McDonagh v McDonagh

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1992
• Neutral Citation: 1992 WJSC-HC 724
• Court: High Court
• Docket Number: 3530P/1989,[1989 No. 3530P]
• Date: 01 January 1992

1992 WJSC-HC 724

THE HIGH COURT

3530P/1989

MCDONAGH v. MCDONAGH

BETWEEN

CEIRE CHRISTINE McDONAGH (A MINOR SUING BY HER GRANDFATHER AND NEXT FRIEND DENIS McDONAGH)

PLAINTIFF

AND

CHRISTOPHER McDONAGH

DEFENDANT

Citations:

CIVIL LIABILITY ACT 1961 PART IV

CIVIL LIABILITY ACT 1961 S49

BYRNE V HOULIHAN 1966 IR 276

GALLAGHER V ELECTRICITY SUPPLY BOARD (ESB) 1933 IR 558

BERRY V HUMM 1915 1 KB 627

Synopsis:

DAMAGES

Assessment

Death - Dependants - Loss - Calculation - Widower - Infant daughters - Deceased wife - Wife's full-time employment - Unemployed widower - Wife's contribution to family finances - Aunt helping to care for infants - Prices existing at date of death - (1989/3530 P - Costello J. - 6/12/91) - [1992] 1 I.R. 119

|McDonagh v. McDonagh|

1 Judgment of Mr. Justice Costello delivered the 6th day of December 1991.

2 The tragic accident which gave rise to these proceedings occurred on the 8th of September 1988. Mr. and Mrs. McDonagh were a young married couple with two young children. Due to Mr. McDonagh's negligent driving his wife, a passenger in his car, received serious injuries from which she died. This action is brought by one of the children of the marriage (by her grandfather as next friend) on her own behalf and on behalf of all the dependants of the late Mrs. McDonagh. Her father has been named as Defendant and damages against him pursuant to Part IV of the Civil Liability Act 1961are claimed. Negligence has not being denied - the only issue is the measure of damages.

THE FACTS

3 The salient facts relevant to that issue are as follows:-

4 Mrs. McDonagh was just 25 years old on the date of her death. She had married the Defendant on the 8th of January 1984. At the time of her death she was employed as a temporary ward orderly in a hospital in Sligo by the North Eastern Health Board under an annual contract. She had been so employed for about five years before the accident. Although her contract described her as a temporary employee it would appear that she could have remained in employment with the Board had she so wished for an indefinite period. Her nett weekly wages fluctuated. It has been accepted that her average pre-accident weekly wage for the twelve months prior to the accident was £113. Mr. McDonagh was a little over 29 years old on the day of the accident. He had come back from Dublin to marry his wife. Whilst in Dublin he had been employed but on return to Sligo he had found it impossible to obtain employment. Thus, for 4½ years prior to his wife's death he had been unemployed and in receipt of unemployment assistance which at the date of death amounted to £63 per week. In addition it appears that he earned from time to time in the evenings some remuneration for acting as a barman but this has not been quantified. Mr. and Mrs. McDonagh pooled their incomes and paid out of the common-pool all their living and household expenses. At the date of Mrs. McDonagh's death the family income was £176 per week.

5 There were two children of the marriage Ceire who was born on the 12th of June 1984 and Asling who was born on the 18th of April 1987. Thus, Ceire was a little over 4 years old when her mother died whilst Asling was only 1½ years old. There are other "dependants" within the meaning of the 1961 Act on whose behalf a claim for damages for mental distress is brought but the two children are the only ones maintaining a claim for financial loss resulting from their mother's death. The claim is in fact a substantial one.

6 Mr. McDonagh since his wife's death has been helped in the care of his children by a sister who has given a lot of her time to looking after them.

7 After his wife's death Mr. McDonagh remained unemployed for some time. From the 18th of September 1989 to the 30th of August 1991 he managed to obtain employment and earned a nett weekly wage of £224. This employment however ceased and he then became employed by FAS as a project leader from the 1st of September 1991 and has since been so employed. His basic wage is £119.45 nett per week.

8 The evidence establishes that, not surprisingly, no part of the family's joint income had been saved. Mr. McDonagh did not give evidence of the weekly household bills or ordinary living expenses but he did give estimates of expenditure on what have been termed "overheads". He stated that (a) £100 per month was spent on mortgage repayments, (b) £50 every two months to the E.S.B., and (c) £15 per week for fuel and heating generally. This comes to an average weekly figure of £46.50. Mr. and Mrs. McDonagh drove a car which was registered in Mr. McDonagh's name. Mrs. McDonagh drove it to her work. No figures for the running costs were given and I do not think I can properly take into account the costs of the car in calculating the financial loss which the dependants have suffered by the death of their mother. It was established that there was expenditure amounting to £2,077.35 arising from the death of Mrs. McDonagh which Mr. McDonagh paid and that in addition he paid a sum of £2,200 for a headstone in relation to his wife. These items of special damage amount to £4,277.

THE CLAIM

9 The claim made on behalf of Mr. McDonagh's two daughters is that they have suffered injury within the meaning of Section 49 of the Civil Liability Act, 1961as a result of her death. It is advanced under three separate headings;

10 (a) the value of the pecuniary benefit which they received by way of contribution made by the deceased to their living expenses (referred to as their "personal loss");

11 (b) the value of the pecuniary benefit which they received by the financial contribution made by the deceased to the overheads associated with maintaining the home in which they lived;

12 (c) the cost of replacing the services which had been gratuitously given to them by the deceased.

13 The assessment of the compensation for the undoubted "injury" each sustained should, in my opinion, be based on the following principles;

14 (1) Compensation is to be calculated by reference to the amount of the pecuniary benefit that the dependants could reasonably expect to have received from the deceased in the future (see Byrne v. Houlihan 1966 I.R. 276; Gallagher v. E.S.B. 1933 I.R. 558). This, inter alia, involves deciding in a case like the present one where a child is claiming in respect of the death of a parent, the age when dependancy would have ceased had Mrs. McDonagh lived.

15 (2) If the dependants loose the benefit of services which had been gratuitously rendered in the household by the deceased (for example by a mother) the dependants may have suffered pecuniary loss. Damages may be awarded for the cost of replacing gratuitously-rendered services (see Berry v. Humm 1915 1 K.B. 627, 631).

16 (3) Damages run from the date of death and are ascertained by reference to facts existing at the time of death. This means that the actual earnings (if any) of the deceased are to be ascertained by reference to the date of death and the cost of replacing gratuitously supplied services are to be calculated by reference to costs prevailing at the time of death.

THE DEPENDENCY

17 The first matter to be decided is whether it is probable that Mrs. McDonagh's two children would have been dependent on her to the age of 18 or to the age of 21. On this issue I have reached the following conclusions. There are a great many injustices in Irish society and one of the most egregious is the fact that entry into third level education for young persons depend to a considerable extent on the level of income of their parents. I fully accept that Mr. McDonagh would have hoped, like most parents hope, that his young children would gain a third level education, but the unfortunate fact is that he and his wife were living on a very low income and that it is very unusual for children living in homes with such a low income to gain the benefit of third level education. I must conclude therefore that the dependants have failed to established that as a matter of probability they would, had their mother lived, been dependent on her beyond the age of 18.

THE ACTUARIAL EVIDENCE

18 The actuarial evidence adduced on the Plaintiff's behalf was as follows. It was accepted that Mrs. McDonagh's nett average...