Downing v O'Flynn

• Jurisdiction: Ireland
• Judge: Justice Denham,Murray, J.,Justice Geoghegan
• Judgment Date: 14 April 2000
• Neutral Citation: [2000] IESC 12
• Court: Supreme Court
• Docket Number: [S.C. No. 196 of 1999]
• Date: 14 April 2000

[2000] IESC 12

SUPREME COURT

Denham, J.

Murray, J.

Geoghegan, J.

No.196/99

DOWNING v. O'FLYNN

BETWEEN

JOHN DOWNING

PLAINTIFF/RESPONDENT

AND

SEAMUS O'FLYNN

DEFENDANT/APPELLANT

Citations:

DOWNING V O'FLYNN UNREP MCGUINNESS 5.5.1999 (NOT AVAILABLE - ORDER ONLY)

FITZPATRICK V FUREY & MOTOR INSURERS BUREAU OF IRELAND (MIBI) UNREP LAFFOY 12.6.1998 1998/19/7084

BURNS V EDMAN 1970 2 QB 541

MCKENNA V MCELVANEY & MOTOR INSURERS BUREAU OF IRELAND (MIBI) UNREP JOHNSON 24.7.1998 1998/25/9925

COOKE V WALSH 1984 ILRM 208

Synopsis

Damages

Damages; assessment of damages; public policy; plaintiff administrator of estate of individual who died intestate brought action on his own behalf and on behalf of the dependants of the deceased; deceased's death was caused by defendant's negligence; High Court ordered that plaintiff recover damages from defendant; appeal by defendant; deceased was self-employed but had no formal accounts and had not paid tax; whether a claim for loss of dependency could be successful when based on undeclared income.

Held: Appeal dismissed.

Downing v. O'Flynn - Supreme Court: Denham J., Murray J., Geoghegan J. - 14/04/2000 - [2000] 4 IR 383

The case concerned a claim for the loss of dependency. The plaintiff was the administrator of the estate of the deceased. The deceased had been killed in a car accident while a passenger in the defendant's car. As a result awards were made both to the family of the deceased and to a dependent child. The deceased ran a business and had no formal accounts. The defendant appealed the awards made on the grounds that they did not correspond with the declared income of the deceased. The defendant claimed that the inclusion of undeclared income in assessing the awards was contrary to public policy. In the alternative it was suggested that compensation should be based on the net income the deceased would have received had tax been paid. Denham J held that in assessing a loss of dependency claim the actual income, declared or otherwise, should be considered. The undeclared amount should be taxed to achieve a figure net of tax for the purposes of assessment. The awards made would stand and the appeal of the defendant would be dismissed. Geoghegan J and Murray J agreed with the approach taken by Denham J.

1 Justice Denhamdelivered 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 thedeceased.

3 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.

4 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:

5 To Maureen Downing (mother of the deceased)

In lieu of support	£10,000
Special Damages	£10,000
Distress and suffering	£7,500
Total	£27,500
To Katie Halpin (a minor to whom the deceased acted in locoparentis)	£29,362.50

6 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."

7 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 wasspend 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."

8 Against that judgment the defendant appealed. The notice of appeal set out the following grounds:

9 2 "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 levelclaimed.

10 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.

11 3. That the finding by the Learned Trial Judge were [sic] against public policy and unsound in law.

12 4. That the finding by the Learned Trial Judge were [sic] against the evidence and the weight of the evidence.

13 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

14 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 onundeclared 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£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 £153per 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 supporthimself.

15 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...