Fatal Injury Claims
Civil Liability Act 1961
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
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.
…
C6
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. ]
C7
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.
C8
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.
Annotations:
Editorial Notes:
E2
In the printed version of the Act the full stop in the side note is placed after the word “pro
Fatal Injuries
Annotations:
Modifications (not altering text):
C19
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):
C20
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.
C21
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.
…
C22
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. ]
C23
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.
…
C24
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):
C25
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):
C26
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
McCarthy v. Walsh
[1965] IR 246 O’Dalaigh CJ. Supreme Court
This appeal arises in proceedings under Part IV of the Civil Liability Act, 1961, which replaces, with amendment, the provisions of the Fatal Injuries Act, 1956: see s. 5 and Schedule, Part V, item 2.
The plaintiff, as personal representative and father of Mary Margaret Patricia McCarthy, deceased, brought the action as such personal representative on his own behalf and for and on behalf of his wife, the deceased’s mother, and the deceased’s seven infant brothers and sisters, all of whom,
it was alleged, were dependants of the deceased at the date of her death.
The deceased, who was aged 16 years, was a shop assistant earning £2 10s. 0d. per week out of which she contributed £2 5s. 0d. to her mother for the household budget. Her death was caused by her being knocked from her bicycle by the defendant’s motor car. The jury found both the defendant and deceased negligent, the former 90 per cent and the latter 10 per cent. The plaintiff and his wife were found to be the only dependants, and the damages were assessed at £1,027 15s. 10d. of which £367 15s. 10d. was allocated to the plaintiff and £660 to his wife. Subsequently the trial Judge, pursuant to the statute, fixed damages for mental distress for the plaintiff and his wife in the sum of £150 each, making a total verdict of £1,327 15s. 10d., but an actual verdict of £1,195. There was a sum of £1,251 lodged in Court with the defendant’s defence, and accordingly judgment was entered for the defendant as from the date of lodgment.
In considering the question of mental distress the trial Judge ruled that the infant plaintiffs were not entitled to damages for mental distress as they had not recovered damages for “injury.”
Sect. 47, sub-s. 1, defines the terms, “dependant” and”member of the family.” “Dependant” means any member of the family of the deceased who suffers injury or mental distress. “Member of the family” means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister. Sect. 48, sub-s. 1, creates the cause of action in these words:”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.” Sect. 49 then provides what the damages under s. 48 are to be. It will be enough to cite the first three paragraphs, (a), (b), (c), of sub-s. 1 of s. 49:
“(1) (a) The damages under section 48 shall be
(i) the total of such amounts (if any) as the jury or the judge, as the case may be, 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 sub-paragraph (ii) of paragraph (a) of this subsection shall not exceed one thousand pounds.
(c) Each amount awarded by virtue of paragraph (a)of this subsection shall be indicated separately in the award.”
The trial Judge began his judgment by observing that he thought it was fair to say that it is probable that each member of the family would suffer mental distress to a greater or less extent, and that if the Legislature took this view and intended that each member of the family should get damages for mental distress resulting from the death it would have been simple to have provided that damages for mental distress should be awarded to each member of the family. That course, he said, was not adopted and that in itself suggested to him that it was not intended that each member of the family who suffered mental distress should benefit. He pointed out that the words, “such dependants,” in sub-para. (ii) were intended to indicate the dependants referred to in sub-para. (i). These dependants are the “dependants . . . for whom or on whose behalf the action is brought.” The Judge considered that the words following the word, “dependants,” did not add anything to the meaning of the word, “dependants”:and that as a matter of construction it must be assumed some purpose lay behind their use and that they were not tautological. He concluded that the words effected a limitation and referred to the class of persons who were alleged to have suffered and did in fact suffer “injury resulting from the death.”
On that basis he held that damages for mental distress were intended to be additional to the damages which a Court could award under earlier legislation, that is to say, damages for “injury.” Moreover, he was of opinion that the conjunction,”and,” linking sub-paras. (i) and (ii), supported this view. Finally, he observed that the only support for the construction contended for by plaintiff’s counsel was the word, “or,” in the definition of “dependants” in s. 47, but only, as he said, if the word, “or,” was to be read disjunctively. He held that it was also possible to read the word
conjunctively, and he concluded that for the harmonious interpretation of Part IV it should be so read.
The appellant has submitted that the Judge has misconstrued the Act, and that the clear effect of the definition of”dependant” in s. 47, read with ss. 48 and 49, is to confer a right to damages on a member of the family who has suffered mental distress even though no “injury” has been suffered. The respondent has not sought to support the Judge’s view that the word, “or,” in the definition section (s. 47) is to be construed as “and,” but he has submitted that the words, “such dependants,” in sub-para. (ii) of of s. 49, sub-s. 1 (a), do limit the right to compensation for mental distress to dependants who have had an award of compensation for “injury” under sub-para. (i).
As has been pointed out, Part IV of the Act of 1961 is a re-enactment of the provisions of ss. 2, 3, and 4 of the Fatal Injuries Act, 1956, with amendments. It is these amendments which have caused the difficulty. The words, “or mental distress,” in the definition of “dependant” in s. 47, sub-s. 1, of the Act of 1961 are new. (The substitution of “injury”for “loss” is of no importance). Paragraph (i) of s. 49, sub-s. 1 (a), of the Act of 1961 is in effect1 a re-enactment of s. 4, sub-s. 1, of the Act of 1956 with the not insignificant addition of the words, “if any,” after the word, “amounts.”Sub-paragraph (ii) is, of course, new. It will be noted that s. 4, sub-s. 1, of the Act of 1956 had after the word, “dependants,”the clause, “for whom or on whose behalf the action is brought.” The clause served no particular purpose in s. 4, sub-s. 1, of the Act of 1956: a dependant was a member of the family who had suffered “loss” and, as in the Act of 1961 (s. 48, sub-s. 4), the action was required to be brought for the benefit of all the dependants (s. 3, sub-s. 4, of the Act of 1956). What was the need to add this clause? The answer is, the clause is unnecessary. If we are to seek a reason for its existence the probable explanation is that originally the draftsman transcribed it, with modification, from s. 2 of the Fatal Accidents Act, 1846. The clause was there needed and served a purpose. The Act of 1846 did not use the term,”dependants.” Sect. 2, as far as relevant, reads:”Every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such
death to the parties respectively for whom and for whose benefitsuch action shall be brought.”
The amending Act of 1864 (27 & 28 Vict., c. 95) allowed the action to be brought by all or any one of the persons for whose benefit the action would formerly have been brought by the personal representative where no representation was raised within six months of the death.
In any event, whatever its origin, the clause, “for whom or on whose behalf the action is brought,” following “dependants”does not operate to cut down in any way the definition of the term, “dependant.” The action must be brought for the benefit of all the dependants: s. 48, sub-s. 4. The clause could be done without, but its insertion does nothing to alter the meaning of the term, “dependants.” The “such dependants”in sub-para. (ii) does no more than to hark back to sub-para. (i); again, one can say the word, “such,” adds nothing and alters nothing.
Sub-paragraph (i), far from purporting to say that dependants must recover under it, that is to say, in respect of”injury,” acknowledges with the words, “if any,” following the words, “the total of such amounts,” the possibility of there being a nil award under the sub-paragraph. The words,”if any,” are new; and they are appropriate, looking to the terms of the definition in s. 47; although I may say that I cannot see that their absence would make any difference to the construction. It has been pointed out that damages for mental distress is a new head of damage in actions arising out of fatal injuries. If it were merely a head of damage to be added only in the case of those dependants who suffered”injury” (or “loss”), as the respondent contended, no alteration was needed in the definition of “dependant.” It would have sufficed to have added sub-para. (ii) without more. Further, the view accepted in the High Court that”or” may be read as “and,” while surprising, has also the effect that an action by a person who would have been entitled to recover under the Act of 1956 and the original Act in respect of loss of financial benefit would now fail if he or she were unable to establish “mental distress.” The judgment in the High Court having begun (as has been noted) by observing that it was probable that every member of the family of the deceased would suffer mental distress to a greater or less extent, proceeds later on the basis that mental distress could be established by every member of the family. This is not necessarily so. Grand-children may be wholly unknown to grand-parents; step-children may not know their stepfather, half-sisters may be wholly unacquainted. Even close relatives may quarrel bitterly and their affections turn
to hate. All this is regrettable but true. Its only relevance here is to point out that a member of the family is far from being necessarily synonymous with a member of a family who suffers mental distress; and it is by making this equation, as it seems to me, the judgment of the High Court is in error.
It is unnecessary in this case to examine the unusual circumstances in which Courts have considered themselves justified in reading “or” as being used conjunctively. Whenever such a construction is adopted it involves violence being done to the language which only a compelling context can justify. It is enough that in the case under consideration there is no such justification; but, on the contrary, the context here fully accords with “or” being given its ordinary disjunctive meaning.
For the reasons I have given, at too great length as I now feel, I am of opinion that the infant brothers and sisters of the deceased are entitled to recover compensation for mental distress resulting from the deceased’s death.
The picture of the deceased’s family as presented in the evidence, though not very detailed, is nevertheless sufficient to allow this Court to assess compensation.
The deceased’s father is a station foreman in the employment of Córas Iompair Éireann , earning £9 15s. 0d. per week.
The eldest child, Eileen, was aged 18 at the date of the deceased’s death; she worked in a bacon factory. The deceased (aged 16) came next in the family. The other children in descending order of age were Elizabeth (14), John (121/2), Denis (111/2), Michael (10), Anne (5) and Anthony (4). The family, in the words of the deceased’s mother, was very united and very happy; and the brothers and sisters”missed the deceased.” In my opinion it would be a modest assessment to allow a sum of £200 for mental distress among the 7 children. The two eldest surviving children were closest in age to the deceased and I think they should be allocated half of the sum of £200, to be shared equally, £50 each. The balance of £100 I would allocate as to £75 equally between John, Denis and Michael, £25 each; and as to the balance £25 equally between the two youngest, £12 10s. 0d. each.
The plaintiff has also contended that the allocation by the trial Judge of £150 each to himself and his wife for damages for mental distress is inadequate. The figure requires considerable adjustment in the light of what I consider reasonable in the case of the children. I would allow the parents a total of £500, dividing the compensation equally, as the trial Judge did, and awarding £250 each.
The test to be applied in assessing damages for mental
distress is that they shall be reasonable. This test does not differ from the test to be applied in the other branch of the casethat of reasonableness. The term, “reasonable,”is not to be equated with moderate or small. “Reasonable”is what is fair in the circumstances of the case. This precludes the damages being measured by reference to an imagined worse case, fixing damages for such case at the statutory limit of £1,000 and then measuring all other cases by reference to that case. The statutory limit of £1,000 is a limit on what may be recovered. It is not a limit on what is reasonable. If reasonable damages for mental distress exceed £1,000 then the figure must be reduced to the statutory maximum and if there are two or more dependants their damages will abate proportionately. Here, as the award of £700 does not reach the maximum there is no adjustment to be effected.
It will be apparent that the new allowances must suffer a diminution of 10 per cent in view of the jury’s finding of 10 per cent fault on the part of the deceased in contributing to the accident.
In the result this appeal will be allowed and judgment will be entered for the plaintiff.
LAVERY J. :
I agree with the judgment of the Chief Justice.
I wish to add a few words on the measure of damages. Sect. 49, sub-s. 1 (a) (ii), provides that the judge shall “consider reasonable compensation for mental distress resulting from the death.”
Obviously it is difficult to translate mental distress into money values. But this is not a new problem in principle.
The same difficulty arises where damages for pain and suffering have to be assessed and in innumerable other cases damages are equally difficult to assess.
All damages are to be assessed on a reasonable basis. The word, “moderate,” has been used in argument but this does not help. The word is not used in the statute and all damages are to be assessed moderately and not immoderately.
In my opinion the judge uses his discretion in fixing reasonable damages. He is fairly at large.
Sect. 49, sub-s. 1 (b), provides that the total amounts awarded shall not exceed £1,000. This is arbitrary, but it may perhaps be regarded as an indication by the Legislature of what it considered reasonable.
There will, however, be cases where such a sum could not be regarded as reasonable. I instance the case of a wife,
widowed by the tragic death of her husband, who suffers a mental breakdown in consequence. Such a case is not farfetched.
Perhaps a judge might consider £5,000 reasonable compensation in such a case. He assesses this sum and then faces the application of the overriding maximum. The statute here involves a contradiction which the judge must resolve as best he can.
If there is only the widow concerned he awards her £1,000. If there are others to be considered he might take the course of scaling down all his assessments in proportion so that the total shall not exceed £1,000. The Chief Justice has indicated that this in his view is the course the judge should take. I agree this would normally be the proper course but I can visualise exceptional cases where a different course might be appropriate.
In the present case this problem does not arise.
I have only ventured these observations because we were told that the judges of the High Court felt difficulties in the application of the section which is certainly understandable.
Whether what the Chief Justice and I have said will be of any help to them, I cannot say. It does not bind them.
HAUGH J. :
I agree with the judgment of the Chief Justice.
WALSH J.:
I agree with the judgment of the Chief Justice.
O’KEEFFE J. :
I agree with the judgment of the Chief Justice.
Downing v. O’Flynn
[2000] 4 IR 383 Supreme Court
This appeal raises an issue of law. The question for the court is whether a claim for loss of dependency may be successful on undeclared income, whether such a claim is contrary to public policy. This is an appeal by the defendant against the order and judgment of the High Court (McGuinness J.) delivered on the 5th May, 1999. The plaintiff is the administrator of the estate of Patrick Paul Downing (known as Paul Downing) who died intestate on the 28th May, 1995. The plaintiff brought this action on his own behalf and on behalf of all the dependants of the deceased.
On the 28th May, 1995, Paul Downing was a passenger in a car driven by the defendant which collided with a tree on the boundary of a road as a consequence of which he was injured and as a result of which he died. The dependants of the deceased are Maureen Downing, mother; John Downing, brother; Joseph Downing, brother; Caroline Downing, sister; Clodagh Downing, sister and Katie Halpin to whom the deceased was in loco parentis.
Liability was not in issue. It was accepted that the accident and the death of the deceased were caused by the negligence of the defendant in the driving of his motor vehicle. The case proceeded as an assessment of damages only. The High Court ordered that the plaintiff recover against the defendant the sum of £56,862.50 and the costs of the action when taxed and ascertained. The sum of £56,862.50 was ordered to be apportioned among the dependants of the deceased as follows:-
To Maureen Downing (mother of the deceased)
In lieu of support
Special damages
Distress and suffering
Total
£10,000.00
£10,000.00
£ 7,500.00
£27,500.00
To Katie Halpin (a minor to whom the deceased acted inloco parentis)
£29,362.50
As to the sums to be paid to the mother, McGuinness J. held:-
“As far as the money for distress and suffering is involved (the £7,500 which is the maximum allowable), it has been agreed and generously agreed by the deceased’s siblings that that should go to his mother and I think that is indeed a fair decision. The deceased appears to have also given support both in cash and in kind to his mother. She says in or about £1,000 per year and according to Mr. Tennant, if that continued up to a possible marriage date it would amount to £11,094.
Mrs. Downing senior says that her son said he would never marry and that he would continue to look after her and Katie. On the other hand people often say that kind of thing. He was a young man, he might very well have developed another relationship so that I am not really prepared to make an assumption that he would never have married. Also, I have to take into account in that context that it was not a sort of regular payment of the type that was made to Ms. Halpin. I think that if I award a sum of £10,000 to the mother in lieu of support that that is a fair enough amount to deal with what support she was getting from her son.”
On the issue of the payment to the child’s mother, McGuinness J. found:-
“Ms. Halpin’s evidence is that he regularly gave her a sum of £150.00 per week towards the family in general.
There is no evidence to contradict what Ms. Halpin says other than the query thrown on it by the defence on account of the income which shows up in the accounts which Mr. O’Donnell gave evidence about. Mr. O’Donnell himself specifically admits that these accounts were not complete and this would be a fairly common experience, I would think, in a small retail business like this, that the accounts are not all that terribly reliable. Indeed, it is not unknown, I am sure to counsel on all sides, for money in this type of small business to be extracted from the till in cash which does not always go accurately through the accounts and this I think is what counsel for the plaintiff was suggesting.
I feel that on the evidence that must have happened to some extent as Ms. Halpin says that there was never any shortage of money and while, obviously she is not talking in terms of enormous sums of money at all, as she says, a £150 a week seems good money to her but also that the deceased gave her extra, bought extra for the family and so on. I think I must accept that there was a contribution of £150per week for the family.
At times Ms. Halpin also had lone parents allowance or made some increment from working herself. She says that of that £150, £50 to £100 per week was spent on Katie and this does seem to me to be somewhat high since there were four people in the household €¦ I think it would be fair to assume that one quarter should be attributed to Katie rather than more than that.
It seems to me that the fairest thing is to divide the £150per week by four as there were four people in the household and that leaves a sum of £37.50 a week for Katie. I also feel that on Mr. Tennant’s evidence, the actuarial evidence, that it is perhaps going somewhat far as to knowing the uncertainties of life to attribute maintenance right up to the 22nd birthday and I think maintenance up to 18 years old is fair enough. The multiplier in that case would be £783 and the total of that would be £29,362.50.”
Against that judgment the defendant appealed. The notice of appeal set out the following grounds:-
“1. That the learned trial judge erred in law and in fact in holding that there were sufficient funds whereby the deceased (Patrick Paul Downing) could draw funds from his business for the support and maintenance of dependants to the level claimed.
2. That the finding by the learned trial judge that the deceased took monies from the till for the maintenance and support of dependants was against the evidence and that she erred in law in so holding.
3. That the finding by the learned trial judge was against public policy and unsound in law.
4. That the finding by the learned trial judge was against the evidence and the weight of the evidence.
5. That the totality of the award in the sum of £56,862.50 was excessive and exorbitant and against the evidence and the weight of the evidence in all the circumstances.”
Submissions
The appeal proceeded on a single issue. On this matter being opened in the Supreme Court, counsel for the defendant, said that there was one issue for the court and that was whether a claim for loss of dependency can be successful when based on undeclared income. He referred to Fitzpatrick v. Furey (Unreported, High Court, Laffoy J., 12th June, 1998). In the instant case, referring to the evidence of the accountant, it was submitted that on that evidence the gross profit was £12,000, on which income tax would be £3,000 and a possible P.R.S.I. liability of £1,000. Thus, the disposable net income was either £9,000 or £8,000per year depending on whether or not the P.R.S.I. was deducted. This was a sum of either £173 or £153per week. The claim on behalf of the dependants was that the deceased gave Ms. Halpin £150per week. It was submitted that that would leave the deceased with either £23 or £3 per week to support himself.
Counsel submitted that Ms. Halpin received £150per week from money on which tax was not paid. Thus, a public policy issue arose. The £150per week was paid out of untaxed income and thus the claim for loss was tainted and the court should not support it. Counsel argued, on behalf of the defendant, that in considering a claim for loss of dependency it is contrary to public policy to take into consideration income that has not been taxed.
In the alternative it was submitted that compensation should be based on the net income the deceased would have received if he had paid tax. Counsel conceded that £150 had been paidper week to Ms. Halpin but argued that it had not been £150 net of tax, that in considering a payment on a loss of dependency it must be from a net income. In this case there was no evidence of net disposable income. If the starting block of funds for calculating the sum is not net of tax it is an inappropriate basis for calculating a dependency figure. The figure of £150 in this case is not net disposable income and so it is an inappropriate figure on which to base dependency figures.
Counsel asked the court to adjudicate a method for assessing loss of dependency when there had been a failure to pay tax or where a sum was not net of tax.
Counsel for the plaintiff submitted that Fitzpatrick v. Furey (Unreported, High Court, Laffoy J., 12th June, 1998) does not govern this case. He argued that there had been an incorrect assumption on behalf of the defendant that the accounts as given to the court: (i) were the complete picture, and (ii) would have been the basis for a fraudulent taxation declaration. The Revenue Commissions had agreed a nil liability in this case. It was submitted that the accounts which show a net profit of £12,000 were not the full picture. It was submitted that the court must assume that if he had survived, the deceased would have made full accounts and declarations. The fact that he may have taken cash from the till is not unlawful in itself, his obligation was to account to the Revenue. It was a thriving business. It was submitted that even if the £150 per week paid to Ms. Halpin was not recorded that is not important; the accounts were not accounts prepared for the Revenue with the purpose of defrauding the Revenue. It was submitted that to base the appeal on the book of accounts is not valid. There is no suggestion that had the deceased made a settlement with the Revenue that he would not still have paid Ms. Halpin £150per week. He agreed that it might be implied in the High Court judgment that the learned trial judge assumed it was untaxed income. That is a possible inference. Counsel submitted that even if it is accepted that it is a small business which would only give £8,000 off the top the future must be considered. It was open to the learned trial judge to accept future improvement would continue and that £150 would continue to be paid even if the deceased paid tax. He submitted that the judgment of the learned trial judge should stand.
The accounts
The accounts in this case were not accounts which had been prepared by the deceased.
The situation is described in the evidence given on the 5th May, 1999, in the High Court by Mr. Gerard O’Donnell as follows:-
“215 Q. I think you were not Mr. Downing’s accountant prior to his death, is that correct?
A. That is correct.
216 Q. You were engaged by his solicitor, Mr. Foley, to do the best you can in relation to what records were available to you in relation to his accounts in the three years prior to his death, is that correct?
A. That would be correct, yes.
217 Q. I think are you aware that, if I may lead you on this, that his solicitor Mr. Foley had agreed previous to your engagement with the Revenue, a nil liability for Paul’s €¦ (interjection).
A. Yes, Mr. Foley informed me of that, yes.
218 Q. Revenue position. Had he got full books and accounts?
A. He did have books but they were not complete.
219 Q. You obviously were not able to discuss with him, what did you base your accounts on?
A. I based the accounts on the records which I had.
220 Q. Which you had, yes?
A. I also had to make some estimates in order to produce the accounts.
221 Q. In now doing that you prepared and I will hand that in to your Lordship, books of accounts for the years ending December, 1992, 1993 and 1994, is that correct?
A. That is correct, yes.
222 Q. Taking one year with another, first of all, how was the business according to the books that you had in that period?
A. According to the books which I had taking 1993 with 1994 the turnover, what he actually took in sales, increased.
223 Q. What sales have you got for 1993?
A. £186,296
224 Q. Yes and 1994?
A. £208,328
225 Q. Of sales, yes?
A. Yes
226 Q. What drawings could you find from the books?
A. Drawings, the figure for 1993 amounted to £13,422 and for 1994 amounted to £17,790.
227 Q. If Ms. Halpin is correct that she was getting £150per week from Paul, is that reflected in the books that you were able to find?
A. I wasn’t aware of any such figure, the drawings could have been used for any of his personal living expenses.”
On cross-examination it was stated:-
“A. The profit figure, for the last two years approximately £12,000
234 Q. What does that come out on a weekly basis?
A. £230.70
235 Q. Does that figure take into account the tax liability?
A. No, it does not.
236 Q. What would the tax liability be on £12,000.
A. Tax and P.R.S.I. would be approximately £3,000 for the 1993/1994 tax year.”
There was evidence regarding a further liability to tax of £1,000 for that year. In discussing the net profit it was queried whether that would bring the net profit down to £8,000 a year. The evidence followed that:-
“252 Q. That would bring it down to £8,000, would it not?
A. If you deducted his own personal liability of 3 [sic] and if you assumed that there was a liability of £1,000 then it would bring it down to approximately £8,000, yes.
253 Q. In those circumstances where he was living in circumstances where he was maintaining two residences and living apart, if he was paying £150 a week to Ms. Halpin there would be little or nothing left for him would there?
A. Based on those accounts that is correct, yes.
254 Q. Would there be anything left for him?
A. There would be very little.
255 Q. How much?
A. If we divide the £8,000 by 52, that is £153per week.
256 Q. That would be £3 a week left for him?
A. Based on those accounts, yes.
257 Q. Because as night follows day if this tragic accident hadn’t happened, the tax liability would have caught up on him, would it not?
A. It is likely that it would have, yes.
258 Q. More likely than not I suggest?
A. Yes.”
Decision
The circumstances of this case are tragic. The deceased was born in 1965 and was killed in a road traffic accident in 1995. He was a young entrepreneur who had worked as an assistant manager in a supermarket and then decided to set up a fruit and vegetable door to door round. This was successful and he moved on to taking a shop in a shopping centre in Limerick City and commencing business there. The business progressed successfully. However, he had not prepared formal accounts or made a declaration for tax from this business at the time of his death.
Arising out of his death this dependency action was taken. The deceased had been helping his mother by giving her support valued at approximately £1,000per annum. He had also been giving £150 each week to Ms. Halpin. Ms. Halpin’s household consisted of herself, her two children, and Katie to whom the deceased acted inloco parentis. It is these sums which, with other matters, were the basis for the High Court ruling of £56,862.50.
A legal matter arises for determination because of the fact that the deceased had no formal accounts, nor had he made returns to the tax authorities nor had he paid tax. The issue for determination is whether a claim for dependency may be successful on undeclared income. Further, if it may be successful what method of adjudication should there be for assessing loss of dependency when there has been a failure to pay tax? On what should the compensation be based?
Income not illegally obtained
The income of the deceased was not obtained illegally. Thus, the circumstances of this case are not similar to Burns v. Edman [1970] 2 Q.B. 541. In that case the plaintiff’s husband had been killed in a motor accident. Home Office records disclosed that he had received two prison sentences, one for robbery and another for being an accessory to a felony, and there was nothing to show that during his lifetime he had had any honest employment and he possessed no capital assets. The plaintiff was aware that such money as her husband had given her came from proceeds of crime. The plaintiff sued,inter alia, on behalf of herself and the other dependants of the deceased. Crichton J. held at p. 546:-
“Now one has to examine in this case what the injury is – first of all to the plaintiff and secondly to the children. Counsel for the defendant argued that the injury in the case of each of the dependants really amounts to this on examination: that he or she is saying that ‘I have been deprived of my share of other people’s goods, brought to me by the deceased,’ and brought from the proceeds of dishonesty – dishonestly obtained, and in so far as that is the injury, it is amala causa orturpis causa and is not maintainable under Lord Campbell’s Act. I agree with counsel for the defendant in this argument, and in my judgment neither the widow nor any other dependant is entitled to damages under the Fatal Accidents Act for that reason.”
Payment to dependents not contested
The payment of £150per week made to Ms. Halpin is not contested on this appeal. There is no contest on this fact. There is no issue of credibility. Thus, no question arises as to the truth of the evidence of Ms. Halpin. McKenna v.McElvaney (Unreported, High Court, Johnson J., 24th July, 1998) is distinguishable.
Accounts
Counsel for the defendant referred the court to Fitzpatrick v. Furey (Unreported, High Court, Laffoy J., 12th June, 1998). There the case was advanced on the basis that for the year ended the 31st July, 1994, the deceased earned £6,000 more than was declared to the Revenue Commissioners.
“Counsel on behalf of the first defendant submitted that as a matter of public policy the court should have regard only to the income level reflected in the income tax returns made by or in respect of the deceased. Counsel on behalf of the plaintiff, while conceding that, if the deceased had survived, he would have had considerable difficulty in advancing a claim in which the future loss of earnings element was predicated on an income level different from that which had been returned to the Revenue Commissioners historically, submitted that in this claim, which is a representative action on behalf of the dependants of the deceased, different considerations apply. During the deceased’s lifetime his dependants had a lifestyle supported by his actual income. The court, it was submitted, should find a balance between what was the reality of a situation and the income as declared to the Revenue Commissioners. The plaintiff and her children would be prejudiced if any other approach was adopted because the loss of support and the lifestyle they enjoyed would not have happened but for the wrongdoing of the first defendant. The quantification of the dependants’ loss should ensure the replacement of the level of support and the lifestyle they were deprived of by the deceased’s death.”
On this Laffoy J. held:-
“I have found it very difficult to resolve this issue. I can see the merit of the approach advocated by counsel for the plaintiff. On the other hand, I am faced with the fact that the plaintiff, who herself is entitled to the ‘lion’s share’ of the dependency claim, has made a declaration to the Revenue Commissioners which she now says is false. I accept that the plaintiff, when making the declaration, did the best she could in the circumstances then prevailing. I also understand why she has not been able to address outstanding taxation issues while these proceedings are pending. Nonetheless, I have come to the conclusion that public policy considerations preclude me from quantifying the dependency claim on the basis of the deceased’s declared and undeclared income for the accounting year prior to his untimely death.”
I am satisfied that this may not be the correct approach in assessing loss for dependants on declared and undeclared income. Of course the circumstances of each case should be considered. However, in general it would appear appropriate to calculate the loss to the dependants (which has been sustained because of the action of the defendant) on the actual income. If the income, or part of it, has not been declared or taxed then the sum should be analysed to achieve a net figure, net of tax. This net figure would then be the basis on which the loss to the dependants may be calculated.
Determination
The learned trial judge calculated damages having regard to the overall income of the deceased. The accounts in this case were not full, they were drawn up for the court by an accountant “doing the best” he could. They were not drawn up by the deceased. The accountant had difficulty making up the accounts because of the absence of records. Even though the accounts were not full it is quite clear that the deceased’s new business was successful and was growing. There is no reason why this business would not have continued to develop and grow were it not for the untimely death of the deceased. It is appropriate to take into account such future considerations. It is probable that in due course the deceased would have made formal accounts and paid taxes. No matter what might be said of the figure of £150 it is difficult to imagine a sum for the child being less than £37.50. On any view the £37.50 would have been available to the child and I would not interfere with that award. It is reasonable to assume, in view of the fact that the business was developing, that even on tax being paid the deceased would have been in a position to continue to pay £37.50per week to Ms. Halpin for the child. Also, that the deceased would have continued to benefit his mother to the value of £1,000per annum. Consequently, I am satisfied that on the probable net profits the sums of £37.50 per week for the child and £1,000per annum for the mother are reasonable sums. I would not disturb the award made by the High Court. It would be preferable to have exact figures for gross income, tax liabilities and projections for the future. However, in the circumstances of this case I would not remit the matter to the High Court to obtain precise figures.
For these reasons I would dismiss the appeal.
Murray J.
This is an appeal against the damages as assessed by the High Court in proceedings where the plaintiff, as the administrator of the estate of Patrick Paul Downing, deceased, claims damages on his own behalf and on behalf of all other dependants of the deceased against the defendant. The claim arises out of death of the deceased which occurred on the 28th May, 1995, when he was a passenger in a car driven by the defendant which collided with a tree. The essential facts of the case and the nature of the award made in the High Court are detailed in the judgment of Denham J. and it is not necessary for me, except in a limited way, to refer to them. I propose to focus on the central point of law raised by the defendant in the appeal.
The submissions of counsel for the defendant centred on the basis on which the learned trial judge assessed damages for future loss which she awarded to a child in respect of whom the deceased stood inloco parentis. The award was based on regular payments which had been made by the deceased to the child’s mother out of gross income on which tax had not been paid. Counsel contended that the learned trial judge was incorrect in only having regard to the deceased’s gross income when calculating the child’s future loss. It was common case that the deceased had not made tax returns nor paid income tax on his income. He submitted that in determining the amount of continuing future contributions, which the deceased would have made to the upkeep of the child, the learned trial judge was not entitled to ignore the fact that the due and proper payment of income tax on his gross earnings would have reduced his disposable income from the gross figure to a net after tax figure and thereby affect the amount of such financial contribution from which the child would have benefited in the future.
He contended that it would be contrary to public policy if damages for future loss of income or, as in the case, a dependant’s loss, were determined without taking into account income tax payable on that income or on the source of that income.
In support of his submission counsel cited the judgment of Laffoy J. in Fitzpatrick v. Furey (Unreported, High Court, Laffoy J., 12th June, 1998). In that case Laffoy J. appears to have determined that in assessing damages for future financial loss to be awarded to the dependants of a deceased, income undeclared for income tax purposes should, as a matter of public policy, be entirely excluded from such an assessment, and should be based solely on the income which had been declared for tax purposes.
In this case the deceased had not declared any part of his income although his estate subsequently reached a nil settlement with the Revenue Commissioners. Counsel for the defendant did not go so far as to adopt completely the approach of Laffoy J.. He did not argue that the entire amount of an undeclared income should be excluded when damages for loss of income or a dependant’s loss are being assessed. Counsel submitted that such losses must be determined on the basis of the net income after tax which the deceased would have received. In this I think he is quite correct and it is an approach which is consistent with the approach which is, as I understand it, generally followed by the courts in cases of this nature.
If the full import of Laffoy J.’s judgment is as stated above I am of the view that it is not the appropriate basis for assessment of such damages. Nor do I consider gross income a correct basis for such assessment.
The “dominant” principle, as it has often been described, in the award of damages isrestitutio in integrum. In other words, the court should award the injured party such damages as will put him or her in the same position as he or she would have been if he or she had not suffered the wrong complained of. The corollary to this is that in a claim for financial loss the injured party is, in principle, not awarded damages which exceed his or her actual loss. (I leave out of consideration such heads of damage as exemplary damages which are irrelevant here and not generally relevant in cases of this nature).
In cases where damages for future loss of earnings is a component of the claim, this court has held that it is the “take home pay”,after lawful deductions such as income tax and P.R.S.I., and not the gross pay which should be the basis of the calculation of such damages (see Cooke v. Walsh [1984] I.R. 725).
It seems to me that public policy intends that persons who have suffered financial loss as a result of the wrongful act of another be compensated for their actual loss and no more. In my view, therefore the application of the fundamental principle ofrestitutio in integrum constitutes a sufficient basis for excluding in the assessment of claims for future loss of income any element based on gross rather than net income, after all lawful deductions be excluded and that all net income, even if it incorporates an element of undeclared earnings be included.
In short damages in personal injury or fatal accident cases are, in principle, simply compensation for actual loss and this is particularly evident in the case of special damage. In this context, once liability and actual financial loss have been established, the duty in law of the wrongdoer to compensate the injured party by way of damages cannot be abated by the fact that the claim is based, in whole or in part, on undeclared income, once the actual future loss is calculated by reference to the net income after tax. Moreover, it could be said that answerability to the Revenue authorities for the sole fact of a failure to make a return of income (as opposed to the amount of tax liability) is truly res inter alios acta.
Public policy considerations may arise in a different way should the trial judge, in the exercise of his or her discretion having regard to all the circumstances of a case involving undeclared income, consider the matter sufficiently grave as to warrant papers being referred to the appropriate Revenue authorities.
In the course of his submissions, counsel for the defendant drew the court’s attention to a number of authorities concerning the assessment of damages for loss of income where the source of that income has been some form of illegal or criminal activity. In this case the deceased had a perfectly legitimate business as the owner of a fruit and vegetable shop. It is not necessary, therefore, to review those authorities.
For the foregoing reasons, I conclude that the appropriate approach to the assessment of damages for loss of earnings or financial loss suffered by a deceased’s dependant, whether the claim is based in whole, or in part, onundeclared income, is on the basis of net income after the tax and other lawful deductions which have or should be made in respect of such income.
It follows that in this particular case the learned trial judge should have approached the assessment of damages of future loss of financial contribution to the child in question on the basis of the deceased’s net income after tax.
The remaining question is what implication that has for the award made. The High Court award was made on the basis that out of a total weekly sum of £150.00 contributed by the deceased to the mother of the child, the child would have continued to receive a benefit to the value of £37.50. I agree with the conclusions of Denham J., for the reasons set out in her judgment, that the deceased’s contribution towards the upkeep of the child in respect of whom he stood inloco parentis would, on any view of the facts of this particular case, probably have remained in or about the sum of £37.50. For similar reasons I would also agree with her conclusions regarding the award to the deceased’s mother. Therefore, I see no reason to interfere with the actual amount of the award made by the learned High Court Judge.
Accordingly, I would dismiss the appeal.
Geoghegan J.
This is an appeal from a judgment of the High Court (McGuinness J.) in a fatal injury action. There are good and sensitive reasons for not going into the facts in too much detail. It is sufficient to state that the deceased contributed £150per week to the household of a girlfriend with whom he had previously been living and with whom he was still in constant contact at the time of his death. That household consisted of the girlfriend, two children of hers by a previous broken marriage and a third child, Katie Halpin, who it is agreed was a “dependant” of the deceased within the meaning of Part IV of the Civil Liability Act, 1961. It is also not seriously in dispute that the deceased was particularly devoted to that child.
The deceased, Paul Downing, was also helping his mother by giving her approximately £1,000 per annum.
As far as loss of dependency is concerned the claim was confined to the losses of the child, Katie Halpin and the mother, Maureen Downing.
The High Court (McGuinness J.) awarded £29,362.50 for the loss of dependency of Katie Halpin and £10,000 for the loss of support to Maureen Downing. These figures were calculated on the assumption that the respective payments of £150per week in the case of the Halpin household and the £1,000per annum to the mother would have continued.
The learned trial judge took the view that £37.50 being one quarter of the £150 was an appropriate assessment of Katie’s weekly loss and she also held that as a matter of probability that would have remained a loss until Katie attained the age of eighteen years.
There was no precise mathematical calculation done in the case of the plaintiff’s loss because the judge considered that she had to take into account the possibility of the deceased marrying even through the mother had given evidence that she did not think that the son would have ever married. In all the circumstances the trial judge considered that a sum of £10,000 to the mother would be reasonable.
At the time of his death the deceased had been running a small retail business. Accounts were prepared since his death for the respective years ending the 31st December, 1992, the 31st December, 1993 and the 31st December, 1994. It would appear there had never been returns made to the Revenue Commissioners but on foot of the accounts prepared after the death, the Revenue Commissioners agreed a nil liability. If the accounts accurately reflected the income of the deceased he could not have afforded to have made the payments to the Halpin household or indeed to his mother. The finding of fact that those payments were made is accepted by the defendant but what is suggested is that they must necessarily have been paid out of undeclared income. The issue on the appeal, and it is the only issue, is whether the learned High Court Jude was entitled to take the view that those payments in those amounts would have continued or whether she should only have awarded sums net of tax with the necessary corollary that the amount of tax would have been properly proved before her. Counsel for the defendant makes the latter argument on two alternative fronts. On the one hand he says that the court, as a matter of public policy, cannot take income which ought to have gone to the Revenue Commissioner into account and alternatively, he says that even if a public policy point does not arise the court is still obliged to assume that tax would have been paid had the deceased survived. As I understand his argument, he did not go so far as to adopt the view taken by Laffoy J. in Fitzpatrick v. Furey (Unreported, High Court, Laffoy J., 12th June, 1998) that as a matter of public policy no account at all can be taken of untaxed income even including the net income which would have been available if tax had been paid. That may be an overstatement of the view taken by Laffoy J. as the facts in the Fitzpatrick case are quite different from the facts in this case. I will return to it later on in the judgment.
It is quite clear to me that counsel for the defendant’s argument in the abstract is absolutely correct though I would prefer to put it on the second alternative basis. It would seem to me that the true principle is that in assessing loss of contribution for the future in a fatal injury action the court must assume that had the deceased lived he would have properly paid his taxes as and from his death whatever might have been his conduct before his death. If, therefore, a judge, as in this case, believed that a payment of £150per week was made to the Halpin household and also believed that payments amounting to approximately £1,000per annum were made to the deceased’s mother thanprima facie the judge was entitled to take the view that such payments would have continued. However, if it was demonstrated as in this case that such payments could only have been made out of untaxed income the judge must then take that into account and must assume that tax on all income would have been paid from the death. This does not necessarily mean however that the judge would then arrive at the view that the contributions would have been reduced by reference to the tax paid. It entirely depends on the overall facts which the judge accepts. In this case it is quite clear that McGuinness J. took the view that as a matter of probability income was to use her words”extracted from the till in cash”.She points out in her judgment that the accountant who gave evidence, Mr. O’Donnell, admitted that the accounts were not complete and that this would be a fairly common experience in a small retail business such as the type of business being run by the deceased. She accepted the evidence that in the case of such a business”the accounts are not all that terribly reliable”. She goes on to express the view that she was satisfied on the evidence that money was taken out in cash and she backs up this view by pointing to the evidence of Ms. Halpin to the effect that “there was never any shortage of money”. It follows therefore that although the argument put forward by counsel for the defendant is correct in principle there is no evidence that the trial judge neglected to apply the correct principles in this case. She merely took the view that there was plenty of surplus money in reality and that contributions of the amount alleged could have been afforded by the deceased and would have been likely to have been paid. The trial judge was entitled to take that view having regard to the evidence as a whole. I would therefore dismiss the appeal.
As heavy reliance was placed by the defendants on the judgment of Laffoy J. in Fitzpatrick v. Furey (Unreported, High Court, Laffoy J., 12th June, 1998), I think that I should make some observations on it. The case was a fatal injury claim arising out of the death of a dental technician and a specialist in prosthetics. In that case the amounts of the contributions to the members of his family were being calculated by reference to his income. I do not think that there was any evidence in that case of the amounts of actual contributions made in the lifetime except presumably in the very general way. That is the first point of distinction on the facts between that case and this case. It emerged in the evidence that the profit earned by the deceased exceeded by £6,000 the sum declared to the Revenue Commissioners. The second distinguishing factor between that case and this case is that in that case a false declaration had been made by the deceased to the Revenue Commissioners and indeed a further false declaration had been made by his widow, the plaintiff, after his death. The fact that false declarations were made by the deceased and the plaintiff would seem to have strongly influenced the decision of Laffoy J. The learned judge acknowledged that there was some force in an argument apparently put up by counsel for the plaintiff that while in the ordinary way there might be considerable difficulty in advancing a claim in which the future loss of earnings element was predicated on an income level different from that which had been returned to the Revenue Commissioners, historically the position was different in relation to dependants in a fatal injury claim. Counsel had submitted that the court should find a balance between what was the reality of the situation and the income as declared to the Revenue Commissioners. Otherwise he pointed out that the plaintiff and her children would be prejudiced because the loss of support and the lifestyle they enjoyed would not have happened but for the wrongdoing of the defendant.
Nevertheless, Laffoy J. came down in favour of the defendant observing as follows:-
“Nonetheless, I have come to the conclusion that public policy considerations preclude me from quantifying the dependency claim on the basis of the deceased’s declared and undeclared income for the accounting year prior to his untimely death.”
If I understand the judgment of Laffoy J. correctly she took the view that the whole of the £6,000 should be disregarded. I would respectfully disagree with this approach. I think that in Fitzpatrick v. Furey (Unreported, High Court, Laffoy J., 12th June, 1998), both sides wrongly argued it on foot of “public policy consideration” whereas the true analysis should have been as to whether the trial judge had before her sufficient evidence in relation to undeclared income that she could quantify what would have been the net amount of that income if tax were paid. I think that the learned trial judge should have assumed that the deceased would have paid tax had he survived. Public policy considerations did not dictate that the entire of the £6,000 if properly proved should be disregarded. It is not necessary for the courts to take such a severe view as apart from anything else it could work great hardship and injustice in other hypothetical cases. The true principle is that a defendant should never have to compensate for alleged loss of monies which ought to have gone to the Revenue Commissioners and should not have been retained by the deceased. But the principle does not go beyond that. I have already expressed the view that there is no evidence before this court which would indicate that McGuinness J. applied the wrong principles.
Fitzsimons v Bord Telecom Eireann and The Electricity Supply Board
[1991] ILRM 276 (HC)
Barron J: The dependants of the deceased included his widow then aged 34 and their five children whose ages ranged from 2 to 11. The widow of the deceased remarried in February 1985 and since her remarriage has had another child who is now aged 4. No evidence has been adduced in relation to damages. I am told this is because of the absence of authority as to how the plaintiff’s remarriage should be treated by the actuaries in the preparation of their reports. In effect I am asked to answer a net question of law which is, are the benefits arising from the remarriage of the widow of the deceased to be taken into account in assessing damages, and, if so, on what basis?
The basis upon which losses sustained by the dependants are to be assessed is set out to the judgment of Kennedy CJ in Gallagher v ESB [1933] IR 558 at 566, where he says:”From an early date it was established that the damages which may be recovered are in the nature of a compensation for the pecuniary loss sustained by the parties for whose benefit the action is brought and that nothing in the nature of a solatium on account of mental suffering occasioned by such death may lawfully be awarded by the jury. The pecuniary loss upon which the damages awarded must be founded, and by which they are limited, may be actual or expected. The damages are to be calculated by reference to the reasonable expectation of pecuniary benefit accuring to the claimant whether by right or otherwise, if the life continued: Blake v Midland Railway Co; Dalton v South Eastern Railway Co; Franklin v South Eastern Railway Co; Taff Vale Railway v Jenkins. The relief given by the statute is for the benefit of individuals and not of a class. Each individual must make his or her own case for compensation which may be given in respect of loss arising by reason of alteration in the distribution of property amongst the members of a family caused by the death: Pym v Great Northern Railway Co. There must be affirmative proof of the pecuniary loss suffered by each individual for whose benefit the damages are claimed and the jury may not award damages merely on a basis of guess work or speculation: Hull v Great Northern Railway Co of Ireland.”
As against such loss there must be set off any compensating benefit received. This principle is set out in the judgment of Kingsmill Moore J in Murphy v Cronin [1966] IR 699 at 708, as follows:
“The general principles governing the award of damages under these words have been laid down in numerous decisions and were recently considered by this court in Byrne v Houlihan [1966] IR 274. What has to be ascertained as accurately as possible is the net pecuniary loss incurred by the dependants in consequence of the death of the deceased. In arriving at the sum the loss of a ‘reasonable expectation of pecuniary benefit … from the continuance of the life’ must be taken into account as well as the pecuniary benefit which can be demonstrated to have been lost: Franklin v South Eastern Railway Co; Dalton v South Eastern Railway; Pym v Great Northern Railway Co. But ‘the damages
… must take into account any pecuniary benefit accuring to that dependant in consequence of the death of the deceased. It is the net loss on balance which constitutes the measure of damages.’ – Davies v Powell Fuffryn Associated Collieries Ltd.”
The reference in the passage to “these words” was a reference to section 49 subsection (l)(a) of the Civil Liability Act 1961 which provided that damages are to be “a total of such amounts (if any) as the jury or the judge, as the case may be, 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.” It is clear that the basis upon which damages for fatal injuries are assessed are well established and derived from judicial construction of the relevant statutory provisions which have from time to time been replaced and re-enacted. The difficulty is to ascertain a settled principle whereby it
can be determined what pecuniary benefits may be taken into account in arriving at the appropriate net figure.
A comprehensive review of the relevant authorities is contained in the judgment of Lord Edmund Davies in Hay v Hughes [1975] 1 All ER 257. The plaintiffs were two young boys who were seeking damages for the death of both their parents in a motor accident. At the time of the accident they were aged 4.5 and 2.5 respectively. After the death of their parents they were taken in by their maternal grandmother who cared for them thereafter. It was held that there was no reasonable expectation at the date of their parents’ death that their grandmother would have taken them in and that accordingly the benefit obtained by this fact was not a benefit to be taken into account in the assessment
of damages. The basis of this decision is set out in the judgment of Lord Edmund Davies at page 267 as follows “”At the time of their mother’s death it was anyone’s guess what would happen to them and the defendant had not discharged the onus of establishing that at that time there was a reasonable expectation that the grandmother would act as she subsequently did. Then aged 49, she already had substantial domestic responsibilities of her own (she had three teenage children and she too lived in a three-bedroom house) and it would not have been surprising had she decided against adding to them.”
Both Buckley and Ormrod LJJ agreed with the decision though they did not express their reason in the same way. As appears from the judgment of Lord Edmund Davies (at
271) counsel for the defendant contended that the principle could be stated thus:
“If immediately before the death which occasions a claim there was a reasonable expectation that any benefit which in fact thereafter enures would arise in the event of the death occurring, then this benefit should be taken into account in abatement of any gross loss.”
This principle appears to have been accepted by him though he held against the defendant on the facts. The absence of any principle to be extracted from the cases was referred to in the judgments. In his judgment Ormrod LJ said (at 275):
“The court ought, in my judgment, to hesitate to extend the balancing principle to classes of benefit which are not directly covered by authority which is binding on it. Accordingly, I think there is a great deal of weight in counsel for the plaintiff’s primary submission that this court should not, as a matter of policy, bring into account the benefits provided to these children by Mrs Toone. I accept also his submission that it is impossible to formulate in general terms any test which will satisfactorily discriminate between benefits to be taken into account and those to be ignored. Attempts to do so using phrases such as ‘resulting from’ or ‘in consequence of’ lead to sterile debates on causation, and have produced results in the reported cases which are difficult, it not impossible, to reconcile one with another. Counsel for the defendant’s suggestion that benefits, of which there can be said to have been a reasonable expectation at the time of death, should be included in the balancing process, in practice, also fails. It is difficult to see why a benefit from a stepfather should reasonably be expected, and a benefit from a fund raised by subscriptions from fellow employees, which is quite a common practice, should not be expected.”
While Hay v Hughes clearly did not set out one clear principle, it is support for the proposition that reasonable expectation at the time of death of a future benefit is a relevant consideration.
Several of the authorities referred to in Hay v Hughes dealt with the effect of remarriage. See Reineke v Grey [1964] 2 All ER 687; Goodburn v Thomas Cotton Ltd [1968] 1 All ER 518 and Buckley v John Allen and Ford (Oxford) Ltd [1967] 1 All ER 542; Meade v Clarke Chapman & Co Ltd [1956] 1 All ER 44. Of these cases, one in Buckley v John Allen and Ford (Oxford) Ltd was the possibility of the remarriage of a widow disregarded. Phillimore J refused to make any reduction in the damages awarded for the chance of remarriage. He did so because he believed that there was no means by which he could arrive at a proper conclusion, because such reasons could not be established and would among other grounds be insulting and unreliable. Nevertheless, neither in this case nor in the others to which I have referred was it submitted to the court that the relevant date at which to consider the reasonable expectation of remarriage was not the date of assessment, but the date of death.
In Meade v Clarke Chapman & Co Ltd the plaintiff had been left a widow with a young daughter aged four months. She had remarried and the question was whether or not any dependency on the child had continued after the remarriage. The evidence was that her stepfather was fond of her and supported her. It was held that the prospects ofbenefit from her stepfather must be taken into account but on the basis that these benefits would be of lesser value than the benefits lost since the obligation of a natural
father to look after his child was a legal one whereas that of the stepfather to look after his stepchild was moral one.
In Peacock v Amusement Equipment Co Ltd also referred to in Hay v Hughes, the plaintiff’s wife who had been killed in an accident had been the owner of the home in which they had lived. She left this home to two children by a former marriage. Following her death they sold the house and gave a portion of the proceeds of sale to the plaintiff. It was held that this voluntary gift should not be taken into account in assessing the damages payable to the plaintiff since there was no reasonable expectation at the date of his wife’s death that he would receive such money.
Both these latter cases were considered by Kingsmill Moore J in Byrne v Houlihan. There the deceased’s estate which was substantial passed on her death intestate to her husband. The children of the marriage claimed to be dependants of their mother upon the ground that they had lost the reasonable expectation of sharing in the income of her estate during her lifetime and of succeeding to it on her death testate in the course of time. The defendant accepted this claim, but contended that there should be offset against this reasonable expectation, the reasonable expectation that they would benefit to a like, if not a greater extent, from their father out of the same funds. At the date of the trial, the father had remarried. Kingsmill Moore J accepted the plaintiff’s contention. Having referred to authorities he said (at 28 I):
“In the present case I think there arose at the time of the wife’s death and because, by reason of that death, her property passed to her husband, a reasonable expectation that the husband would apply part of the income for the benefit of the children and would eventually bequeath to them a considerable portion and perhaps all of the capital. The husband has now married again and may have further children. This would go to reducing the expectation of the children of the first marriage and may be taken into
account by the jury in their estimation of damages. But that a reasonable expectation still exists I cannot doubt.”
Taking this passage on its own, it supports the proposition that for a benefit to be taken into account there must be a reasonable expectation of it at the date of death, but the
actual amount to be taken into account will depend upon the circumstances existing at the date of assessment.
Referring to Peacock’s case he said (at 281 immediately before the paragraph to which I have referred) the following:
“I can understand the criterion of being whether at the time of a death and by reason of the death in the circumstances brought about by it, a reasonable expectation of pecuniary benefit in the future arose. If that is the true ground of the decision in Peacock’s case – and I think it is – then Peacock’s case is of little avail to the plaintiff.”
Referring to Meade s case he said (at 282):
“This case seems to me to conflict with Peacock’s case in as much as, if the matter is to be looked at as of the date of death, there was no real expectation of benefit to the child accruing from the death by reason of the possibility of a future marriage to a kind stepfather. Such a possibility seems to me too remote and speculative to form a basis for computation. Had the case been heard promptly before any question of remarriage arose, damages must have been awarded on the assumption that the death had deprived the child of a means of support to which he had a legal claim and that there was no reasonable expectation for the compensating benefit. The case is an authority to show that the actual state of affairs at the date of the trial must be considered.”
I do not think that these two passages weaken the support which I suggest is apparent for the proposition to which I have referred. They illustrate the difficulty which the learned judge said he found in reconciling the two cases.
I see no reason why there should not be a recognised principle under which benefits received should or should not be taken into account. The basis of the assessment of damages for fatal injuries is the balancing of losses and benefits. Like any other balance sheet, it seems appropriate to determine first what items can appear on the balance sheet and then secondly the amount of such items. There can be little doubt but that the amount of the items must be determined as of the date of assessment. Perhaps also whether the item can appear should be determined as of the same date. But it seems more logical that if you are establishing a balance sheet required by reason of a death that the items to appear on it should be determined as of that date. There is nothing unusual in this two tier approach. There are many cases in our law where a judge must decide as a matter of law whether or not there is sufficient evidence to support a particular allegation and then it must be decided as a matter of fact whether that allegation has been established. A decision whether or not there was a reasonable expectation of a particular benefit accruing is no different from a decision whether or not a head of damage is too remote. The latter is determined as of the date the cause of action accures. In my view, the former should also be determined as of that date, ie, the date of death.
There seems no reason in principle why remarriage of a widow should be treated any differently from any other circumstance which gives rise to a benefit to be offset against losses sustained. It has been suggested that the reason for taking the responsibility and obviously also the fact of remarriage into account is that otherwise the widow will be receiving support from two husbands at the same time. But the same can be said of children who are taken in by relatives, but whose damages are not reduced, or of any other case where a benefit is disregarded other than by reason of a statutory provision.
In Baker v Dalgleish Steam Shipping Co [1922] 1 KB 361, Scrutton LJ said (at 372):
“On the other hand, as the question is what is her pecuniary loss by the death, any pecuniary advantage she has received from the death must be set off against her probable loss. This is clear if she receives such advantage as of legal right.”
This passage suggests that the legal obligation of a husband to maintain his wife may have been the reason for taking into account the benefits of remarriage. If so, it does not appear to be so expressed in the cases. I do not see why benefits accruing on remarriage should be treated differently from any other benefits.
So far as children are concerned, I think it reasonable to assume that if their mother remarries, they will go to live with her and their stepfather. If the benefits to them from a stepfather fall to be assessed, they cannot be disregarded on the basis that they are voluntary. Voluntary benefits are disregarded not because they are voluntary, but because at the date of the death there was no reasonable expectation that they would occur. This is so equally in respect of losses. Many of the items in respect of which damages are awarded relate to voluntary payments or voluntary services made or provided by the deceased to one or more of the dependants. Such items are allowed when there is a reasonable expectation that the payments or services would have continued but for the death.
The passage from the judgement of Kingsmill Moore J in Murphy v Cronin to which I have referred continued as follows:
“A reasonable possibility of benefit accruing from the death must also be taken into account in reduction of damages; Byrne v Houlihan.”The reference to reasonable possibility of benefit does not accord with what he said in Byrnev Houlihan. Perhaps the passage had been wrongly transcribed. In my view there is nothing in Byrne v Houlihan which prevents me from taking the view whichI do and much in it which supports that view. In the circumstances, I would answer the questions whichI have already posed in the following way. The evidence at the hearing to assess damages insofar as it relates to the remarriage should be directed in the first instance to establish whether or not there was a reasonable expectation at the date of death that this
Quinn v Cashin
[2005] IEHC 214 (21 June 2005)
JUDGMENT of Mr. Justice Diarmuid B. O’Donovan delivered on the 21st day of June, 2005
The plaintiff herein is the father and personal representative of the estate of Samantha Quinn, late of 13 Slievebloom Heights, Rathdowney, Co. Laois, who died on the 2nd day of September, 2003, as a result of injuries sustained in a traffic accident in which she was involved on the same day while travelling as a back seat passenger in a motor vehicle driven by one Shaun Playdell, which said motor vehicle was in collision with a motor lorry on the public highway on the Kildare/Monasterevin Road in the Co. Kildare. The plaintiff maintains that the said collision was occasioned by the negligent driving of the said Shaun Playdell on the said occasion and the defendant, who has not denied liability, is sued as the administrator ad litem of the said Shaun Playdell.
The dependants of the said Samantha Quinn, deceased, within the meaning of s. 47 of the Civil Liability Act, 1961, as inserted by s. 1 of the Civil Liability (Amendment) Act, 1996, were;
(a) Francis Quinn, father of the deceased, aged 59 years.
(b) Eleanor Quinn/Hurton, mother of the deceased, aged 59 years.
(c) Evelyn Quinn, step-mother of the deceased, aged 53 years.
(d) Sinead Quinn, step-sister of the deceased, aged 19 years.
(e) Frances Quinn, step-sister of the deceased, aged 17 years.
(f) Matthew Quinn, step-brother of the deceased, aged 14 years,
and
(g) Noel McDonagh, fiancée of the deceased, aged 29 years.
While it was submitted on behalf of the defence that the evidence tendered at the trial of the action did not establish that the said Noel McDonagh had been living with the deceased as husband and wife for a continuous period of not less than three years prior to her death and that, therefore, the said Noel McDonagh was not a dependant of the deceased within the meaning of s. 47 of the Civil Liability Act, 1961, as inserted by s. 1 of the Civil Liability (Amendment) Act, 1996, I took a contrary view. In that regard, Mr. McDonagh gave evidence that he met the deceased in August, 1997 and they immediately struck up a boy/girl relationship which included sexual intercourse. He said that, in September, 1997, they commenced to live together at his parents’ house. In the summer of 1999, they rented an apartment in Tallaght in respect of which he paid the rent, and that they lived there for approximately six months; at which stage they decided that they wanted to purchase a home of their own and that it was wasteful to pay rent. At that time, the deceased was working as a receptionist with the Irish Brokers Association and Mr. McDonagh was a financial advisor with the Bank of Ireland. He said that his income would have been significantly greater than that of the deceased. When the deceased and Mr. McDonagh left the apartment in Tallaght, they returned to live with Mr. McDonagh’s parents and Mr. McDonagh paid his mother a nominal rent of €50.00 per week. If he did, however, when he and the deceased purchased 13 Slievebloom Heights, Rathdowney, late in the year 2000, it was Mr. McDonagh’s mother who paid the deposit. Apparently, she had put away the rent which he had paid to her and she insisted that it be used to pay the deposit on no. 13 Slievebloom Heights. In all of those circumstances, notwithstanding that Mr. McDonagh agreed under cross-examination that, when he started to live with the deceased, he had in mind that he wanted to find out whether or not they were suitable for one another and that they did not become engaged to be married until New Years Day, 2001, I am satisfied that Noel McDonagh and the late Samantha Quinn had been living with each other as man and wife for a continuous period of not less than three years prior to her death and that, therefore, Noel McDonagh is a dependant of the late Ms. Quinn within the meaning and for the purposes of the Civil Liability Act, 1991, as amended. I am also satisfied that the said Noel McDonagh was the only financial dependant of the deceased and that the deceased’s mother, Eleanor Quinn/Hurton, who currently lives in the United States of America and who has lived there for over 20 years now, has waived any claim that she might have arising from the death of her daughter.
With regard to the mental distress suffered by the dependants of the late Samantha Quinn as a result of her death, I heard evidence from her father, the plaintiff, Francis Quinn, from her step-mother, Evelyn Quinn and from her fiancée, Noel McDonagh. I also read medical reports on Francis Quinn, Evelyn Quinn and their children, Sinead Quinn, Frances Quinn and Matthew Quinn, who were step-siblings of the deceased. In the light of that evidence and those reports, I have no doubt at all but that Mr. & Mrs. Quinn, their three children and Mr. McDonagh were all badly effected and traumatised by the tragic death of Samantha Quinn. She was obviously a very lovely person, who was well loved by all and her death had a devastating effect on all of those who were close to her. In this regard, I find it impossible to differentiate between the distress suffered by her three step-siblings and, therefore, I think it appropriate I deal with them equally. However, I think that their mother was more effected by the deceased’s death than were her children and, of the immediate family, I think that the plaintiff; the father of the deceased, was most distressed of all by her untimely demise. However, of all those close to her, I have no doubt as all but that it was Noel McDonagh who was the worst effected by his finance’s death. In those circumstances, allowing that there is a statutory maximum of €25,395.00 recoverable in respect of mental distress, I will apportion that sum as to €10,000.00 to Noel McDonagh, €6,000.00 to the plaintiff, Francis Quinn, €3,500.00 to the deceased’s step-mother, Evelyn Quinn and €1,965.00 each to the deceased’s step-siblings, Sinead Quinn, Frances Quinn and Matthew Quinn.
As I have indicated, the only alleged financial dependant of the late Samantha Quinn was her fiancée, Noel McDonagh. In that regard, Mr. McDonagh maintained that, as a result of her untimely demise, he lost the benefit of what he could reasonably have expected to derive from the deceased’s earnings, had she survived and the benefit of the services which the late Samantha Quinn would probably have provided for him, had she lived. In that regard, at the time of her death, the late Samantha Quinn had just started work as a receptionist/administrator at Quality Kitchens, Greenhills Industrial Estate, Dublin 12 at an agreed salary of €19,000.00 gross per annum out of which I had evidence which I accept that she would have taken home a sum of €320.00 nett per week. While, at the time of the deceased’s death, Noel McDonagh was actually unemployed, having had a difference of opinion with the proprietor of a firm named J. &. M Healy Construction for whom he had been working up to the month of July, 2003. However, he gave evidence which I accept that, shortly before the deceased’s death, he was negotiating to return to the said employment and was confident that, had the deceased not been killed, he would have done so; as he did in the month of July, 2004. In that employment, Mr. McDonagh’s wages would have been €600.00 gross per week from which he would have taken home a sum of €480.00 nett. Accordingly, had the deceased lived, the joint nett weekly income of herself and Mr. McDonagh would have amounted to the sum of €800.00. Given that the deceased died before ever receiving any wages from Quality Kitchens, there was not and could not have been any evidence as to how the joint income of herself and Mr. McDonagh was actually spent. However, Mr. McDonagh gave evidence that, in the period during which he was living with the deceased; whether she was in receipt of unemployment benefit or of wages from part-time employment in which she engaged for some of the time, he took the responsibility of discharging the mortgage repayments which amounted to €648.00 per month and she was responsible for the balance of household expenses; the amount of which was never specified. Given that, during that period, Mr. McDonagh, on his own evidence, was in receipt of a nett weekly income of €480.00, and, while I had no evidence as to what the deceased was actually earning, there is little doubt but that it was considerably less than that sum, it follows that, if I were to accept Mr. McDonagh’s evidence, I would have to conclude that the division of household expenses between Mr. McDonagh and the deceased was unfairly weighted against the deceased and, to be quite frank, I do not accept that that was the case. In my view, given that Mr. McDonagh had the greater income, it is much more likely that he would have borne the brunt of household expenses. That as it may be, however, in determining whether or not Noel McDonagh has suffered a financial loss as a result of being deprived of a benefit from the deceased’s earnings with Quality Kitchens, I am not so much concerned with what happened before the deceased died but rather am I concerned with what was likely to happen had the deceased survived. In that regard, Mr. McDonagh gave evidence that, during the deceased’s lifetime, household overheads amounted to €878.00 per month made up of mortgage repayments amounting to €648.00, electricity expenses amounting to €90.00 per month, heating expenses amounting to €60.00 per month and telephone expenses (a mobile phone each for himself and the deceased) amounting to €80.00 per month. While the amount alleged in respect of mortgage repayments was not challenged by the defence, Mr. McDonagh was challenged to produce documentary evidence to support the amounts which he alleged were spent on the other overheads. However, although he maintained that such documentation existed, it was never, in fact, produced. Nevertheless, while conceding that it is a view which is not based on hard evidence, it does not appear to me that the amounts claimed by Mr. McDonagh in respect of overhead expenses incurred by himself and the deceased during her lifetime are unreasonable and, accordingly, I am disposed to accept them for the purpose of calculating whether or not Mr. McDonagh has suffered a financial loss as a result of being deprived of the benefit of the deceased’s earnings. In this regard, while, as I have indicated, I had no evidence as to how precisely the household income was spent prior to the deceased’s death, Mr. John Logan, a consultant actuary attached to the firm of Seagrave Daly & Lynch Limited, Consultant Actuaries, gave evidence that it would be reasonable to assume that, had the deceased survived, overhead household bills would have continued to amount to €203.00 per week, the cost of running two cars (that of Mr. McDonagh and that of the deceased) would amount to €200.00 per week, and the living expenses of Mr. McDonagh and the deceased would respectively amount to €199.00 and €198.00 per week. In this regard, counsel for the defence submitted that I should ignore the evidence of Mr. Logan for the reason that it was abundantly clear that the report which he furnished to the plaintiff’s solicitors and the evidence in chief which he gave to the court were calculated to maximise the value of the plaintiff’s claim and totally ignored matters which, if taken into account, might reduce the value of the claim. In particular, counsel for the defence pointed to the following facts, namely;
(a) That Mr. Logan conceded under cross-examination that he had made no inquiry to ascertain whether or not, following the deceased’s death, the cost of heating the family home and the cost of providing electricity for it would be any less than it was when the deceased was alive,
(b) That in calculating Mr. McDonagh’s alleged financial loss as a result of being deprived of the benefit of the deceased’s earnings, Mr. Logan;
(i) assumed, in the absence of any evidence whatsoever, that Mr. McDonagh benefited from the use of the deceased’s car (he having one of his own),
(ii) more significantly, assumed, quite wrongly, that ongoing overhead household expenses would include the cost of the deceased’s telephone.
(c) When calculating the capital value of the future loss to Mr. McDonagh of €1.00 per week of benefit from the deceased’s earnings, Mr. Logan totally ignored the possibility that, following the deceased’s death, Mr. McDonagh might marry or take on another partner. In that regard, Mr. McDonagh gave evidence that he is currently in another relationship.
While I accept that all of these criticisms of Mr. Logan’s evidence are well founded and that, as a result, as counsel for the defence submitted, there was a certain unreality about his evidence, I am not disposed to reject it entirely because it seems to me that there are certain aspects of his evidence which I am entitled to accept and, insofar as he took account of matters to which he was not entitled to take account and failed to enquire into matters which might have led to the reduction of the value of the plaintiff’s claim, it seems to me that I have sufficient evidence to enable me to make my own calculations.
At this juncture, I think it appropriate to point out that, apart altogether from the evidence of Mr. Logan, there is a huge unreality about this case arising from the provisions of s. 50 of the Civil Liability Act, 1961, which provides (inter alia):-
“In assessing damages for this part (that is part 4 of the Act) account shall not be taken of any sum payable on the death of the deceased under any contract of insurance”.
In that regard, the evidence before me established that Noel McDonagh and the late Samantha Quinn took out a mortgage protection insurance policy in respect of the mortgage which they had on the premises which they purchased at 13 Slievebloom Heights aforesaid. Accordingly, on the death of Samantha Quinn, that policy of insurance matured and the mortgage on the premises was discharged. It follows, of course, that Mr. McDonagh has no longer a liability to make the mortgage repayments which he was obliged to make during the deceased’s lifetime. However, by virtue of the said provision in the Civil Liability Act, 1961, the court is not entitled to take that fact into account in calculating the value of the loss of dependency suffered by Mr. McDonagh as a result of the late Ms. Quinn’s death. On the contrary, that calculation must be made with the assumption that Mr. McDonagh is still liable to make those mortgage repayments. Moreover, in the circumstance that Mr. McDonagh and the late Ms. Quinn were joint tenants of the said premises at 13 Slievebloom Heights, the full title to the premises vested in him by right of survivorship on her death. Nevertheless that fact also may not be taken into account when calculating the value of Mr. McDonagh’s claim for loss of dependency. In all these circumstances, the reality is that, far from suffering a financial loss as a result of the deceased’s death, Mr. McDonagh has made a very substantial gain from it but I am not entitled to take that fact into account when assessing his claim for loss of dependency and must proceed to calculate that claim on the wholly artificial basis that he continues to be liable for the mortgage repayments and totally ignoring the fact that, as a result of his fiancée’s death, he has succeeded to the premises of which they were the joint owners.
As I have indicated, not withstanding the infirmities in the evidence of Mr. Logan, I am satisfied that I have sufficient information to enable me to calculate the value of the loss of dependency suffered by Noel McDonagh as a result of being deprived of the benefit of his late fiancée’s earnings. In this regard, as I have also indicated, I must proceed on the basis that Mr. McDonagh is still liable for mortgage repayments amounting to €648.00 per month. Mr. Logan made his calculations on the basis that Mr. McDonagh would also continue to be liable for telephone expenses mounting to €80.00 per month although it is clear that that is not so because that figure included the cost of the late Samantha Quinn’s telephone which, of course, no longer arises. Accordingly, that figure of €80.00 falls to be reduced by 50%, i.e. €40.00 per month or €10.00 per week. Mr. Logan also made his calculations on the assumption that there would be no change in the cost of heating and providing electricity for no. 13 Slievebloom Heights following the late Samantha Quinn’s death. In my view, that was an unreasonable assumption because it seems to me that it is axiomatic that it is less expensive to heat and provide electricity for a house in which one, rather than two, people will be living. Admittedly, I had no evidence whatsoever to indicate by how much that expenditure would be reduced so, somewhat arbitrarily, I am going to assume for the purpose of this case that it would be not less than 10% and, accordingly, that Mr. Logan’s figure of €150.00 per month would be reduced to €135.00 per month or €33.75 per week. Without any evidence whatsoever to support it, Mr. Logan made an assumption that Mr. McDonagh used the deceased’s car during her lifetime and that, therefore, as a result of her death, he has lost the benefit of that use. In my view, he was not entitled to make that assumption and, accordingly, in making my calculations, I am ignoring that assumption and all its implications. It follows, of course, that the €120.00 per week which Mr. Logan allowed in respect of the cost of running cars would be reduced to €100.00 per week. In making his calculations, Mr. Logan assumed that out, of the nett weekly income, €199.00 per week would be spent on Mr. McDonagh and €198.00 per week would be spent on the deceased. This assumption was not challenged and, as it does not appear to me to be an unreasonable one, I am disposed to including it in my calculations.
In the light of the foregoing, it seems to me that, when calculating the amount of Mr. McDonagh’s loss arising from his being deprived of the benefit of his late fiancée’s earnings, I should allow that overheads amount €189.25 per week, i.e. Mr. Logan’s figure of €203.00 per week less €10.00 per week in respect of the deceased’s car and €3.75 per week in respect of the reduction in the cost of providing heat and electricity, €100.00 per week in respect of Mr. McDonagh’s car and €199.00 per week in respect of Mr. McDonagh’s personal expenses. That all totals €488.25 and allowing that Mr. McDonagh would be taking home €480.00 per week, it follows that his nett loss as a result of being deprived of the benefit of his late fiancée’s earnings was €8.25 per week. In that regard, while, in the report which he furnished to the plaintiff’s solicitors and, indeed, in the evidence in chief which he gave in court, Mr. Logan said that the capital value of the future loss to Mr. McDonagh of €1.00 per week of benefit from the deceased’s earnings was €1547.00, he agreed under cross-examination that, in calculating that figure, he had not allowed for the possibility that Mr. McDonagh might marry or take on another partner. Moreover, he agreed that, in the light of Mr. McDonagh’s evidence that he is currently in another relationship, there was a high likelihood that he would marry or take on another partner. Accordingly, allowing for that possibility and, in my view, on the evidence it must be allowed for, Mr. Logan gave evidence that the capital value of the future loss to Mr. McDonagh of €1.00 per week of benefit from the deceased’s earnings would be a sum of €913.00. It follows that the capital value of the loss of €8.25 per week, which, as I have indicated, is my assessment of Mr. McDonagh’s loss as a result of being deprived of the benefit of his late fiancée’s earnings, is €7,532.25.
For the sake of completeness, I should point out that, although Mr. McDonagh gave evidence that, as a result of the trauma which he experienced following his late fiancée’s death, he was unable to work for approximately ten months and was in receipt of social welfare benefit during that period, I have not taken that fact into account when making my calculations for the simple reason that Mr. Logan did not take that fact into account and I had no evidence whatsoever with regard to the financial implications (if any) of Mr. McDonagh’s absence from work during that period.
The second leg of Mr. McDonagh’s claim for loss of dependency arising from his late fiancée’s death is that he has lost the benefit of the services which she would have provided for him as a housekeeper, cleaner, cook and general factotum around the house. In this regard, in his direct evidence, Mr. McDonagh gave me to believe that, when himself and the late Samantha Quinn were living together, she did virtually everything around the house, i.e. cleaning, laundry, shopping and preparing meals while he, himself, did virtually nothing. To be quite frank, I do not believe that. In this day and age, it is my experience that no woman would allow her partner to get away with such idleness while she did all the housework. I am prepared to accept that, while the deceased was unemployed, or in part-time employment, she might well have undertaken a major portion of the housework, but I do not accept that she would have done so while in fulltime employment with Quality Kitchens. Indeed, she would not have had time to do so. Under cross-examination, Mr. McDonagh seemed to concede that, when he said that when both he and the deceased were in full time employment it was his plan to do “the lions share of the work”. Accordingly, I think that there was no reality to the evidence of Mary Breslin, the recruitment lady, who gave evidence on behalf of the plaintiff that, had she lived, the deceased would have devoted 16 hours a week to household chores. I accept that that was what Ms. Breslin was told when she was asked to prepare a report on the loss suffered by Mr. McDonagh as a result of being deprived of the deceased’s services. However, she conceded under cross-examination that what she was told when she was being requested to prepare a report was very different from the evidence in court given by Mr. McDonagh. I accept and indeed, counsel for the defence accepted Ms. Breslin’s evidence that the cost of employing someone in the town of Rathdowney to perform household chores is €10.00 per hour but apart from that, I do not think that Ms. Breslin’s evidence was at all relevant. In this regard, counsel for the defence submitted that the whole tenor of Mr. McDonagh’s evidence with regard to the services which the late Samantha Quinn provided for him was so grossly exaggerated that it amounted to a deliberate falsehood whereby his credibility was totally destroyed. Accordingly, it was submitted that, in reality, I had no evidence upon which I could properly adjudicate on the claim for loss of services and that, therefore, it should not be allowed at all. In support of that proposition, counsel referred to a decision of the Supreme Court delivered in a case of Shelly-Morris v. Bus Átha Cliath [2003] 1 I.R. at pg. 232. However, while I accept that I did not believe Mr. McDonagh when he told me that his late fiancée did all the housework to his exclusion, I am not persuaded that his credibility was so undermined that the burden of proof on him was not discharged. While I do not believe that the late Samantha Quinn did as much housework as Mr. McDonagh suggested that she did, I accept the basic premise of his evidence that she did some of the housework and I have no doubt but that, had she lived, she would have continued to do some housework notwithstanding that she was in fulltime employment. However, as I have indicated, I do not accept that she would have spent anything like the 16 hours per week suggested by Ms. Breslin. In this connection and, here, I am having regard to my own experience in life, it would be reasonable to assume that, had she lived, the late Samantha Quinn would have averaged an hour or so a day, or seven hours a week, doing housework and that Mr. McDonagh has lost the benefit of such services. Accordingly, allowing that it would now cost €10.00 an hour to employ someone to provide such services, I calculate that Mr. McDonagh’s loss as a result of being deprived of the deceased’s services is €70.00 per week which, allowing that the capital value of the future loss to Mr. McDonagh of €1.00 per week in respect of the deceased’s services is €913.00, has a value of €63,910.00.
Having regard to the foregoing I assess damages in this case as follows:-
(a) Mental distress – €25,395.00
(b) Loss of benefit from deceased’s earnings – €7,532.25
(c) Loss of the deceased’s services – €63,910.00
(d) Special damages (agreed) – €1,219.00
___________
Total €98,056.25
Of the above figure I apportion €6,000.00 to the plaintiff, Francis Quinn, €3.500.00 to Evelyn Quinn, €1,965.00 each to Sinead Quinn, Frances Quinn and Matthew Quinn and the balance to Noel McDonagh.
Hayes v. Ennis
[2005] IEHC 117 (15 April 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
Downing v. O’Flynn
[2000] IESC 12; [2000] 4 IR 383 (14th April, 2000)
THE SUPREME COURT
Denham, J. No. 196/99
Murray, J.
Geoghegan,J.
Judgment of the Hon. Mrs. Justice Denham delivered the 14th day of April, 2000
[*2] This appeal raises an issue of law. The question for the court is whether a claim for loss of dependency may be successful on undeclared income, whether such a claim is contrary to public policy. This is an appeal by Seamus O’Flynn, the defendant/appellant (hereinafter referred to as the defendant) against the order and judgment of the High Court (McGuinness J.) delivered on the 5th May, 1999. The plaintiff is the administrator of the estate of Patrick Paul Downing (known as Paul Downing) who died intestate on the 28th May, 1995. The plaintiff brought this action on his own behalf and on behalf of all the dependants of the deceased.
1. On the 28th May, 1995 Paul Downing was a passenger in a car driven by the defendant which collided with a tree on the boundary of a road as a consequence of which he was injured and as a result of which he died. The dependants of the deceased are Maureen Downing, mother; John Downing, brother; Joseph Downing, brother; Caroline Downing, sister; Clodagh Downing, sister and Katie Halpin to whom the deceased was in loco parentis.
2. Liability was not in issue. It was accepted that the accident and the death of Paul Downing were caused by the negligence of the defendant in the driving of his motor vehicle. The case proceeded as an assessment of damages only. The High Court ordered that the plaintiff recover against the defendant the sum of £56,862.50p and the costs of the action when taxed and ascertained. The sum of £56.862.50p was ordered to be apportioned among the dependants of the deceased as follows:
3. To Maureen Downing (mother of the deceased)
4. In lieu of support £10,000
5. Special Damages £10,000
6. Distress and suffering £7,500
Total £27,500
7. To Katie Halpin (a minor to whom the deceased
acted in loco parentis) £29,362.50
[*3] As to the sums to be paid to the mother McGuinness J. held:
“As far as the money for distress and suffering is involved the £7,500 which is the maximum allowable it has been agreed and generously agreed by Mr. Downing’s siblings that that should go to his mother and I think that is indeed a fair decision. Mr. Downing appears to have also given support both in cash and in kind to his mother. She says in or about £1,000 per year and according to Mr. Tennant, if that continued up to a possible marriage date it would amount to £11,094.
Mrs. Downing senior says that her son said he would never marry and that he would continue to look after her and Katie. On the other hand people often say that kind of thing and you could not [ sic]. He was a young man, he might very well have developed another relationship so that I am not really prepared to make an assumption that he would never have married. Also, I have to take into account in that context that it wasn’t a sort of regular payment of the type that was made to Ms. Halpin.. I think that if I award a sum of £10,000 to the mother in lieu of support that that is a fair enough amount to deal with what support she was getting from her son.”
8. On the issue of the payment to the child’s mother McGuinness J. found:
“Ms. Halpin’s evidence is that he regularly gave her a sum of £150. 00 per week towards the family in general.
There is no evidence to contradict what Ms. Halpin says other then the query thrown on it by the defence on account of the income which shows up in the accounts which Mr. O’Donnell gave evidence about. Mr. O’Donnell himself specifically admits that these accounts were not complete and this would be a fairly common experience, I would think, in a small retail business like this, that the accounts are not all that terribly reliable. Indeed, it is not unknown, I am sure to counsel on all sides, for money in this type of small business to be extracted from the till in cash which does not always go accurately through the accounts and this I think is what Mr. Tynan was suggesting.
I feel that on the evidence that must have happened to some extent as Ms. Halpin says that there was never any shortage of money and while, obviously she is not talking in terms of enormous sums of money at all, as she says, a £150 a week seems good money to her but also that Paul Downing gave her extra, bought extra for the family and so on. I think I must accept that there was a contribution of £150 per week for the family.
At times Ms. Halpin also had lone parents allowance or made some increment from working herself. She says that of that £150, £50 to £100 per week was [*4] spent on Katie and this does seem to me to be somewhat high since there were four people in the household …. I think it would be fair to assume that one quarter should be attributed to Katie rather than more than that.
It seems to me that the fairest thing is to divide the £150 per week by four as there were four people in the household and that leaves a sum of £37.50 a week for Katie. I also feel that on Mr. Tennant’s evidence, the actuarial evidence, that it is perhaps going somewhat far as to knowing the uncertainties of life that to attribute maintenance right up to the 22nd birthday and I think an 18 year old, maintenance up to 18 is fair enough. The multiplier in that case would be £783 and the total of that would be £29,362.50.”
9. Against that judgment the defendant appealed. The notice of appeal set out the following grounds:
“1. That the Learned Trial Judge erred in law and in fact in holding that
there was [sic] sufficient funds whereby the deceased (Patrick Paul
Downing) could draw fluids [ sic] from his business for the support and
maintenance of Dependants to the level claimed.
2. That the finding by the Learned Trial Judge that the deceased took
monies from the till for the maintenance and support of Dependants
was against the evidence and that she erred in law in so holding.
3. That the finding by the Learned Trial Judge were [sic]against public
policy and unsound in law.
4. That the finding by the Learned Trial Judge were [sic] against the
evidence and the weight of the evidence.
5. That the totality of the award in the sum of £56,862.50 was excessive
and exorbitant and against the evidence and the weight of the evidence
in all the circumstances.”
Submission
10. The appeal proceeded on a single issue. On this matter being opened in the Supreme Court Mr. Fleck, S.C., counsel for the defendant, said that there was one issue for the Court and that was whether a claim for loss of dependency can be successful when based on [*5] undeclared income. He referred to Fitzpatrick v. Furey and Motor Insurers Bureau of Ireland (Unreported, High Court, Laffoy J., 12th June, 1998). In the instant case, referring to the evidence of the accountant, it was submitted that on that evidence the gross profit was
11. £12,000, on which income tax would be £3,000 and a possible PRSI liability of £1,000. Thus, the disposable net income was either £9,000 or £8,000 per year depending on whether or not the PRSI was deducted. This was a sum of either £173 or £153 per week. The claim on behalf of the dependants was that the deceased gave Ms. Halpin £150 per week. It was submitted that that would leave the deceased with either £23 or £3 per week to support himself.
12. Counsel submitted that Ms. Halpin received £150 per week from money on which tax was not paid. Thus, a public policy issue arose. The £150 per week was paid out of untaxed income and thus the claim for loss was tainted and the court should not support it. Counsel argued, on behalf of the defendant, that in considering a claim for loss of dependency it is contrary to public policy to take into consideration income that has not been taxed.
13. In the alternative it was submitted that compensation should be based on the net income the deceased would have received if he had paid tax. Counsel conceded that £150 had been paid per week to Ms. Halpin but argued that it had not been £150 net of tax, that in considering a payment on a loss of dependency it must be from a net income. In this case there was no evidence of net disposable income. If the starting block of funds for calculating the sum is not net of tax it is an inappropriate basis for calculating a dependency figure. The figure of £150 in this case is not net disposable income and so it is an inappropriate figure on which to base dependency figures.
14. Counsel asked the court to adjudicate a method for assessing loss of dependency when there had been a failure to pay tax or where a sum was not net of tax. [*6]
15. Counsel for the plaintiff, Mr. Kevin Cross, S.C., submitted that Fitzpatrick v. Furey and Motor Insurers Bureau of Ireland (Unreported, High Court, Laffoy J., 12th June 1998) does not govern this case. He argued that there had been an incorrect assumption on behalf of the defendant that the accounts as given to the court: (i) were the complete picture, and (ii) would have been the basis for a fraudulent taxation declaration. The Revenue Commissions had agreed a nil liability in this case. It was submitted that the accounts which show a net profit of £12,000 were not the full picture. It was submitted that the court must assume that if he had survived Paul Downing would have made full accounts and declarations. The fact that he may have taken cash from the till is not unlawful in itself, his obligation was to account to the Revenue. It was a thriving business. It was submitted that even if the £150 per week paid to Ms. Halpin was not recorded that is not important; the accounts were not accounts prepared for the Revenue with the purpose of defrauding the Revenue. It was submitted that to base the appeal on the book of accounts is not valid. There is no suggestion that had the deceased made a settlement with the revenue that he would not still have paid Ms. Halpin £150 per week. He agreed that it might be implied in the High Court judgment that the learned trial judge assumed it was untaxed income. That is a possible inference. Counsel submitted that even if it is accepted that it is a small business which would only give £8,000 off the top the future must be considered. It was open to the learned trial judge to accept future improvement would continue and that £150 would continue to be paid even if the deceased paid tax. He submitted that the judgment of the learned trial judge should stand.
The Accounts
16. The accounts in this case were not accounts which had been prepared by the deceased. [*7] The situation is described in the evidence given on 5th May, 1999 in the High Court by Mr. Gerard O’Donnell as follows:
“215 Q. I think you were not Mr. Downing’s accountant prior to his death, is that correct?
A. That’s correct.
216 Q. You were engaged by his solicitor, Mr. Foley to do the
best you can in relation to what records were available to
you in relation to his accounts in the three years prior to
his death is that correct?
A. That would be correct, yes.
217 Q. I think are you aware that, if I may lead you on this, that
his solicitor Mr. Foley had agreed previous to your
engagement with the Revenue, a nil liability for Paul’s …
(interjection).
A. Yes, Mr. Foley informed me of that, yes.
218 Q. Revenue position. Had he got full books and accounts?
A. He did have books but they were not complete.
219 Q. You obviously were not able to discuss with him, what
did you base your accounts on?
A. I based the accounts on the records which I had.
220 Q. Which you had, yes?
A. I also had to make some estimates in order to produce the
accounts.
221 Q. In now doing that you prepared and I will hand that in to
your Lordship, books of accounts for the years ending
December 1992, 1993 and 1994, is that correct?
A. That’s correct, yes.
222 Q. Taking one year with another. first of all, how was the
business according to the books that you had in that
period?
A. According to the books which I had taking 1993 with 1994
the turnover, what he actually took in sales increased. [*8]
223 Q. What sales have you got for 1993?
A. £186,296
224 Q. Yes and 1994?
A. £208,328
225 Q. Of sales, yes?
A. Yes
226 Q. What drawings could you find from the books?
Drawings, the figure for 1993 amounted to £13,422 and for 1994 amounted to £17,790.
227 Q. If Ms. Halpin is correct that she was getting £150 per
week from Paul, is that reflected in the books that you
were able to find?
A. I wasn’t aware of any such figure, the drawings could have
been used for any of his personal living expenses.”
17. On cross examination it was stated:
“A. The profit figure, for the last 2 years approximately
£12,000
234 Q. What does that come out on a weekly basis?
A. £230.70
235 Q. Does that figure take into account the tax liability?
No, it does not.
236 Q. What would the tax liability be on £12,000.
A. Tax and PRSI would be approximately £3,000 for
1993/1994 tax year.”[*9]
18. There was evidence regarding a further liability to tax of £1,000 for that year. In
discussing the net profit it was queried whether that would bring the net profit down to
19. £8,000 a year. The evidence followed that:
“252 Q. That would bring it down to £8,000, would it not?
If you deducted his own personal liability of 3 [ sic] and if
you assumed that there was a liability of £1,000 then would bring it down to approximately £8,000, yes.
253 Q. In those circumstances where he was living in
circumstances where he was maintaining two residences
and living apart, if he was paying £150 a week to Ms.
Halpin there would be little or nothing left for him would
there?
A. Based on those accounts that is correct, yes.
Q. Would there be anything left for him?
A. There would be very little.
255 Q. How much?
If we divide the £8,000 by 52, that is £153 per week.
256 Q. That would be £3 a week left for him?
A. Based on those accounts, yes.
257 Q. Because as night follows day if this tragic accident hadn’t
happened, the tax liability would have caught up on him,
would it not?
It is likely that it would have, yes.
258 Q. More likely than not I suggest?
A. Yes [*10]
Decision
The circumstances of this case are tragic. Paul Downing was born in 1965 and was killed in a road traffic accident in 1995. He was a young entrepreneur who had worked as an assistant manager in a supermarket and then decided to set up a fruit and vegetable door to door round. This was successful and he moved on to taking a shop in a shopping centre in Limerick City and commencing business there. The business progressed successfully.
However, he had not prepared formal accounts or made a declaration for tax from this
business at the time of his death.
Arising out of his death this dependency action was taken. Paul Downing had been helping his mother by giving her support valued at approximately £1,000 per annum. He had also been giving £150 each week to Ms. Halpin. Ms. Halpin’s household consisted of herself, her two children, and Katie to whom Paul Downing acted in loco parentis. It is these sums which, with other matters, were the basis for the High Court ruling of £56,862.50.
A legal matter arises for determination because of the fact that the deceased had no formal accounts, nor had he made returns to the tax authorities nor had he paid tax. The issue for determination is whether a claim for dependency may be successful on undeclared income. Further, if it may be successful what method of adjudication should there be for assessing loss of dependency when there has been a failure to pay tax? On what should the compensation be based?
Income not illegally obtained
The income of the deceased was not obtained illegally. Thus, the circumstances of [*11] this case are not similar to Burns v. Edman [1970] 2 Q.B. 541. In that case the
plaintiff s husband had been killed in a motor accident. Home Office records disclosed that he had received two prison sentences, one for robbery and another for being an accessory to a felony, and there was nothing to show that during his lifetime he had had any honest employment and he possessed no capital assets. The plaintiff was aware that such money as
her husband had given her came from proceeds of crime. The plaintiff sued , inter alia , on
behalf of herself and the other dependants of the deceased. Crichton J. held at page 546:
“Now one has to examine in this case what the injury is – first of all to the plaintiff and secondly to the children. Counsel for the defendant argued that the injury in the case of each of the dependants really amounts to this on examination: that he or she is saying that ‘I have been deprived of my, share of other people’s goods, brought to me by the deceased’, and brought from the proceeds of dishonesty – dishonestly obtained, and in so far as that is the inquiry, it is a mala causa or turpis causa and is not maintainable under Lord Campbell’s Act. I agree with counsel for the defendant in this argument, and in my judgment neither the widow nor any other dependant is entitled to damages under the Fatal Accidents Act for that reason.”
Payment to dependents not contested
20. The payment of £150 per week made to Ms. Halpin is not contested on this appeal. There is no contest on this fact. There is no issue of credibility. Thus, no question arises as to the truth of the evidence of Ms. Halpin. McKenna v. McElvaney, McElvaney and MIBI (Unreported, High Court, Johnson J., 24th July, 1998) is distinguishable.
Accounts
21. Counsel for the defendant referred the court to Fitzpatrick v Furey and the Motor [*12] Insurance Bureau of Ireland (Unreported, High Court, Laffoy J., 12th June, 1998). There the case was advanced on the basis that for the year ended 31st July, 1994 Mr. Fitzpatrick earned £6,000 more than was declared to the Revenue Commissioners.
“Mr. Daly, on behalf of the first Defendant, submitted that as a matter of public policy the Court should have regard only to the income level reflected in the income tax returns made by or in respect of Mr. Fitzpatrick. Mr. Whelehan, on behalf of the Plaintiff, while conceding that, if Mr. Fitzpatrick had survived, he would have had considerable difficulty in advancing a claim in which the future loss of earnings element was predicated on an income level different from that which had been returned to the Revenue Commissioners historically, submitted that in this claim, which is a representative action on behalf of the dependants of Mr. Fitzpatrick different considerations apply. During Mr. Fitzpatrick’s lifetime his dependants had a lifestyle supported by his actual income. The Court, it was submitted, should find a balance between what was the reality of a situation and the income as declared to the Revenue Commissioners. The plaintiff and her children would be prejudiced if any other approach was adopted because the loss of support and the lifestyle they enjoyed would not have happened but for the wrongdoing of the first Defendant. The quantification of the dependants’ loss should ensure the replacement of the level of support and the lifestyle they were deprived of by Mr. Fitzpatrick’s death.”
22. On this Laffoy J. held:
“I have found it very difficult to resolve this issue. I can see the merit of the approach advocated by Mr. Whelehan. On the other hand, I am faced with the fact that the Plaintiff, who herself is entitled to the ‘lion’s share’ of the dependency claim, has made a declaration to the Revenue Commissioners which she now says is false. I accept that the Plaintiff, when making the declaration, did the best she could in the circumstances then prevailing. I also understand why she has not been able to address outstanding taxation issues while these proceedings are pending. Nonetheless, I have come to the conclusion that public policy considerations preclude me from quantifying the dependency claim on the basis of Mr. Fitzpatrick’s declared and undeclared income for the accounting year prior to his untimely death.” [*13]
23. I am satisfied that this may not be the correct approach in assessing loss for dependants on declared and undeclared income. Of course the circumstances of each case should be considered. However, in general it would appear appropriate to calculate the loss to the dependants (which has been sustained because of the action of the defendant) on the actual income. If the income, or part of it, has not been declared or taxed then the sum should be analysed to achieve a net figure, net of tax. This net figure would then be the basis on which the loss to the dependants may be calculated.
Determination
24. The learned trial judge calculated damages having regard to the overall income of the deceased. The accounts in this case were not full, they were drawn up for the Court by an accountant “doing the best” he could. They were not drawn up by the deceased. The accountant had difficulty making up the accounts because of the absence of records. Even though the accounts were not full it is quite clear that the deceased’s new business was successful and was growing. There is no reason why this business would not have continued to develop and grow were it not for the untimely death of the deceased. It is appropriate to take into account such future considerations. It is probable that in due course the deceased would have made formal accounts and paid taxes. No matter what might be said of the figure of £150 it is difficult to imagine a sum for the child being less than £37.50. On any view the £37.50 would have been available to the child and I would not interfere with that award. It is reasonable to assume, in view of the fact that the business was developing, that even on tax being paid the deceased would have been in a position to continue to pay £37.50 per week to Ms. Halpin for the child. Also, that the deceased would have continued to benefit his mother [*14] to the value of £1,000 per annum. Consequently, I am satisfied that on the probable net profits the sums of £37.50 per week for the child and £1,000 per annum for the mother are reasonable sums. I would not disturb the award made by the High Court It would be preferable to have exact figures for gross income, tax liabilities and projections for the future. However, in the circumstances of this case I would not remit the matter to the High Court to obtain precise figures.
25. For these reasons I would dismiss the appeal.
Judgment delivered the 14th day of April, 2000 by Murray, J.
26. This is an appeal against the damages as assessed by the High Court in proceedings where the Plaintiff/Respondent, as the administrator of the estate of Patrick Paul Downing, deceased, claims damages on his own behalf and on behalf of all other dependants of the deceased against the Defendant/Appellant. The claim arises out of death of the deceased which occurred on the 28th May, 1995 when he was a passenger in a car driven by the Defendant which collided with a tree. The essential facts of the case and the nature of the award made in the High Court are detailed in the judgment of Mrs Justice Denham and it is not necessary for me, except in a limited way, to refer to them. I propose to focus on the central point of law raised by the Appellant in the appeal.
27. The submissions of Counsel for the Appellant centred on the basis on which the learned trial judge assessed damages for future loss which she awarded to a child in [*2] respect of whom the deceased stood in loco parentis. The award was based on regular payments which had been made by the deceased to the child’s mother out of gross income on which tax had not been paid. Counsel contended that the learned trial judge was incorrect in only having regard to the deceased’s gross income when calculating the child’s future loss. It was common case that the deceased had not made tax returns nor paid income tax on his income. He submitted that in determining the amount of continuing future contributions which the deceased would have made to the upkeep of the child the learned trial judge was not entitled to ignore the fact that the due and proper payment of income tax on his gross earnings would have reduced his disposable income from the gross figure to a net after tax figure and thereby affect the amount of such financial contribution.
28. He contended that it would be contrary to public policy if damages for future loss of income or, as in the case, a dependant’s loss, were determined without taking into account income tax payable on that income or on the source of that income.
29. In support of his submission Counsel cited the judgment of Laffoy J. in Fitzpatrick v. Furey and the Motor Insurers Bureau of Ireland ( 12th June , 1998, unreported). In that case Laffoy J. appears to have determined that in assessing damages for future financial loss to be awarded to the dependant’s of a deceased, income undeclared for income tax purposes should, as a matter of public policy, be entirely excluded from such an assessment, and should be based solely on the income which had been declared for tax purposes [*3]
30. In this case the deceased had not declared any part of his income although his estate subsequently reached a nil settlement with the Revenue Commissioners. Counsel for the Appellant did not go so far as to adopt completely the approach of Laffoy J. He did not argue that the entire amount of an undeclared income should be excluded when damages for loss of income or a dependant’s loss are being assessed. Counsel submitted that such losses must be determined on the basis of the net income after tax which the deceased would have received. In this I think he is quite correct and it is an approach which is consistent with the approach which is, as I understand it, generally followed by the courts in cases of this nature.
31. If the full import of Laffoy J,’s judgement is as stated above I am of the view that it is not the appropriate basis for assessment of such damages. Nor do I consider gross income a correct basis for such assessment.
32. The ‘dominant’ principle, as it has often been described, in the award of damages is restitutio in integrum. In other words, the court should award the injured party such damages as will put him or her in the same position as he or she would have been if he or she had not suffered the wrong complained of. The corollary to this is that in a claim for financial loss the injured party is, in principle, not awarded damages which exceed his or her actual loss. (I leave out of consideration such heads of damage as exemplary damages which are irrelevant here and not generally relevant in cases of this nature).
[*4] In cases where damages for future loss of earnings is a component of the claim, this Court has held that it is the ‘take home pay’, after lawful deductions such as income tax and PRSI, and not the gross pay which should be the basis of the calculation of such damages (see Cooke v. Walsh [1984] I.L.R.M. 208).
33. It seems to me that public policy intends that persons who have suffered financial loss as a result of the wrongful act of another be compensated for their actual loss and no more. In my view, therefore the application of the fundamental principle of restitutio in integrum is a sufficient basis to exclude in assessing claims for loss of future income, including those which incorporate an element of undeclared earnings, any element based on gross rather than net income after all lawful deductions.
34. In short damages in personal injury or fatal accident cases are, in principle, simply compensation for actual loss and this is particularly evident in the case of special damage. In this context, once liability and actual financial loss have been established the duty in law of the wrongdoer to compensate the injured party by way of damages cannot be abated by the fact that the claim is based, in whole or in part, on undeclared income, once the actual future loss is calculated by reference to the net income after tax. Moreover, it could be said that answerability of the taxpayer to the Revenue authorities for the sole fact of a failure to make a return of income (as opposed to taking account of the tax liability) is truly res inter alios acta. [*5] Public policy considerations may arise in a different way should the trial judge, in the exercise of his or her discretion having regard to all the circumstances of a case involving undeclared income, consider a matter sufficiently grave as to warrant papers being referred to the appropriate Revenue authorities.
35. In the course of his submissions, Counsel for the Appellant drew the courts attention to a number of authorities concerning the assessment of damages for loss of income where the source of that income has been some form of illegal or criminal activity. In this case the deceased had a perfectly legitimate business as the owner of a fruit and vegetable shop. It is not necessary, therefore, to review those authorities.
36. For the foregoing reasons, I conclude that the appropriate approach to the assessment damages for loss of earnings or financial loss suffered by a deceased’s dependant, whether the claim is based in whole, or in part, on undeclared income, is on the basis of net income after the tax and other lawful deductions which have or should be made in respect of such income.
37. It follows that in this particular case the learned trial judge should have approached the assessment of damages of future loss of financial contribution to the child in question on the basis of the deceased’s net income after deduction of the amount of income tax which, having regard to the evidence before her, he would have been liable to pay.
[*6] The remaining question is what implication that has for the award made. The High Court award was made on the basis that out of total weekly sum of £150.00 contributed by the deceased to the mother of the child, the child would have continued to receive a benefit to the value of £37.50. I agree with the conclusions of Mrs Justice Denham, for the reasons set out in her judgment , that the deceased’s contribution towards the upkeep of the child in respect of whom he stood in loco parentis would, on any view of the facts of this particular case, probably have remained in or about the sum of £37.50. For similar reasons I would also agree with her conclusions regarding the award to the deceased’s mother. Therefore, I see no reason to interfere with the actual amount of the award made by the learned High Court judge.
38. Accordingly I would dismiss the appeal.
JUDGMENT OF MR JUSTICE GEOGHEGAN DELIVERED THE 14TH DAY OF APRIL, 2000
39. This is an appeal from a judgment of the High Court (McGuinness J) in a fatal injury action. There are good and sensitive reasons for not going into the facts in too much detail. It is sufficient to state that the deceased contributed £150 per week to the household of a girlfriend with whom he had previously been living and with whom he was still in constant contact at the time of his death. That household consisted of the girlfriend, two children of hers by a previous broken marriage and a third child, Katie Halpin, who it is agreed was a “dependant” of the deceased within the meaning of Part IV of the Civil Liability Act, 1961. It is also not seriously in dispute that the deceased was particularly devoted to that child.
40. The deceased, Paul Downing, was also helping his mother by giving her approximately £1,000 per annum. [*2]
41. As far as loss of dependency is concerned the claim was confined to the losses of the child Katie Halpin and the mother Maureen Downing.
42. McGuinness J awarded £29,362.50 for the loss of dependency of Katie Halpin and £10,000 for the loss of support to Maureen Downing. These figures were calculated on the assumption that the respective payments of £150 per week in the case of the Halpin household and the £1,000 per annurn to the mother would have continued. The learned trial Judge took the view that £37.50 being one quarter of the £150 was an appropriate assessment of Katie’s weekly loss and she also held that as a matter of probability that would have remained a loss until Katie attained the age of 18 years.
43. There was no precise mathematical calculation done in the case of Mrs Downing’s loss because the Judge considered that she had to take into account the possibility of the deceased marrying even though the mother had given evidence that she did not think that the son would have ever married. In all the circumstances the trial Judge considered that a sum of £10,000 to the mother would be reasonable. At the time of his death the deceased had been running a small retail business. Accounts were prepared since his death for the respective years ending 31st December 1992, 31st December 1993 and 31st December, 1994. It would appear there had never been returns made to the Revenue Commissioners but on foot of the accounts prepared after the death the Revenue Commissioners agreed a nil liability. If the accounts accurately reflected the income of the deceased he could not have afforded to have made the payments to the Halpin household or indeed to his mother. The finding of fact that those payments were made is [*3] accepted by the Appellant but what is suggested is that they must necessarily have been paid out of undeclared income. The issue on the appeal and it is the only issue is whether the learned High Court Judge was entitled to take the view that those payments in those amounts would have continued or whether she should only have awarded sums net of tax with the necessary corollary that the amount of tax would have been properly proved before her. Counsel for the Defendant Mr Fleck, SC, makes the latter argument on two alternative fronts. On the one hand he says that the Court as a matter of public policy cannot take income which ought to have gone to the Revenue Commissioner into account and alternatively, he says that even if a public policy point does not arise the Court is still obliged to assume that tax would have been paid had the deceased survived. As I understand his argument, he did not go so far as to adopt the view taken by Laffoy J in Fitzpatrick .v. Furey (unreported judgment delivered 12th June, 1998) that as a matter of public policy no account at all can be taken of untaxed income even including the net income which would have been available if tax had been paid. That may be an overstatement of the view taken by Laffoy J as the facts in the Fitzpatrick Case are quite different from the facts in this case. I will return to it later on in the judgment.
44. It is quite clear to me that Mr Fleck’s argument in the abstract is absolutely correct though I would prefer to put it on the second alternative basis. It would seem to me that the true principle is that in assessing loss of contribution for the future in a fatal injury action the Court must assume that had the deceased lived he would have properly paid his taxes as and from his death whatever might have been his conduct before his death. If, therefore, a judge, as in this case, believed that a payment of £150 per week was made to the Halpin household and also believed that payments amounting to approximately £1,000 per annum were made to [*4] the deceased’s mother then prima facie the judge was entitled to take the view that such payments would have continued. However if it was demonstrated as in this case that such payments could only have been made out of untaxed income the Judge must then take that into account and must assume that tax on all income would have been paid from the death. This does not necessarily mean however that the Judge would then arrive at the view that the contributions would have been reduced by reference to the tax paid. It entirely depends on the overall facts which the Judge accepts. In this case it is quite clear that McGuinness J took the view that as a matter of probability income was to use her words “extracted from the till in cash”. She points out in her judgment that the accountant who gave evidence, Mr O’Donnell, admitted that the accounts were not complete and that this would be a fairly common experience in a small retail business such as the type of business being run by the deceased . She accepted the evidence that in the case of such a business “the accounts are not all that terribly reliable”. She goes on to express the view that she was satisfied on the evidence that money was taken out in cash and she backs up this view by pointing to the evidence of Ms Halpin to the effect that “there was never any shortage of money”. It follows therefore that although the argument put forward by Mr Fleck is correct in principle there is no evidence that the trial Judge neglected to apply the correct principles in this case. She merely took the view that there was plenty of surplus money in reality and that contributions of the amount alleged could have been afforded by the deceased and would have been likely to have been paid. The trial Judge was entitled to take that view having regard to the evidence as a whole. I would therefore dismiss the appeal.
45. As heavy reliance was placed by the Defendants on the judgment of Laffoy J in Fitzpatrick v. Furey cited above I think that I should make some observations on it. The case was a fatal [*5] injury claim arising out of the death of a dental technician and a specialist in prosthetics. In that case the amounts of the contributions to the members of his family were being calculated by reference to his income. I do not think that there was any evidence in that case of the amounts of actual contributions made in the lifetime except presumably in a very general way. That is the first point of distinction on the facts between that case and this case.
46. It emerged in the evidence that the profit earned by the deceased exceeded by £6,000 the sum declared to the Revenue Commissioners. The second distinguishing factor between that case and this case is that in that case a false declaration had been made by the deceased to the Revenue Commissioners and indeed a further false declaration had been made by his widow, the plaintiff, after his death. The fact that false declarations were made by the deceased and the plaintiff would seem to have strongly influenced the decision of Laffoy J. The learned Judge acknowledged that there was some force in an argument apparently put up by Counsel for the Plaintiff that while in the ordinary way there might be considerable difficulty in advancing a claim in which the future loss of earnings element was predicated on an income level different from that which had been returned to the Revenue Commissioners historically the position was different in relation to dependants in a fatal injury claim. Counsel had submitted that the Court should find a balance between what was the reality of the situation and the income as declared to the Revenue Commissioners. Otherwise he pointed out that the Plaintiff and her children would be prejudiced because of the loss of support and the lifestyle they enjoyed would not have happened but for the wrongdoing of the Defendant.
47. Nevertheless, Laffoy J came down in favour of the Defendant observing as follows: [*6]
“Nonetheless, I have come to the conclusion that public policy considerations
preclude me from quantifying the dependency claim on the basis of Mr. Fitzpatrick’s
declared and undeclared income for the accounting year prior to his untimely death.”
48. If I understand the judgment of Laffoy J correctly she took the view that the whole of the £6,000 should be disregarded. I would respectfully disagree with this approach. I think that in the Fitzpatrick Case both sides wrongly argued it on foot of ” public policy consideration” whereas the true analysis should have been as to whether the trial Judge had before her sufficient evidence in relation to undeclared income that she could quantify what would have been the net amount of that income if tax were paid. I think that the learned trial Judge should have assumed that the deceased would have paid tax had he survived. Public policy considerations did not dictate that the entire of the £6,000 if properly proved should be disregarded. It is not necessary for the Courts to take such a severe view as apart from anything else it could work great hardship and injustice in other hypothetical cases. The true principle is that a defendant should never have to compensate for alleged loss of monies which ought to have gone to the Revenue Commissioners and should not have been retained by the deceased. But the principle does not go beyond that. I have already expressed the view that there is no evidence before this Court which would indicate that McGuinness J applied the wrong principles.
Byrne v. Houlihan
[1966] IR 275
O’Dalaigh C.J.; Kingsmill Moore J. 275
Supreme Court.
O’DALAIGH C.J. :
1 June
I have had an opportunity of reading the judgment which Mr. Justice Kingsmill Moore is about to deliver and I concur in it.
KINGSMILL MOORE J. :
This action was brought by the plaintiff, as personal representative of his dead wife, claiming damages under the provisions of the Fatal Injuries Act, 1956, on behalf of himself and the other dependants of his wife who was killed as a result of the negligence of the defendants. That the death was caused by the “wrongful act, neglect, or default” of the defendants was not, and is not, challenged. The grounds of the appeal are that the damages awarded to the several dependants were grossly excessive and that the learned Judge misdirected the jury as to matters which should be taken into account in arriving at the amount of their award.
The action was brought on behalf of ten alleged dependants. It is only necessary to mention those in respect of whom the jury made awards, namely, the five sons of the deceased, aged, respectively, at the date of their mother’s death, 21, 191/2, 16, 131/2 and 8.
To them the jury awarded damages as follows: to the first and second sons, £500, each; to the third son, £1,800; to the fourth son, £3,500; and to the fifth son, £700.
The deceased woman was aged 50 when she died and her husband, the plaintiff, was then aged 55. He was a bank manager, earning, at that date, between his salary, a rank allowance and insurance commissions, about £1,250 per year, a sum which has since increased to about £1,375. In addition, he had a free house, fuel and light. His wife owned 1,376 shares in a private company and their value at the date is agreed to have been about £9,000. They paid a very handsome dividend of £550 per year, free of tax, and continue to pay this amount. As his wife died intestate, these valuable shares passed in their entirety to her husband, the plaintiff, and the children got nothing.
The contention put forward on behalf of the children is that, having regard to the normal social conventions, traditions and mores which prevail in an Irish family in the upper middle class range, the children had a reasonable expectation of sharing in the income of their mother’s property during her life and of succeeding eventually to the capital under her will, an expectation of which they have been deprived by her sudden death intestate. The probability of sharing in such benefits was to some degree enhanced by evidence that the deceased had talked of her intention of transferring property to her children before her death so as to avoid death duties, but, as her husband was due to retire within ten years on a very modest pension, it would seem likely that the wife’s money would have been needed to keep up the family establishment.
An examination of the aptitudes and prospects of the children suggests that they were likely also to receive, or have applied for their benefit, some portion of the income of the fund. The two elder children are now earning for themselves but their remuneration is not large and they could expect some occasional small subventions. The youngest is a bright boy who has still to be educated. Of the remaining two, one is slightly retarded and does not show any avidity for work. It was planned to send him to a relative in Australia in the hope that the more energising climate natural and socialof that continent might help to activate him. This plan would involve at least the provision of an outfit and journey expenses. The remaining boy is definitely retarded and might easily become a permanent charge on the family exchequer. The primary obligation to meet such expenditure, as I have indicated, would be on the father, but it would be reasonable to expect that a mother with an independent income would assist and she had already shown a willingness so to do, having incurred an overdraft of £1,100 for monies which she had applied to family purposes, in particular the education of the children.
It seems to me that a jury could properly come to the conclusion that the children, but for their mother’s untimely death, would eventually have inherited the bulk of their mother’s capital, though probably not till after the death of the father, and meantime would have received some assistance out of the income of the shares.
The defendants do not seriously contest these assumptions but say that the sums awarded are grossly excessive. In the first place, they say that there is not sufficient discount for the present payment of a benefit which was likely to be postponed to a distant future. The deceased was aged 50, the husband 55. Though no actuarial evidence was offered, the probability would be that the death of the survivor would not have occurred for at least 15 or 20 years and it was not likely that the capital would become available till after the death of the survivor. The necessary discount would, it was suggested, reduce the present value to something like half of the £9,000. Secondly, they say that, as the whole of the property of the deceased passed by reason of her death to the husband, the children would have a reasonable expectation that they would receive from their father, whose obligation to look after his children was as great if not greater than that of the mother, as substantial benefits out of her fortune as if she had not been killed. This expectation has been diminished by the second marriage of the father, but a jury might well think that it is still very considerable. The learned trial Judge ruled and instructed the jury that expectations from the father were to be left out of account. This ruling and direction are said to be erroneous, and they form a principal ground of appeal. The authorities on the subject are not conclusive.
The relevant Irish statute is the Fatal Injuries Act, 1956, entitled “An Act to make better provision for compensating members of the family of any person killed by the wrongful act or default of another.” The action is one “for damages for the benefit of the dependants of the deceased” (s. 3, sub-s. 1) and the damages “shall be the total of such amounts as the jury or the judge, as the case may be, may think 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 each such amount shall be separately indicated in the award” (s. 4, sub-s.1). In addition, it is provided that 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, neglect or default (s. 4, sub-s. 2); and that in assessing damages account shall not be taken of any sum payable on the death of the deceased under any contract of insurance or “any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased” (sect. 5).
From the wording of the Act itself certain deductions may be made. There is to be no punitive element in the damages they are by way of “compensation.” As they are given not to all members of a family but only to dependants, and as they are to be proportioned to the injury resulting from the death to each of the dependants, there is a clear indication that the compensation is to be based on monetary loss of prospective benefits and does not include a “solatium.”That in computing the “injury resulting from the death”gains are in general to be set off against losses is shown by s. 5 which, by specifically excluding from such computation certain benefits by way of insurance monies and pensions, implies that benefits not so expressly excluded must be taken into account.
The Act, apart from the provisions of s. 5 and the inclusion of funeral and other expenses in the compensation, follows in general the model of the Fatal Accidents Act, 1846, commonly known as Lord Campbell’s Act, and the Fatal Accidents Act, 1864. The wording, “damages . . . proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought,” occurs in s. 2 of Lord Campbell’s Act, and it was agreed by counsel that our Act must have been drafted with the knowledge of decisions given under the earlier Act and must be construed in the light of such decisions.
Before Lord Campbell’s Act, the law was that “in a civil Court, the death of a human being could not be complained of as an injury . . .”: Baker v. Bolton (13); and the cause of action introduced by the Act was accepted as being”. . . new in its species, new in its quality, new in its principle, in every way new . . .”: Seward v. “Vera Cruz” (14).Six years after the passing of Lord Campbell’s Act it was decided by the Court of Queen’s Bench, with Lord Campbell himself presiding, that damages could only be given under the Act for loss admitting of a pecuniary estimate and that nothing could be given by way of solatium: Blake v. Midland Railway Company (15). Four years later, in Dalton v. South Eastern Railway Company (16), Willes J. held that, in computing damages, not merely pecuniary loss which could be proved to have occurred but the reasonable expectation of pecuniary advantage if the deceased had not been killed must be taken into account, and damages could be given for loss of such expectation. This view was upheld in the Exchequer Chamber in Pym v. Great Northern Railway Company (17) where Erle C.J., with whom the other members of the Court concurred, said (at p. 406) that the jury must consider if there was “. . . evidence of a reasonable probability of pecuniary benefit to the parties if the death of the deceased had not occurred; and was it lost by reason of that death . . .”The same case established that any pecuniary benefits arising by reason of the death must be set off against the loss of financial benefit or the deprivation of a reasonable expectation of such benefit. On this principle deductions were regularly made where an insurance or a pension became payable by reason of the death, until subsequent legislation provided that these items were to be disregarded. All these principles were recognised in this court by Kennedy C.J. and FitzGibbon J. in Gallagher v. Electricity Supply Board (18).
If pecuniary benefits arising by reason of the death are to be set off against pecuniary loss incurred thereby, and if not merely actual and demonstrable loss but the loss of reasonable expectation of benefit is to form the ground of damages, I can see no logical reason why the gain of a reasonable expectation of benefit by reason of the death should not also form a subject of set-off. As I have pointed out the Act is designed to give compensation to dependants and damages are to be proportionate to the injury resulting to the dependants from the death. If, by reason of the death, a dependant loses a reasonable expectation of benefit from the deceased and at the same time gains a reasonable expectation of benefit from another person, the injury resulting from the death must be the loss on balancing of the two expectations. This seems to have been the view of all the members of the Court in Baker v. Dalgleish Shipping Company (19). In that case the question was whether there should be a deduction from the damages to be given to a widow because, on the death of the deceased husband under circumstances giving rise to a claim under the Fatal Accidents Act, 1846, a pension became payable to the widow from the Crown. The pension was voluntary, could be (but was unlikely to be) withdrawn, and might be reduced if there was a substantial award of damages in the action. Bankes L.J. says at p. 368:”I cannot myself see why, when assessing compensation under Lord Campbell’s Act, any distinction should be drawn between an assessment of what is a reasonable expectation of benefit had the deceased person lived, and what is the reasonable expectation of benefit in consequence of the deceased person’s death. Both must be taken into consideration in arriving at the real loss. Both may legitimately, in my opinion, be arrived at by the same process.” Scrutton L.J. says at p. 372:”Just as in assessing the loss by the death the probability of voluntary contribution destroyed by the death of the contributor may be included to swell the claim, so the probability of voluntary contribution bestowed in consequence of the death may be used to reduce the claim by showing what loss the claimant has in fact sustained by the death.” Younger L.J. held that the probability of future payments of a pension arising from the death, even though such payments were voluntary and could be discontinued (an unlikely contingency), must be taken into account in reduction of the amount to be awarded.
Counsel for the plaintiff relied on Peacock v. Amusement Equipment Co. Ltd . (20). In that case a husband had been living with his wife in a house where she carried on a small business out of which she maintained him and herself, though he was earning substantial wages from an outside employment. She was killed in an accident which gave rise to a claim under the Fatal Accidents Acts, 1846-1908. By her will she had left the house to her two children by a former marriage. They sold the house and out of the proceeds made a voluntary gift to the plaintiff of £575. The defendant in the action sought to have this sum deducted from the amount which would otherwise have been payable as damages to the plaintiff. It was held that the sum should not be deducted as it was attributable to the spontaneous generosity of the children and was not a sum which he could have had any reasonable expectation of receiving as a result of his wife’s death. Somervell L.J., after citing from the judgment of Scrutton L.J. in Baker v. Dalgleish Steam Shipping Company (21), goes on to say, at p. 353:”. . . in considering whether claims other than claims of legal right are to be brought in, whether payments have been made or not, it is important to consider the position as at the time of the death: Was there at that time any probability or reasonable expectation of a benefit? Applying that test to the present case, I think that it is plain on the evidence that there was none. These stepchildren were evidently fond of their father and they realised that he had benefited from their mother’s business and they determined out of the assets realized to make a present; but there was no expectation by him of a present when the deceased died.” Birkett L.J. says, at p. 355:”When it turned out that he (the husband) was not even mentioned in the wife’s will he certainly had no expectation that he would receive any part of what his wife left.”In his view the payment, being a mere expression of generosity, was not such a payment as should be taken into account. In the circumstances it was not money paid “by reason of the death.” I can understand the criterion being whether at the time of the death, and by reason of the death and the circumstances brought about by it, a reasonable expectation of pecuniary benefit in the future arose. If that is the true ground of the decision in Peacock’s Case (22)and I think it isthen Peacock’s Case (23) is of little avail to the plaintiff. In the present case I think there arose at the time of the wife’s death and because, by reason of that death, her property passed to her husband, a reasonable expectation that the husband would apply part of the income for the benefit of the children and would eventually bequeath to them a considerable portion and perhaps all of the capital. The husband has now married again and may have further children. This would go to reducing the expectation of the children of the first marriage and may be taken into account by the jury in their estimation of damages. But that a reasonable expectation still exists I cannot doubt, and I think the learned Judge was in error in directing the jury to leave such expectation out of account.
I find, however, considerable difficulty in reconciling Peacock’s Case (24) with the subsequent case of Mead v.Clarke Chapman & Co. Ltd . (25), also a decision of the English Court of Appeal. The deceased was killed in the course of employment with the defendants, who admitted liability for negligence, leaving a widow and a daughter aged 4 months. Eight months after the death the widow re-married, her new husband being financially in the same position as her former one. The step-father was fond of the child and supported it. The trial judge allowed sums in respect of the period between the death of the first husband and the re-marriage, but held that the effect of the re-marriage was to put the wife and child in as good a position as before the death. On appeal it was held that the prospects of benefit from the step-father must be taken into account, but that something more than had been awarded by the trial judge must be allowed to the child because the obligations of the natural father to look after the child were legal and those of the step-father, being only moral, were of less value. A very moderate sum, £200 in all, was allowed by way of compensation to the child. This case seems to me to conflict with Peacock’s Case (26) in as much as, if the matter is to be looked at as of the date of death, there was no real expectation of benefit to the child accruing from the death by reason of the possibility of a future marriage to a kind step-father. Such a possibility seems to me too remote and speculative to form a basis for computation. Had the case been heard promptly before any question of re-marriage arose, damages must have been awarded on the assumption that the death had deprived the child of a means of support to which he had a legal claim and that there was no reasonable expectation of a compensating benefit. The case is an authority to show that the actual state of affairs at the date of the trial must be considered.
However, even assuming that Peacock’s Case (27) is in all respects correctly decided, it does not, in my view and for the reasons I have stated, affect the present case. In my opinion there must be a retrial.
One further matter calls for decision. The jury awarded the sum of £200 for funeral and other expenses. The funeral expenses came to £121 and the remainder of the £200 must have been awarded in the light of the evidence given by the plaintiff that in consequence of losing the assistance of his wife he had to incur greater expense for domestic help and for some private tuition for his children. It was argued for the defendants that there must be set off against this sum of £200 the financial gain which had accrued to the plaintiff by reason of his wife’s death. This was contested by the plaintiff. The £200 was awarded under s. 4, sub-s. 2, which provides as follows:”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, neglect, or default.” The first question which presents itself is whether the £79 awarded in recompense of payments made for services which the deceased might have been expected to perform falls within the category of “other expenses actually incurred by the . . . dependants or the personal representative by reason of the wrongful act, neglect, or default.”Under the Fatal Accidents Act, 1846, and under s. 4, sub-s. 1, of our Fatal Injuries Act, services rendered to the dependants and which were likely to continue could be estimated in money, capitalised, and added to the damages: Berry v.Humm & Co. (28). To allow the amounts paid in respect of the loss of such services to form a separate heading of award would be to recompense twice over for the same item of loss. I cannot believe that such was the intention of the Act. Sect. 4, sub-s. 2, in my view provides only for items of loss which could not, on the authorities, be compensated under s. 4, sub-s. 1. Funeral expenses, which are specifically mentioned, could not have been taken into account under the Fatal Accidents Act, 1846: Clarke v. London General Omnibus Co. Ltd. (29), and do not come under s. 4, sub-s. 1, of our Act. Expenses under s. 4, sub-s. 2, are distinguished from loss arising by reason of the death; they are expressed to be such as arise “by reason of the wrongful act, neglect, or default.”Expenses for medical treatment of the deceased, to give but one example, could be awarded under s. 4, sub-s. 2, and would not come under s. 4, sub-s. 1. If, as I think, s. 4, sub-s. 2, is meant to cover only items which could not be compensated by damages under s. 4, sub-s. 1, then the £79 cannot be awarded under this head.
If I am right in my view as to the intention of s. 4, sub-s. 2, there should be no deduction from damages properly awarded under this head by reason of any advantage which may incidentally have accrued to dependants by reason of the death. The Fatal Accidents Act, 1846, and s. 4, sub-s. 1, of our Act are conceived in terms of dependancy. The real monetary loss to the dependants which arises by reason of the death can only be arrived at by taking into account such benefits as may accrue by reason of the death. There does not seem to me any scope for such accountancy under s. 4, sub-s. 2. This sub-section deals with concrete expenditure incurred by reason of the wrongful act, neglect or default. I can see no reason in the wording of the Act, or in common sense, why the wrongdoer should not have to pay these expenses which are analogous to the items of special expenses in an ordinary negligence action. The £200 should be reduced to £121, but no further.
HAUGH J.:
I agree that there should be a new trial for the reasons stated
Waters v. Cruikshank.
[1967] IR 378
O’Dalaigh C.J. 378
Supreme Court.
O’DALAIGH C.J. :
20 Feb.
The plaintiff recovered £770 damages in an action under the Fatal Injuries Act, 1956, tried before Mr. Justice Murnaghan and a jury. The action was in respect of the death of Anthony Allman, the plaintiff’s nephew, who was killed on the 27th January, 1959, as the result of a collision with the defendant’s motor car. The major question raised by the appeal, which is brought by the defendant, is whether the plaintiff at the date of his nephew’s death stood in loco parentis to him. Sect. 2, sub-s. 2 (c) of the Fatal Injuries Act, 1956, provides that in deducing any relationship for the Purpose of the Act “a person in loco parentis to another shall be considered the parent of that other.”5
Anthony Allman was just under 18 years of age at the date of his death. He was the son of the plaintiff’s sister, Julia, whose marriage was not a success. At the age of eight months Anthony was put in the care of his grandparents on the family farm at Castlegal, Co. Donegal. After their deaths the farm passed to the boy’s uncle, Gerald. He supported the boy and, together with his sister Mary Maud, looked after him. When Anthony was 12 years old Gerald was killed. Gerald’s place was taken by the plaintiff. The plaintiff and his sister, Mary Maud, treated the boy as if he were their own son. From the age of 12 years Anthony began to help about the farm. He left primary school at the age of 14, and the plaintiff then sent him for a term to a secondary school. But at this time the plaintiff was being rendered increasingly inactive by arthritis and the result was that, as the plaintiff became able to do less and less, Anthony undertook more and more. The plaintiff, to use his own words, was teaching him to carry on with the work which consisted of ploughing, mowing, agriculture and everything else. The position was reached in the last two or three years that Anthony had virtually taken over the running of the farm, being helped occasionally by the plaintiff’s brothers. He continued to live as a son of the house. The plaintiff bought him his clothes and boots, gave him pocket money, and provided him with one bicycle and then another. The plaintiff’s sister, Mary Maud, kept house and did the cooking and mended the boy’s socks and clothing.
The trial judge, in his charge to the jury, dealt with the question of the plaintiff’s relationship with Anthony in the following words:”I would think, while you would consider what the defendant’s counsel says about this matter, that you would have no difficulty in coming to the conclusion that the plaintiff and his sister stood in relation to this boy as a parent. They looked after him, they provided for him, they did everything a parent could do for him. There is no real difference as far as I can see it. However, the matter is your decision. The evidence seems to point one way; consequently, when you retire to your room, I think you shouldn’t spend too much time on the first question which is whether the plaintiff was in loco parentisto the deceased. It seems to me that you should answer that question ‘yes.’ You might, on the other hand, take the view that Mr. Bell has set out to you; that while the plaintiff might have been in loco parentis to him at one time, that the situation had changed. I cannot say, but you may think there is something in that.”
In this Court Mr. Bell has submitted that the words “in loco parentis” in the Fatal Injuries Act, 1956, are to be construed as they have been construed by the courts in cases concerning advancement. There, the test applied has been whether A, the person alleged to be in loco parentis,has been maintaining B, the child; or, looked at from the child’s side, whether B has been maintained by A. Mr. Bell’s contention is that, at the date of his death, Anthony was not being maintained by the plaintiff, his uncle; but rather that the evidence is that Anthony, in effect, was maintaining the plaintiff. The plaintiff therefore no longer stood in loco parentis to Anthony and this action is accordingly not maintainable. The plaintiff, Mr. Bell says, is on the horns of a dilemma. In establishing a loss arising from his nephew’s death (and this is an essential ingredient of the action), he destroys his claim to have stood in loco parentis to his nephew the test of which is that he was maintaining his nephew.
The Structure of the Act of 1956 is simple. The cause of action is given by s. 3, sub-s. 16, in words which are the words of the repealed Fatal Accidents Act, 1846, and the action is”for the benefit of the dependants of the deceased.” The only other provision that needs to be looked at is s. 2 of the Act of 1956, which provides:
“2.(1) In this Act
‘dependant,’ in relation to a person whose death is caused by a wrongful act, neglect, or default, means any member of the family of the deceased who suffers loss;
‘member of the family’ means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister;
‘wrongful act, neglect, or default’ includes a crime.
(2) In deducing any relationship for the purposes of this Act
(a) a person adopted under the Adoption Act, 1952 (No. 25 of 1952), shall be considered the legitimate offspring of the adopter or adopters;
(b) subject to paragraph (a), 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.”
The provision of para. (c) of sub-s. 2, which is our concern, is new.
Mr. Bell’s argument requires that a person in loco parentiscan never recover damages under the Act of 1956. A person in order to stand in loco parentis to another must, he argues,
be economically supporting that other, and it follows therefore that the death of that other cannot cause loss to the person in loco parentis. The Act operates in one direction only, an infant can sue in respect of the death of a personin loco parentis to him, but the person in loco parentis cannot sue in respect of the infant’s death. When the infant ceases to be dependent economically the nexus, Mr. Bell argues, is dissolved; his former supporter no longer stands in loco parentis to him.
It will be observed that the Act refers dependency to membership of the family of the deceased. Where A standsin loco parentis to B, A and B are in effect made by the Act members of the same family. The abandoned child will almost of necessity need economic support, but one who stands in place of a parent has more to give than mere economic support and, it does not require to be said, a child needs more. The child finds a new home or, in the language of the statute, a new family. As the infant grows in years it may happen (as happened here) that he becomes the mainstay of his substituted father. The Court is asked to say that the economic independence of the infant necessarily dissolves the relationship of substituted father. I cannot accept that the Latin words “in loco parentis” conceal less than the whole complex of the parent-child relationship; and while the relationship will almost invariably be first established because of economic need, this is but one of a number of strands that bind parent and child. The relationship of father and son cannot be unmade; the relationship of the substituted father can. On the evidence in this case it would not have been possible for the jury to have come to any other conclusion than that, at the date of Anthony Allman’s death, the plaintiff still stood in loco parentis to him.
One further point requires consideration. One of the elements in the loss suffered by the plaintiff was the reduction he was compelled to make in the number of stock he kept. The matter is dealt with in the plaintiff’s examination-in-chief as follows:
“163. Q. Is there any other way you are affected on the farm as the result of Tony’s death?
A. Yes.
164. Q. What other way?
A. The hay. I have less hay now.
165. Q. Have you also less stock?
A. Yes.
166. Q. And have you enough hay to feed the stock you have?
A. Yes.
167. Q. What used you do with the stock? Used you to sell it . . .?
A. Yes.
168. Q. And instead of 14 or 15 you are now keeping only 7 or 8?
A. Yes.
169. Q. Your loss in the hay would show in the loss of the stock you used to sell?
A. Yes.
170. Q. What used you to sell stock for, per head?
A. £22 and £20 and £23.
171. Q. And how often would you sell them?
A. Every twelve months.
172. Q. Every twelve months. Has it been since Tony’s death that you are selling something like 7 or 8 head of stock per year less than you used to?
A. Yes.”
The loss alleged under this head was put by the judge in his charge to the jury at £120 (i.e., 6 cattle at £20 each) subject to considerations which are not here relevant. Junior counsel for the defendant, Mr. Boyd, objected to the evidence being put in this way. The colloquy between judge and counsel was as follows:
“Mr. Boyd: Your Lordship may have misled the jury when you referred to the three or four financial heads which they might take into consideration. Your Lordship referred to the plaintiff’s evidence that when he sold six or seven cattle less a year, it cost between £20 and £23. Your Lordship put that to the jury as a net loss. We have no evidence, my Lord, how he stood, having sold his cattle, what it has cost to get them to the market, the cost of food and so on. Your Lordship put a figure of £120 . . .
Mr. Justice Murnaghan: You didn’t ask any questions by way of cross-examination that would support that.
Mr. Boyd: Admittedly so.
Mr. Justice Murnaghan: Then I won’t ask the jury to deal with it.”
Mr. Bell in this Court repeated his colleague’s objection and urged that there has been a misdirection. It appears from an early passage in the plaintiff’s evidence that the stock in question were calves which were born on the farm, reared and sold as yearlings. Mr. Bell urged that the answer to Q. 170 means that the yearlings were sold at prices ranging from £20-£23, and that from this should be deducted the cost of a year’s foddering. He expressed himself as agreeable that this Court should adjust the damages.
I have considered again the passage in the evidence dealing with this topic and I have come to the conclusion that, in loose language, the plaintiff is purporting to say what his profit on each beast would be. In an agricultural country I think that a judge may, without undue liberty, take judicial notice of the fact that in the year 1959, and in every year since, yearlings seldom fetched less than twice and, more often than not, thrice the figure named by the plaintiff. There has, therefore, in my opinion, been no misdirection. In the result I would dismiss this appeal.
KINGSMILL MOORE J. :
The plaintiff, an elderly farmer who is considerably affected with rheumatism and arthritis, claims damages under the provisions of the Fatal Injuries Act, 1956, as a dependant of a young man, Anthony Allman, who died at the age of 18 as the result of an accident caused by the negligence of the defendant. The plaintiff alleges that he wasin loco parentis to Anthony, who helped him to work and manage his farm, and that he has now lost the benefit of such assistance and, consequently, has suffered and will suffer financial detriment. The jury, in answer to a question put to them by the trial judge, found that the plaintiff wasin loco parentis to the dead lad and awarded £770 damages and £26 14s. 6d. for funeral expenses. The defendant has appealed against this verdict on the ground that the judge should have withdrawn the case from the jury because of the failure of the plaintiff to establish his dependency on the deceased and also because of his failure to establish that he was in loco parentis to the deceased. The defendant relies further on an alleged inadequate direction of the trial judge and says that the damages were excessive.
The Fatal Injuries Act, 1956, follows and extends the scheme of the Fatal Accidents Acts, 1846, and 1864, and the Fatal Accidents (Damages) Act, 1908, all of which are now repealed. In the Act of 1956 “dependant” is defined as “any member of the family of the deceased who suffers loss” and “member of the family” is defined by means of a list of relations who are to come within that description and which includes “father” and “mother.” It is further provided that in “deducing any relationship for the purposes of this Act . . . a person in loco parentis to another shall be considered the parent of that other.”
There is no mystery about the meaning of the Latin phrase”in loco parentis.” A person is in loco parentis if and when he has intentionally put himself in the position of a father. Mr. Bell says, however, that a number of Chancery cases have, in law, somewhat confined the generality of the meaning. He refers to the following words of Jessel M.R. in Bennet v. Bennet (7):”Now what is the meaning of the expression ‘a person in loco parentis?’ I cannot do better than refer to the definition of it given by Lord Eldon in Ex parte Pye (8), referred to and approved of by Lord Cottenham in Powys v. Mansfield (9). Lord Eldon says it is a person ‘meaning to put himself in loco parentis; in the situation of the person described as the lawful father of the child.’ Upon that Lord Cottenham observes, ‘but this definition must, I conceive, be considered as applicable to those parental offices and duties to which the subject in question has reference, namely, to the office and duty of the parent to make provision for the child. The offices and duties of a parent are infinitely various, some having no connection whatever with making a provision for a child; and it would be most illogical, from the mere exercise of any of such offices or duties by one not the father, to infer an intention of such person to assume also the duty of providing for the child.’ So that a person in loco parentis means a person taking upon himself the duty of a father of a child to make a provision for that child. It is clear that in that case the presumption can only arise from the obligation, and therefore in that case the doctrine can only have reference to the obligation of a father to provide for his child, and nothing else. But the father is under that obligation from the mere fact of his being the father, and therefore no evidence is necessary to shew the obligation to provide for his child, because that is part of his duty. In the case of a father, you have only to prove the fact that he is the father, and when you have done that the obligation at once arises; but in the case of a person in loco parentis you must prove that he took upon himself the obligation.”
I am by no means convinced that the words “in loco parentis” as used in s. 2, sub-s. 2 (c), of the Act of 1956 are necessarily to be confined within as strict limits as were indicated by Jessel M.R. in a case where a question of advancement was the issue, and certainly do not so decide: but for the purpose of this decision I am ready to assume, as Mr. Bell contends, that in order to justify the finding there must be evidence from which a jury could reasonably draw the conclusion that the plaintiff had assumed the duty of providing for the deceased. I make this assumption without embarrassment for if, on the facts proved, a jury had come to any other conclusion I would be inclined to regard their verdict as unsustainable.
Anthony Allman, the deceased, was born on the 12th February, 1941, and at the age of eight months he was left by his mother at her parents’ house. From then onwards neither his father nor his mother (whose marriage very shortly broke up) took any interest in him or provided in any way for his maintenance. They returned to England and it is doubtful if their whereabouts are known. The boy was brought up in his grandparents’ house. When his grandfather died he was looked after by his grandmother, his uncles and his aunt, who were then all living in the house. His grandmother died in the year 1947 and his uncle Gerald and his uncle Peter (the plaintiff) continued to maintain him. On the death of Gerald in 1952 or 1953 the boy remained living with the plaintiff on the farm which now, subject to certain charges, belonged to the plaintiff; and the boy was looked after by the plaintiff and by the plaintiff’s sister. He was given a home, fed, clothed, provided with pocket money and two bicycles and was sent for a short time to a secondary schoolall this at the plaintiff’s expense. In every way he seems to have been treated as a favourite son of the house. To maintain that there was not evidence on which a jury could properly decide that the plaintiff had put himself in loco parentis is a proposition which I would have considered to be unarguable, had it not been argued.
There is no doubt that the deceased was a keen, willing, industrious boy who from the age of twelve gave help about the farm, learning from his uncle the art of husbandry, doing such jobs as were suited to his strength and age and becoming increasingly useful as he grew up. For the two or three years before his death, a period during which the plaintiff’s rheumatic and arthritic complaints increased, the value of the deceased’s services may well have amounted to considerably more in value than the material benefits he received from the plaintiff. The farm and everything on it, cattle, instruments and crops belonged to the plaintiff. He was the person who supplied knowledge, experience and direction, but he was not able to do more than light work. The main work was done by the deceased with a certain amount of help from his other uncles and from neighbours. So is it in many farms where the son of the house, growing towards maturity, takes over more and more the manual effort necessary to keep the economy going. But this does not mean that the father’s responsibility to provide for his son decreases or disappears. That the son, with a sense of filial obligation, makes his own return does not relieve the father of responsibility. Should the son become blind or crippled or weak-minded, there is still a responsibility on the father to maintain him even if he makes no return. I cannot doubt but that the whole conduct of the plaintiff in this case shows that he had accepted no smaller responsibility than this towards the deceased and that, even in the most restricted sense, he was in loco parentis.
If it be accepted, as I think it must be, that there was evidence (and indeed ample evidence) that the plaintiff was in loco parentis, it only remains to see what damages should be awarded in respect of the injury resulting to the plaintiff by reason of the death of the deceased. It is well settled by cases under the earlier Acts that such damages can only be awarded in respect of pecuniary loss, but such loss includes the loss of services and benefits which have been enjoyed or might reasonably be expected to be enjoyed in the future. Here we have an old man becoming progressively crippled and a young vigorous intelligent lad growing to manhood and under great obligations. The old man may die; the lad may marry in the fullness of time, though in Irish rural circles the time for marriage is often long in ripening. These matters have to be taken into account by a jury in reduction of damages. But taking all factors into account and in the absence of some clear misapprehension or some misdirection or non-direction of the judge, I would not consider it possible to set aside the verdict of the jury as excessive.
The defendant says that there was misdirection by the judge. Whether this submission is correct is not easy to determine, for the evidence given by the plaintiff was most unsatisfactory. He seems to have been of low intelligence and perhaps deaf, for he misunderstood many of the questions which were put to him and, even if he did not misunderstand, his answers were often vague and difficult to interpret. As far as I can construe the relevant portions of his evidence about his financial position, the plaintiff’s story was as follows.
The economy of his small 46 acre farm was centred on cattle. He owned a licensed “Department” bull whose activities, while Anthony was alive, brought him in an income of about £100 a year. He used to keep 14 or 15 cows and send their milk to the dairy, and he reared an unspecified number of calves up to the age of twelve months. To feed his beasts and eke out his grazing, he would save about 45 tons of hay and he grew small acreages of oats, rye, wheat, turnips and mangels. For household use he grew potatoes, cabbage and sometimes a few onions. As a result of Anthony’s death there was nobody to manage the bull and the earnings from this source were down to about £20; the acreage of hay and crops of every kind had to be cut down and he could now only keep 7 cows. He had to spend about £45 a year on feeding stuffs for these remaining animals where formerly he could supply all necessary fodder for 14 or 15 cows and their calves from the produce of his own farm.
None of these matters was in any way challenged in cross-examination, nor was there any objection to the charge of the learned judge in so far as he dealt with them. The difficulty arises out of several questions and answers. [His Lordship referred to the questions and replies Nos. 167-172, which appear at p. 383 ante, and continued:] No indication is given in these answers as to whether the stock sold were the calves which had been reared to the age of twelve months, or were cows which were decreasing in yield; but in either case the figures of £20 or £30 appear so far below any reigning figures of market price that it appears to have been accepted that these sums represented the actual profit made on sale after allowing for any expenses of feeding, rather than the actual sale price. No question to clear up the vagueness of this evidence was asked in cross-examination and the learned judge in his charge treated the sum of £120 (six cattle at £20 each) as a basis which the jury might accept, subject to the consideration that the decline in the number of cattle kept and sold might be attributable not only to Anthony’s death but also to the progressing feebleness of the plaintiff. At the conclusion of the judge’s charge Mr. Boyd, for the defendant, took the following objection:”Your Lordship referred to the plaintiff’s evidence that when he sold six or seven cattle less a year, it cost between £20 and £23. Your Lordship put that to the jury as a net loss. We have no evidence, my Lord, how he stood, having sold his cattle, what it has cost to get them to the market, the cost of food and so on. Your Lordship put a figure of £120. . . .” The trial judge, referring to the complete absence of cross-examination to support the point raised, refused to recall the jury and to deal with the objection. His direction and his failure to recall the jury for re-direction are the grounds on which the defendant seeks a retrial.
Even if the figures of £20 or £23 represent the actual selling price, the objection seems of little weight. We have evidence that, while Anthony was alive, the cattle could be fed on the farm producegrass, hay, oats and roots and it was unnecessary to buy feeding stuffs. The plaintiff’s claim is that, owing to the death of Anthony, the labour for producing the same quantity of feeding stuffs was not available; that the number of cattle kept had to be reduced from 14 to 7 and, consequently, that the plaintiff had lost the yearly sale of 7 cattle. The loss of the price of the cattle was thus given as part of the measure of the loss of Anthony’s services. The trial judge expressly warned the jury that they
must consider what proportion of the farm production should be attributed to the efforts of Anthony and how much to those of the plaintiff and this, rather than the cost of feeding the cattle, seems to me to be the appropriate basis of reduction. Even if this were not so, there would be no ground for such a reduction as is claimed by the defendant. The cattle sold must have been either milch cows whose yield was declining and which were to be replaced by heifers from the calves bred, or were the twelve months calves to which I have already referred. If the cattle sold were milch cows there is no ground for any reduction by reason of the expenses of feeding. Such animals would be profit-making till sold by reason of the sale of their milk and the cost of feeding them would be only an item to be set against the cost of the milk they produced, not against their sale price. If the cattle sold were the twelve months calves the only item other than the value of their grazing and the labour involved in producing food from the farmwould be the loss of milk while the calves were being suckled. We do not know whether they were single-suckled or double-suckled, but in any case the expense would be small and if any deduction were to be claimed for this the facts should have been elicited on cross-examination.
In truth, damages, in a case such as this, are not a matter of any exact accountancy. What a jury have to estimate is the pecuniary loss involved in the deprivation of Anthony’s services, which would have been given to the plaintiff if Anthony had lived. The plaintiff was becoming progressively more crippled by rheumatism and arthritis, but neither of these are killing diseases. Anthony was getting stronger and abler. Between him and the plaintiff there were the closest ties. It would be reasonable to suppose that very soon, and for many years, the plaintiff would be entirely dependent on Anthony for running the farm. The jury would have to consider the matter in a broad way. I cannot see them giving much consideration to the cost of suckling a few calves for a couple of months, especially when no attention had been paid to this item in cross-examination. In my opinion the verdict should stand.
WALSH J. :
For the reasons given by the Chief Justice and Mr. Justice Kingsmill Moore, I would dismiss this appeal.