The High Court has ruled that a €28,000 settlement in a fatal injuries claim arising from the death of Kathleen Kenny is reasonable and should be accepted. It directed that, after €7,890 in special damages, the remaining €20,110 be paid to Ms Kenny’s niece, Joan Jones, the sole surviving statutory dependant.
Mr Justice Garrett Simons delivered judgment on 15 February 2019 on an application to rule on the proposed settlement. The defendants’ liability remained contested. The court’s ruling addressed the settlement and how the damages for mental distress should be apportioned; it did not determine liability for Ms Kenny’s death.
Ms Kenny, aged 89, died on 23 November 2009 after returning to hospital from a nursing home. A coroner’s report recorded the cause of death as “health care acquired clostridium difficile infection”. The claim alleged negligence by the defendants resulting in her wrongful death. There was no claim for financial dependency; the claim concerned statutory damages for mental distress and funeral expenses.
At the time of Ms Kenny’s death, her statutory dependants were Ms Jones, to whom Ms Kenny stood in loco parentis, and her sister, Christine Sweeney. Ms Sweeney died on 5 August 2016. The judge said affidavit evidence showed that both women had been very close to Ms Kenny. He said he would have considered making a payment to both had the matter come before him while Ms Sweeney was alive.
The judge concluded that damages for mental distress are personal to the dependant. He considered it more appropriate for the payment to go to the surviving dependant than to the estate of Ms Sweeney, while noting that any suggestion about what Ms Sweeney might have wanted was speculation. He also considered that Ms Jones had the stronger claim because Ms Kenny had stood in loco parentis to her.
The settlement included €7,890 in agreed special damages, described as funeral costs. The judgment put the claim’s approximate total value at €33,290, based on a solatium limit of about €25,400 applicable to the proceedings. The proposed order was to approve the settlement and direct that the balance of €28,000 after payment of special damages go to Ms Jones.