will have regard to factors which have occurred since the death but before the trial in assessing probabilities.
Where a person who has performed services at home has died, compensation will be allowed for the loss of his or her services.
Fatal injury claims raise difficult questions regarding probabilities of future earnings and future dependency. Similarly, future inheritances, remarriage and circumstances are, at best, hypothetically assessed. The court may have regard to the possibility of marriage with the consequent reduction of cost relative to a single-parent.
Some of the cases are old-fashioned and imply outdated assumptions about the role of women within marriage. Some such older cases assume that on re-marriage, a spouse’s services are effectively available for nothing, which without remarriage would have to be paid for.
Two year Period
The Civil Liability Act provides that claims which survive against the estate of a deceased must be taken within the relevant time limit applicable at the date of death or two years of death, whichever is earlier.
The special two-year limitation period overrides the Statute of Limitations. There is no provision for extension by reason of disability, acknowledgement, concealment etc. It would appear that the suspension of the Statute of Limitations which applies while the matter is referred to the Personal Injury Assessment Board, is inapplicable, as the provision is not set out in the statute of limitations, as the PIAB legislation requires.
The two-year limitation provision applies only if the cause of action accrued before death. Where there is a requirement for a demand before a debt falls due, then it will not accrue before death unless a demand has been made during there deceased’s lifetime. If the obligation and the corresponding right to initiate proceedings falls due automatically, then this may occur, upon default, by the deceased during his lifetime, without a demand.
The constitutionality of the special two-year limitation period has been challenged and upheld. The was held to be rationally based and made in the interests of facilitating the winding up of estates within a reasonable time.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019