Davoren v The Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 18 February 2016
• Neutral Citation: [2016] IECA 39
• Date: 18 February 2016
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal No. 2014/362 [Article 64 Transfer]

Finlay Geoghegan J.

Peart J.

Hogan J.

BETWEEN/

GRACE DAVOREN

Plaintiff/Respondent

AND

HEALTH SERVICE EXECUTIVE, JOHN LEE AND OLIVER MCANENA

Defendants/Appellants

[2016] IECA 39

Finlay Geoghegan J.

Appeal No. 2014/362

[Article 64 Transfer]

THE COURT OF APPEAL

Tort ? Negligence ? Medical treatment ? Allegation that plaintiff?s deceased husband died as result of negligence on part of defendants ? Civil Liability Act 1961

Facts: The plaintiff, the widow of Michael Davoren, alleged that he had died as a result of negligence on the part of the defendants whilst undergoing medical treatment and surgery in their case. The High Court had found for the plaintiff and awarded substantial damages. The defendants now appealed that award.

Held by Ms Justice Finlay Geoghegan J, would allow the appeal and vary the order below. The Court reviewed the principles applicable in respect of the claim for damages in respect of the dependants of the plaintiff and also the alleged loss of inheritance. Having done so, the Court was minded to adjust the award to take account of the facts on the case. Commenting generally, the Court did not wish to state whether the consideration of the dependants? claim on a collective basis was compliant with the provisions of the Civil Liability Act 1961.

Judgment of the Court delivered on the 18th day of February 2016 by Ms. Justice Finlay Geoghegan

1 This is an appeal brought by the defendants against an award of ?1,591,957.70 made to the plaintiff by the High Court (O'Neill J.) pursuant to a reserved judgment delivered on the 21st December, 2011, Davoren v. Health Service Executive [2011] IEHC 460.

2 The plaintiff, Grace Davoren, is the widow of Michael Davoren, who, unfortunately, died at the age of 47 on the 31st August, 2003. The plaintiff in the High Court alleged that the death of Michael Davoren was caused by the negligence and breach of duty of the defendants, in medical and surgical treatment in 2003.

3 The claim is brought by Mrs. Davoren pursuant to Part IV of the Civil Liability Act 1961, as amended (?the 1961 Act?). It is central to the issues arising on appeal to emphasise that this is a statutory claim brought by Mrs. Davoren on behalf of all the dependents pursuant to ss. 48 and 49 of the 1961 Act, as amended. Liability was not contested in the High Court, in the sense that the defendants did not dispute that the death of Michael Davoren was caused by reason of their negligence or breach of duty. The issue for decision was the amount of the damages to which the dependants of Michael Davoren were entitled.

1961 Act

4 Section 48 of the 1961 Act, insofar as relevant provides:-

?(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) ?

(4) The action, by whomsoever brought, shall be for the benefit of all the dependants.

(5) ??

5 The nature and extent of the damages recoverable in an action pursuant to s. 48 of the 1961 Act, are prescribed by s. 49 (as amended). Insofar as relevant it provides:-

?(1)(a) The damages under section 48 shall be ?

(i) the total of such amounts (if any) as the judge 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 of 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 thirty five thousand euros [increased since the date for this claim].

(c) Each amount awarded by virtue of paragraph (a) of this subsection shall be indicated separately in the award.

?

(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.?

Background Facts and Evidence

6 The plaintiff married the deceased on 6th April, 1991. There were four children of the marriage, namely, Michael Davoren, born on 23rd April, 1993, Gráinne Davoren, born on 27th October, 1994, Eleanor Davoren born on 2nd February, 1999, and Rebecca Davoren born on 13th April, 2002. The deceased was also survived by one sister Mary O'Regan (neé Davoren) who was born on 8th October, 1959. The deceased's mother, Maura Davoren, who was born on 29th September, 1928, was also a dependent within the meaning of Part IV of the 1961 Act when the action commenced, but she died on 6th August, 2009.

7 The deceased was a farmer by occupation since he was a teenager. He had grown up on his parent's farm near Ballyvaughan in County Clare. That farm was known as Ballyalben. When the deceased left school, he took up fulltime occupation on his father's farm. His father (who was also named Michael Davoren) died on 2nd October, 1991 and was then in his 80s and had been in poor health for some time. For several years prior to the death of his father, the deceased had taken over the running of the family farm at Ballyalben in conjunction with his mother.

8 Some time prior to his death Michael Davoren Snr. had given the deceased a farm known as Ballycahill, which adjoined the farm at Ballyalben. The two farms were in fact separated simply by a road. At the time the deceased acquired the Ballycahill farm it was principally scrubland and he devoted a considerable amount of his time to reclaiming that land. The Ballycahill 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.

9 In addition to running the Ballycahill farm the deceased also continued to run the Ballyalben farm with his mother following the death of his father. This farm was an extensive one amounting to 623 acres, although approximately 500 acres of that was winterage on the Burren. The Ballyalben farm was stocked with approximately 40 cows. When the deceased set up a separate farm in Ballycahill it was necessary for him to apply for a separate herd number. It appears, however, that for the purposes of gaining entitlement to agricultural grants and subsidies it was expedient and indeed, apparently, necessary for him to lease from his mother 316 acres of the Ballyalben farm.

10 As O'Neill J. found, 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.?

11 The plaintiff, Mrs. Grace Davoren, is a full time resource teacher working at Kinvara National School nearby. Since the untimely death of her husband in 2003 she had found herself obliged to reduce considerably the scale of the farming enterprise. Immediately after the deceased's death 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. She also sold the farm machinery accumulated by her late husband because it was no longer necessary. At the time of the death of the deceased none of his four children had indicated any particular interest in farming.

12 Prior to the deceased's death in 2003, there had been a very close relationship between Maura Davoren and her son and his family. The deceased 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. The plaintiff still lives in this house with the children.

13 After the deceased's death, there appears to have been a falling out between the plaintiff and her mother-in-law. Mrs. Maura Davoren apparently conceived the quite untenable belief that the plaintiff, her daughter-in-law, was in some way responsible for the death of her son.

14 At the time of her son's death in August 2003 Mrs. Maura Davoren's then will provided that her estate should devolve to the deceased. Subsequent to his death Mrs. Davoren altered her will on two occasions. In the first will executed after her son's death she provided that her estate should principally pass to her grandson, Michael (i.e., the son of the deceased and the plaintiff). She later altered that will in 2007 to provide that her estate should pass to her daughter, Mrs. Mary O'Regan. This proved to be her last will and testament. The Ballyalben farm subsequently passed to Mrs. O'Regan.

High Court Decision

15 The trial judge determined the amounts recoverable by the plaintiff as damages...