The Gazette 1986

JULY/AUGUST

19

GAZETTE

Fatal Injuries And Title To Sue: The Need For Reform by John P.M. White, B.C.L., LL.B., LL.M. (Harvard), B.L. College Lecturer in Law, Department of Law, University College, Cork.

T he purpose of this article is to consider whether the definition of the persons entitled to sue under the Fatal Injuries provisions of Part IV of the Civil Liability Act, 1961, ought to be amended and to examine the position under the present law of a woman who has been living with a man outside matrimony, been dependent upon him and loses such dependency as a result of his tortiously occasioned death. Actual financial dependency on the deceased by a claimant has never, of itself, been recognised in the legislation governing recovery by dependants for wrongful death as being sufficient to maintain a claim against the wrongdoer in respect of such loss of dependency. Something more is required, namely, the existence of a family-type relationship between the deceased and the claimant. The Fatal Accidents Act, 1846, which first introduced a civil remedy in respect of wrongful death, restricted the class of competent claimants for compensation to persons who had a close family relationship with the deceased 1 . The preamble, indeed, described the statute as "An Act for compensating the families of persons killed by accidents". Recovery was allowed only to the spouse, parents, grandparents, children, grandchildren, step- parents and stepchildren of the deceased 2 . The class of relatives entitled to recover has been gradually extended by the legislatures in both England and Ireland. In England, the Law Reform (Miscellaneous Provisions) Act, 1934, provided that a person should "be deemed to be the parent or child of the deceased person notwith- standing that he was only related to him illegitimately or in consequence of adoption", the adoption having been made under an adoption order made in the United Kingdom 3 . The Fatal Injuries Act, 1956, which repealed and replaced the Fatal Accidents Acts, 1846 to 1908 in the Republic of Ireland, extended the right to sue to brothers and sisters and half-brothers and half-sisters of the deceased 4 . It further provided that in deducing any relationship for the purpose of establishing title to sue under that Act a person adopted under the Adoption Act, 1952 should be considered the legitimate offspring of the adopter or adopters and, subject to that provision, that an illegitimate person should be considered the legitimate offspring of his mother and reputed father. Significantly, it also provided that "A person in loco parentis to another shall be considered the parent of that other." This last provision is important moving, as it did, towards a recognition that entitlement to sue should depend upon the existence of de facto dependency of the claimant on the deceased arising out of a family-type relationship rather than upon degrees of kindred. This particular provision would be of importance, for example, where the parent

of a child adopted outside the jurisdiction is wrongfully killéd and the child wishes to sue in respect of his death. The most glaring omission from such provisions, however, relates to the case where the deceased and the claimant lived as husband and wife, but outside the bonds of matrimony, where, notwithstanding de facto dependency and the existence of a family-type relationship, recovery is denied such a claimant. In K. - v- J.M.P. Co. Ltd. Cairns, L.J. rightly observed in relation to the similar lacuna which existed in English law at that time: "[W]e are struck, as was the judge, by the fact that although Parliament in 1934 extended the benefit of the Fatal Accidents Acts, 1846 to 1959 to illegitimate children, the Acts still make no provision for a woman who, outside matrimony, has lived with a man for many years, depended on him and mothered his children. 5 The injustice of this omission is self-evident. The dependency is just as real and the natural ties that bind just as strong in such a situation as if the deceased and claimant had gone through a ceremony of marriage. The objection that such an extra-marital union does not confer a legally enforceable obligation upon the partners to support each other is a matter which may be considered in assessing the measure of damages but is not of itself sufficient to deny title to sue in the first instance. Moreover, absence of a legally enforceable obligation to support between the deceased and the claimant has not prevented the remedy being accorded in other situations such as, for example, where the relationship between the deceased and the claimant is that of brother and sister. The Fatal Injuries Provisions of Part IV of the Civil Liability Act, 1961, which replaced the Act of 1956 and made no extension of the category of competent claimants 6 . However, in England, the Fatal Accidents Act, 1959 extended recovery under the Fatal Accidents Acts, 1846 to 1959 to any person who was, or was the issue of, a brother, sister, uncle or aunt of the deceased 7 . Moreover, relatives by affinity were afforded the same right to sue as were relatives by consanguinity and relatives of the half-blood were afforded the same right to sue as relatives of the whole-blood. Parliament in England repealed and replaced the Acts of 1846 to 1959 by the Fatal Accidents Act, 1976, but the opportunity for further reform was not grasped 8 . The Administration of Justice Act, 1982 has, however, finally brought about this desirable reform of the law in England by amending the Act of 1976 to allow recovery to "Any person who — (i) was living with the deceased in the same household immediately before the death of the deceased; and (ii) had been living with the deceased in the same household for at least two years before that

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