Niece of 89-year-old who allegedly died of bacterial infection to receive bulk of €28,000 payment

The niece of an 89-year-old woman who allegedly died as a result of a bacterial infection is to receive the bulk of a €28,000 payment for distress over the death rather than part of the money going to the estate of the deceased's sister, the High Court has ruled.

Mr Justice Garrett Simons said after €7,890 for funeral expenses is paid out, the niece should get the rest of the statutory compensation payable for a fatal injury claim, known as "solatium".

The niece brought a fatal injuries claim against the nursing home her aunt had been in and a Dublin hospital shortly before her death in 2009.

The niece sought the maximum €28,000 solatium payable at the time along with special damages for funeral expenses, bringing the total claim to €33,290.

Before her death, the aunt lived in a nursing home and the month before her death, October 2009, she was admitted to a Dublin hospital.

She was discharged back to the nursing home in early November but was returned to the hospital on November 23 where she died later that day.

She had allegedly died as a result of bacteria which causes diarrhoea and colitis. The coroner recorded death as due to “health care-acquired" clostridium difficile infection.

Her niece, as executrix, sued the nursing home and the hospital pleading on her behalf, and other statutory dependents, severe mental distress as a result of the death.

The defence fully contested liability.

In 2015, the defendants made a settlement offer of €28,000 and this was accepted.

The High Court was then asked to rule on whether the offer was reasonable.

As the sister died in the interim, August 2016, the court also had to decide whether it should go entirely to the niece or to the aunt's sister who, as a surviving dependent at the time the woman died, was entitled to a share of the solatium.

Mr Justice Simons said the court had to consider whether damages for mental distress are, in effect, personal to a statutory dependent.

He said the sister and the niece were both close to the deceased who also acted as the niece's parent.

The judge believed the justice of this case was best served by directing the full amount be paid to the niece as sole surviving statutory dependent.

The niece had a stronger claim in any event given the aunt stood "in loco parentis" to her.

He ruled the €28,000 settlement was reasonable and after the €7,890 has been paid out for the funeral, the balance should go to the niece.

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