The purpose of this Bill is to amend the civil law so as to improve the rights of persons who suffer loss on the death of a dependant that is caused by the wrongful act of a person. The Bill extends the categories of dependent persons who have a right to claim certain heads of damage as compensation for loss in such fatal injury cases and increases the maximum amount of compensation that may be awarded by the court to dependants who suffer mental distress.
Before dealing, for the information of the House, with the details of the Bill I will indicate briefly how the existing law operates under the Civil Liability Act, 1961. Part IV of the 1961 Act gives dependants of a deceased a right to claim damages as compensation for loss of pecuniary benefits, for mental distress and for funeral expenses where the death has been caused by a person's wrongful act. Such actions must be commenced within three years of the date of death. They are in the nature of a class action, where one case is taken for the benefit of all the dependants. For the dependants of a deceased to have a cause of action, the circumstances must be such that, but for his or her death, the injured party would have been entitled to take an action for damages against the party who caused the fatal injury. Also, the plaintiff must be able to demonstrate that there was a family-type relationship in existence with the deceased, which included financial dependency. The right of action is confined to dependent family relatives who include spouses, children, grandparents, brothers and sisters. It does not extend to persons living with the deceased outside marriage, nor to a former spouse whose marriage to the deceased has been dissolved.
In most actions under Part IV the substantial damages payable are those which relate to the loss of pecuniary benefits which take account of the deceased's income and future prospects. The damages under the head of pecuniary benefits are such amounts as the judge may consider appropriate resulting from the death, apportioned to each of the dependants. Damages are fixed by the court to compensate for the dependant's future losses. In the event of contributory negligence on the deceased's part, the level of damages are proportionately reduced. In certain circumstances, most commonly on the death of a child, loss of pecuniary benefits does not arise.
The changing nature of relationships in contemporary Irish society is such that a significant number of persons cohabit without getting married. The persons concerned are married in all but name and equity would seem to require that those persons should not be discriminated against where there are good and valid reasons or applying laws to them which apply to other classes of persons. In my view our law should keep pace with developments in society and the reality of modern relationships. Senators will recall I took that approach when bringing forward the important provisions now contained in the Domestic Violence Act, 1996, which extend protection to cohabitants in certain circumstances from the violence of the other cohabitant. Those special protections had heretofore been confined to spouses only.
I turn now to the details of the Bill. I have made provision in section 1 for amendment of the definition of dependant in section 47 of the 1961 Act to include persons who, not being married to one another, have been living together as husband and wife for at least three years before the date of death of the other. This means that those persons will be able to claim all of the damages provided for in Part IV of the Act, that is, damages for loss of pecuniary benefits, for funeral expenses and for mental distress. An amendment in section 2 (1) (c) of the Bill to section 49 of the 1961 Act will require the court to take into account in determining the damages to be awarded to such persons for loss of pecuniary benefits, the fact, if it be the case, that the person had no enforceable right to financial maintenance by the deceased. The purpose of this requirement is to ensure the cases being addressed are those where actual dependency arises. That requirement will not apply where damages are sought for funeral expenses or mental distress.
A spouse whose foreign decree of divorce is entitled to recognition in the State may also want to claim damages for loss of pecuniary benefit and for funeral expenses on the death of the other spouse if it is caused by the wrongful act of a person. Clearly, if the spouse had been dependent on the deceased he or she should have grounds for such a claim. Section 1 of the Bill extends the definition of dependant in the 1961 Act to such divorced spouses and the effect is to give them a right to claim damages under Part IV of the Act. The effect of section 3, however, is that no claim can be made by a divorced spouse for damages for mental distress.
Senators will be aware that the Family Law (Divorce) Bill, which gives legislative effect to the new amendment of our Constitution following the referendum on divorce, is before the Dáil. I have provided in that Bill for a number of amendments to existing laws consequent on the introduction of divorce and it would be my intention to amend that Bill in due course to extend the definition of dependant in the 1961 Act to persons who are divorced in the State.
I have provided in section 2 of the Bill for an increase in the maximum amount payable by way of compensation for mental distress in fatal injuries cases from £7,500 to £15,000. The figure of £7,500 has operated since 1981 unchanged under amending legislation. The new figure takes into account increases in the consumer price index. Heretofore, it has been necessary to increase the figure by statute. I have provided in section 2 (1) (b), by way of amendment of section 49 of the 1961 Act, that any future increases can be by orders made by the Minister for Equality and Law Reform. I think the House would agree that is the way to proceed for the future, without the need for amending legislation.
Section 4 amends section 18 of the Air Navigation and Transport Act, 1936. This amendment is necessary because that Act, as amended by a series of Acts culminating in the Air Navigation and Transport Act, 1988, has provisions corresponding to those in Part IV of the Civil Liability Act, 1961. The amendments provided for in section 4 correspond to those in sections 1, 2 and 3 of the Bill. Senators should note the amendments provided for in sections 1, 2, 3 and 4 of the Bill will not, by virtue of provision in each of those sections, have effect in relation to any cause of action which accrued before the coming into force of those sections.
I am glad to bring forward this Bill, particularly as it recognises the reality of changing family patterns in Ireland, a reality that sometimes we have been slow to recognise. To date, a good deal of my Department's resources on the legislation side has been geared to substantial reforms of our family and equality laws but I think it fair to say that my reforms of other aspects of the law have made important progress by way of, for example, the Occupiers Liability Act, 1995, and the Powers of Attorney Act, 1996. This Bill increases to five the number of Bills promoted in the short life of my Department which have been initiated in the Seanad. This Bill is a small but useful addition to the Government's programme of civil law reform. The need for it has been identified and I am glad to take action on the matter.
I commend the Bill to the House.