‘NO NAME, NO NUMBER’ – DEALING WITH HIT AND RUN ACCIDENTS

Most of us know what to do when we are in an accident involving another vehicle, but what happens when the other vehicle does not stop? Or you fail to get insurance details? Or you are given false contact details? How do you pursue compensation when the other party is literally untraceable?

This week’s article is prompted by a number of queries I received recently about what to do in circumstances involving hit and run accidents. 

Clients often think that because they are not able to locate the driver of the vehicle they can not make a claim for injuries sustained. This is not true - there are avenues available to you to take a claim despite not knowing how to locate the owner of the vehicle or indeed not even knowing the type of vehicle!

So here’s what you need to do should you find yourself as the unfortunate victim of a hit and run accident.

• Seek immediate medical assistance. No matter how minor you may feel your injuries are it is always best to err on the side of caution.
• Report the incident to the Gardaí as soon as possible after the accident occurs. Wait at the scene of the accident but remove yourself from any immediate danger.
• Give the Gardaí as much information as possible and take photographs of the scene if possible.

The Motor Insurers Bureau of Ireland (MIBI) compensates victims of accidents caused by uninsured and unidentified vehicles. This main function of MIBI is regulated by the terms of an Agreement with the Minister for Transport (2004). This Agreement gives rights to a person who sustains loss or is injured in a motor accident caused by an uninsured or untraced motorist.

All insurance companies underwriting motor insurance in Ireland must - by law - be members of MIBI and contribute to funding for claims in proportion to market share.

The terms of the 2004 Motor Insurers Bureau are very strict. Claims can fail unless you comply with these strict terms. The claimant must be aware of his/her obligations before making a claim. If you are not aware, then your claim could fail. You should contact me at Brophy Solicitors immediately and particularly in advance of submitting any claim to the InjuriesBoard.ie which involves an uninsured or untraceable driver.

You can email me at laura[at]brophysolicitors.ie or telephone me at 01 6797930.

Laura Gillen

Brophy Solicitors

FATAL INJURIES CLAIMS AND THE STATUTE OF LIMITATIONS - HEWITT V THE HEALTH SERVICE EXECUTIVE [2014] IEHC 300 - CASE COMMENT

The personal representatives or dependants of a deceased person can bring an action for wrongful death or fatal injuries where the deceased’s death was caused by the wrongful act of someone else. However, it was unclear as to whether this right was lost if the deceased had become statute barred from bringing an action for the same wrong at the time of their death.  Recently, the High Court in the case of Hewitt v The Health Service Executive [2014] IEHC 300 clarified that a fatal injuries action cannot become statute barred before the date of death of the deceased.

The two relevant sections which were considered in this case are Section 48 of the Civil Liability Act 1961 and Section 7 of the Civil Liability Act 1961.

The personal representatives’ or dependents’ right to bring an action flows from Section 48 of the Civil Liability Act 1961. This section provides that a fatal injuries action can be brought if it can be shown that the deceased’s death was caused by the wrongful act of another and, but for his/her death, that deceased person would have been able to maintain an action and recover damages in respect of the wrong. 

The dependants’ claims are limited to funeral expenses, damages for solatium (mental distress) and the loss of financial benefits which the deceased person would have been expected to provide to the dependents but for their wrongful death. This might include things such as household contributions which the deceased might have been expected to make. The figure for which dependents can recover for mental distress has been increased to a maximum of €35,000.

Section 7 of the Civil Liability Act 1961 allows a personal representative to continue legal proceedings which have been started by a deceased prior to their death, or to commence proceedings which the deceased could have commenced prior to his or her death. Proceedings are brought on behalf of the deceased person’s estate and any damages awarded from part of the estate.

Facts of Hewitt v The Health Service Executive [2014] IEHC 300:

According to this case, Ms. Hewitt was diagnosed with breast cancer in 2001. She received treatment and made a full recovery. She received some follow up treatment and had an ultra sound carried out in February 2007. This showed two lesions existing on her liver. No action was taken by the hospital at this time and it was only in July of the same year that Ms. Hewitt became aware of her condition which had deteriorated by that time. Ms. Hewitt died from cancer in June 2010.

On the 25th January, 2012, Mr. Hewitt, her husband and  personal representative, issued proceedings against the HSE pursuant to Section 7 of the Civil Liability Act 1961. He also issued proceedings on behalf of himself and her other dependants as defined by statute pursuant to section 48 of the 1961 Act.


Consideration by the Court:

As a preliminary issue, the Court had to identify whether these proceedings were statute barred.

The Statute of Limitations provides that actions for personal injuries must be commenced within two years of the accrual of the cause of action or the date of knowledge, whichever is the later.

Here, it was accepted that the deceased had sufficient knowledge of the wrongful act from July 2007 and that the statutory time limit expired in July 2009. As Mrs. Hewitt had not commenced proceedings within the time limit, no cause of action existed at the date of her death which could be continued or commenced by her personal representative. Therefore, it was held that Mr. Hewitt’s claim under section 7 of the 1961 Act was out of time and statute-barred.

The next matter before the Court was whether the fact that the claim under section 7 was statute-barred meant that the fatal injuries claim under section 48 would also be barred.

A claim under section 48 of the 1961 Act must be brought within two years of the date of death of the deceased or the date of knowledge of the dependant, whichever is the later. The Court noted that the running of time is expressly linked to the date of death or knowledge of the dependants, and not to any limitation period that would have run against the deceased.

The court held that an action under section 48, being an action that only comes to exist for the dependants at the death of the deceased, cannot become statute barred before the death of the deceased.

In this case, the action under section 48 came into existence only on the death of Mrs Hewitt on 23rd June 2010. Therefore, her personal representatives and dependents had two years to bring the claim and as proceedings were issued on the 25th January 2012, they were within the time limit.

Conclusion:

This was the first case in Ireland and England which considered the issue of whether the statutory time limit against the deceased also bars a fatal injuries claim. In order to succeed in their fatal injuries claim, the dependants will only be required to show a causal link between the death and the alleged wrongful act. It is irrelevant whether or not the deceased could have maintained a cause of action against the wrongful act. The dependents need only show that the deceased had an action at one time as a result of the wrongful act.

If you would like more information in relation to the above, please do not hesitate to contact us.

Katie Nugent

Brophy Solicitors