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Are damages for mental distress personal to a statutory dependent?

By: David Taylor | Posted on: 25 Feb 2019

Jones v J&N Sheridan Ltd. t/a Heatherfield Nursing Home & ors [2019] IEHC 82

FACTS

These proceedings arose following the death of an elderly resident of a nursing home, the late Kathleen Kenny. Mrs Kenny was admitted to hospital in October 2009 and was discharged back into the care of the nursing home on the 5th November 2009. However, Mrs Kenny returned to hospital on the 23rd November 2009 and passed away later that day. A “health care acquired clostridium difficile infection” was the recorded cause of death. At the date of death, Mrs Kenny had two statutory dependents within the meaning of the Civil Liabilities Act 1961, namely her niece Joan Jones, and her sister Christine Sweeney. However, Mrs Sweeney herself passed away on the 5th August 2016.

Pleadings commenced by way of Personal Injuries Summons dated 22nd November 2011 and were instituted in the name of Joan Jones, as Mrs Kenny’s executrix. The claim was for damages following the alleged negligence of the defendants, which it is said resulted in the wrongful dealt of Mrs Kenny. It was pleaded that the Plaintiff and other statutory dependents of the deceased have “suffered severe mental distress and will suffer loss, damages and expenses”.

 

LEGAL DISCUSSION

Mr Justice Simons noted that under section 48 of the Civil Liability Act 1961 (as amended), he was required to determine such amounts (if any) as shall be considered reasonable compensation for mental distress resulting from the death to each of the statutory dependants. This payment is referred to as the “solatium”.

In Cubbard v Rederij Viribus Unitis and Galway Stevedores Ltd (1966)100 ILTR 40, Lavery J stated that:

“The view I take of the section is that it is not intended to provide monetary compensation for every member of the family. [..] I think the section must be considered in the light of some real intense feeling of being grievously affected by the death”.

Ms Jones qualified as a statutory dependent on the basis that Mrs Kenny stood in loco parentis to her. Section 47(2)(c) of the 1961 Act provides that “a person in loco parentis to another shall be considered the parent of that other”.

In Hollywood v Cork Harbour Commissioners [1992] 1 IR 457, O’Hanlon J interpreted this section to include “any situation where one person assumes the moral responsibility, not binding in law, to provide for the material needs of another” and this relationship continues even into the adulthood of the child.

A notice of tender offer of €28,000 (to include special damages of €7,890) together with Circuit Court costs was ultimately submitted by the defendant and plaintiff indicated on affidavit that she was prepared to accept this offer and the matter came before the Court for ruling.

The first issue to be addressed by the Court was whether the overall settlement was a reasonable one and it was deemed to be so by Mr Justice Simons. The second issue to be considered by the Court related to the apportionment of the solatium, as between the statutory dependents of the deceased.

Mr Justice Simons said he was satisfied that both Ms Jones and Mrs Sweeney had very close relationships with Mrs Kenny, and that if the matter been before the Court prior to Mrs Sweeney’s death, he would have been minded to direct that some payment be made to both individuals – however, Mr Justice Simons said that he had to have regard to the fact that Ms Jones was the only surviving dependant.

Considering Cubbard v Rederij Viribus Unitis and Galway Stevedores Ltd (cited above), Mr Justice Simons said that the intention of payment of damages for mental distress reflected the suffering of an individual – therefore it is personal to the individual.

In this regard, Counsel for Ms Jones drew a loose analogy with the treatment of a claim for general damages in a conventional personal injuries action. Mr Justice Simons explained that a claim for general damages cannot be pursued subsequent to the death of a plaintiff, but that the position was different in relation to other heads of claim, such as special damages. See section 7(2) of the Civil Liability Act 1961:

“(2) Where, by virtue of subsection (1) of this section , a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness.”

Mr Justice Simons said that “on balance”, the justice of the case was best served by directing the full amount of the payment to be made to Ms Jones as the sole surviving statutory dependant, and that a payment to Mrs Sweeney’s estate would be inappropriate. He said that Ms Jones had a stronger claim in any event, given that Mrs Kenny stood in loco parentis to her; and, given the personal nature of compensation for mental distress, it was more appropriate that this should be paid to the surviving statutory dependant rather than to the estate of one who has since deceased.

While it was possible that if a payment had been made to Mrs Sweeney during her lifetime that she may well have decided to pass that on to her own family members, and that an order directing payment to Mrs Sweeney’s estate might result in fulfilling her own intentions, Mr Justice Simons said that this was speculation only.

Mr Justice Simons ruled that the proposed settlement was reasonable and should be accepted. He also directed that the payment of €7,890 for special damages and the balance of the €28,000 be made to Ms Jones.

CONCLUSION

The maximum amount payable for mental distress to statutory dependents of those who are fatally injured (from the 11th January 2014 onwards), is currently €35,000. However, it’s clear from this decision, that given the personal nature of compensation for mental distress, it is deemed to be inappropriate for such payments to be made to the estate of a statutory dependent who has since deceased.

 

 

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