Horgan v Buckley (No. 1)

JurisdictionIreland
Judgment Date13 May 1938
Date13 May 1938
CourtSupreme Court

Supreme Court.

Horgan v. Buckley (No. 1).
SHEILA HORGAN
Plaintiff
and
DANIEL BUCKLEY and DANIEL D. BUCKLEY, Defendants (No. 1) (1)

Negligence - Contributory negligence - Fatal accident - Claim by widow on behalf of herself and infant children - Widow a school teacher - Deceased possessed of £1,000 savings but not earning anything at the time of his death - Deceased endeavouring to purchase farm presumably to support himself and his family - Deceased supported previous to his death out of his wife's salary - Death intestate - Reasonable expectation of pecuniary benefit - Amount of damages - Fatal Accidents Act, 1846 (9 & 10 Vict. c. 93).

Application to the Supreme Court for an order that the verdict and judgment for the plaintiff should be set aside and that, in lieu thereof, judgment should be entered for the defendants, or, in the alternative, that a new trial of the action should be ordered. The grounds of appeal stated in the notice of appeal are, so far as material, set out in the judgment of Sullivan C.J. printed below, where also the further facts sufficiently appear.

In an action under the Fatal Accidents Act, 1846, the plaintiff claimed on behalf of herself and her two infant children damages in respect of the death of her husband. According to the evidence, the deceased at the time of his death was aged about 40 years. He had lived in the County Kerry until he was aged 27 years, when he went to America. For about 10 years before that he had lived and worked on a farm belonging to his brother. In America he was employed as a bar attendant, and when he returned to Ireland in 1932 he had saved £1,200 which he lodged on deposit in the Bank. In September, 1933, he married the plaintiff who was then, and continued as, a National School teacher at a salary of £127 per annum. They lived together in a small house which was rented near the school. The deceased drew some of his savings from the Bank on the occasion of his marriage, subsequently to buy furniture, and again to meet expenses in connection with the births of his children, thereby reducing the deposit to £1,013. He had not earned anything since his return from America but hud been anxious to buy a farm which he could stock and work and on which, if it could be obtained near the school, he and his family could live. In 1934 he hud agreed to buy a 60-acre farm for £1,000 but owing to difficulties in the title the purchase was not completed and, up to the time of his death, he had not found a suitable farm. According to one witness, he might have had to wait a long time for a suitable farm. Apart from the sums drawn from the deposit, the only contribution made by the deceased towards the support of himself and his family consisted of the deposit interest, the balance being contributed by his wife out of her salary. At the time of his death his wife was aged 37 years and the two children 111/2 months and 4 days respectively. The deceased died intestate, his sole assets being the £1,013 on deposit. The jury assessed damages at £750, which they apportioned at £150 for the plaintiff and £300 for each of the children.

Held, by the Supreme Court, that there was evidence on which the jury was entitled to assess damages but that the award of damages should be set aside as excessive and a new trial directed on the issue of damages.

Gallagher v. Electricity Supply Board, [1933] I. R. 558, distinguished.

Cur. adv. vult.

Sullivan C.J. :—

This action is brought by the plaintiff as legal personal representative of her deceased husband, John Horgan, to recover damages under the Fatal Accidents Act for the death of the said John Horgan caused by the negligence of the defendants in the driving of a motor lorry on the public road near Maglass in the County of Kerry on the 23rd of August, 1935. The plaintiff sues on her own behalf and on behalf of her infant children, Nancy Horgan and Margaret Horgan, aged, respectively, 16 months and 5 months.

The statement of claim alleged that on the date in question the defendant, Daniel Buckley, as servant of the defendant, Daniel D. Buckley, or on his own behalf, so negligently drove and managed a motor vehicle, the property of the defendants jointly, or of the defendant, Daniel D. Buckley, solely, that it collided with a bicycle ridden by John Horgan causing personal injuries which resulted in his death. The defence traversed the facts alleged in the statement of claim and alleged that the negligence of the deceased was the sole cause of the accident, that the deceased was guilty of contributory negligence, and that the injuries complained of were the result of inevitable accident. It further denied that the plaintiff, or those on whose behalf she sued, had suffered any loss, or that such loss if suffered, was caused by any of the acts complained

of. The reply joined issue upon the defence, and alleged that if the said John Horgan was guilty of negligence the defendant, Daniel Buckley, could nevertheless by the exercise of reasonable care have avoided the accident.

The action was tried by Mr. Justice Hanna with a jury on the 24th of November, 1936. At the close of the plaintiff's case counsel on behalf of the defendants applied to the learned Judge for a direction on the ground that the plaintiff had failed to discharge the onus of proof that rested upon her inasmuch as no evidence had been given to establish affirmatively a basis for calculating the pecuniary loss sustained by each of the persons on whose behalf the action was brought. This application was refused. The evidence on behalf of the defendants was then heard, and at the close of the case the learned Judge left, without objection, questions to the jury which they answered as follows:—

1. Was the driver of the lorry guilty of negligence causing the accident? Answer. Yes.

2. Was the deceased guilty of contributory negligence?Answer. Yes.

3. Notwithstanding the contributory negligence of the deceased could the lorry driver have avoided the consequences of the deceased's contributory negligence?Answer. Yes.

4. Have the dependents of the deceased suffered pecuniary loss by reason of his death? Answer. Yes.

5. Assess the pecuniary compensation for

  • (a) the plaintiff Sheila Horgan. £150.

  • (b) Nancy Horgan. £300.

  • (c) Margaret Horgan. £300.

Upon these findings the learned Judge gave judgment for the plaintiff for £750 with costs, and ordered that defendants do pay to the plaintiff the sum of £150 and do lodge the balance, namely, £600, in Court, to be dealt with by the Accountant in accordance with the schedule affixed to the Registrar's certificate.

By notice, dated 26th November, 1936, the defendants applied to this Court for an order that the verdict and judgment be set aside and that, in lieu thereof, judgment be entered for the defendants or, in the alternative, that a new trial of the action be ordered.

The grounds of appeal stated in the notice number thirteen but the grounds relied on at the hearing of the motion were:—

1. That there was no evidence to establish pecuniary loss in respect of the plaintiff and her two children or any of them.

2. That there was no evidence to establish a basis for calculating the loss (if any) suffered by the plaintiff and her two children or by any of them.

3. That the finding of the jury that the defendant, Daniel Buckley, was negligent was without evidence and was contrary to the evidence or to the weight of evidence.

4. That the learned Judge ought not to have left the third question to the jury.

5. That the finding of the jury on the third question was without evidence and against the evidence.

6. That the amounts awarded to the plaintiff and to her two children were unreasonable and excessive.

In considering these grounds of appeal, and the arguments in reference thereto, it will be convenient to consider first the evidence that was given as to the acts and conduct of the lorry driver, Daniel Buckley, and of the deceased, upon which the jury's findings of negligence were based.

The accident happened on the morning of the 23rd of August, 1935, near Maglass Cross on the road between Tralee and Castleisland when the deceased, riding a bicycle in the direction of Tralee, came into collision with the defendant's motor lorry going towards Castleisland. At the place where the collision occurred the road is practically straight with a clear view in each direction for a distance of 250 feet. The width of the road from fence to fence is thirty feet nine inches. Ten feet ten inches of the road is tar-macadam, on each side of the tar-macadam is a strip of rough metalled road, the strip on one side of the tar-macadam is four feet wide and the strip on the other side four feet four inches wide, and between each of these strips and the fence is a grass margin.

The deceased on the morning in question had cycled with Guard Corr up to Maglass Cross, where they got off their bicycles and stopped for a few minutes. They then re-mounted their bicycles, and while doing so they were passed by a Miss Cullinan who was cycling towards Tralee. Having re-mounted their bicycles the Guard turned down a side road, and the deceased rode on towards Tralee some short distance behind Miss Cullinan. Miss Cullinan gave evidence that, when she had got about thirty yards past the deceased, who was at the time she passed him talking to the Guard, she met a lorry driving at an average speed on its own side of the road; that, after she had passed the lorry, she did not hear a horn sounded, but that she heard a noise, and, looking back, saw that the lorry had crossed to the lorry driver's right-hand side of the road. The lorry was still moving when she looked back, and it was near the grass margin, and the deceased was lying"not exactly in the centre of the road." Guard Wynn who came on the scene some time afterwards gave evidence that he saw a pool of blood on the road—presumably where the deceased had struck the...

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1 cases
  • Davoren v The Health Service Executive
    • Ireland
    • Court of Appeal (Ireland)
    • 18 February 2016
    ...of pecuniary benefit must address two separate questions identified in particular by the judgment of Meredith J. in Horgan v. Buckley [1938] I.R. 115. First, the court must decide if the plaintiff has established a reasonable expectation of a pecuniary benefit of which the dependants have b......

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