Wednesday 19 December 2018

Row over shareout of €35,000 Malak Thawley 'grief and suffering award'

Malak Thawley died during an emergency operation
Malak Thawley died during an emergency operation

Tim Healy

The US-based father and mother of a woman who died during surgery for an ectopic pregnancy are to get €2,000 following a row about how a €35,000 High Court payout for family grief over her death should be shared.

The other €33,000 is to go to Alan Thawley, husband of Malak Kuzbary Thawley (34) who died on May 8, 2016, during the surgery at the National Maternity Hospital (NMH) in Dublin.

Mr Thawley and the NMH settled his action for her wrongful death on January 16 last. 

Subsequently, an issue arose over the share out of what is known as apportionment of the "solatium" - damages for grief and suffering - among the deceased's statutory dependants.  The maximum amount under law recoverable for solatium is €35,000.

Ms Kuzbary Thawley had, apart from her husband, seven other dependants: her father Sam Kuzbary, her mother Fadia Jabri, her stepmother Jennifer Lynn Kuzbary, stepfather Abdalrazzak Al Olabi, her grandmother Rouwaida Hakim Kuzbary, her half-sister Miriam Kuzbary and a 14-year-old half brother.  All live in the US.

Following initial confusion about whether all the dependants had waived their right to a share of the solatium, the matter was relisted for hearing in February.

As it turned out only the grandmother and half sister wanted their share to go to the husband. Mr Kuzbary said, following consultation with Malak's mother, her step mother and step father, the four of them agreed their shares should go to the deceased's 14-year-old brother.

Ruling on the solatium shareout, Mr Justice Anthony Barr said while there were initially cordial relations between Mr Thawley and other dependants, they seemed to have "deteriorated sharply" in relation to the question of attending her funeral.   This may well explain the current "strained relationship" between the statutory dependants, he said.

He noted that Malak's mother separated from Mr Kuzbary when the deceased was five years of age and she did not appear to have any further input into her upbringing.

It also appeared that when Malak was aged nine, guardianship of her was transferred from her father to her grandmother who looked after her and reared her in late childhood and teenage years.

It also appeared Malak had no sibling or familial relationship with her half brother, the judge said.

He accepted it was reasonable for a father to suffer grief and anguish over the death of a daughter "even where he may have somewhat strained relations with her over a number of years".

He was also prepared to accept similar emotions from the mother notwithstanding she did not appear to have any meaningful engagement in her daughter's upbringing after five years of age.

He therefore awarded €1,000 each to the parents and as the other dependants had either said they wished the money to go to Mr Thawley or to the step brother, he awarded the remaining €33,000 to Mr Thawley.

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