Wolohan v McDonnell

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 26 March 2020
• Neutral Citation: [2020] IEHC 149
• Court: High Court
• Docket Number: 2019 No. 9062 P.,[2019 No. 9062 P]
• Date: 26 March 2020

IN THE MATTER OF A FATAL INJURIES CLAIM PURSUANT TO PART IV OF THE CIVIL LIABILITY ACT 1961 (AS AMENDED)

BETWEEN

ALISON WOLOHAN

PLAINTIFF

AND

PATRICK MCDONNELL

DEFENDANT

[2020] IEHC 149

Garrett Simons J.

2019 No. 9062 P.

THE HIGH COURT

Fatal injuries – Proposed settlement – Court approval – Plaintiff seeking damages – Whether it was necessary for the statutory dependants of the deceased to obtain court approval for the proposed settlement of the fatal injuries claim

Facts: Ms J Wolohan (the deceased), on 13 February 2016, had been driving on the M4 motorway near Kinnegad when her vehicle was struck by a vehicle being driven by the defendant, Mr McDonnell. The deceased died as a result of the severe injuries which she received in this accident. The defendant pleaded guilty to a charge of dangerous driving causing death. The deceased had been survived by her three children, Ms A Wolohan, Ms S Wolohan and Mr A Wolohan, and by her father, Mr J Wolohan. The plaintiff, Ms A Wolohan, undertook responsibility for pursuing a claim for damages against the defendant for the wrongful death of the deceased. This claim had been pursued on behalf of all of the statutory dependants of the deceased. The Personal Injuries Assessment Board (PIAB) notified its assessment to the solicitors acting on behalf of Ms A Wolohan on 28 August 2019. This offer was rejected by Ms A Wolohan. The insurance company acting on behalf of the defendant made an improved offer. The insurers also indicated their agreement to pay the legal costs associated with the court approval ruling (such costs to be taxed in default of agreement). Proceedings were instituted on 25 November 2019. An ex parte application was then made to the High Court (Simons J) on 16 December 2019 for an order approving the terms of settlement. The matter was adjourned on that date until 27 January 2020 to allow for the preparation and filing of written submissions on the question of the court’s jurisdiction to approve a settlement in circumstances where all of the statutory dependants were of full age.

Held by Simons J that the principal concern of the court was to satisfy itself that all of the statutory dependants had full legal capacity; were on notice of the proceedings; and had consented in writing to the terms of settlement (including the division of same between the statutory dependants). He was satisfied that these criteria were met. He noted that the six statutory dependants had all signed a “Declaration of Consent” which had been exhibited. He noted that the grounding affidavit omitted reference to two of the statutory dependants, namely the deceased’s two siblings. He held that it would be a condition precedent to the finalisation of the proposed order that the representative plaintiff file a supplemental affidavit identifying all of the statutory dependants, and verifying that the deceased’s two siblings consented to the proposed settlement and the division of same, and waived any claim that they might have had. He noted that the maximum amount which could be awarded for mental distress was capped at €35,000. He was satisfied that the appropriate division of this amount was that the deceased’s father and her three children should each receive a one-quarter share, i.e. €8,750.

Simons J held that the form of order would be confined to the following reliefs: first, a declaration that the court was satisfied that all of the statutory dependants had full legal capacity, were on notice of the proceedings, and had consented in writing to the terms of settlement (including the division of same between the statutory dependants); secondly, an order that the deceased’s father and her three children should each receive a one-quarter share, i.e. €8,750, of the compensation for mental distress under s. 49(1)(a)(ii) of the Civil Liability Act 1961. He held that the order of the court would also indicate the separate amount which four of the statutory dependants were to receive in settlement of their claim for damages under s. 48 and s. 49(1)(a)(i) of the Civil Liability Act 1961; this was the division or apportionment which the six statutory dependants had agreed between themselves. He noted that the amounts (exclusive of the solatium) were as follows: Mr A Wolohan - €95,685.50; Ms A Wolohan - €56,154.50; Ms S Wolohan - €20,000.00; and Mr J Wolohan - €34,400.00. He would also make an order directing the defendant to pay the legal costs associated with the application to the High Court to approve the proposed settlement; the costs were to be adjudicated upon by the Office of the Legal Costs Adjudicator in default of agreement. He held that the parties had liberty to apply

Reliefs granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 26 March 2020

INTRODUCTION

1 This judgment addresses a net point of law in respect of fatal injuries claims pursuant to Part IV of the Civil Liability Act 1961. Specifically, it addresses the question as to whether it is necessary for the statutory dependants of a deceased, who are of full age and not under any legal disability, to obtain court approval for a proposed settlement of a fatal injuries claim. On the facts of the present case, all of the statutory dependants of the deceased are now of full age. (The youngest dependant reached his age of majority in October 2019, shortly prior to the institution of these proceedings).

2 For the reasons set out in detail below, I have reached the conclusion that court approval is not necessary in the present case. This conclusion highlights an anomaly in the treatment of (i) those claims which are compromised on the basis of the (intended) parties agreeing to an assessment made by the Personal Injuries Assessment Board (” PIAB”), and (ii) those which are compromised on some other basis. The approval of the court is always necessary where the (intended) parties agree to accept a PIAB assessment. In all other circumstances where there is agreement between the dependants, the approval of the court will generally only be required where one or more of the statutory dependants is a minor or otherwise under a legal disability.

3 As explained towards the end of this judgment, notwithstanding my conclusion that court approval is not strictly speaking necessary, I will make certain orders in this case. I do this in circumstances where the representative plaintiff has brought the matter before the court for directions, and to avoid any unnecessary delay in the payment out of the settlement.

TECHNICAL TERMS USED IN THIS JUDGMENT

4 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 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.

5 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. On the facts of the present case, the representative plaintiff is Alison Wolohan, the deceased's eldest child.

6 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. It is currently fixed at a maximum of €35,000.

7 Finally, the shorthand “the CLA 1961” will be used, where convenient, to refer to the Civil Liability Act 1961.

FACTUAL BACKGROUND

8 These proceedings arise out of a tragic road traffic accident which occurred on 13 February 2016. The accident resulted in the death of Jacqueline Wolohan ( “the deceased”). The deceased had been driving on the M4 motorway near Kinnegad when her vehicle was struck by a vehicle being driven by the defendant. The deceased died as a result of the severe injuries which she received in this accident. The deceased's teenage son, Andrew, and one of his friends, who had both been passengers in her car, also suffered personal injuries. These personal injuries are the subject of separate legal proceedings.

9 The defendant has subsequently pleaded guilty to a charge of dangerous driving causing death.

10 The deceased had been a widow, and has been survived by her three children, Alison, Sarah and Andrew; and by her father, John. As of the date of the accident, the two younger children, Sarah and Andrew, were both financially dependent on the deceased, and the deceased provided accommodation, care and support to them. The deceased had also provided care for her elderly father.

11 To her great credit, the deceased's eldest daughter, Alison, undertook responsibility for the care and financial support of her younger siblings and her grandfather. In particular, Alison brought Andrew to live with her in her home, and also supervised the care of her grandfather.

12 Alison undertook responsibility for pursuing a claim for damages against the defendant for the wrongful death of the deceased. This claim has been pursued on behalf of all of the statutory dependants.

13 To assist the reader in understanding the progress of the claim, it is necessary to pause briefly, and to explain the procedure governing fatal injuries claims. As a result of amendments introduced under the Personal Injuries Assessment Board Act 2003 ( “the PIAB Act”), personal injuries proceedings (including fatal injuries proceedings) cannot normally be brought without the prior...