Margaret McLaughlin (on Behalf of the Statutory Dependants of John McLaughlin) v Aaron McColgan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 12 July 2021 |
| Neutral Citation | [2021] IEHC 452 |
| Docket Number | 2019 No. 635 P |
| Court | High Court |
In the Matter of Part IV of the Civil Liability Act 1961
[2021] IEHC 452
2019 No. 635 P
THE HIGH COURT
Kerida Naidoo, SC and John Smith for the plaintiff instructed by Walter Hegarty Solicitor (Derry)
JUDGMENT of Mr. Justice Garrett Simons delivered on 12 July 2021
This judgment is delivered in respect of an application to approve a proposed settlement of a fatal injuries claim. The approval of the court is required in circumstances where some of the statutory dependants are minors.
A number of technical terms will appear throughout this judgment, and it may be of assistance to explain these briefly now. First, reference will be made to the “ statutory dependants” of the deceased. This refers to those members of a deceased person's extended family (as defined) who are entitled, in principle, to claim damages for wrongful death. It should be emphasised that a statutory dependant who comes within the definition will not necessarily have been financially dependent on the deceased as of the date of death. Put otherwise, the concept of dependency has a broader meaning in this context than it does in everyday speech.
Secondly, reference will be made to the “ representative plaintiff”. This is the person in whose name proceedings have been brought on behalf of all of the other statutory dependants. Although that person is the only plaintiff formally named in the proceedings, he or she represents the other dependants. In the present case, the representative plaintiff is the widow of the deceased.
Thirdly, reference will be made to a type of damages known as the “ solatium”. This is a statutory sum allowed as compensation for mental distress caused by the wrongful death of another. It is currently fixed at a maximum sum of €35,000. (Section 49 of the Civil Liability Act 1961).
These proceedings arise out of the tragic death of John McLaughlin (“ the deceased”) on 20 February 2017. The defendant had been driving a motor vehicle which collided with the deceased's vehicle. Thereafter, the defendant unlawfully left the scene of the fatal accident. The defendant has since been convicted in the Circuit Court of dangerous driving causing death and is currently serving a sentence of imprisonment.
The proceedings are taken by the deceased's widow, Margaret McLaughlin, on her own behalf and on behalf of the other statutory dependants. The deceased's parents and siblings, who come within the definition of “statutory dependants” for the purpose of the Civil Liability Act 1961, have, to their credit, waived any entitlement to share in any damages recovered in the proceedings. Thus, the proceedings are, in effect, brought on behalf of the widow of the deceased and her three minor children.
These proceedings were instituted in 2019. The parties have since entered into negotiations and a settlement has now been agreed between the parties, subject to the approval of the High Court. Under the terms of the proposed settlement, the sum of one million euro is to be paid by way of damages. This sum is intended to compensate the widow and her minor children for, inter alia, the mental distress suffered as a result of the death of the deceased, and for the loss of future dependency. The sum is intended to reflect €35,000 in respect of the solatium and €24,428 in respect of expenses.
It is also agreed under the proposed terms of settlement that the representative plaintiff is to recover her legal costs as against the defendant's insurers. It has been agreed that the legal costs are to be measured on the basis that brief fees have been incurred. The quantum of the costs is to be adjudicated upon, i.e. measured, by the Office of the Chief Legal Costs Adjudicator in default of agreement between the parties.
The right to bring a claim arising out of a fatal injury is provided for under Part IV of the Civil Liability Act 1961. See, generally, Wolohan v. McDonnell [2020] IEHC 149; [2020] 2 I.L.R.M. 483.
Section 48 of the Civil Liability Act 1961 stipulates that only one action may be brought against the same defendant in respect of a wrongful death, and that that action shall be for the benefit of all the dependants. The term “dependant” is defined as a spouse, civil partner, parent, grandparent, step-parent, child, grandchild, step-child, brother, sister, half-brother or half-sister, of the deceased. The definition also includes former spouses and civil partners, and co-habitants.
The manner in which damages are to be assessed is set out at section 49 of the Civil Liability Act 1961 as follows.
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“49.(1) (a) The damages under section 48 shall be—
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(i) the total of such amounts (if any) as the judge shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and
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(ii) subject to paragraph (b) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants.
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(b) The total of any amounts awarded by virtue of subparagraph (ii) of paragraph (a) of this subsection shall not exceed €35,000.
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(c) Each amount awarded by virtue of paragraph (a) of this subsection shall be indicated separately in the award.”
Sub-section 49(1A) provides for the possibility of the total amount of the compensation for mental distress (“ the solatium”) being increased from the current figure of €35,000, by way of Ministerial Regulations. Provision is made under sub-section 49(2) for damages to be awarded in respect of funeral and other expenses incurred.
In summary, the effect of Part IV of the Civil Liability Act 1961 might be described as follows. First, it provides for a substantive right of action to recover damages for the wrongful death of another. This right is confined to those members of the deceased's extended family, i.e. the “statutory dependants” as defined, who have suffered mental distress and/or injury (including loss of dependency) as a result of the wrongful death. Secondly, it provides for a procedure whereby the individual claims of the statutory dependants must be prosecuted in a single set of proceedings.
The Supreme Court has emphasised in O'Sullivan v. Córas Iompair Éireann [1978] I.R. 409 (at 421) that the statutory right of action is given to the dependants as individuals, so that each of them is entitled to be compensated for the loss resulting to him or her personally. Put otherwise, the legislation does not provide for what might be described informally as a “class action”, whereby a global sum would be awarded to the statutory dependants as a class.
In the event that a claim for a wrongful death comes on for full hearing, the court must assess the individual damages which each of the statutory dependants is to be awarded. The individual damages must be proportionate to the injury resulting to the particular dependant from the deceased's death. The damages are to be based on the reasonable expectation of the pecuniary benefit which would have accrued to the particular dependant “but for” the wrongful death of the deceased. See Davoren v. Health Service Executive [2016] IECA 39, [28] to [30].
The individual damages payable to any particular dependant will be informed by their connection with the deceased. For example, in the case of a minor child claiming for the wrongful death of a parent, the damages would seek to compensate for the loss of direct financial support provided by the deceased parent, and for the loss of what are quaintly described in the case law as “domestic services”. The deceased parent might not only have been providing financial support, e.g. paying for accommodation, food, education and other necessities, but may also have been providing care and support. For example, the deceased parent may have been responsible for minding a pre-school child at home. An attempt will have to be made to put a monetary value on the loss of such child minding, e.g. to assess what the cost of employing a professional child minder, to provide a level of care and support equivalent to that previously provided by the deceased parent, might be. See, generally, A. Barr, Damages in Fatal Injury Actions — Selected Issues (2011) 16(2) Bar Review 36.
Order 22, rule 10(1) of the Rules of the Superior Courts provides as follows.
“In any cause or matter in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, either before or at or after trial, shall, as regards the claims of any such infant or person of unsound mind, be valid without the approval of the Court.”
The requirement for court approval is intended to ensure that the interests of minors are properly protected in the settlement of proceedings. The court is in a position to provide a neutral assessment of the value of the claim and of the reasonableness of the settlement figure, having regard to issues such as any risk on liability. The court can also ensure that the apportionment of the overall sum as between the adult and minor dependants inter se is fair. This mitigates against any risk of a potential conflict of interest between a representative plaintiff and the minor dependants.
The requirement for court approval also constitutes a safeguard against possible error on the part of the legal advisors acting on behalf of the representative plaintiff. Moreover, the court can exercise some control...
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Lyndsey Cooney (on Behalf of the Statutory Dependants of Dualtagh Donnelly) v Health Service Executive
...to put some money aside to be held for the minors until they reach the age of eighteen years: see, for example, McLaughlin v. McColgan [2021] IEHC 452. 44 The present case is somewhat unusual in that the court is required to consider the fairness of the proposed settlement from the viewpoin......