Thawley v Gavin

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 08 February 2018
• Neutral Citation: [2018] IEHC 57
• Docket Number: [2017 No. 631 P.]
• Court: High Court
• Date: 08 February 2018

[2018] IEHC 57

THE HIGH COURT

Barr J.

[2017 No. 631 P.]

BETWEEN

ALAN THAWLEY

PLAINTIFF

AND

RONAN GAVIN

DEFENDANT

Damages & Restitution – Wrongful death caused by negligence – Settlement out of Court – Statutory dependents – Apportionment of solatium damages – Relationship with the deceased

Facts: A settlement had occurred between the parties out of Court with regard to the action brought by the plaintiff for the wrongful death of his wife. The issue before the Court was the apportionment of the solatium damages among statutory dependants. The statutory dependants were the plaintiff, and the deceased's father, mother, stepmother, stepfather, grandmother, half-sister, and half-brother.

Mr. Justice Barr awarded equal proportion of the sum to the deceased's father and mother. The balance of solatium damages was awarded to the plaintiff. The Court observed that the relationship of the rest of the dependants with the deceased was extremely limited and it would have been inappropriate to award the solatium damages to any of them.

RULING of Mr. Justice Barr delivered on the 8th day of February, 2018

Introduction

1 This action concerned a wrongful death action brought by the plaintiff in relation to the death of his wife, Malak Kuzbary Thawley (hereinafter ‘ the deceased’) on 8th May, 2016. It was alleged that her death was caused by the negligence of the defendant, who was sued as a representative of the National Maternity Hospital, Holles Street, Dublin. Liability had been conceded by the defendant. The plaintiff brought the action on his own behalf and on behalf of the seven other statutory dependants listed in the Personal Injuries Summons. They are resident in the United States of America.

2 The action commenced on 12th January, 2018. A settlement was reached between the parties out of court on 16th January, 2018. This ruling concerns the apportionment of the solatium damages among the statutory dependants.

Background to the Present Application

3 Following settlement of the action on 16th January, 2018, the plaintiff's solicitor, Ms. Caoimhe Haughey, sent explanatory letters and an Authority form to each of the statutory dependants by email at 18:03hrs on 19th January, 2018. The explanatory letter explained to the statutory dependants that the action had been brought by the plaintiff pursuant to s. 48 of the Civil Liability Act 1961 (as amended). They were further told that if they so wished, they could make a claim to be entitled to some portion of the sum of €35,000 which was the maximum amount recoverable as solatium. In the Authority form, they were asked to confirm whether they wished to participate in the claim for solatium to be assessed and determined by the High Court, or to confirm that they did not wish to participate in such claim.

4 The statutory dependants in respect of whom the wrongful death action was brought, were as follows: the plaintiff (the deceased's husband), Sam Kuzbary (deceased's father), Fadia Jabri (deceased's mother), Jennifer Lynn Kuzbary (stepmother), Abdalrazzak Al Olabi (stepfather), Rouwaida Hakim Kuzbary (grandmother), Miriam Kuzbary (half sister), and Omar Al Olabi (half brother). All of the statutory dependants are of full age, with the exception of Omar Al Olabi, who is fourteen years of age, having been born on 20th January, 2004.

5 The matter was listed before this Court on 23rd January, 2018, for the purpose of ruling the apportionment of the solatium damages. The application was moved on the basis of an affidavit sworn by the plaintiff on 23rd January, 2018. In that affidavit, the plaintiff averred that the deceased's grandmother and her half sister, had each indicated to him that their preference was that any entitlement that they may have to a share of the solatium, should pass to him as the deceased's lawful husband. An Authority signed by the deceased's grandmother to that effect was exhibited to the affidavit.

6 At that hearing, it was erroneously, indicated to the court that none of the other statutory dependants had indicated whether or not they wished to share in the solatium damages in response to the letter from the plaintiff's solicitor dated 19th January, 2018. In those circumstances, and in light of the averments contained in Mr. Thawley's affidavit, the court ruled that the entire of the solatium damages should be paid to the plaintiff.

7 It appears that on returning to her offices later that day, Ms. Haughey discovered that unknown to her, the deceased's father, Mr. Sam Kuzbary and the deceased's stepmother, Ms. Jennifer Lynn Kuzbary, had on 22nd January, 2018, sent emails at 20:48hrs attaching their completed Authorities, indicating that they wished to have provision made for them from the solatium damages. On Friday, 26th January, 2018, Ms. Haughey applied to the court, to have the matter relisted for further consideration. The court acceded to that request and listed the matter for 10:45hrs on 1st February, 2018.

8 On 29th January, 2018, Ms. Haughey sent a detailed letter to Mr. Sam Kuzbary and to Mrs. Jennifer Kuzbary outlining how the error had occurred and accepting full responsibility for the fact that their signed Authorities, indicating a wish to be included in the solatium damages, had not been brought to the attention of the court. She further informed them that she had returned to court and obtained an order reopening the matter, which was to be heard on 1st February, 2018. They were asked to state in writing the reasons and in what circumstances they believed that the court should make provision for them out of the solatium damages.

Emails from Mr. and Mrs. Kuzbary

9 A number of emails were sent by Mr. and Mrs. Kuzbary on 29th January, 2018, and on 30th January, 2018, wherein they set out their views on the apportionment of the solatium damages. In an email dated 29th January, 2018, sent at 16:08hrs, Ms. Jennifer Kuzbary stated as follows:-

‘I have read your letter. My signed participation, so called, in your scheme was merely to support Malak's father and other blood relatives. My immediate response to your original letter was to decline any involvement. The tragic death of my stepdaughter is bad enough, and the only people who ought to receive any kind of monetary “award” are her husband and her biological relatives, in particular her brother. I would say sister, too but she declined participation.

I will not be shamed by someone who knows nothing of the truth behind our alleged “strained relations” with a very well loved daughter.’

10 At 17:12hrs on the same date, Ms. Kuzbary sent a postscript to her email which was in the following terms:-

‘P.S. my apologies, Ms. Haughey for misspelling your name. By the way, I did not notice any kind of apology from you towards us for the “genuine inadvertence and consequences” of your alleged “error”. I am led to believe this was a lawyer trick, but I could be wrong.’

11 In a further postscript sent by email at 18:22hrs on 29th January, 2018, Ms. Kuzbary stated:-

‘If you want truth to go “round the world”, you must hire an express train to pull it; but if you want a lie to go “round the world”, it will fly; it is light as a feather and a breath will carry it.’ – Reverend Charles Haddon Spurgeon

12 Mr. Sam Kuzbary also sent a number of emails. The first was sent at 16:32hrs on 29th January, 2018, in which he stated:-

‘Thank you for handling this matter.

After consultation with the key individuals whom birthed and raised our late daughter which are myself, her mother Fadia, her stepmother Jennifer and her stepfather Abd, we are all agreed to participate in order to render our shares to her little brother.

It is unfair at this point to attempt arguing false information presented to the court, especially that Malak was killed and cremated thousand of miles away from us. Our expressions were turned down and objected to by her husband and we do not have any desire to hear from him again or see him anymore.

Her husband did not raise her. Her husband did not immigrate her to the US. Her husband did not tend to her schooling. Her husband did not change her diapers, etc.

For my wife and me to be present in the upcoming hearing on February 1st, we will need to spend in excess of $6,000 for round trip air fare not including lodging etc.

As my wife already advised you in writing, this award should only go to her brother, not her husband. After all, her husband is responsible for her pregnancy that went south, and required appropriate medical attention and not a late night emergency clinic visit to an understaffed so called maternity hospital.

As I told her husband, God Almighty lifted her away from him and us and gave her eternal home in heaven.’

13 Some hours later at 20:20hrs, Mr. Kuzbary sent the following email:-

‘Reading your purported claims about...