Dowling v Jedos Ltd

JurisdictionIreland
JudgeWalsh J.
Judgment Date30 March 1977
Neutral Citation1977 WJSC-SC 543
Docket Number(155-1976)
CourtSupreme Court
Date30 March 1977

1977 WJSC-SC 543

THE SUPREME COURT

Walsh J.

Kenny J.

Parke J.

(155-1976)
DOWLING v. JEDOS LTD
REVERSING HIGH - 26.7.76

Between

EILEEN DOWLING
Plaintiff
Appellant

and

JEDOS LIMITED
Defendants
Respondents
1

(nem diss)Walsh J.

Walsh J.
2

On the 23rd May, 1973, Jeremiah Dowling was killed in the course of his employment at the defendants' factory at Monks town in the County of Cork. The death was caused by the negligence of the defendant company. The plaintiff in these proceedings is the mother of the late Jeremiah Dowling and is a dependant within the meaning of the Civil Liability Act,1961. She brought the action for the benefit of herself and of the dependants of the deceased.

3

The action was heard at Cork by Mr. Justice Murnaghan sitting without a jury. The learned trial judge found that in addition to the plaintiff nine other persons qualified as dependants of the deceased. He assessed damages in respect of the injury resulting from the death of the deceased in the sum of £3,060, which included £135.75 for funeral and other expenses. For mental distress resulting from the death of the deceased to the ten dependants the judge assessed compensation in the sum of £940. The total sum for damages and compensation for mental distress was £4,000.

4

The plaintiff has appealed against this award and has asked this Court to set it aside. She claims in the notice of appeal that the trial judge failed to have regard to the evidence of the actuary in assessing the amounts of damages proportioned to the injury resulting from the death to each of the dependants and that the total sum awarded was perverse, inadequate and against the weight of the evidence. It was also claimed that the trial judge had regard to matters not raised in the evidence and not forming part of the evidence.

5

According to the evidence the deceased was born on the 7th July, 1955. His death therefore occurred approximately six weeks before his eighteenth birthday. He had been employed by the defendants for five or six months prior to his death. He was employed as a helper in industrial cleaning and was employed at an hourly rate, apparently payable according to the number of hours he worked. His wages for the last six weeks of his life were £18.75, £14.50, £38.75, £14.88, £19 and £19.25 per week respectively. The differences in the sums reflect the difference in the number of hours worked. According to the evidence he would in all probability have continued in employment, if not in the direct employment of the defendants then in the direct employment of main contractors for whom the defendants worked. He was one of nine children born to his parents. The eldest child was born in 1949. Further children were later born, including the deceased and his twin brother. The deceased had no girl friend and there was no evidence to suggest that he was contemplating marriage in the near future. His elder brother was married at the age of twenty-one. One of his sisters was married at the age of twenty-two and none of the other brothers or sisters was married. The plaintiff was married at the age of nineteen and her husband at the age of twenty-two.

6

The deceased paid about £12 a week to his mother and the net value to the family of his contribution was £8. An actuary who gave evidence on behalf of the plaintiff, and who gave the only actuarial evidence offered in the case, made certain calculations which were based on the assumption that the net weekly contribution of the deceased to the family at the date of death was £8 a week. The calculation allowed for the fact that the deceased's parents were alive and were based on a rate of interest of 5% and allowed for the probability of the deceased marrying in due course in accordance with the statistics derived from the 1971 Irish Census Returns which apparently were the last available census returns. On that basis the multiplier offered by the actuary was the sum of £516 capital value for each pound per week. It was clear from his evidence that the figure was based on an assumption of the probability of the marriage of the deceased in accordance with the pattern afforded by the statistics. From a purely mathematical point of view, however, the calculations were based on the probability of his not being married each year in the future and therefore the average age of marriage would not come into a calculation based on the probability of marriage in accordance with statistics.

7

On the assumption that the deceased would have married at the age of twenty-two then the multiplier upon the actuarial evidence would be £280 for each pound loss and if the marriage took place at the age of twenty-three it would be approximately...

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