At Malcomson Law we are all too aware of the dangers presented by workplace accidents and have provided representation in many fatal accident claims. In 2012, the number of people killed in workplace accidents was 47.
Mr Tom Dempsey attended our Dublin office to provide us with instructions in relation to the tragic death of his son, Michael. Tom worked as a labourer for Tarmac Team Limited which was a company that specialized in resurfacing roads. His son Michael also worked for the business.

On 14th April, 2005 Michael was working on a section of the roadway by himself. A driver of a truck employed by Tarmac Team Limited was reversing. He was unaware that Michael was standing behind the vehicle and the driver failed to look in his rear view mirror. He reversed the heavy lorry straight into Michael who was crushed in the accident. To compound Tom’s grief, he was working not far from where the accident occurred and was one of the first to arrive on the scene. An ambulance was called but unfortunately his son had sustained massive internal injuries and did not survive to be treated in the hospital.

Legal Advice from Malcomson Law
When Tom first visited our offices it was some eighteen months after his accident. He was within the time limit/statute of limitations to make a claim and engaged us to represent him in a fatal accident claim. In Ireland the time period for a fatal accident claim is two years. Understandably, Tom was extremely traumatized after the death of his son and up to this point was in no fit state to consider what legal options were open to him.

Where there is a fatality as a consequence of the negligent actions of another party, who had a duty of care in accordance with the Civil Liability Act, the claim must be commenced by a statutory dependent of the deceased person. A ‘statuary dependent’ means spouse, divorced spouse, co-habiting partner, father, mother, children, grandchildren, siblings and/or half-siblings. The statutory dependant brings the claim on behalf of all dependants. We advised Tom that the potential entitlement to compensation was as follows:

• There is an entitlement to mental distress monies which is capped at approx €35,000.
• An entitlement to dependency losses in a situation where any of the statutory dependants were financially dependent upon the earnings of Michael.

It transpired that Michael was aged 22 at the date of the accident and was living at home. He had been providing monies in the amount of €75 per week towards his upkeep and board in his home. Michael was in a relationship with a girl at the date of his death, though he had just commenced seeing her.

Issues in Relation to the Defendants’ Liability
As a preliminary matter it was necessary to correctly identify the defendants. Company’s office searches were carried out to determine the exact details of the company to be sued. Searches were also carried out to exclude the possibility that it might be necessary to join subsidiaries of the parent company. It was also necessary to review the written contract of employment which Michael had with Tarmac Team Limited.

An initial letter of claim was sent to the employers but liability for the accident was not conceded. It then became necessary to lodge an application with the Personal Injury Assessment Board (PIAB).

The defendant company consented to an assessment by PIAB. A respondent in answering such a claim can agree to PIAB concluding an assessment or can refuse. If they refuse, a claimant is issued with an authorization to allow them to proceed through the court system. In this instance PIAB completed an assessment. Either party may reject the assessment which has the effect of removing the case from the jurisdiction of PIAB and allowing it to proceed through the court system.

In this instance it was felt that the award arrived at by PIAB did not represent a proper reflection of the dependency losses sustained and was therefore not an appropriate level of compensation. A decision was taken to refuse the PIAB assessment and allow the matter proceed through the courts. Solicitors were appointed by the insurance company to accept service of the proceedings to be issued.

The proceedings provided that a valid contract of employment existed between Michael, the deceased and Tarmac Team Limited. Furthermore the driver was in the course of his employment and carrying out his duties when the accident occurred. In those circumstances the company were vicariously liable for the actions of the driver. The insurance company acting on behalf of the Tarmac Team Limited alleged contributory negligence on the basis that Michael was not authorised to work in that section of the roadway by himself.

Advancing the Personal Injury Claim
It was necessary for us to obtain an Engineer’s Report which involved a re-creation of the accident scene and set out in exact detail the failure of the driver to manage his vehicle properly. As we had rejected the PIAB offer they issued an authorisation so that we could they could pursue Tom’s claim through the Courts. Court proceedings were commenced which relied primarily upon breaches of the safety, health and welfare at work legislation.

In addition to retaining an engineer, it was also necessary to retain a vocational assessor to provide confirmation of the likely future career path of Michael, his likely earnings as a labourer and other career options that might have been open to him. It was necessary to apply to the Revenue to get exact details of Michael earnings and a detailed statement was taken from his mother in relation to the contributions made to the family home.

Thereafter, an actuarial expert was instructed to quantify the extent of dependency losses into the future. The assumption would be that Michael would at some point enter into a co-habiting relationship and at that point his parents would no longer have a financial dependency element but based on appropriate tables as referred to by the actuary, this may have been eight or nine years after the date of the accident and accordingly, his parents are at the loss of a financial sum in the interim period.

In this case, a psychiatrist was also retained to assess whether Tom was suffering from Post Traumatic Stress Disorder (PTSD) or nervous shock. This type of injury can potentially lead to an entitlement to compensation. The case law suggests that a person must have an apprehension of fear of their own safety or that of another in order to have an entitlement to compensation. The criteria to establish a claim for psychiatric injury were met in this instance.

As a prerequisite to succeeding in a claim arising from a fatal injury in the workplace, it is necessary to prove the following on the balance of probabilities:

• That a duty of care was owed by the party to the victim of the alleged negligence
• That a breach of the duty of care has occurred
• That the breach of the duty of care has resulted in the injuries sustained
• That the injury sustained was a significant contributory factor in the death of the deceased

The matter ultimately proceeded to be listed for trial before a judge, in the High Court in Dublin. In advance of the hearing of the action, an offer was made by the insurance company which was close to the actuarial figures which we had achieved and which represented an amount close to the full value of the claim. It also removed any risk that a Judge might find an element of contributory negligence.

Conclusion
Fortunately, in this instance Tom and his family were spared the trauma of having to relive the circumstances of the accident by giving evidence before the High Court. A very satisfying result was achieved without the trauma of having to proceed to hearing.

If you have been affected by any of the issues raised in this article please call us on 01 87 444 22 or email help@mlaw.ie.

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