Buckley, Horgan v (No. 2)

CourtSupreme Court
Judgment Date17 January 1938
Date17 January 1938

Supreme Court.

Horgan v. Buckley. (No. 2).
DANIEL BUCKLEYand DANIEL D. BUCKLEY, Defendants (No. 2) (1)

Negligence - Fatal accident - Claim for damages under Fatal Accidents Act, 1846 - Application for a new trial - Action already tried twice - Jury's award of damages at first trial having been set aside as excessive - Reduced total amount awarded at second trial - Same sums apportioned at both trials to each of the two children of the deceased - Setting aside jury's assessment and apportionment - Whether the sums awarded by the jury are separate verdicts - 9 & 10 Vict. c. 93, sects. 1 and 3.

Application on behalf of the defendants for an order that the verdict and judgment entered for the plaintiff on the trial of the action before Maguire P. and a jury on the 8th of November, 1937, be set aside and that in lieu thereof judgment be entered for the defendants; or, in the alternative, that a new trial be ordered, on the ground that the damages awarded were excessive. The facts of the case, in reference to the first trial, have

already been reported (1). At the second trial two additional witnesses were examined as to the likelihood of John Horgan being able to acquire a suitable farm: Godfrey, a farmer, and McSweeney, an auctioneer. The award and apportionment by the jury at the second trial are set out in the headnote.

The plaintiff brought an action under the Fatal Accidents Act on behalf of herself and her two infant children, claiming damages in respect of the death of her husband. The action was tried by a Judge and jury and the jury assessed damages at £750 of which they apportioned £150 for the plaintiff and £300 for each of the children. On the application of the defendants the award of damages was set aside as excessive by the Supreme Court and a new trial directed on the issue of damages (reported antep. 115).

At the second trial the jury awarded damages which they assessed at £700, of which they apportioned £100 for the plaintiff and £300 for each of the children, thus awarding to the plaintiff a lesser sum than was awarded to her at the first trial, and to each of the two children the same sum. The defendants applied for another new trial on the ground that the damages were excessive.

Held, by the Supreme Court (Sullivan C.J., Meredith and Geoghegan JJ.; FitzGibbon and Murnaghan JJ. dissenting) that the application must be refused.

Sullivan C.J. was not satisfied that the evidence as to pecuniary loss suffered by the children was identical at each trial; but, without basing his judgment on the ground that there was any substantial difference in the evidence given at each trial, held that the verdict and judgment should stand, the case having, so far as the award to the children was concerned, been tried twice with the same result; Meredith and Geoghegan JJ. concurring, being of opinion that there was evidence at the second trial to justify the sums awarded, and the verdict was not grossly contrary to the evidence or to the weight of evidence, and there was nothing to show that the jury acted on any mistake of principle in arriving at their verdict.

FitzGibbon J. was of opinion that the verdict of the jury was, in effect, three separate verdicts in favour of three different people and based upon distinct and different considerations. Therefore the previous decision of the Court that the sum awarded to each child was excessive concluded the case, since the same sum had been again awarded and...

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