Davoren v Health Service Executive (HSE) Western Area and Others
| Jurisdiction | Ireland |
| Judge | O'Neill J. |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] IEHC 460 |
| Docket Number | [No. 3235 P/2006] |
| Court | High Court |
| Date | 21 December 2011 |
[2011] IEHC 460
THE HIGH COURT
BETWEEN
AND
CIVIL LIABILITY ACT 1961 PART IV
O'SULLIVAN v CORAS IOMPAIR EIREANN 1978 IR 409
MCGREGOR MCGREGOR ON DAMAGES 18ED 2009 PARA 8.039
CHAPLIN v HICKS 1911 2 KB 786
MCGREGOR MCGREGOR ON DAMAGES 18ED 2009 PARA 8.091
BARNETT v COHEN & ORS 1921 2 KB 461
DAMAGES
Assessment
Fatal injuries claim - Claim for compensation by dependents - Calculation of damages - Compensatable loss to dependents - Accelerated receipt of land - Claim for loss of inheritance of deceased's mother - Loss of chance - Novus actus interveniens - Remoteness - Discounts for contingencies - Whether capitalised value of accelerated receipt should be deducted from loss - Whether deceased would have inherited mother's estate had he not died - Whether loss of inheritance was loss to dependents - Whether "loss of chance" case - Whether loss of inheritance foreseeable consequence - Whether contingencies diminish claim to extinction - Whether gains accrued on death could be offset against damages for loss - O'Sullivan v CIE [1978] IR 409; Chaplin v Hicks [1911] 2 KB 786 and Barnett v Cohen [1921] 2 KB 461 considered - Civil Liability Act 1961 (No 41) - Damages awarded (2006/3235P - Ó Néill J - 21/12/2011) [2011] IEHC 460
Davoren v Health Service Executive
Facts: The plaintiff was the widow of the deceased who had died intestate and sued on behalf of the dependents of the deceased for damages pursuant to Part IV Civil Liability Act 1961. The mother of the deceased was also a dependent and died after the action commenced. The plaintiff alleged that his death was caused by negligent medical and surgical treatment. The defendants did not contest liability and the proceedings amounted to an assessment of damages only. Damages were claimed for inter alia solatium, the capital value of financial dependency loss, totalling Eur 319,975.79 and loss of income from farming after the death of his mother, half rental income, loss of value of inheritance of the estate of his mother, totalling Eur 1,546,982.
Held by O' Neill J. that the dependents of the deceased would have succeeded to the estate of the mother of the deceased were it not for the wrongful death of the deceased. The just measure of compensation to be paid to the plaintiff and dependents of the deceased was Eur 1,546,98. The total of the financial losses suffered by the dependents of the deceased was the agreed Eur 275,000 for loss of financial support and Eur 1,546,982 the loss of the inheritance of the estate of the mother of the deceased, making a total of Eur 1,821,983. The plaintiff was entitled to recover total damages of Eur 1,591,957.70.
Reporter: E.F.
The plaintiff in this case is the widow of Michael Davoren deceased, who died on 31st August, 2003, and she sues on behalf of the dependents of the said Michael Davoren for damages pursuant to the provisions of Part IV of the Civil Liability Act 1961. In the action, the plaintiff alleges that the death of Michael Davoren was caused by the negligence and breach of duty of the defendants and either of them in the medical and surgical treatment of the plaintiff in the period between 18th July, 2003, and 31st August, 2003. When the action came on for hearing, the defendants did not contest liability and the matter proceeded as an assessment of damages only.
Michael Davoren, the deceased, was born on 25th December, 1956. The plaintiff, who was born on 7th August, 1960, married the deceased on 6th April 1991. They had four children, namely, Michael Daveron, born on 23rd April 1993, Grainne Daveron, born on 27th October 1994, Eleanor Daveron born on 2nd February 1999, and Rebecca Daveron born on 13th April 2002. Michael Daveron was also survived by one sister Mary O'Regan (nee Daveron) who was born on 8th October 1959. His mother Maura Daveron, who was born on 29th September 1928, was a dependent within the meaning of Part IV of the Civil Liability Act 1961 when the action commenced, but she died on 6th August 2009.
Michael Daveron was a farmer by occupation since the age of approximately sixteen years. He and his ancestors were well known as farmers in North County Clare. He grew up on his parent's farm near Ballyvaughan in County Clare. This farm was known as Ballyalben. When Michael Daveron left school, he took up fulltime occupation on his father's farm. His father also Michael Daveron, died on 2nd October, 1991 and was then in his 80s and had been in poor health for some time before that. It is clear that for several years prior to the death of his father, Michael Daveron had taken over the running of the family farm at Ballyalben in conjunction with his mother.
Some time prior to his death Michael Daveron Snr. had given Michael Daveron Jnr. deceased, a farm known as Ballycahill, which adjoined the farm at Ballyalben. The farm at Ballycahill was separated from the Ballyalben farm by a road. The Ballycahill farm was at that time scrubland and the deceased Michael Daveron, devoted a considerable amount of his time to reclaiming that land. This farm contained 269 acres. In due course the deceased succeeded in making the Ballycahill farm a successful enterprise and at the time of his death in 2003 he had a suckler herd of 80 cows on it.
In addition to running the Ballycahill farm the deceased Michael Daveron, continued after the death of his father to also run the Ballyalben farm with his mother. This farm was an extensive one amounting to 623 acres, although approximately 500 of that was winterage on the Burren. The Ballyalben farm was stocked with approximately 40 cows. When Michael Daveron deceased set up a separate farm in Ballycahill it was necessary for him to apply for a separate herd number and for the purposes of gaining entitlement to grants and subsidies it was expedient and indeed, apparently necessary for him to lease from his mother 316 acres of the Ballyalben farm. This lease continues but will expire in 2012. It was apparent from the evidence that the deceased was devoted to farming and enthusiastic about everything to do with his farming activities and the development of that enterprise. He maintained a large stock of agricultural equipment as he did not engage contractors and did all of the work on both farms himself. He was keen to develop his farming enterprise and in that regard planned setting up a trekking business. He was passionate about food and grew all his own vegetables and was an accomplished cook.
Since his death the plaintiff, who is a fulltime resource teacher now working in Kinvara National School, has been obliged to greatly scale down the farming enterprise. Immediately after the death of Michael Daveron in 2003 his mother appointed a manager to look after the Ballyalben farm. The plaintiff with the assistance and generous support of her neighbour Mr. Droney, was able to keep the farming enterprise at Ballycahill going, but on a much reduced scale, having cut the herd down to approximately 26 cows. She also sold the farm machinery accumulated by her late husband because it was no longer necessary and because of her apprehension that it could be abused and in particular because there was an expectation that her son Michael Daveron would start driving a tractor.
Prior to the death of Michael Daveron in 2003, there had obviously been a very close relationship between Maura Daveron and her son and his family. Michael Daveron spent a great deal of his working time on the Ballyalben farm and after he got married, a barn or outbuilding on the Ballyalben farm was converted into a dwelling house in which he lived with the plaintiff and their children and where the plaintiff still lives with the children. This converted barn became jointly owned by Michael Daveron and the plaintiff and is located quite close to the dwelling house on the Balllyalben farm.
Unfortunately, after the death of Michael Daveron, there appears to have been a falling out between the plaintiff and Michael Daveron's mother, brought on it would seem by a belief on the part of the deceased's mother that in some way or another the plaintiff was responsible for the death of her son and exacerbated or heightened by the sale by the plaintiff of the farm machinery which had been kept on the Ballyalben farm.
The damages claimed in this case, with one exception, fall under predictable headings and the following damages have been agreed:
| (i) | Solatium | €25,400.00 |
| (ii) | Funeral expenses | €2,919.29 |
| (iii) | A headstone | €5,200.00 |
| (iv) | Hospitality at wake and funeral | €6,000.00 |
| (v) | Cost of administration | €2,799.50 |
| (vi) | Travelling and incidental expenses | €2,657.00 |
| (vii) | Capital value of financial dependency losses | €275,000.00 |
| Total: | €319,975.79 |
The plaintiff also claims as a loss resulting from the wrongful death of her husband, damages in respect of the loss to the dependents of Michael Daveron deceased, of the inheritance by him of his mother's estate which, in due course would have been inherited by the dependents of Michael Daveron. In respect of this claim, certain figures are agreed without any admission of liability and they are as follows:
| (i) Loss of income from farming the Balyalben farm after the death of Maura Daveron | €184,271.00 |
| (ii) Half the rental income from renting the dwelling of the plaintiff and Michael Daveron | €50,436.00 |
| (iii) Loss of the value of the inheritance of the estate of Maura Daveron | €1,312,275.00 |
| Total: | €1,546,982.00 |
As mentioned, damages to be paid in respect of the financial loss of support to the dependents of Michael...
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