Tort and Death
Civil Liability Act
PART II
Survival of Certain Causes of Action on Death
Annotations
Modifications (not altering text):
C3
Application of Part extended (1.01.1967) by Succession Act 1965 (27/1965), s. 48, S.I. No. 168 of 1966.
Causes of action surviving on death.
48.—The personal representatives of a deceased person may sue and be sued in respect of all causes of action which, by virtue of Part II of the Civil Liability Act, 1961, survive for the benefit of, or against, the estate of the deceased, subject to the provisions of that Act and the rules of limitation under the Statute of Limitations, 1957, or otherwise.
Preliminary
Definition (Part II).
6.—In this Part “excepted cause of action” means—
(a) a cause of action for breach of promise to marry or for defamation or for seduction or for inducing one spouse to leave or remain apart from the other or for criminal conversation, or
(b) any claim for compensation under the Workmen’s Compensation Act, 1934.
F1[ ‘Act of 2009’ means the Defamation Act 2009; ]
F1[ ‘aggravated damages’ has the same meaning as it has in the Act of 2009; ]
F1[ ‘punitive damages’ has the same meaning as it has in the Act of 2009.]
Annotations
Amendments:
F1
Inserted (1.01.2010) by Defamation Act 2009 (31/2009), s. 39(1), S.I. No. 517 of 2009.
Causes of action vested in deceased person
Survival of certain causes of action vested in deceased person.
7.—(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.
F2[(1A) On the death of a person on or after the commencement of section 39 (2) (a) of the Act of 2009, a cause of action for defamation vested in him immediately before his death shall survive for the benefit of his estate. ]
(2) Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness.
F2[(2A) Where by virtue of subsection (1A) of this section, a cause of action for defamation survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include general damages, punitive damages or aggravated damages. ]
(3) Where—
(a) a cause of action survives by virtue of subsection (1) of this section for the benefit of the estate of a deceased person, and
(b) the death of such person has been caused by the circumstances which gave rise to such cause of action,
the damages recoverable for the benefit of his estate shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.
(4) The rights conferred by this section for the benefit of the estate of a deceased person are in addition to the rights conferred on the dependants of deceased persons by Part III of the Act of 1936 and Part IV of this Act.
Annotations
Amendments:
F2
Inserted (1.01.2010) by Defamation Act 2009 (31/2009), s. 39(2), S.I. No. 517 of 2009.
Modifications (not altering text):
C4
Application of section extended (10.07.1991) by Statute of Limitations (Amendment) Act 1991 (18/1991), s. 4, commenced on enactment.
Survival of causes of action to which section 3 applies
4.—(1) If an injured person to whom section 3 of this Act applies dies before the expiration of the period specified in that section, any action that may be brought for the benefit of his estate in respect of a cause of action to which that section applies by virtue of section 7 of the Civil Liability Act, 1961, may be brought at any time before the expiration of [2 years] from—
(a) the date of death, or
(b) the date of the personal representative’s knowledge,
whichever is the later.
…
Causes of action subsisting against deceased person
Survival of certain causes of action subsisting against deceased person.
8.—(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) subsisting against him shall survive against his estate.
F3[(1A) On the death of a person on or after the commencement of section 39 (3) (a) of the Act of 2009 a cause of action subsisting against him shall survive against his estate.]
(2) Where damage has been suffered by reason of any act in respect of which a cause of action would have subsisted against any person if he had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of subsection (1) of this section, to have been subsisting against him before his death such cause of action in respect of that act as would have subsisted if he had died after the damage was suffered.
F3[(2A) Where by virtue of subsection (1A) of this section, a cause of action for defamation survives against the estate of a deceased person, the damages recoverable against the estate of that person shall not include general damages, punitive damages or aggravated damages. ]
Annotations
Amendments:
F3
Inserted (1.01.2010) by Defamation Act 2009 (31/2009), s. 39(3), S.I. No. 517 of 2009.
Time limit in respect of causes of action which survive against estate of deceased person.
9.—(1) In this section “the relevant period” means the period of limitation prescribed by the Statute of Limitations or any other limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either—
(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, or
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.
Annotations:
Modifications (not altering text):
C5
Application of section restricted (3.09.2021) by Affordable Housing Act 2021 (25/2021), s. 22(3), S.I. No. 450 of 2021.
Relationships with other enactments
22.— …
(3) Section 9 of the Civil Liability Act 1961 shall not apply to any action by the housing authority for the realisation of the affordable dwelling equity.
…
C6
Section applied with modifications (24.07.2013) by Land and Conveyancing Law Reform Act 2013 (30/2013), s. 4, commenced on enactment.
Provision in respect of certain proceedings
4.—(1) Where after the coming into operation of this section a mortgagee commences proceedings seeking possession of land in which they rely upon the statutory provisions or the amended provisions, the proceedings shall be deemed to be commenced within time for the purposes of section 9 of the Civil Liability Act 1961 where the conditions specified in subsection (2) are met.
…
C7
Application of subs. (2) restricted by Personal Injuries Assessment Board Act 2003 (46/2003), ss. 12 and 50, as substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 56(1)(c) and (d), commenced on enactment.
[Bar on bringing proceedings unless certain conditions are satisfied.
12.— …
(5) The issuing of a notice of motion or the moving of a motion for the purposes of an application referred to in subsection (4) shall not be regarded as the commencement of proceedings in respect of the relevant claim for the purposes of any applicable limitation period in relation to such claim (including any limitation period under the Statute of Limitations 1957, section 9(2) of the Civil Liability Act 1961, the Statute of Limitations (Amendment) Act 1991 and an international agreement or convention by which the State is bound).]
…
[Reckoning of time for purpose of Statute of Limitations, etc.
50.— In reckoning any period of time for the purpose of any applicable limitation period in relation to a relevant claim (including any limitation period under the Statute of Limitations 1957, section 9(2) of the Civil Liability Act 1961, the Statute of Limitations (Amendment) Act 1991 and an international agreement or convention by which the State is bound), the period beginning on the making of an application under section 11 in relation to the claim and ending 6 months from the date of issue of an authorisation under, as appropriate, section 14, 17, 32, or 36, rules under section 46(3) or section 49 shall be disregarded.]
C8
Application of section restricted (1.12.2005) by Social Welfare Consolidation Act 2005 (26/2005), s. 341(4), S.I. No. 923 of 2005.
Recovery of sums due by civil proceedings or by deduction from other payments.
341.— …
(4) Section 9 of the Civil Liability Act 1961 shall not apply to an action for the recovery of a debt due to the Minister or to the State under this Act.
C9
Application of section restricted (16.12.1991) by Liability For Defective Products Act 1991 (28/1991), s. 7(3), S.I. No. 316 of 1991.
Limitation of actions.
7.—…
(3) Sections 9 and 48 (6) of the Civil Liability Act, 1961, shall not apply to an action for the recovery of damages under this Act.
Editorial Notes:
E1
Previous affecting provisions: application of section restricted by Social Welfare (Consolidation) Act 1993 (27/1993), s. 281(3A) as inserted (3.04.1996) by Social Welfare Act 1996 (7/1996), s. 41(b), repealed (1.12.2005) by Social Welfare Consolidation Act 2005 (26/2005), s. 360 and sch. 7, S.I. No. 923 of 2005.
Insolvency of estate against which proceedings. are maintainable
10.—In the event of the insolvency of an estate against which proceedings are maintainable, any liability in respect of the cause of action in respect of which the proceedings are maintainable shall be deemed to be a debt provable in the administration of the estate, notwithstanding that it is a demand in the nature of unliquidated damages arising otherwise than by a contract or promise.
PART IV
Fatal Injuries
Annotations
Modifications (not altering text):
C20
Application of Part IV affected (1.12.2005) by Social Welfare Consolidation Act 2005 (26/2005), s. 285, S.I. No. 923 of 2005.
Exclusion in assessment of damages.
285.—(1) In assessing damages in any action under the Fatal Injuries Act 1956, or Part IV of the Civil Liability Act 1961, whether commenced before or after 24 February 1981, there shall not be taken into account any child benefit, widow’s (contributory) pension, widower’s (contributory) pension, orphan’s (contributory) allowance, one-parent family payment in the case of a person who qualifies for that payment by virtue of being a widow or widower, widow’s (non-contributory) pension, widower’s (non-contributory) pension or orphan’s (non-contributory) pension.
Editorial Notes:
E4
Previous affecting provision: application of Part IV affected (16.11.1993) by Social Welfare (Consolidation) Act 1993 (27/1993), s. 236, S.I. No. 335 of 1993; repealed (1.12.2005) by Social Welfare Consolidation Act 2005 (26/2005), s. 360 and sch. 7, S.I. No. 923 of 2005.
E5
Previous affecting provision: application of Part IV affected (28.02.1981) by Social Welfare (Consolidation) Act, 1981 (1/1981), s. 306, S.I. No. 63 of 1981; repealed (16.11.1993) by Social Welfare (Consolidation) Act 1993 (27/1993), s. 300 and sch. 5, S.I. No. 335 of 1993.
Definitions (Part IV).
47.—F12[(1) In this Part—
“dependant” means, in respect of a deceased person whose death is caused by a wrongful act—
(a) a spouse F13[, civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010], parent, grandparent, step-parent, child, grandchild, step-child, brother, sister, half-brother or half-sister of the deceased,
(b) a person whose marriage to the deceased has been dissolved by a decree of divorce that was granted under the Family Law (Divorce) Act, 1996 or under the law of a country or jurisdiction other than the State and is recognised in the State, F14[…]
F15[(ba) a person whose civil partnership with the deceased has been dissolved by a decree of dissolution that was granted under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or under the law of a country or jurisdiction other than the State and is recognised in the State, or]
F16[(c) a person who was not married to or a civil partner of the deceased but who, until the date of the deceased’s death, had been living with the deceased as the deceased’s cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 for a continuous period of not less than three years,]
who has suffered injury or mental distress as a result of the death;
“wrongful act” includes a crime.]
(2) In deducing any relationship for the purposes of this Part—
(a) a person adopted under F17[an adoption order within the meaning of section 3(1) of the Adoption Act 2010 or an intercountry adoption effected outside the State being recognised within the meaning of that Act], shall be considered the legitimate offspring of the adopter or adopters;
(b) subject to paragraph (a) of this subsection, an illegitimate person shall be considered the legitimate offspring of his mother and reputed father;
(c) a person in loco parentis to another shall be considered the parent of that other.
Annotations
Amendments:
F12
Substituted (25.12.1996) by Civil Liability (Amendment) Act 1996 (42/1996), s. 1, subject to transitional provision in s. 1(2), commenced on enactment.
F13
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), ss. 105, 169 and sch. part 4, item 2, S.I. No. 648 of 2010.
F14
Deleted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 169, sch. part 4, item 2, S.I. No. 648 of 2010.
F15
Inserted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 169, sch. part 4, item 2, S.I. No. 648 of 2010.
F16
Substituted (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 204, S.I. No. 648 of 2010.
F17
Substituted (1.11.2010) by Adoption Act 2010 (21/2010), s. 175(b), S.I. No. 511 of 2010.
Action where death caused by wrongful act, neglect or default.
48.—(1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.
(2) Only one action for damages may be brought against the same person in respect of the death.
(3) The action may be brought by the personal representative of the deceased or, if at the expiration of six months from the death there is no personal representative or no action has been brought by the personal representative, by all or any of the dependants.
(4) The action, by whomsoever brought, shall be for the benefit of all the dependants.
(5) The plaintiff shall furnish the defendant with particulars of the person or persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.
(6) F18[…]
Annotations
Amendments:
F18
Repealed (10.07.1991) by Statute of Limitations (Amendment) Act 1991 (18/1991), s. 6(5), commenced on enactment.
Modifications (not altering text):
C21
Application of section restricted (20.09.2004) by Civil Liability and Courts Act 2004 (31/2004), s. 6, S.I. No. 544 of 2004 and (31.03.2005) by s. 28, S.I. No. 544 of 2004.
Application of Part.
6.—Subject to sections 14(8), 25(4), 26(4), 27(3) and 28(2), a provision of this Part applies only to personal injuries actions brought after the date of the commencement of that provision.
Income undeclared for tax purposes.
28.—(1) In a personal injuries action (other than an action under section 48 of the Act of 1961), any income, profit or gain in respect of which—
(a) the plaintiff is making a claim, and
(b) (i) a return has not been made before the hearing of the action in accordance with the Taxes Consolidation Act 1997, or
(ii) the plaintiff has not otherwise notified the Revenue Commissioners,
shall, for the purposes of assessing damages, be disregarded by the court, unless the court considers that in all the circumstances it would be unjust to disregard such income, profit or gain.
(2) This section does not apply to causes of action accruing before the commencement of this section.
C22
Application of section modified in certain circumstances (1.06.2004) by Personal Injuries Assessment Board Act 2003 (46/2003), s. 35, S.I. No. 252 of 2004.
Approval of court required for certain assessments.
35.—(1) This section applies to a relevant claim where—
(a) a next friend or the committee of a minor or a person of unsound mind is acting on behalf of the minor or person in respect of the claim, or
(b) the claim relates to a proposed action for damages under section 48 of the Act of 1961,
and the next friend, committee or, as the case may be, the person proposing to bring that action for damages accepts, subject to the assessment being approved under this section, the assessment made under section 20 of the relevant claim.
(2) Where any enactment or rule of court requires any settlement of a relevant claim to which this section applies to be approved by the court then that enactment or rule of court shall apply, with the necessary modifications, to the assessment referred to in subsection (1) as if proceedings had been brought in relation to the claim, and the court shall have jurisdiction to approve the assessment accordingly on application in that behalf being made by the next friend, committee or other person referred to in that subsection.
…
C23
Application of section extended (10.07.1991) by Statute of Limitations (Amendment) Act 1991 (18/1991), ss. 5 and 5A, as amended (20.09.2004) by Civil Liability and Courts Act 2004 (31/2004), s. 7(c) and (d), S.I. No. 544 of 2004.
Extension of limitation period in case of disability.
5.—(1) Notwithstanding anything in section 49 (1) (a) of the Principal Act, if, in the case of—
(a) an action of the kind to which section 3 of this Act applies, or
(b) an action under section 48 (1) of the Civil Liability Act, 1961 (being an action where death is caused by wrongful act, neglect or default),
the person having the right to bring the action was under a disability either at the time when that right accrued to him or at the date of his knowledge, the action may be brought at any time before the expiration of [2] years from the date when he ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period specified in the said section 3 has expired, but section 49 (1) (c) of the Principal Act shall apply accordingly.
(2) Subsection (1) of this section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims.
[5A.—(1) Where the relevant date in respect of a cause of action falls before the commencement of section 7 of the Civil Liability and Courts Act 2004, an action (being an action to which section 3(1), 4(1), 5(1) or 6(1) of this Act applies) in respect of that cause of action shall not be brought after the expiration of—
(a) 2 years from the said commencement, or
(b) 3 years from the relevant date,
whichever occurs first.]
C24
Application of section restricted (10.07.1991) by Statute of Limitations (Amendment) Act 1991 (18/1991), s. 6, commenced on enactment, as amended (20.09.2004) by Civil Liability and Courts Act 2004 (31/2004), s. 7(e), S.I. No. 544 of 2004.
6.—(1) An action under section 48 (1) of the Civil Liability Act, 1961, shall not be brought after the expiration of [2] years from—
(a) the date of death, or
(b) the date of knowledge of the person for whose benefit the action is brought,
whichever is the later.
(2) Where there is more than one person for whose benefit an action under section 48 (1) of the Civil Liability Act, 1961, is brought, subsection (1) (b) of this section shall be applied separately to each of them.
(3) If, by virtue of subsection (2) of this section, the action would be outside the time limit applicable by virtue of subsection (1) of this section as regards one or more, but not all, of the persons for whose benefit it is brought, the court shall direct that any person as regards whom the action would be outside that limit shall be excluded from those for whom the action is brought.
…
C25
Appliction of certain provisions affected (1.08.1988) by Courts Act 1988 (14/1988), s. 1, commenced as per s. 6(3).
Abolition of juries in certain actions in High Court.
1.—(1) Notwithstanding section 94 of the Courts of Justice Act, 1924, or any other provision made by or under statute, or any rule of law, an action in the High Court—
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
(b) under section 48 of the Civil Liability Act, 1961, or
(c) under section 18 (inserted by the Air Navigation and Transport Act, 1965) of the Air Navigation and Transport Act, 1936,
or a question of fact or an issue arising in such an action, shall not be tried with a jury.
…
Editorial Notes:
E6
Previous affecting provision: application of subs. (6) restricted (16.12.1991) by Liability for Defective Products Act 1991 (28/1991), s. 7(3), S.I. No. 316 of 1991; subs. (6) repealed as per F-note above.
Damages.
49.—(1) (a) The damages under section 48 shall be—
(i) the total of such amounts (if any) as F19[…] the judge F19[…], shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and
(ii) subject to paragraph (b) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants.
(b) The total of any amounts awarded by virtue of subparagraph (ii) of paragraph (a) of this subsection shall not exceed F20[€35,000].
(c) Each amount awarded by virtue of paragraph (a) of this subsection shall be indicated separately in the award.
(d) F21[…]
F22[(1A) Where the Minister for Equality and Law Reform is satisfied that the monetary amount for the time being standing specified—
(a) in paragraph (b) of subsection (1), or
(b) in respect of paragraph (b) of subsection (1), by virtue of an order made under this subsection,
should, having regard to changes in the value of money generally in the State since the monetary amount was so specified, be varied, the Minister may by order specify an amount that the Minister considers is appropriate, and in such case paragraph (b) of subsection (1) shall, in relation to any cause of action that accrues while the order is in effect, have effect as if the amount specified in the order were set out in that paragraph.
(1B) Every order made under subsection (1A) shall be laid before each House of the Oireachtas as soon as practicable after it is made and, if a resolution annulling the order is passed by either House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to any cause of action that accrued while the order was in effect.]
(2) In addition, damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the dependants or the personal representative by reason of the wrongful act.
(3) It shall be sufficient for a defendant, in paying money into court in the action, to pay it in one sum as damages for all the dependants without apportioning it between them.
(4) The amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among the persons entitled in such shares as may have been determined.
F22[(5) Where a person referred to in paragraph (c) of the definition of ‘dependant’ in section 47 (1) had no enforceable right to financial maintenance by the deceased, the court shall take that fact into account, together with any other relevant matter, in determining the damages to be awarded to the person by virtue of subparagraph (i) of paragraph (a) of subsection (1) of this section.]
Annotations
Amendments:
F19
Deleted (1.08.1988) by Courts Act 1988 (14/1988), s. 4, commenced as per s. 6(3).
F20
Substituted (11.01.2014) by Civil Liability Act 1961 (Section 49) Order 2014 (S.I. No. 6 of 2014), art. 2.
F21
Repealed (7.07.1964) by Civil Liability (Amendment) Act 1964 (17/1964), s. 6 and sch., commenced on enactment.
F22
Inserted (25.12.1996) by Civil Liability (Amendment) Act 1996 (42/1996), s. 2, subject to transitional provision in s. 2(2), commenced on enactment.
Modifications (not altering text):
C26
Application of section extended (1.11.1997) by Hepatitis C Compensation Tribunal Act 1997 (34/1997), s. 5, S.I. No. 443 of 1997, as amended (9.10.2002) by Hepatitis C Compensation Tribunal (Amendment) Act 2002 (21/2002), s. 5, S.I. No. 473 of 2002.
Awards of Tribunal.
5.—(1) An award of the Tribunal to a claimant shall be made on the same basis as an award of the High Court calculated by reference to the principles which govern the measure of damages in the law of tort and any relevant statutory provisions (including Part IV of the Civil Liability Act, 1961), and including, subject to section 11, consideration of an award on the basis which reflects the principles of aggravated or exemplary damages.
(2) Notwithstanding subsection (1) of this section and section 2(2) of the Civil Liability (Amendment) Act, 1996, section 49(1)(b) of the Civil Liability Act, 1961 (as amended by section 2(1)(a) of the Civil Liability (Amendment) Act, 1996) shall have effect in respect of a claim made pursuant to section 4(1)(e) of this Act.
[(2A) Notwithstanding subsection (1)—
(a) section 49 of the Civil Liability Act, 1961, shall apply in relation to the assessment of the amount of the award to a dependant referred to in paragraph (e) or (j) of section 4(1) with the modification that the reference in subsection (1)(a)(i) of the said section 49 to the death shall be construed as a reference to the injury to the deceased and the death of the deceased,]
…
Editorial Notes:
E7
Power pursuant to subs. (1A) exercised (11.01.2014) by Civil Liability Act 1961 (Section 49) Order 2014 (S.I. No. 6 of 2014).
E8
Previous affecting provision: amount of damages under subs. (1)(b) increased (25.12.1996) by Civil Liability (Amendment) Act 1996 (42/1996), s. 2; superseded as per F-note above.
E9
Previous affecting provision: amount of damages under subs. (1)(b) increased (12.05.1981) by Courts Act 1981 (11/1981), s. 28; substituted (25.12.1996) by Civil Liability (Amendment) Act 1996 (42/1996), s. 2 and superseded as per F-note above.
F23[
No mental distress damages to certain persons.
49A.—Notwithstanding anything in this Part, damages may not be awarded to a person referred to in paragraph (b) of the definition of ‘dependant’ in section 47 (1) in respect of any mental distress allegedly caused to the person by the death of the deceased.]
Annotations
Amendments:
F23
Inserted (25.12.1996) by Civil Liability (Amendment) Act 1996 (42/1996), s. 3(1), subject to transitional provision in s. 3(2), commenced on enactment.
Sums not to be taken into account in assessing damages.
50.—(1) In assessing damages under this Part account shall not be taken of—
(a) any sum payable on the death of the deceased under any contract of insurance,
(b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased.
F24[(2) In assessing damages under this Part, account shall not be taken of any charitable gift (whether in the form of money or other property) made to the plaintiff in consequence of the death of the deceased unless—
(a) the defendant is the donor of the gift, and
(b) at the time of the making of the gift he or she informs the plaintiff in writing that, should the plaintiff recover damages in an action under this Part, the defendant will apply to the court for the damages to be reduced by an amount equal to the amount of the gift or the value of the gift, as may be appropriate.]
Annotations
Amendments:
F24
Inserted (31.03.2005) by Civil Liability and Courts Act 2004 (31/2004), s. 27(1), subject to transitional provision in ss. 6 and 27(3), S.I. No. 544 of 2004.
Modifications (not altering text):
C27
Application of Act restricted (1.12.2005) by Social Welfare Consolidation Act 2005 (26/2005), s. 96, S.I. No. 923 of 2005.
Taking account of benefit in assessing damages.
96.—(1)
(3) Notwithstanding section 50 of the Civil Liability Act 1961, in assessing damages in respect of a person’s death under Part IV of that Act, account may be taken of any death benefit, by way of grant under section 84 in respect of funeral expenses, resulting from that person’s death.
Editorial Notes:
E10
Previous affecting provision: application of section restricted (16.11.1993) by Social Welfare (Consolidation) Act 1993 (27/1993), s. 75, S.I. No. 335 of 1993; repealed (1.12.2005) by Social Welfare (Consolidation) Act 2005 (26/2005), s. 360 and sch. 7, S.I. No. 923 of 2005.
E11
Previous affecting provision: application of section restricted (28.02.1981) by Social Welfare (Consolidation) Act 1981 (1/1981), s. 68, S.I. No. 63 of 1981; repealed (16.11.1993) by Social Welfare (Consolidation) Act 1993 (27/1993), s. 300 and sch. 5, S.I. No. 335 of 1993.
E12
Previous affecting provision: application of section restricted (6.07.1966) by Social Welfare (Occupational Injuries) Act 1966 (16/1966), s. 39, commenced on enactment; repealed (28.02.1981) by Social Welfare (Consolidation) Act 1981 (1/1981), s. 310 and sch. 6 part 2, S.I. No. 63 of 1981.
E13
Civil Liability and Courts Act 2004 (31/2004), s. 27(1) states that section 50 as it stood immediately before the commencement of s. 27(1) shall be referred to as subsection (1) of section 50.
Adaptation of references to Fatal Accidents Acts, 1846 to 1908.
51.—A reference in any enactment to the Fatal Accidents Acts, 1846 to 1908, or to any of them shall be construed as a reference to this Part.
Cases
Connolly v. South of Ireland Asphalt
[1977] I.R. 99
O’Higgins C.J. S.C.
While travelling on his motor-cycle along Monastery Road, Clondalkin, on the night of the 21st January, 1973, the late Jonathan Wade fell off his machine on to the roadway and was run into and killed by a motor vehicle owned and driven by the defendant. His fall from the motor-cycle occurred immediately opposite the entrance to premises owned by the third party and used by them for the purpose of their business. The roadway where he fell and the entrance to the third party’s premises immediately beside it were broken into several pot-holes and were covered by ice. Proceedings were taken in the High Court by the widow of the late Jonathan Wade against the defendant claiming damages by reason of his death. These proceedings were compromised between the parties on terms which recognised that the late Jonathan Wade had been guilty of a degree of contributory negligence and the settlement was approved by the High Court; no question arises in relation thereto.
Under the provisions of the Civil Liability Act, 1961, the defendant claimed a contribution from the third party and, after the settlement of the plaintiff’s claim, the defendant’s claim for a contribution was heard by Mr. Justice Murnaghan sitting without a jury. Mr. Justice Murnaghan decided that the defendant was not entitled to claim a contribution from the third party, and an appeal has been brought by the defendant to this Court against that decision. The defendant claims to be entitled to a contribution from the third party under the provisions6 of s. 21, sub-s. 1, of the Act of 1961. The application of that sub-section to this case and to the defendant’s claim against the third party involves a consideration of whether the third party can be said to be “liable in respect of the same damage” in the same way as the defendant was liable. The “damage”here is the loss of the life of the late Jonathan Wade and “liable” means, in the circumstances, legally liable to the plaintiff.
Is the third party liable in respect of this death in the same manner as the defendant was? Put in another way, the question is whether the plaintiff, while conceding contributory negligence on the part of her husband, could succeed in an action brought against the third party alone in recovering damages for his deathsuch damages being reduced only on account of the contributory negligence of the plaintiff’s husband. Could such an action have succeeded if the plaintiff had brought it, let us suppose, because the identity of the motorist who had collided with her husband had never been discovered? The answer to this question must be considered in the light of the evidence adduced before the learned trial judge and the facts as found by him on such evidence. Let us examine these facts.
It appears that the third party’s premises in Monastery Road, Clondalkin, were situated on the left-hand side as one travelled from the Naas Road towards Clondalkin. This was the direction in which the plaintiff’s husband was travelling. These premises were approached from the roadway by an entrance which was some 50 yards wide and which narrowed to a gateway set some distance back from the road. The third party’s business entailed the constant use of large lorries, both laden and unladen, which travelled to and from these premises over this entrance and the roadway immediately adjoining. As a result of this traffic of heavy lorries, portion of this entrance and the immediately adjoining roadway was damaged in such a manner that a line of pot-holes appeared on the Dublin (or Naas Road) side of the entrance to the third party’s premises. These pot-holes or breaks had appeared on numerous occasions prior to the fatality; in wet weather they became filled with rain water which was splashed around by the wheels of passing vehicles.
On the night of the accident rain water, so splashed, had turned into ice by reason of a heavy frost, and an icy patch from one to two feet in width extended from the edge of the entrance out on to the roadway in the immediate vicinity of this line of pot-holes. Therefore, on the night of the accident the position was that anyone travelling on this road towards Clondalkin would be using a road which, in the vicinity of the third party’s premises, was broken along its left edge into a line of seven pot-holes, and which was covered at that place with a sheet of ice from one to two feet in width and extending out on to the roadway. It appears from the evidence that some of the pot-holes were covered with ice while others contained broken ice. In that condition it seems obvious that this portion of the road was unsafe and dangerous in certain circumstances. Perhaps it was not dangerous for a motorist, or in daylight, but very probably it was dangerous for a motor cyclist or for a pedal cyclist who travelled thereon at night not observing either the holes or the ice. It seems reasonably foreseeable that such a cyclist could very easily over-balance or fall if a wheel of his bicycle skidded on the ice or entered one of the holes.
In his very careful analysis of the evidence, this is what the learned trial judge found had happened to the plaintiff’s husband. The judge found that the deceased over-balanced and fell on to the roadway as a result of coming in contact with this danger on the road. The judge’s finding in this respect is amply supported both by the evidence of the three Gardaà officers in the patrol car which was stationary opposite the scene of the accident, and by the condition of the roadway and the proper inference to be drawn therefrom. While he was on the roadway and occupied in picking himself up and recovering his bicycle, the plaintiff’s husband was driven into and killed by the defendant’s vehicle which approached the plaintiff’s husband from the direction from which he had travelled. The learned trial judge rejected, as he was fully entitled to do, the defendant’s explanation of his failure to avoid colliding with the deceased as being due to his vehicle skidding on the icy patch on the roadway. The learned judge concluded that the defendant was not keeping a proper look-out and that he failed to see the deceased ahead of him on the road as he ought to have done. On the judge’s findings which, of course, I accept, the collision between the defendant’s vehicle and the deceased was not due to the condition of the roadway but to the defendant’s own negligence.
These facts, as found by the learned trial judge, seem to me to establish negligence on the part of the deceased (which was not in issue) and on the part of the defendant, in the absence of either of which there would have been no fatality and no damage. These facts also establish that, despite the existence of this negligence in the case of either or both, there would have been no fatality and no damage had the roadway not been dangerous and had not the condition of the roadway caused the deceased to fall from his motor-cycle.
It is on these facts that the question of the third party’s possible liability to the plaintiff ought to be considered. In the statement of his claim against the third party, the defendant alleged a liability both in nuisance and in negligence. It seems to me appropriate that the question should be considered under each of these headings.
It has been said that actionable nuisance is incapable of exact definition. The term nuisance contemplates an act or omission which amounts to an unreasonable interference with, disturbance of, or annoyance to another person in the exercise of his rights. If the rights so interfered with belong to the person as a member of the public, the act or omission is a public nuisance. If these rights relate to the ownership or occupation of land, or of some easement, profit, or other right enjoyed in connection with land, then the acts or omissions amount to a private nuisance. In this case we are concerned with the allegation that the third party were guilty of causing a public nuisance.
The third party used heavy lorries for the purpose of their business and the lorries travelled, laden and unladen, to and from the premises of the third party over the junction of the entrance with the roadway. This, in itself, was a lawful exercise of the third party’s right to carry on their business and to use for that purpose lorries of their own choosing. However, what the third party did resulted in damage to the roadway upon which these lorries travelled; the damage was caused at the point where the entrance joined the public road on the Dublin side of the third party’s premises. It was clear that at this point the lorries used could not be supported by the road surface, either because of their weight or their number. The, result was that breaks and holes appeared, not rarely, but on numerous occasions. Were the third party entitled to carry on regardless of the damage so caused merely because of their proprietary rights? Sic utere tuo ut alienum non laedas is a maxim which expresses the view that people should have regard to the rights and conveniences of others in the way they use what is theirs. While it may lack preciseness, it has here a sufficient application to prescribe a limit to what it was permissible for the third party to do in pursuance of their legitimate business interests. In my view the third party were not entitled to exercise their rights without regard to whether damage was being or would be caused to the public road.
Damage was caused not only to the third party’s own entrance but also to the roadway, and this consisted of the seven holes already described. In my view the question is whether this damage, so caused, constituted a danger to members of the public using the roadway. That the breaks or holes initiated on the third party’s own property appears to me to be immaterial. It is well established that an excavation or interference with one’s own land can be regarded as actionable where the land is so adjacent to the roadway as to constitute a danger to a person who, while using that roadway, turns into or travels thereon and thereby suffers damage: Barnes v. Ward 7; Hardcastle v. South Yorkshire Railway 8; Carshalton U.D.C. v. Burrage. 9
Here the damage to the road surface extended from the third party’s premises out on to the roadway itself. That this damage could constitute a danger to a person using a motor-cycle on that roadway at night is, in my view, not open to question. Once the holes appeared it was to be expected that in wet weather they would retain water which in turn would be splashed by passing traffic. In winter time this led inevitably to the added hazard of an icy patch being formed contiguous to the line of pot-holes. The learned trial judge was satisfied on the evidence that either the pot-holes or one or more of them or this ice caused the deceased to get into difficulties on his cycle and to fall. This in my view is a finding that the deceased’s fall was caused by the danger on the roadway created by the acts and omissions of the third party.
The deceased, having been caused to fall on the public road, was struck and killed by the defendant’s passing car. Not only was he killed because he had fallen in the path of an approaching car but, in my view, the likelihood of such a misfortune happening to him was present from the very moment he was caused to fall.
In my view, the result is that the third party, having so damaged the surface of their own entrance and the adjoining roadway as to create a danger on the roadway, were guilty of committing a public nuisance thereon. The plaintiff, being the widow of the deceased, suffered particular damage because of this nuisance in that it was a factor contributing to his death. On this account she could have maintained an action against the third party in respect of the damage she suffered.
With regard to negligence very little need be said. The third party’s operations caused breaks in the road surface and these breaks were left unrepaired. This was no sudden happening but came about gradually. As the road surface was broken by the pressure of lorry traffic it should have been obvious that a serious road hazard was being created. Nevertheless, nothing was done to remedy the situation. Anyone who renders a road unsafe must contemplate that people using the road may be injured. In my view the third party were negligent in causing the roadway to break and in failing to repair it. It was negligence also to ignore the added risk of splashed water in winter time turning into ice, and so permitting the condition of affairs to exist which confronted the deceased on the night of the accident. In my view what happened was clearly foreseeable by those who caused or permitted this condition of affairs to exist. On this ground of negligence also I am of opinion that the plaintiff could have held the third party liable to her in respect of the death of her husband.
In my view this appeal should be allowed and the defendant should be held entitled to a contribution against the third party.
Kenny J.
On the evening of Sunday the 21st January, 1973, there was a heavy fall of rain. When it stopped, the weather became bitterly cold and there was very heavy frost on the roads near Dublin. At about midnight or shortly after it Jonathan Wade, a well-known artist, was riding a motor scooter on Monastery Road: he was coming from the Naas Road and going towards Clondalkin. The lights on his scooter had not been turned on. Mr. Wade was riding about three feet out from the edge of the highway on which there was no kerb and was travelling at a very slow speed. Monastery Road is 20 feet wide and, as it leads to Clondalkin, has heavy traffic on it at all times.
The third party had offices and land on Mr. Wade’s left which adjoined the highway. There was a wide opening to the gate of the third party’s premises into which heavy lorries went frequently. These heavy lorries, which were laden and unladen, had created seven pot-holes most of which were partly on the highway and partly on the opening which led to the gate. The combined length of the seven pot-holes was about 28 feet and they varied in depth from 2 inches to 6 inches. Water collected in them and was splashed out by the wheels of traffic which might have to travel near the edge of the highway.
On the night when Mr. Wade was killed, water had splashed out on to the highway and had become ice on the road. This patch of ice extended one or two feet on to the highway measured from an imaginary line across the opening which led to the gate. The place where the accident happened was lit by two electric lights placed at the north and south points where the opening began. The lights were dull and did not give good vision.
A Garda patrol car was travelling on Monastery Road in the Naas direction and the Guards in it saw Mr. Wade coming in the opposite direction. They gave evidence that Mr. Wade was off balance as if he had got on to rough ground and was trying to hold himself on his scooter. He did not succeed and fell on the road. He then tried to pick himself and his scooter up. It seems to me certain (and the trial judge so held) that Mr. Wade’s scooter skidded on the ice on the road. The defendant was driving a car at about 30 m.p.h. in the same direction as Mr. Wade was going. The wheels on the left side of his car did not go into the pot-holes or cross the ice. He did not apply his brakes before he struck and killed Mr. Wade. After the accident the defendant said on a number of occasions: “It’s my fault,” “I hope they shoot me for this” and “I did not see him.”
The trial judge stated his findings of fact with admirable clarity and rightly held that the defendant was grossly negligent in failing to see Mr. Wade and in not putting on his brakes. He also held (and I entirely agree with his finding) that Mr. Wade was negligent because he did not see the pot-holes and ice and failed to steer his scooter so as to avoid them.
Mr. Wade’s widow began an action against the defendant only and claimed damages for negligence. The defendant issued a third-party notice against the third party and delivered a statement of claim in which he pleaded that the third party had been negligent and had created a public nuisance which caused or contributed to the accident. The action by Mr. Wade’s widow against the defendant was settled for £25,000 on the morning of the day when it was listed for hearing. As Mr. Wade was survived by a widow and four young children, this figure was a compromise; counsel on this appeal have agreed that it took into account the certainty that a jury would have held that Mr. Wade was guilty of some degree of contributory negligence. The defendant’s claim for contribution against the third party was then heard without a jury by the trial judge, who dismissed it. He held that he did not have to decide finally whether the third party should reasonably have foreseen what happened because, even if the third party were negligent, “I would in these circumstances as between the defendant and the third party have found the defendant 100% at fault.”
Section 21 of the Civil Liability Act, 1961, provides:
“(1) Subject to the provisions of this Part, a concurrent wrongdoer (for this purpose called the claimant) may recover contribution from any other wrongdoer who is, or would if sued at the time of the wrong have been, liable in respect of the same damage (for this purpose called the contributor), so, however, that no person shall be entitled to recover contribution under this Part from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this Part, the amount of the contribution recoverable from any contributor shall be such as may be found by the court to be just and equitable having regard to the degree of that contributor’s fault, and the court shall have power to exempt any person from liability to make contribution or to direct that the contribution to be recovered from any contributor shall amount to a complete indemnity.”
Section 2 of the Act of 1961 includes a number of relevant definitions.”Wrong” is defined as meaning “a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional.” The word “wrongdoer” is defined as meaning “a person who commits or is otherwise responsible for a wrong” and “concurrent wrongs” is defined as meaning “wrongs committed by persons in respect of which they are concurrent wrongdoers.”
I have no doubt that a defendant is entitled to recover contribution from a person who is not sued in the original action only if the plaintiff in the action could have succeeded in proceedings against the person from whom the contribution is claimed. The words in the section “or would if sued at the time of the wrong have been, liable in respect of the same damage” establish this. Therefore, it is necessary to consider whether Mr. Wade’s widow would have succeeded against the third party in an action based on negligence and public nuisance.
Negligence causing death or personal injury is a legal wrong. It is a breach of a duty owed generally. The duty arises when a reasonable human being should have foreseen that his action or omission to act will cause death or injury. Therefore, to make a defendant liable for negligence causing death or personal injury, he must have failed to foresee what a reasonable man would have foreseen. This foreseeability relates not only to what is done or omitted to be done but also to the consequences of doing or not doing what a reasonable man should do. Professor Heuston (the Regius Professor of Law in the University of Dublin) has pointed out in successive editions of Salmond on Torts (in which he has most helpfully almost re-written the whole section dealing with negligence) that the concept of reasonable foresight is used in seeking the answer to two distinct questions,i.e., was the defendant under any duty of care at all and, if so, did he observe the standard required in the circumstances of the case? The concept now extends, in addition to the two mentioned by Professor Heuston, to the result of the failure of the defendant to foresee the consequences of his act or omission to act: Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. 10 [The Wagon Mound (No. 2)]. The most striking feature of the case law on this vexed topic is the variety of terms usedsee Lord Reid’s speech in that case. Montaigne was not the only one who wrote that most of the occasions of the troubles of the world are grammatical.
What should the directors and employees of the third party, as reasonable men, have foreseen in this case? They should have foreseen (a) that the pot-holes which their lorries had made would become full of water in January; (b) that cars, motor bicycles, motor scooters and bicycles would cause water to be splashed across this busy road; (c) that in January there was likely to be severe frost and that, at night at least, the water splashed would become a sheet of ice; (d) that motor bicycles, motor scooters and bicycles would be in great danger of skidding or falling sideways on this patch of ice; (e) that riders of these would be thrown on to the road surface; (f) that lorries or cars following these might run into the riders of these vehicles.
When an accident has happened there is a constant temptation for judges to attribute to the reasonable man a degree of foresight which an Old Testament prophet would have envied. One must not attribute to the reasonable human being a superhuman degree of foresight. Should the directors and employees have anticipated, in addition to the matters I have mentioned, that a driver of a car travelling behind a motor-cyclist who was crossing this icy patch and who had fallen would drive with gross negligence and so kill or injure the motor-cyclist? I do not think that they should but, on the better authorities, this is not a defence to a claim which Mr. Wade’s widow could have made against the third party.
No two accidents are alike and the fact that a defendant did not foresee the exact way in which an accident happened does not excuse him. There are numerous cases on this topic, but I propose to confine myself to three because they are decisions of the House of Lords and of the Privy Council and so of the highest authority. In Miller v. South of Scotland Electricity Board 11 Lord Keith of Avonholm said at p. 34 of the report:
“It has been pointed out in other cases that it is not necessary to foresee the precise accident that happened and similarly it is not necessary, in my opinion, to postulate foreseeability of the precise chain of circumstances leading up to an accident. There does not seem to me to be anything fantastic or highly improbable in the series of happenings that are alleged to have led to the accident here. If it is reasonably probable that an accident may happen from some act of neglect or commission that may be enough to discharge the initial onus on the pursuer, though it would remain, of course, to show that the pursuer was within the class of persons to whom a duty was owed. The question is:Was what happened so remote that it could not be reasonably foreseeable?”
Hughes v. Lord Advocate 12 was not cited to the trial judge or to us; it is so relevant to this case that I propose to outline the facts of it. A child aged 8 years was in company with another boy in Russell Road, Edinburgh. Near the edge of the roadway there was a manhole 9 feet deep. Post Office employees had opened the manhole to work on the telephone cable. They placed a sheltered tent over it and put four paraffin lamps on its corners. At 5 p.m. all of them had left the site for a tea break. The shelter and lamps were thus unattended. The employees had removed the ladder from the manhole and left it beside the shelter; and they had pulled a tarpaulin cover over the entrance to the shelter and left a space of about 2 feet between the lower edge of the tarpaulin and the ground. The lamps were left burning. The boys took one of the lamps and the ladder into the tent to explore. One of them tripped over the lamp which fell into the manhole and caused a violent explosion in which both of them were seriously burned. The cause of the explosion was that paraffin from the lamp had escaped and formed a vapour which was ignited by the lamp. There was coercive expert evidence that the escape of vapour and its ignition by the lamp was highly improbable and could not have been foreseen by anyone. The House of Lords held that the happening of the accident of the type which did occur was reasonably foreseeable even though the way in which it happened (the explosion) could not possibly have been foreseen, and that this did not absolve the defendant from liability. The analogy of this authority to the instant case is striking. Here the third party should have foreseen that a motor-cyclist, the rider of a motor scooter or of a pedal bicycle, would slip or slide on the ice path and fall and, possibly, sustain slight injuries. Although the third party could not have foreseen that a motorist would drive with gross negligence, in my opinion, they are liable. It is a matter of regret that this case was not cited to the trial judge as, if it had been, he might have decided this issue in another way.
The trial judge held that the defendant was 100% negligent, and I understand this to mean that he thought that the third party could not have foreseen that the accident would happen in the way it did. If he meant that the third party’s negligence was not a cause of the accident, it is sufficient to say that this was not mentioned in the argument in this Court. As it was not mentioned, I do not intend to enter into the question of causationa problem which has vexed the best minds of humanity for 2,400 years and the legal discussion of which has been thoroughly obscured by the use of such Latin jargon as causa causans, causa sine qua non, remota causa.
The third authority is the advice of a particularly distinguished Privy Council in The Wagon Mound (No. 2) 13 which was a case based on negligence and nuisance in which Her Majesty was advised that foreseeability of the injury is a necessary element in the measure of damages recoverable in a case of nuisance, and that Hughes v. Lord Advocate 14 was a correct decision.
Therefore, I am of opinion that the third party were negligent, that their acts and omissions to act contributed to the accident, and that they are liable to make a contribution to the damages paid by the defendant.
I think that the third party are also liable in nuisance. In modern conditions of fast-moving traffic, a sheet of ice on a busy highway is a public nuisance for which the person creating it is liable in damages. In McKenna v. Lewis and Laoighis County Council 15 (which was not cited to the trial judge or to us) the former Supreme Court unanimously held that an excavation on land adjoining a highway which lies so close to the highway that a person accidentally straying off the road could fall into it is a danger to persons using the road and so a nuisance.
Sharp v. Powell 16 was relied on to establish that the ice patch was not a nuisance. In that case a servant of the defendant washed his van in a public street. Because of a severe frost and a blockage in a drain, the water did not get away but spread over the street and became a sheet of ice on which the plaintiff’s horse slipped and was injured. The Court of Common Pleas held that the defendant could not reasonably be expected to foresee that water would accumulate and freeze at the spot where the accident happened. I think that the court attributed a remarkable lack of foresight to the defendant’s servant, and I agree with the remarks of Lord Reid at p. 637 of the report of The Wagon Mound (No. 2) 13:”It may be that today the defendant’s servant would be expected to be more wide awake and observant but given the finding of fact regarding foreseeability the rest followed.” The decision in Sharp v. Powell 16 is not authority for the proposition that a patch of ice created by a defendant in a highway cannot be a nuisance.
Counsel for the third party argued forcefully that it is an offence for anyone to interfere with the highway and that his clients could do nothing as they could not repair the highway. There are two good answers to this contention. The pot-holes were partly on the premises owned by the third party and partly on the highway. The bigger area of each of them was on the property of the third party and they could and should have repaired these. If they had done so, the portion of the pot-holes in the highway would have been minute and the quantity of water in them would have been so much smaller that it would probably not have caused the ice patch. Secondly, the pot-holes beside the highway but not in it were themselves a nuisance because water could accumulate in them and spread on to the road and form an icy patch. He also submitted that a private individual cannot have a cause of action in relation to damage to the highway. But the pot-holes themselves did not cause or contribute to the accident: it was the ice formed from water splashed from the pot-holes which constituted the nuisance. The damage to the highway caused by the third party was merely the reason why the ice formed. This claim by the defendant, while based in part on the pot-holes, rested mainly on the effect which they had on the highway by the formation of the patch of ice. Reliance was also placed on the pot-holes on the property of the third party as being part of the nuisance.
I am of opinion that the defendant is entitled to contribution from the third party on the ground of nuisance. The principles on which contribution is to be assessed, the meaning of “fault” in s. 21, sub-s. 2, of the Act of 1961, and the amount of the contribution were not discussed in argument at all and so we cannot give any decision on these questions at the moment.
Parke J.
In my opinion the appeal should be allowed and the third party held to be liable in negligence and in nuisance.
Kielthy v. Ascon Ltd
[1970] IR 122
O’Dalaigh C.J. Supreme Court
This appeal is taken by the defendants against the verdict and judgment in the plaintiff’s favour in her claim under Part IV of the Civil Liability Act, 1961, in respect of the death of her husband while in the employment of the defendants as a carpenter’s helper.
The learned trial judge, Mr. Justice Butler, for the purpose of determining the issue of the defendants’ liability, and its extent, submitted three questions to the jury. The questions, with the jury’s answers appended, were as follows:
“1. Did the deceased, Richard Kielthy, fall from the wall?
Answer: Yes.
2. If so, was the said fall caused or contributed to by the failure of the defendants to provide and maintain proper and safe means of passage on the building site?
Answer: Yes.
3. Was the fall caused or contributed to by the negligence of the said deceased?
Answer: No.”
The defendants were building contractors who were engaged in erecting, on behalf of the Electricity Supply Board, a large transformer station on a site in the vicinity of the confluence of the rivers Barrow and Suir. The buildings to comprise the station were to be erected on three terraces at descending levels and, as the questions submitted by the trial judge to the jury indicate, the case was concerned with the means of access provided by the defendants for their workers on the building site. On the afternoon when the plaintiff’s husband was injured and died, he was on his way from the uppermost terrace to the defendant company’s office on the lowest terrace on business in connection with payment of arrears of wages. In the course of this journey he walked along the top of a wall which formed part or the structure which was being erected, and shortly afterwards he was found dead at the foot of one side of this wall. The negligence alleged by the plaintiff was that the defendants had provided and maintainemeans of access to and from the defendant company’s office on the site, the top of a concrete wall which was unsuitable and unsafe, as a result of which her husband fell from the wall and was killed.
At one stage of the case evidence, on behalf of the defendants, was directed to show that there were alternative routes to the office which were safe and which the deceased workman could have used but, when the questions came to be settled by the trial judge, counsel for the defendants conceded (as he put it) that he had accepted from the time that all the workmen had given evidence that they all used the wall and that, while there were other routes provided, this was a recognised route.
The plaintiff’s case was laid not alone in common-law negligence but also in breach of statutory duty and, in the particulars furnished at the defendants’ request, the plaintiff alleged a failure on the part of the defendants to comply (a) with the requirements of Article 6 of the Building (Safety, Health and Welfare) Regulations, 1959, and (b) with the requirements of s. 37 of the Factories Act, 1955. Counsel for the plaintiff, in addressing the jury, opened this aspect of the plaintiff’s claim as well as the claim in negligence and cited to them the terms of the article and of s. 37 of the statute. At the conclusion of counsel’s address, counsel for the defendants in the jury’s absence submitted to the judge that the article and section referred to had no application and he asked that in the circumstances the jury should be discharged. Counsel for the plaintiff conceded that he was wrong about s. 37 of the Act of 1955, but he maintained that the article applied. The trial judge, however, ruled against counsel on this latter point, but he declined to discharge the jury. Then the trial judge, having recalled the jury, explained to them that neither the section of the Factories Act nor the Building Regulations applied to the accident “good, bad, or indifferent,” and he said that they were to forget everything that counsel for the plaintiff had said about the statute and the Regulations, and that they were to forget anything they might remember about what was in the section or what was in the Regulations, and that they were to regard the case as concerned merely with common-law duty. Counsel for the plaintiff now accepts the trial judge’s ruling in respect of the Building Regulations.
The first, and major, ground advanced in support of the appeal by counsel for the defendants is that the trial judge, having held that plaintiff’s counsel was wrong in law in opening the terms of the Factories Act and of the Building Regulations to the jury, misdirected himself in law in refusing to discharge the jury. The portions of Article 6 of the Building Regulations referred to by counsel were paragraphs 8, 9 and 10 which are as follows:
“(8) Platforms, gangways, runs, staircases, other means of access and floors shall be kept free from obstruction or loose materials liable to cause workers to trip or be otherwise injured, and building materials required thereon shall be stacked or stored in such manner and in such quantities as not to cause obstruction or danger.
(9) Every gangway or run shall be closely boarded, planked or plated and shall be provided with handrails and toeboards or other effective means to prevent the fall of persons or articles therefrom.
(10) Every gangway or run shall be of a width adequate for the passage of materials and, in any case, shall not be less than seventeen inches wide for the passage of persons only and twenty-five inches for the passage of persons and materials.”
Counsel for the defendants complained of the adverse effect on the jury of the reference in paragraph 10 to the requirement that gangways or runs for the passage of persons should be not less than seventeen inches wide. In respect of s. 37 of the Factories Act, counsel’s complaint was that the opening to the jury of the terms of sub-s. 2 of the section was prejudicial to his client’s defence. Sub-section 2 reads as follows:
“Where any person is to work at a place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for ensuring his safety.”
It cannot be questioned that s. 37 of the Factories Act, 1955, has nothing to say to these building operations. The general safety provisions of the Act of 1955 are contained in Part III of the Act (which includes s. 37) and they are applicable to building operations only to the very limited extent specified in s. 88, sub-s. 1(c) of the Act of 1955.
The wall in question here was a foundation wall. Because the structure was being built at different levels, the height of the wall was not the same on both sides. On the northern side the height (or drop) was 3′ 4”, while on the southern side it was 6′ 6” plus a slope of 5 to 6 feet at an angle of 45say a total height (or drop) of 11′ 6” to 12′ 6”. The base of the wall was 1′ 3” in width, but it narrowed to 9 inches at the top, and this was the width of the walking surface which was available to the deceased over a distance of about 30 yards.
The deceased’s body was found on the northern side of the wall, face down, hands outstretched, palms upturned, and feet towards the wall. Death, which was instantaneous, was due to crushing of the spinal cord, following upon the dislocation of the upper cervical vertebra. In simpler language, the deceased died of a dislocated neck.
Both counsel for the defendants and the judge wavered in their attitudes as to the course which should be taken after the Regulations and the section of the statute had been opened to the jury. Counsel for the defendants, in making his objection, began by saying he was concerned at that stage that the matter should be set right, adding:”whether the right way to set it right is by your lordship discharging the jury or telling them now . . .” The judge intervened with:”What do you want me to do?” Counsel’s reply was that he would prefer to have the jury discharged, because the case had been opened on a wholly wrong footing. Counsel for the plaintiff, having conceded that he had no case under the statute, submitted that the Regulations applied but, finding the judge against him on this point, he turned to deal with the application to discharge the jury. The judge immediately intervened and said:”I am not going to discharge the jury.” Counsel for the plaintiff was agreeable to this course, and the judge next turned to counsel for the defendants to ask if that satisfied him. Counsel said that it did not satisfy him and the judge countered this by pointing out that counsel had begun by suggesting alternative courses, and the judge asked counsel if he now was asking only for the jury’s discharge. Counsel agreed that he had indicated alternative courses but said he would not now be satisfied unless the jury was discharged. In the course of the discussion which followed the judge indicated that he thought the reference to the 17 inches as a minimum width had been so implanted in the minds of the jury that no matter what he said he could not get rid of it. He then observed that he had the greatest sympathy for the plaintiff’s situation “withthis horde of witnesses up on a Friday morning.” The judge thereupon offered to try the action without a jury; counsel for the plaintiff was agreeable but counsel for defendants declined the offer and, after some further discussion, the judge decided that he would not discharge the jury and, on recalling the jury, he addressed them in the terms I have already quoted.
I would uphold the judge’s ruling that the jury should not be discharged, but I would do so on a ground not advanced in its support at the trial. I do not find it necessary to go outside the special facts of this case and the view which, in my opinion, a reasonable jury must take of them. The wall in question here was only 9 inches wide. A volume of the Irish Reports is 91/2inches high. If one places a number of volumes of the Irish Reports spine to leaf, it gives one a vivid picture of the wall which was a “recognised passage” to and from the defendants’ administration office on the site. To complete the picture, add to this the fact that on one side there is a drop of 3′ 4” and on the other side a drop of 11′ 6” to 12′ 6”. In my opinion no jury could reasonably hold otherwise than that a passage of such narrow dimensions, raised as this passage was, was not a proper and safe means of passage for the defendants’ workers on this building site. There was barely room for a worker’s two feet on the wall standing stock still. The presence of an 11 or 12 foot drop on one side would prudently require that a worker should keep away from the southern edge because of the greater peril of the drop of 11′ 6” to 12′ 6”, thus narrowing further the traversable surface. While the use of such a passage might be acceptable as a means of training athletic young people in the art of sedate and unwavering carriage, as an everyday passage to a contractor’s administrative offices on a building site for workmen whose business required that they should have resort to that office it was manifestly unsafe and inadequate. In my view the reference to the statute and the regulations, even if the jury had not disabused their minds of what they had heard, could not in law have affected the answer to the second question submitted to the jury.
I now turn to a consideration of the several other objections raised by counsel for the defendants to the trial and the verdict.
Counsel first submitted that there was no evidence that the deceased fell from the wall, that is to say, that there was no evidence to warrant the jury’s answer “Yes” to the first question. In my opinion there was evidence from which the jury could infer as a matter of probability that the deceased fell from the wall. The deceased’s foreman, Patrick Nevin, gave the deceased permission to go to the company’s office to inquire about a day’s wages which he claimed he had not been paid. The deceased was seen setting out in a direction which would eventually have taken him along the wall to the office. This was not only the most convenient way of reaching the office but, according to Nevin’s evidence, it was the way that was invariably used. Another witness, the carpenter, Denis Collins, described the wall as the”customary” way of reaching the office. All the evidence points to the probability that he went by the wall route. The position in which the deceased’s body was found twenty minutes later, far from challenging the correctness of this inference, supports it. His feet were close to the wall and his head outwards, very much where one might expect someone who had fallen from the wall to be found. There was only one unusual feature about the body which is that, while the body was face downwards, the palms of the outstretched hands were facing upwards. Whatever the explanation of this featureand none could be furnished a fall or stumble at ground level is not thereby made more likely than a fall from the wall. Indeed the injuries which the deceased suffered of their very nature were such as are more likely to have been caused by a fall from a height than by stumbling at ground level. For these reasons I am of opinion that there was ample evidence to warrant the jury’s answer to the first question.
Next it was submitted that the deceased’s employers could not be held to be negligent if, in addition to the wall passage (assuming the wall passage to be unsafe), they provided other means of access which were safe. At the trial the defendants’ counsel said he accepted that the wall passage was what he called a “recognised” route to the office. In my opinion if an employer offers without distinction a number of modes of access to the company’s office of which all, except one, are safe, he cannot be relieved of his liability because a workman happens to choose to use the one which turns out to be unsafe. His duty is not to see that some modes of access which he offers are safe but to see that all of them are safe.
Thirdly, it was submitted that the jury’s answer to the second question submitted to them should not be allowed to stand because the deceased’s employers had provided several safe modes of access to the company’s office but the deceased had chosen one which was dangerous. Much of what I have said in dealing with the defendants’ main ground of appeal is again in point here. The employer does not escape liability merely by providing safe means of access; if he also provides or “recognises”other modes of access which are not safe, he is answerable if a workman is injured while using one of such other modes of access. It should also be added that the point taken in this ground of appeal had in fact vanished from the case before the questions came to be settled; the defendants accepted that they provided or recognised the wall route and made the case that it was a safe route.
Fourthly, the defendants have complained that there should have been a finding of contributory negligence against the deceased as the wall was held not to have been a safe means of passage. At the trial the defendants made the case that their allegation of contributory negligence was as to the manner of the deceased’s user of the wall route. Understandably they chose this course in order that they might present a consistent case to the jury. They were unwilling to present the alternative case that the wall route was unsafe. Having chosen to allege negligence only as to the manner of using the wall route, the difficulty presented itself that the onus rested on them to offer evidence of negligence in the manner of user. This they were unable to do and the jury, in my opinion, therefore properly made a finding of no contributory negligence on the part of the deceased.
Fifthly, the defendants have complained that the trial judge put the plaintiff’s ease too favourably. On the question of liability I do not find that the trial judge expressed any view in favour of the plaintiff. He stated the facts and the law to be applied. Where he did express a strong view was in reference to the first questiondid the deceased fall from the wall? He told the jury that he could not see how they could come to any other conclusion and, again, that it seemed to him an inescapable conclusion from the evidence that the deceased was walking on the wall and that he did fall off. He was entitled as trial judge to express these views. He did, however, as was his duty, also make it clear to the jury that it was a matter for them. He called their attention to the two salient facts in the evidence,viz., that when last seen the deceased was going in the direction of the wall and when found dead he was at the foot of the wall. He added that if they could find evidence to support an opposite conclusion they should adopt it, or, unless the evidence satisfied them as a matter of probability, when they would not accept it. I am unable to agree that the charge was unfair to the defendants. Their defence in a sense was a static one: to invite the jury to reject what to my mind were the more probable inferences to be drawn from the undisputed evidence. Lastly, the defendants have complained of the award against them of the costs thrown away on the second day of the trial when, owing to some misunderstanding, the foreman of the jury failed to attend and the trial was adjourned. Counsel for the defendants was unwilling to continue with the trial in the absence of the foreman, and he relied upon s. 64 of the Juries Act, 1927, for submitting that the court had no power to do so. The section is as follows:
“Whenever in the course of the trial of any issue, a juror dies or is discharged by the Judge owing to his being incapable through illness or any other cause of continuing to act as a juror, the jury shall, unless the Judge otherwise directs or the number of jurors is thereby reduced below ten, be considered as remaining properly constituted for all the purposes of such trial, and such trial shall proceed and a verdict may be found accordingly.”
The section is a section which deals with the circumstances in which a jury may continue after a reduction in their numbers. First, the reduction of the jury, by up to two members, by death will not prevent the continuation of the trial unless the judge should otherwise direct. Secondly, the section contemplates that the judge may discharge a juror owing to his being incapable, through illness or any other cause, of continuing to act as a juror, and such discharge shall not prevent the continuation of the trial unless the judge should so direct or unless the discharge of the juror has had the effect of bringing the number of jurors below ten. While the section does not directly define the cases in which a judge may discharge a juror, it clearly acknowledges that he may do so where the juror is incapable of continuing to act as a juror on account of illness or any other cause. The judge, though anxious to continue with the trial, appears to have been persuaded by counsel for the defendants that the section did not apply, and counsel for the plaintiff was apparently apprehensive of the validity of the verdict of a diminished jury.
The real question is, was the foreman incapable of continuing to act as a juror through “any other cause” within the meaning of s. 64 of the Act of 1927. Incapacity is to be looked at objectively with reference to the continuance of the trial. What is the limitation of the words “any other cause”? They confer a very wide discretion on the trial judge. The ejusdem generis rule has no room for application because that rule requires that antecedent categories should establish a genus, and this cannot occur where, as here, the general words are preceded by the enumeration of but a single category. Incapacity to continue to act as a juror will, in my opinion, include the case of a juror who is not in attendance at the resumption of a trial. In any particular case a judge may well consider that he should adjourn the case for a brief or reasonable period before ordering the discharge of the absent juror but on the other hand, since continuity is a normal incident of a jury trial and delay adds to the costs of litigation, a judge may properly discharge a juror whose absence is unexplained. The unexplained absence of a juror is likely to be the most frequent cause of a check in the proceedings. Although the Interpretation Act, 1923, requires that a marginal note to a section is not to be taken as part of the Act or to be considered in relation to the construction of the Act, it is right to point out that in this instance the marginal note is quite misleading since it reads:”death or illness of juror during trial.”
My conclusion is that in this case the defendants’ counsel was wrong in his submission that the judge could not discharge the absent juror and continue with the trial; and in these circumstances I think the plaintiff is entitled, in addition to the general costs of the trial, to have the costs which were thrown away because of the adjournment which occurred on the second day of the trial.
For the reasons stated I would dismiss the appeal on all grounds.
Hayes v Ennis
[2005] I.E.H.C. 117, April 15, 2005
Judgment of Mr. Justice de Valera delivered on the 15th day of April 2005.
This action has been brought by the plaintiff Kevin Patrick Hayes as the father and personal representative of Thomas Paul Hayes who died on the 30th January 2002.
The plaintiffs claim is as one of the dependants within the meaning of s. 47 of the Civil Liability Act, 1961 of Thomas Paul Hayes and it was brought by him on his own behalf and on behalf of the other dependants.
The persons on whose behave the action has been brought are:
(a) Kevin Patrick Hayes – Father of the deceased.
(b) Jane Hayes – Mother of the deceased.
(c) Jennifer Hayes – Daughter of the deceased.
(d) Scott Hayes – Son of the deceased.
(e) Helen Hayes – Sister of the deceased.
The father, mother and sister of the deceased have the waived their claims as dependants in favour of Scott and Jennifer respectively the son and daughter of the deceased.
Thomas Paul Hayes had been paralysed in a road traffic accident which occurred when he was a young single man. When in a wheelchair he met and married his wife who was, tragically, subsequently to die of complications from an appendix operation in hospital. Prior to her death the couple had adopted two children neither of whom were old enough to remember their mother at the time of her death.
Having qualified and obtained a good job the deceased brought up his two children, from all the evidence with remarkable success, until he was involved in another road traffic accident the subject matter of these proceedings as a result of which he was killed.
The evidence in this action was given, movingly, by the plaintiff the deceased’s elderly father and Scott.
Jennifer did not give evidence.
The only other evidence was from Brendan Lynch an actuary on behalf of the plaintiff.
This is an unusual claim insofar as it has been argued before me that because of the particular circumstances of the deceased there would have been permanent financial losses in respect of both Scott and Jennifer for the deceased’s lifetime.
In the circumstances of this particular action and particularly having heard, and been impressed by, the evidence of the plaintiff and of Scott I am satisfied that the relationship between the two children and their father and particularly between Scott and his father was such that the deceased would have continued to contribute financially to both his children during the course of his lifetime.
In particular I accept that Scott would have continued to live with his father at the family home; this would not necessarily have interfered with any matrimonial plans Scott might have made and although I have no evidence from Jennifer I am satisfied on the balance of probabilities that given the particular circumstances and the close nature of her relationship with her father that he would have continued to make contributions to her during the same period albeit not to the same extent as to Scott.
On the basis of Mr. Brendan Lynch’s evidence and report, which I accept with the exception which I am about to specify, the total figure which I propose to award under the heading of dependency loss is €400,000.00.
I have deducted a figure of approximately €71,000 from Mr. Lynch’s calculations to allow for what I believe would be a difference in dependency between Scott and Jennifer – the calculation of damages in such matters is not entirely an exact science and this is a figure which I believe to be appropriate rather than one capable of precise calculation.
To this figure must be added agreed special damages of €34,684.67 and damages for mental distress of €25,400.
€400,000.00
€034,684.67
€025,400.00
Total: €460,084.67
Signed:______________________
Eamon de Valera
Approved: Eamon de Valera
Yardley v Brophy [2008] I.E.H.C. 14
On the 28th November, 1992 there occurred an appalling road traffic accident near Gorey in the County of Wexford. The plaintiff was travelling in a car driven by his father. His mother, Anne Marie Yardley, and his older brother, Alex, were also passengers in the car. The plaintiff’s mother, father and brother were tragically killed in the accident. The plaintiff, who was born on the 2nd August, 1988, was then four years old. He survived the collision with relatively minor injuries.
An action was brought by the plaintiff through his next friend against a representative of his father claiming damages in negligence in respect of the deaths of his mother and brother. Unfortunately, this action was brought outside the relevant statutory limitation period. Eventually, on the 14th December, 2004, that action was dismissed in a reserved judgment by Herbert J. on that ground.
These proceedings were then commenced claiming damages in negligence against the solicitors who acted for the plaintiff in the previous action.
When the action came on for trial before me on the 22nd January, 2008, it proceeded as an assessment of damages only.
There were a number of items of agreed damages. These were solatium in respect of the deaths of the plaintiff’s mother and brother of £7,500 Irish punts or €9,500.23 in respect of each, being the statuary solatium then prevailing. In addition, there is the sum of €2,673 for funeral expenses.
A sum of €8,162 was claimed as the fees due to an English solicitor who had acted for the plaintiff in relation to the claim against the plaintiff’s father prior to that action being taken on by the defendant in these proceedings.
I am not satisfied that the plaintiff has discharged the onus on him of establishing that that sum is recoverable in these proceedings against the defendant in these proceedings.
The major aspect of the damages claimed relates to the cost of the care of the plaintiff up to September 2005 when he went to university and to a much lesser extent in respect of the housekeeping expenses thereafter.
The uncontradicted evidence is that immediately following the accident the plaintiff was taken into the care of his maternal grandmother in Dublin. Very soon thereafter, his paternal grandmother, Mrs Rosalind Yardley, arrived from abroad and took over his care to the extent of selling her home in the United Kingdom and buying a house in Glasthule into which she moved with the plaintiff. From there the plaintiff attended Harold’s National School in Glasthule. When the plaintiff was about seven or eight years of age, his grandmother sold the house in Glasthule and moved to Bromley in the United Kingdom. There she purchased a house adjacent to schools for the benefit of the plaintiff. The plaintiff has been reared exclusively by his paternal grandmother since the accident.
The plaintiff did well at school and achieved a high standard in his A level examination. Following this in September 2005, he went to University College London to study physics. This necessitated leaving his home with his grandmother and living in rented accommodation near the university. He goes home to his grandmother for holidays and about once a month and at other times as required. Mrs Yardley is now in failing health and does not go out. She lives with an uncle of the plaintiff.
It is clear that Mrs Yardley has, since 1992, taken on the role of rearing and caring for the plaintiff and devoted herself full time to this. In effect, she took on the maternal role and the current success and wellbeing of the plaintiff is ample evidence of how well she has discharged that role.
In assessing damages in respect of the cost of the care of the plaintiff over the years of his childhood, the court must attempt to compensate for the value of the cumulative services provided by Mrs Yardley in supplying, as she did, the place of the plaintiff’s mother.
This is not an easy task. Both sides have engaged experts to identify the services involved and to calculate their cost or value. Whilst there are relatively small differences in the amounts ultimately assessed by Ms Breslin for the plaintiff and Mr Baxter for the defendants, their approaches to the problem are essentially similar.
Each starts out by identifying the elements of childcare and housekeeping needed, starting in 1992 and calculating forward to 2005.
In the initial years, Mr Baxter finds a higher figure for childcare than Ms Breslin, i.e. €377 per week as against €292 per week in 1992. Thereafter, Mr Baxter progressively reduces the amount of childcare needed as the plaintiff grows and becomes less physically dependent. Ms Breslin does not do this. She continues the same level of childcare on the basis that the level of care estimated in fact falls considerably short of the actual hours of care provided and hence the non-reduction in the childcare hours estimated over the period 1992 to 2005 results in an average which more fairly reflects the very extensive, i.e. round the clock, commitment which the role discharged by Mrs Yardley actually involved, and which would have been provided by the plaintiff’s mother had she survived.
In my view, the court in compensating for the loss of the care of the plaintiff’s mother, has to focus on or cater for the situation in which the plaintiff actually found himself after this tragic accident, namely, he lost a full time mother and carer. Assessing compensation on the basis that he would have had to share the time and services of his mother, with his brother, Alex, and another sibling, is not an appropriate approach. A child of tender years cannot have half or a third of a carer. The entirety of their childhood needs have to be provided for, as indeed they were, by Mrs Yardley Senior, and would have been by the plaintiff’s mother had she lived.
This level of care necessarily extends to 168 hours a week for 52 weeks of the year. It is, of course, the case that active services are not provided all of the time, but it is essential that a child of tender years has available all the time the protection of and supervision of a carer or guardian. In addition, a myriad of services must be provided to cater for the child’s physical needs and his or her intellectual social and moral development, all of this is what Mrs Yardley, the grandmother, provided and no doubt Mrs Yardley, the mother, would have had she survived.
The approaches adopted by Ms Breslin and Mr Baxter to estimating the services to be compensated for and their value or cost are necessarily an imprecise yardstick against which to assess the loss to the plaintiff of his mother’s role in his upbringing. I accept that these approaches are the best that can be achieved having regard to the need to compute the loss in terms of monetary compensation.
I am of opinion that the approach taken by Ms Breslin better reflects the actual loss of the totality of the maternal caring role and hence I propose to accept her figures in that regard as the basis of calculation of the damages. In fairness to Mr Baxter it should be said that in fact there are only very slight differences between them in the final figures.
In two respects, both to do with housekeeping expenses, I prefer the approach adopted by Mr Baxter. His estimate of five hours per week housekeeping after the plaintiff went to the university in September 2005 is, in my opinion, a truer reflection of the reality of the life of a student attending university away from home.
I also prefer Mr Baxter’s estimate of 10.5 hours per week in respect of the housekeeping requirement from 1992 to 2005. In my view, 21 hours per week as estimated by Ms Breslin is excessive in terms of the housekeeping needs of the plaintiff living in the same home and sharing the same domestic facilities with his grandmother.
Thus, I would assess the plaintiff’s losses in respect of childcare and housekeeping cost as follows.
For the period up to the age of fifteen, I assess the loss in respect of childcare in the sum of €250,000. The costing of Ms Breslin’s estimate in this respect comes to €213,909. The same figure on Mr Baxter’s estimate is €218,566. With regard to the obvious fact that these are estimates of hours of childcare that by and large correspond to a working day and hence do not reflect the fact that the plaintiff, like all children, needed the availability of supervision and protection from a carer round the clock, in my opinion it is right that the compensation under this heading should be rounded up to the sum of €250,000. On the same basis, I would round upwards the sum in respect of childcare of €65,749 from years fifteen to seventeen to €70,000. As the plaintiff’s need for that kind of supervisory and protective role would have lessened during those years, the addition way of rounding up is obviously going to be much less. The sum claimed for housekeeping to date on Ms Breslin’s estimate works out at €162,377. As indicated earlier, I would reduce this by half and round it to the sum of €82,000. This makes the total for losses to date of €402,000. To that I would add the sum of €15,000 in respect of the plaintiff’s housekeeping requirements for the future on the basis set out above.
This brings me to the question of interest. Mr Lynch, the actuary called for the plaintiff said that in his figures he had added in interest at the rate of 8% i.e Courts Act interest, to Ms Breslin’s figures, both in respect of childcare and housekeeping to reflect the fact that the loss is expressed at its historical cost and because of the passage of time commencing in 1992 and the diminution in the value of money over the intervening years, compensating in 2008 at 1992 values or the relevant historical values for the intervening period, would be inadequate to replace the plaintiff’s actual loss. It was his evidence that the addition of 8% interest in these circumstances has been standard practice for many years for fatal accident cases. He said that an alternative approach would be to advance historical prices or values to their present day equivalent.
Mr Byrne, the actuary for the defendants, disputed this approach except where actual cost had been incurred.
I am of opinion that if the plaintiff were to be awarded now, compensation for the loss of services in 1992 and the intervening years on the basis of a 1992 price of that service or the relevant price during the intervening years, that would work an injustice to the plaintiff and would be an unjustified benefit to the defendant. The services in question were provided in 1992 and the years thereafter. Hence, in my view, they are rightly to be regarded as the equivalent of a cost actually incurred then. To do otherwise, is to treat the generous and voluntary provision of these services by the plaintiff’s grandmother as in effect a benefit to the defendant or as a negligible loss to the plaintiff or a loss which is to be discounted solely for the benefit of the defendant.
I am satisfied, therefore, that the historical figures should be updated to reflect present day values. In most cases, where the action is brought in a timely manner after the accrual of the cause of action, this problem will not arise. In these rare cases where compensation has to be assessed in respect of compensatable events which have occurred many years before, in my view, this approach is appropriate.
I am satisfied that using the Courts Act interest rate is not an appropriate and fair method bringing historical cost up to present day values because the 8% rate of interest greatly exceeds the prevailing rates of inflation over the intervening years.
Clearly, the best way of doing this is to increase the historic figure annually in accordance with inflation as reflected in the Consumer Price Index, or depending on the particular cost involved, some other more relevant measure of inflation.
In response to my request to the parties for assistance in this regard, Mr Lynch, the plaintiff’s actuary was recalled and gave evidence that the average rate of inflation over the period from 1992 to date was 3.1% which could be accurately expressed as a 24% uplift on the historical figures.
Mr Fox, S.C. for the defendant, did not wish to offer any evidence on this point.
I propose to adopt the addition of average rate of inflation of 3.1% or the uplifting of values by 24% as the best and fairest method of bringing historical values to their present day equivalent. I am of the view that this approach is best suited to rendering justice between these parties.
Accordingly, I would increase the figure of €402,000 by 24% which is €96,480 to the sum of €498,480. That must be added to the sum of €15,000 in respect of future housekeeping expenses and the agreed items, namely €19,046 and €2,673. This brings the total damages to €535,199 and there will be judgment for that sum.
McDonagh v McDonagh
Ceire Christine McDonagh (a Minor suing by her grandfather and next friend Denis McDonagh) v Christopher McDonagh
1989 No. 3530 P
High Court
6 December 1991
[1992] I.L.R.M. 841
(Costello J)
6 December 1991
COSTELLO J
delivered his judgment on 6 December 1991 saying: The tragic accident which gave rise to these proceedings occurred on 8 September 1988. Mr and Mrs McDonagh were a young married couple with two young children. Due to Mr McDonaghs negligent driving his wife, a passenger in his car, received serious injuries from which she died. This action is brought by one of the children of the marriage (by her grandfather as next friend) on her own behalf and on behalf of all the dependants of the late Mrs McDonagh. Her father has been named as defendant and damages against him pursuant to Part IV of the Civil Liability Act 1961 are claimed. Negligence has not being denied the only issue is the measure of damages.
The facts
The salient facts relevant to that issue are as follows: Mrs McDonagh was just 25 years old on the date of her death. She had married the defendant on 8 January 1984. At the time of her death she was employed as a temporary ward orderly in a hospital in Sligo by the North Eastern Health Board under an annual contract. She had been so employed for about five years before the accident. Although her contract described her as a temporary employee it would appear that she could have remained in employment with the board had she so wished for an indefinite period. Her nett weekly wages fluctuated. It has been accepted that her average pre-accident weekly wage for the twelve months prior to the accident was 113. Mr McDonagh was a little over 29 years old on the day of the accident. He had come back from Dublin to marry his wife. Whilst in Dublin he had been employed but on return to Sligo he had found it impossible to obtain employment. Thus, for four and a half years prior to his wifes death he had been *843 unemployed and in receipt of unemployment assistance which at the date of death amounted to 63 per week. In addition it appears that he earned from time to time in the evenings some remuneration for acting as a barman but this has not been quantified. Mr and Mrs McDonagh pooled their incomes and paid out of the common-pool all their living and household expenses. At the date of Mrs McDonaghs death the family income was 176 per week.
There were two children of the marriage, Ceire who was born on 12 June 1984 and Asling who was born on 18 April 1987. Thus, Ceire was a little over four years old when her mother died whilst Asling was only one and a half years old. There are other dependants within the meaning of the 1961 Act on whose behalf a claim for damages for mental distress is brought but the two children are the only ones maintaining a claim for financial loss resulting from their mothers death. The claim is in fact a substantial one.
Mr McDonagh since his wifes death has been helped in the care of his children by a sister who has given a lot of her time to looking after them.
After his wifes death Mr McDonagh remained unemployed for some time. From 18 September 1989 to 30 August 1991 he managed to obtain employment and earned a nett weekly wage of 224. This employment however ceased and he then became employed by FAS as a project leader from 1 September 1991 and has since been so employed. His basic wage is 119.45 nett per week.
The evidence establishes that, not surprisingly, no part of the familys joint income had been saved. Mr McDonagh did not give evidence of the weekly household bills or ordinary living expenses but he did give estimates of expenditure on what have been termed overheads. He stated that (a) 100 per month was spent on mortgage repayments, (b) 50 every two months to the ESB, and (c) 15 per week for fuel and heating generally. This comes to an average weekly figure of 46.50. Mr and Mrs McDonagh drove a car which was registered in Mr McDonaghs name. Mrs McDonagh drove it to her work. No figures for the running costs were given and I do not think I can properly take into account the costs of the car in calculating the financial loss which the dependants have suffered by the death of their mother. It was established that there was expenditure amounting to 2,077.35 arising from the death of Mrs McDonagh which Mr McDonagh paid and that in addition he paid a sum of 2,200 for a headstone in relation to his wife. These items of special damage amount to 4,277.
The claim
The claim made on behalf of Mr McDonaghs two daughters is that they have suffered injury within the meaning of s. 49 of the Civil Liability Act 1961 as a result of her death. It is advanced under three separate headings:
(a) the value of the pecuniary benefit which they received by way of contribution made by the deceased to their living expenses (referred to as their *844 personal loss);
(b) the value of the pecuniary benefit which they received by the financial contribution made by the deceased to the overheads associated with maintaining the home in which they lived;
(c) the cost of replacing the services which had been gratuitously given to them by the deceased.
The assessment of the compensation for the undoubted injury each sustained should, in my opinion, be based on the following principles:
(1) Compensation is to be calculated by reference to the amount of the pecuniary benefit that the dependants could reasonably expect to have received from the deceased in the future (see Byrne v Houlihan [1966] IR 274; Gallagher v ESB [1933] IR 558). This, inter alia, involves deciding in a case like the present one where a child is claiming in respect of the death of a parent, the age when dependancy would have ceased had Mrs McDonagh lived.
(2) If the dependants lose the benefit of services which had been gratuitously rendered in the household by the deceased (for example by a mother) the dependants may have suffered pecuniary loss. Damages may be awarded for the cost of replacing gratuitously-rendered services (see Berry v Humm [1915] 1 KB 627 at 631).
(3) Damages run from the date of death and are ascertained by reference to facts existing at the time of death. This means that the actual earnings (if any) of the deceased are to be ascertained by reference to the date of death and the cost of replacing gratuitously supplied services are to be calculated by reference to costs prevailing at the time of death.
The dependency
The first matter to be decided is whether it is probable that Mrs McDonaghs two children would have been dependent on her to the age of 18 or to the age of 21. On this issue I have reached the following conclusions. There are a great many injustices in Irish society and one of the most egregious is the fact that entry into third level education for young persons depends to a considerable extent on the level of income of their parents. I fully accept that Mr McDonagh would have hoped, like most parents hope, that his young children would gain a third level education, but the unfortunate fact is that he and his wife were living on a very low income and that it is very unusual for children living in homes with such a low income to gain the benefit of third level education. I must conclude therefore that the dependants have failed to establish that as a matter of probability they would, had their mother lived, have been dependent on her beyond the age of 18.
The actuarial evidence
The actuarial evidence adduced on the plaintiffs behalf was as follows. It was *845 accepted that Mrs McDonaghs nett average take-home pay for the twelve months prior to the accident was 113. It was accepted that Mr McDonaghs income from welfare payments was 63 per week accounting for debts. The actuarys calculations were not however based on the sum of these two figures. Instead they took into account that Mr McDonagh had obtained employment in September 1989 at a wage of 224 per week and that he was so employed until August 1991, and that he had obtained employment from September 1991 at a weekly wage of 119.45. An average figure was then arrived at on earnings since the date of death. This average figure was added to the actual contribution (viz 113) made by Mrs McDonagh to the household at the time of her death. The actuary then concluded that the average future household income would have been approximately 220 a week when Mrs McDonagh died. All his calculations were based not on what the actual income was at the time of Mrs McDonaghs death but on a purely notional figure based on the income which Mr McDonagh had obtained since her death. The actuary, having arrived at a notional income of 220 per week at the time of death, then concluded that 48 per week would have been spent by Mr McDonagh and 48 by Mrs McDonagh and that 24 per week would have been spent on each of the children, leaving a residue of 76 per week which the actuary termed as expenditure overheads.
The actuary was asked to make a calculation based on the factual position, namely that Mrs McDonagh had been contributing 113 per week at the date of her death and Mr McDonagh 63 per week to the household expenses. On this basis he concluded that the value of Mrs McDonaghs contribution to the personal expenses of her children (that is the cost of feeding and clothing them) was 12 per week each. Mr Cooney SC on the defendants behalf accepted this figure as being a reasonably accurate one. The capital value of the loss to Ceire of 1 per week is 720. This means that the capital value of 12 per week is 8,640. The capital value of a loss to Asling of 1 per week is 791. This means that the total capital value of the loss she sustained is 9,492. I award them these sums under this part of the claim. I do not think it is correct to base the calculations on a notional figure of 220 per week the loss should be based on the actual contribution which the deceased made out of her wages for the maintenance of her children.
I come next to the capital value of the loss sustained by the two dependants arising from the contribution made by Mrs McDonagh to the overheads. Mr McDonagh, as I have said, gave evidence of his estimate of the actual amount spent on overheads at the time of his wifes death but the actuary did not base his calculations on these figures. Again, he worked from the notional family income of 220. Having deducted from this figure the estimated expenditure by Mr and Mrs McDonagh on their own living expenses and on that of their children, he was left with a figure of 76 as the weekly sum spent on overheads. He then made a new calculation. He deducted from the notional family income *846 of 220 the actual sum that Mrs McDonagh had contributed (namely 113) and arrived at a figure of 107. He treated this figure as the loss sustained by the family by her death. He then divided this sum up between Mr McDonaghs living expenses and the living expenses of the two children. The figure left was a sum of 43 apportioned to overheads. The difference between the amount spent on overheads based on this method of calculation was the difference between 76 and 43 namely 33. He concluded therefore that the children had lost the benefit of 33 per week as their mothers contribution to the overheads of the household. He took the capital value of the loss of a 1 per week under this heading as 791 and concluded that the loss for the two children was 26,103.
I cannot accept that this was the correct way of calculating the dependants loss. As already pointed out, I think the correct approach is to ascertain what in fact was the expenditure on overheads by the family. This amounted to 46.50 per week. But all four members of the household benefited equally from this expenditure so that it may be said that the value of the benefit which each of the dependants received at the time of death was 11.65 per week. Mrs McDonaghs contribution to the expenditure on overheads was greater than Mr McDonaghs. I estimate the loss that each child suffered as a result of her mothers death at approximately 8 per week. Using the multipliers suggested by the actuary this means that the capital value of Ceires loss is 5,760 and that of Asling 6,378.
Services gratuitously rendered
I come now to the cost of replacing the services which had been gratuitously rendered by the deceased to her two daughters. The actuarys calculations under this heading were made by assuming that the services which Mrs McDonagh had rendered her children would be replaced by a living-in nanny/housekeeper, that the annual cost now of such a housekeeper would be 9,000 per annum (or 173 per week) and that the equivalent cost of that sum at the time of death would have been 156 per week. Based on these assumptions he multiplied this figure by 791 and this resulted in a claim for 123,395 damages under this heading. In fact, the evidence adduced on the plaintiffs behalf was that the annual cost of a nanny/housekeeper would be between 200 and 220 per week plus 25 per week for food, so that the claim under this heading is considerably greater than that advanced by the actuary.
The first matter for consideration is whether as a matter of probability Mr McDonagh will replace the services which his wife had rendered his children by employing a nanny/housekeeper to look after them. I do not think that on the balance of probabilities that this is what will happen. It has not been shown that such a person is available for this kind of employment in the Sligo area and further, I think it is probable that Mr McDonagh will continue as he has done up to now and make use of the help of his sister which since his wifes death *847 has been given most generously. The evidence establishes that his sister has devoted a great deal of time to looking after his children and I can see no reason why she should not continue to do so. She will, of course, be entitled to be remunerated for the help which she will give. Furthermore her help will have to be augmented by others. I propose, therefore, to approach the cost of replacing the services which Mrs McDonagh had given to her two daughters on the basis that it will be replaced by daily help, rather than by a living in nanny/housekeeper.
The evidence on this point was that daily help would be required in the afternoons during the school term and in addition in the mornings during the holidays and that further expenditure would arise from employing someone to bring the children to school. It was suggested that the costs involved would work out at 5 per hour and on this basis an estimate of a weekly cost of daily help was made at 162 per week. This was the figure for a loss based on current hourly rates. This figure must be reduced, to the hourly rates payable at the date of death. A reasonable discount would, it seems to me, result in a figure of 150 per week.
But I do not think that damages should be assessed on the basis of mutiplying 150 per week by the appropriate multiplier. In assessing damages account must be taken of the fact that services which a mother renders her children are different at different stages of their development. Obviously, the two dependants in this case will not require someone to take them to school when they are older, nor when they are teenagers will they require someone to be in attendance every afternoon when they return from school and every morning during the school holidays. It seems to me that the cost of replacing the services which they have lost will in fact be a reducing one over the years and that some discount for this fact should be given.
A further discount must be given because Mrs McDonagh was in full-time employment at the time of her death. In assessing damages under the present heading, account must be taken of the fact that the services which a mother in full-time employment gives her children must of necessity be less than that given by a mother who works full-time at home. This was the position in this case, as Mr McDonagh, who was unemployed during the whole of their marriage rendered services in the home which enabled his wife to go out to work. Such a discount is necessary in order to avoid double payment. The dependants here are obtaining damages for loss sustained because of their mothers full-time employment. They are not entitled in addition to damages based on the value of all the services which a mother working full-time at home would have rendered.
Assessment of damages in a case of this sort cannot be done with scientific accuracy. It is impossible to measure with exactitude the discounts which should be made under the headings I have mentioned. And a further discount must be made because of the possibility Mr McDonagh may remarry. In all the *848 circumstances I think a reasonable figure under this part of the claim is to allow one half of the figure of 150 per week to which I have referred to already. Based on the multiplier suggested by the actuary of 791 this gives a total loss of 59,325, say 60,000, to be divided equally between the two children.
I cannot in addition to this sum allow a claim for payment to the deceaseds sister-in-law, firstly, because no agreement that she would be paid has been established, and secondly, because to allow it would involve a double payment, as the damages for loss of services gratuitously rendered have been calculated from the date of death.
The final matter to be considered is the measure of damages for mental distress. Obviously the person who would have suffered the most mental distress in this case was Mr McDonagh but no claim for damages was made on his behalf because a wrongdoer is not entitled to benefit from his wrongdoing. The little girl Asling was too young, I think, to have suffered mental distress (whatever about emotional deprivation) by her mothers death but I am sure that her sister Ceire must have suffered greatly. I can assume that Mrs McDonaghs brothers and sisters must also have suffered mental distress but this would have been much less than that of her parents, Mr and Mrs Feeney. I propose to divide the figure of 7,500 in equal parts between her parents and Ceire.
Conclusion
The total of the sums which I have awarded comes to 106,147.35, made up as follows:
(a) Ceire
46,650.00
(b) Asling
48,070.00
(c) Mr McDonagh
4,277.35
(d) Mr Feeney
2,500.00
(e) Mrs Feeney
2,500.00
There will be a decree for this sum. I will direct that the awards in favour of Mr McDonagh and Mr and Mrs Feeney be paid to the plaintiffs solicitor on his undertaking to pay them to the persons entitled. I will order that the awards for Ceire and Asling be paid into court to the separate credit of each of them.
Doyle v Dunne
[2016] IESC 68
THE SUPREME COURT
Clarke J.
MacMenamin J.
Dunne J.
Charleton J.
O’Malley J.
Judgment of Ms. Justice O’Malley delivered the 17th day of November, 2016
Introduction
1. This judgment deals with a preliminary issue as to whether the plaintiff’s cause of action for damages for alleged medical negligence survived her death. Unfortunately, the plaintiff passed away after the High Court hearing, at which she was unsuccessful, but before the conclusion of the hearing of her appeal before the Supreme Court. It is asserted that, by virtue of the relevant common law rules, her cause of action survives for the benefit of the estate notwithstanding the provisions of the Civil Liability Act 1961, as amended. It is also argued that, in any event, the proceedings include a claim for pecuniary loss in respect of care provided to the plaintiff by her son, Mr. Edward Doyle and that this claim survived her death.
Background
2. At all material times the plaintiff lived in her family home with her son and his wife. The evidence was that Mr. Doyle acted as his mother’s fulltime carer and that she had relied on him since suffering from a brain haemorrhage in 1996.
3. On the 27th January, 2010, at the age of seventy-nine years, the plaintiff underwent surgery to remove a cataract from her left eye. Unfortunately the surgery was not a success, and post-operative complications necessitated removal of that eye on the 3rd February, 2010, in order to prevent damage to her right eye. She was fitted with a prosthetic eye. Further complications arose, requiring further interventions later in 2010 and in 2012. Her daily life was affected in that her independence was reduced, she was often depressed and she was reliant on family members for care.
4. The proceedings alleging negligence and breach of duty were initiated by way of personal injury summons issued on the 21st June, 2011. It was not alleged that the operation had been carried out negligently and in essence the plaintiff’s claim was that she had not given informed consent to the surgery and to the administration of a general anaesthetic. It was pleaded that she had been told that the surgery would only involve a 20 minute procedure, under local anaesthetic, as a day patient and that there was no risk attached to it. She would not have consented had she been made aware of the risks associated with the operation. It was alleged that she had signed the consent form in circumstances amounting to duress after she had been given medication and that she could not understand it.
5. No particulars of any financial loss were set out in the summons. A notice for particulars sent by the defendant, dated January 2012, requested confirmation that there was no claim for any items of special damage. In reply, the plaintiff’s solicitor stated that she had a medical card and that no claim was being made in respect of medical expenses.
6. By letter dated 31st October, 2012, and headed “Further Particulars of Injuries”, the plaintiff’s solicitor set out further details of the impact of her injury on her life. It was stated, inter alia, that she no longer cooked for herself. The letter contains the following paragraph upon which emphasis is now placed:
“The Plaintiff’s son has become her main carer. If he has to leave her for long periods, he ensures that a family member is present. Her judgment is poor due to her visual impairment i.e. she misplaces a cup when attempting to place it on a saucer. She spills liquids. She has burned her hands when putting fuel on the fire and also, when using the cooker. Therefore, she is not allowed to use the cooker or handle kettles of boiling water. Each morning the Plaintiff’s eye socket is congealed with blood and yellow matter. Her son has to remove the eye, cleanse the socket, administer eye drops etc. He has to repeat this procedure two to three times per day depending on the level of discharge from the socket. He also administers her medication, cooks her meals and generally looks after her.”
The High Court hearing
7. The matter came on for hearing on the 12th December, 2012. This Court is not, for present purposes, concerned with merits of the case as it ran in the High Court. It is however necessary to refer to certain aspects.
8. The plaintiff herself was not called to give evidence until the third day of the hearing. It quickly became apparent that there was an issue as to her capacity. As an example, she was under the impression that the operation had taken place in Tullamore rather than in Dublin. The trial judge adjourned the hearing until the 21st December, when he directed that the matter should proceed on the basis that she was a person of unsound mind not so found. The title of the proceedings was amended and the plaintiff’s son Mr. Doyle acted as the next friend. The hearing was then adjourned until the 26th March, 2013, when the defendant went into evidence. There was then a further adjournment for written and oral submissions and the hearing concluded on the 26th June, 2013.
9. It is also necessary to refer to a particular aspect of the evidence given by the plaintiff’s son, Mr. Doyle. He described the care he gave in respect of his mother’s prosthetic eye. He took it out twice a day, cleaned it and put it back. He also referred to the fact that it was too dangerous for her to make a cup of tea for herself, and said, in effect, that she had aged ten years as a consequence of what had happened to her.
10. The judgment of the High Court (De Valera J.) was delivered on the 20th December, 2013. It will suffice here to say that the trial judge held on the evidence that the requirements for disclosure of information to patients in elective surgery had been met. Though he sympathised with the plaintiff and with her son, and acknowledged the considerable impact on her life, he held that no liability could be attributed to the hospital. As a result the claim was dismissed.
11. The notice of appeal was lodged on 30th January, 2014, asking this court to set aside the judgment of the High Court and order a new trial on the issues in the High Court, or alternatively to enter judgment for the plaintiff and assess the damages.
12. On the 15th May, 2014, counsel applied in court for an early hearing date. The plaintiff was at that stage terminally ill with advanced pancreatic cancer, and the application for priority was based upon the opinion of her oncologist that she was unlikely to survive for a further two months and might not live that long. The appeal was therefore listed for hearing on the 3rd June, 2014. It was called on by counsel for one day but in the event did not conclude on the hearing date and was adjourned to the 31st July, 2014, for the completion of argument. Unfortunately the plaintiff passed away on the 11th July, 2014. On the date fixed for the resumption of the appeal, the Court was informed of this event.
13. There appears to have been an unfortunate misunderstanding as to what should happen next. The plaintiff’s representatives appear to have understood that the appeal on the substantive issue should continue and that the issue of the consequences of the plaintiff’s death would become relevant only if the Court decided to allow the appeal. The members of the Court appear to have had a different understanding, and on the 24th November, 2014, delivered a judgment in which the appeal was dismissed on the basis that because of the plaintiff’s death, and since (as the court saw it) the claim had been for general damages only, there was nothing by way of remedy or relief left in the claim for the Court to adjudicate upon or remit to the High Court.
14. This judgment was set aside on foot of a motion brought on behalf of the plaintiff, in which it was complained that counsel had been specifically directed not to address the question whether the action survived. It is relevant, for the purposes of the current issue, to note that the case was made in support of the application that, apart from the contention that the claim for general damages survived, there was a claim in respect of care services provided by Edward Doyle.
15. The plaintiff’s solicitor averred that before the High Court hearing he had obtained a report from a nursing consultant dealing with the valuation of those services, and that the paragraph in the letter of updated particulars quoted above came from that report. The nursing consultant valued the care services provided by Mr. Doyle between the 10th February, 2010, and the 25th May, 2012, at €89,902.40.
16. The solicitor deposed that it had been decided by senior counsel and himself not to call the author of the report, because the reality was that Mr. Doyle would continue to provide services to his mother.
“On that basis, the trial judge would make an award in respect of Mr. Doyle’s services necessitated by the injuries in issue as general damages for pecuniary loss. There would thus be a single award of general damages for both pecuniary and non-pecuniary loss.”
17. By order of this Court made on the 20th January, 2015, the judgment of November 2013 was set aside. The question as to the survival of the cause of action was set down to be determined as a preliminary issue, to be heard after the grant of probate was taken out and the proceedings reconstituted. That procedure having been carried out, the preliminary issue now comes before the Court for determination.
Section 7 of the Civil Liability Act, 1961
18. Insofar as is relevant, the section reads as follows:
(1) On the death of a person on or after the date of passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.
(2) Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness.
19. The “excepted” causes of action are set out in s. 6 and are not relevant here.
Consequences of the appellant’s death – submissions
The claim for general damages – the plaintiff’s submissions
20. On behalf of the appellant it is submitted that s. 7 of the Act is of relevance only where the cause of action would otherwise have abated on a plaintiff’s death by virtue of the common law principle actio personalis moritur cum persona. The contention is that in the instant case the cause of action survives under the relevant common law rules, and not by virtue of s.7(1), that the section therefore has no relevance and that the limitation on the recoverability of damages imposed by s.7(2) does not apply.
21. This submission is based on the proposition that an exception to the common law rule still exists. It is contended that this must be so, since, it is said, the causes of action set out in s.6 are still governed by the rule.
22. It is submitted that at common law, while an action in tort for damages for personal injuries generally abated on the plaintiff’s death, this rule did not apply if the case had been prosecuted to final judgment before the date of death. It is argued that, in this case, the High Court had entered a final judgment in the matter and the plaintiff’s appeal was in the course of being heard when she died. Reliance is placed in this respect on Alford v. Begg (1848) 12 Ir. L.R. 528 and Davoren v. Wootton [1900] 1 I.R. 273.
23. The very short report in Alford v. Begg at the reference cited records the fact that the matter came before the Court of Exchequer for argument on a bill of exceptions. The court was informed that one of the parties had died, and it was submitted that the suit had abated. Pennefather B. is reported as saying:
“I think that there being a verdict, and the hearing of the cause having been delayed by the act of the Court, the suit ought not to abate, unless some authority can be found for it.”
24. Pigot C.B. observed that no authority would be found, i.e. to support the contention that the suit had abated.
25. Reference is also made to Davoren v. Wootton [1900] 1 I.R. 273. In that case the defendants had been found by the court of trial to have fraudulently induced the plaintiff to acquire shares in a company. The court ordered them to pay a certain sum in damages, less the value of the shares, and an inquiry was directed to ascertain that value. The defendants appealed before that inquiry could take place. One of them died after the appeals were opened but before arguments had concluded. It was held by the Court of Appeal that the proceedings could not be continued against the personal representatives of that appellant. The damages were as yet unliquidated and unascertained, and it could not be shown on the facts of the case that the deceased’s estate had benefited from his wrongdoing. In those circumstances the action died with him.
26. The judgments expressly contrast this situation with that of a case where a claim for damages had been converted into a judgment debt. However, counsel argues that the point to be taken from it is that a final judgment in the court of trial prevents abatement.
27. According to counsel, it therefore matters not that the finding in the High Court was against the plaintiff in this case – what is relevant is that a final judgment has been entered. If it were otherwise, and a distinction were to be drawn between successful and unsuccessful plaintiffs after trial at first instance, it is said that an unsuccessful plaintiff’s constitutionally guaranteed right to appeal would be negated. Had the plaintiff succeeded in the High Court, her cause of action would have been translated into a judgment debt. If she had then appealed the adequacy of the award, the judgment debt would have been unaffected by her death. It is argued that she was unsuccessful at trial because of an error by the trial judge. It is therefore claimed that it would be unjust to deprive her of the judgment that she should have obtained and to relieve the defendant of responsibility for his culpable actions.
28. Reference is made to criticisms of the general common law rule in McMahon & Binchy, Law of Torts, (4th ed.). At p. 1483 the authors pose the questions whether, where one of the parties to an existing tort dispute dies, the right to sue or be sued survives for, or against, the estate.
“The common law answer to [that] question was contained in the Latin maxim actio personalis moritur cum persona. Death ended all actions in personal torts. The exact reasons for this rule are rather obscure and the rule is difficult to justify when it is appreciated that contract actions (except in relation to personal contracts) survived for or against the estate of the deceased. It has been suggested that the late development of the tort remedy as an incident to criminal punishment in the old appeal of felony and trespass which followed it meant that, when the deceased died, criminal punishment on his or her person being no longer possible, the criminal action fell and the tort action abated with it.
In any event, whatever its origins and its rationale, some major statutory exceptions were made to the rule, the principal ones being contained in old statutes of 1285 and 1330 (applied to Ireland by Poynings’ Law 1495), and in s 31 of the Debtors’ (Ireland) Act 1840. These enactments provided the personal representatives of the deceased with an action in respect of the trespass to real or personal property of the deceased committed during the deceased’s lifetime. Other more recent exceptions were to be found in s 117 of the Road Traffic Act 1961 (in relation to personal liability for negligent driving), in s 23 of Air Navigation and Transport Act 1936 (in respect of damage caused by aircraft to persons or property) and in s 6 of the Fatal Injuries Act 1956.”
29. Counsel submits that this court should not “extend” a rule of abatement which derived from the view that a tort action was in the nature of a personal “vendetta”.
30. It is further submitted that if the court were to depart from the rule applied in Alford v. Begg injured persons would run the risk that their right to damages could be arbitrarily curtailed as a result of delay in the judicial process. It is argued that there was “indefensible” judicial delay in this case, and that the State would have to be found to be in breach of Article 6 of the European Convention on Human Rights if that delay was found to entail the loss of the plaintiff’s claim for general damages. This complaint is based on the fact that, firstly, the High Court judgment was given nearly a year after the first hearing date, in circumstances where the trial judge knew that the plaintiff was physically and mentally infirm. Secondly, the appeal hearing did not conclude within the two months predicted by the oncologist as being the outermost expected survival time of the appellant.
The claim for general damages – the defendant’s submissions
31. The defendant submits that s.7 of the Act of 1961 replaced the maxim actio personalis moritur cum persona and that there is therefore no legal basis for disapplying s.7(2).
32. Referring to the passage from McMahon & Binchy cited above, the defendant points out that it is immediately followed by a paragraph headed “The Present Law”, which reads as follows:
“The law on this matter was amended and consolidated in the Civil Liability Act 1961 (ss 6 – 10). The general rule now is that all causes of action (other than ‘excepted causes of action’ within the meaning of the 1961 Act) vested in a deceased person or subsisting against him or her, survive for the benefit of, or against, the deceased person’s estate as the case may be…
Where a person dies, however, and a cause of action vested in that person survives for the benefit of his or her estate, the damages recoverable in such an action cannot include damages for purely ‘personal’ loss. Accordingly, exemplary damages, damages for any pain and suffering or personal injury or for loss or diminution of expectation of life or happiness are irrecoverable in any such action.”
33. Quite apart from the legislative provisions, the relevance of Alford v. Begg is disputed on the basis that it was not a personal injuries claim but, as is clear from a report of an earlier ruling in the case at (1847) 10 Ir. Law Rep. 104, concerned a claim in respect of work carried out pursuant to a building contract. Contract claims had never been subject to the general common law rule applicable to personal injuries.
34. The defendant says that no injustice is caused by the exclusion of damages for pain and suffering after the death of a plaintiff. Section 7 is designed, it is argued, to uphold the compensatory nature of damages for personal injuries and not to afford a windfall to the personal representatives in the event of death. It is agreed that if a plaintiff wins in the High Court there will be a judgment debt that the estate can enforce, but in this case there has been no award. Damages for pain and suffering cannot be awarded other than to the person who has undergone that pain and suffering.
35. The defendant points out that the proceedings have been reconstituted for the benefit of the estate. Section 48 of the Succession Act 1965 enables a personal representative to sue, for the benefit of the estate, in respect of causes of action which survive by virtue of s.7 of the Civil Liability Act. In those circumstances reliance cannot be placed on the alleged survival of the common law exception.
The claim for pecuniary loss – the plaintiff’s submissions
36. The plaintiff makes an alternative argument to the effect that if the main action was not saved by the common law rules, there is nonetheless a viable claim in these proceedings for pecuniary loss. While s.7(1) would bar the recovery of damages for pain and suffering, the estate would be entitled to the benefit of damages in respect of the services provided to the plaintiff by her son. An award under this heading would not relate to special damages awarded on foot of expenses actually incurred, and would not require to be specifically pleaded as such. It would, rather, be similar to an award for loss of employment opportunity, to be dealt with by way of a lump sum in general damages. Nonetheless it would be in respect of pecuniary loss and not for any of the matters excluded by s.7(2). The entitlement to damages under this heading ran up to the date of the plaintiff’s death.
37. It is submitted, by reference to the letter providing updated particulars quoted at paragraph 6 above, that this claim was pleaded “in detail”. It is further argued that it was supported by the unchallenged evidence of Mr. Doyle. Counsel says that the focus of any debate in the High Court hearing was on liability. He accepts that a claim in respect of care was not referred to in his opening, but maintains that he had understood that the trial judge would read the pleadings and realise that there was such a claim.
The claim for pecuniary loss – the defendant’s submissions
38. The defendant accepts that it is possible for a plaintiff to maintain a claim in respect of care provided by a family member, and also that where a claim of this nature is made it would survive the death of the plaintiff, but submits that no indication of such a claim was given to either the defendant, in advance of the hearing, or to the High Court. The trial judge was never told that he was being asked to include it in a lump sum award. Counsel points to an exchange recorded on Day 3 of the hearing, in which the trial judge commented, without contradiction, that there had been no evidence of special damage.
39. The defendant says that if he had been aware of such a claim it would have been investigated. Claims in respect of care are normally valued by reference to the cost of nursing care, and in any event some figure must be specified. The opportunity to look into the claim is now gone. It is argued that while it was apparent from Mr. Doyle’s evidence that he had cared for his mother since 1996, he gave no evidence by which the hours of care given by him after the operation in 2010 could be quantified or valued.
40. In respect of the allegation by the plaintiff that there has been judicial delay in both the High Court and the Supreme Court, the defendant says that the adjournments in the case in the High Court were necessitated by the way in which the plaintiff’s case was conducted. Specifically, it is said that the evidence of the plaintiff, not called until the third day of the hearing, made it apparent that she could not have been in a position to give instructions to her legal representatives and required an adjournment for the purpose of considering wardship proceedings. The appeal hearing in this court had to be adjourned because the oral submissions on behalf of the plaintiff took longer than predicted by counsel.
Discussion and conclusions
41. It seems to me that the case made on behalf of the plaintiff depends upon a finding, firstly, that the legislature did not intend, or did not succeed in, sweeping away the rule represented by the maxim actio personalis moritur cum persona, and that some aspect of the exception to that rule survives; and secondly, that if necessary that exception should, as a matter of constitutional fairness, be extended to cover personal injury actions.
42. I find it impossible to accept the contention that vestiges of the common law rule on abatement in tort actions have survived the enactment of s.7 of the Civil Liability Act 1961. The section expressly refers to “all” causes of action other than those specifically excluded. A personal injuries action does not fall into the excluded category. The position therefore is that such an action now survives, by virtue of the section, where it would have abated prior to the legislation.
43. The argument made is that in this particular case the action would have survived in any event because of the fact that there had been a final order in the High Court. I think that this argument is based on a misunderstanding of Alford v. Begg. Quite apart from the fact that it was not a personal injuries action, the point was that a successful plaintiff had an award of damages that could be enforced as a judgment debt, without reference to the original basis for the claim. The wrong done by the defendant had been measured in money terms and the money could be recovered.
44. Where, by contrast, a plaintiff has been unsuccessful at first instance he or she is in fact in a weaker position than a plaintiff whose case has yet to be heard. An appeal from the High Court is not a de novo hearing, and the appellant has to establish error on the part of the trial judge. There is no enforceable judgment in his or her favour. I do not see that this creates an unconstitutional unfairness or discrimination as between plaintiffs. It has been submitted that unfairness arises where the estate could establish that the failure in the High Court was due to an error by the trial judge. By this logic the estate of a plaintiff whose case had not been heard could argue that it would have succeeded had it been heard before the plaintiff’s death. The intention of the Oireachtas is clear in this regard – a claim for general damages for pain and suffering may not be maintained after the death of the person who sought compensation for that pain and suffering. The beneficiaries of the estate cannot complain that they have been unfairly denied compensation for the suffering of another individual.
45. I do not accept that delay within the judicial system has brought about this situation in the instant case. There has been no complaint in relation to pre-trial delay. The initial hearing was within two months of the updated letter for particulars, which presumably marked the point at which the case was ready to go on. By the time of the hearing, it must have been apparent to the plaintiff’s representatives that there was a difficulty in terms of her ability to give evidence, and it is not surprising that when she was eventually called on the third day her evidence was such as to necessitate an adjournment to consider how to proceed. No indication of any problem had been given to the court before that. Nor is it surprising that judgment was ultimately reserved. It is not suggested that any representation was made to the trial judge that the plaintiff’s state of health at that stage was such as to require an expedited judgment.
46. When the application for priority was made in this court the plaintiff was undoubtedly very ill. It was acknowledged that it was an appropriate case for priority and a hearing date was set for three weeks later. It was counsel for the plaintiff who estimated that the matter would take one day. That turned out to be incorrect. The adjourned hearing date was set for the last day of that legal term which, again, was a priority listing. In those circumstances it is unreal to suggest that the court system is somehow to blame for the fact that the matter was not finalised before the plaintiff’s death.
47. As far as the potential claim in respect of the care services provided by Mr. Edward Doyle is concerned, I am forced to conclude that the defendant is entitled to say that it was never properly constituted. Such a claim may be maintained but it must be notified to the defendant and to the court. I do not regard the letter of updated particulars as sufficient in this regard. It is clear that this aspect of the case was never specifically referred to in the High Court.
48. The evidence of Mr. Doyle certainly established that he was caring for his mother and that she required such care. However, given that he had been providing some level of care since her stroke in 1996 it would have been necessary to go into a degree of detail as to the time he spent with her, and how that time had increased after the operation.
49. If counsel thought that the claim had been sufficiently pleaded, and that the trial judge was in error in making the comment that there was no claim for special damages, that was the time to draw it to his attention. An assumption that it would be taken into account in a general award of damages was not a safe way to proceed in a case where liability was very much in issue.
50. In those circumstances I would determine the preliminary issue in favour of the defendant.