Mahon v Burke

• Jurisdiction: Ireland
• Judge: Mr. Justice Lavan
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 2050
• Court: High Court
• Date: 01 January 1991

1990 WJSC-HC 2050

THE HIGH COURT

NAHON v. BURKE

(CIRCUIT APPEAL)

BETWEEN

VERONICA MAHON

PLAINTIFF

AND

GERARD J. BURKE AND THE MID-WESTERN HEALTH BOARD

DEFENDANTS

Citations:

CIVIL LIABILITY ACT 1961 S48(1)

CIVIL LIABILITY ACT 1961 S49(2)

BRITISH ELECTRIC RAILWAY CO LTD V GENTILE 1914 AC 10

NUNAN V SOUTHERN RAILWAY CO 1924 1 KB 223

CIVIL LIABILITY ACT 1961 S49(1)

CHARLESWORTH ON NEGLIGENCE PARA 1505

CHARLESWORTH ON NEGLIGENCE PARA 1508

CIVIL LIABILITY ACT 1961 S7(1)

READ V GREAT EASTERN RAILWAY CO 1868 LR 3 QB 555

MURRAY V SHUTER 1972 1 LLOYDS REP 6

MCCANN V SHEPPARD 1973 1 WLR 540

PICKETT V BRITISH RAIL ENGINEERING LTD 1980 AC 136

GAMMELL V WILSON 1982 AC 27

CIVIL LIABILITY ACT 1961 S48

CIVIL LIABILITY ACT 1961 S49

CIVIL LIABILITY ACT 19611961 PART 11

FATAL INJURIES ACT 1956

Synopsis:

ACTION

Cause

Existence - Statute - Conditions - Compliance - Personal injury - Tort - Injured person's action for damages - Action compromised - Subsequent death of injured person - Dependants of deceased - Dependant's action claiming damages from wrongdoer - Dependants without cause of action - Civil Liability Act, 1961, ss. 7, 48, 49 - (Appeal from Circuit Court - Lavan J. - 15/5/90) 1991 2 IR 495

|Mahon v. Burke|

ACTION

Compromise

Effect - Cause of action - Extinguishment - Plaintiff - Death - Dependants without cause of action against wrongdoer - (Appeal from Circuit Court - Lavan J. - 15/5/90) - [1991] 2 I.R. 495

|Mahon v. Burke|

NEGLIGENCE

Wrongdoer

Tort - Personal injuries - Injured person - Death - Dependants - Cause of action - Absence - Injured person sued wrongdoer for damages - Injured person's action compromised before his death - (Appeal from Circuit Court - Lavan J. - 15/5/90) - [1991] 2 I.R. 495

|Mahon v. Burke|

1 Judgment of Mr. Justice Lavan delivered the 15th day of May 1990.

2 The Plaintiff is the widow of Noel Mahon deceased and she brings this action for the benefit of the dependants of the deceased and for the benefit of the deceased's estate.

3 At all material times the deceased was a patient of the second named Defendants at their hospital at Dooradoyle at the County of Limerick under the care of their employee the first named Defendant having been referred to the Defendants for diagnosis and treatment of an ailment of which he then complained. At various dates between June and August 1982 the Plaintiff attended both as an out-patient and as an in-patient at the aforesaid hospital for investigation conducted by the first-named Defendant.

4 The Plaintiff claims that the Defendants were negligent in making the said investigations in that they failed to detect the presence of a cancerous growth or in the alternative failed to take all proper steps including informing the deceased of his condition. The deceased accordingly became very ill. Thereafter the deceased took an action against both of the Defendants named in this case claiming damages for negligence. This action was settled by a compromise in 1985 in the sum of £123,000 and costs. The deceased died on the 17th of October 1985.

5 In this present action the Plaintiff claims that the deceaseds" said illness and death were occasioned by reason of the negligence and breech of duty on the part of the Defendants their servants or agents.

6 The Plaintiff maintains this action on behalf of the following dependants entitled pursuant to statute:

7 Veronica Mahon, the widow of the deceased, born the 29th of May 1952,

8 Noel Mahon, son of the deceased, born the 17th of August 1979,

9 Julia Mahon, daughter of the deceased, born the 30th of October 1970,

10 Amanda Mahon, daughter of the deceased, born the 24th of August, 1972,

11 Tracey Mahon, daughter of the deceased, born the 3rd of July 1975,

12 Siobhan Mahon, daughter of the deceased, born the 28th of July 1977,

13 Charles Mahon, father of the deceased, born the 11th of April 1923,

14 John Mahon, brother of the deceased, born the 3rd of September 1945,

15 Michael Mahon, brother of the deceased, born the 29th of August 1948,

16 Iris Mahon, sister of the deceased, born the 25th of October 1949,

17 Charles Mahon, brother of the deceased, born the 5th of December 1950,

18 Jimmy Mahon, brother of the deceased, born the 19th of April 1952,

19 Alfie Mahon, brother of the deceased, born the 20th of April 1956,

20 Tony Mahon, brother of the deceased, born the 2nd of January 1960,

21 Gerry Mahon, brother of the deceased, born the 2nd of January 1960,

22 Margaret Mahon, sister of the deceased, born the 10th June 1962,

23 Catherine Mahon, sister of the deceased, born the 29th of October 1954.

24 The Plaintiff further claimed that at the time of death the deceased was 33 years of age, that he enjoyed good health and lived a happy and vigorous life. He was a self-employed house painter who returned to Ireland having had a successful and highly reputable business in Sydney Australia. His income, after tax, was £18,000 per annum in the last year in which he was able to run his business before the onset of his disease. The deceased paid all the outgoings of the house occupied by him and his family at Parkmore, Shanagolden, Co. Limerick. Further he paid all household and saundry expenses including all school fees. In the result the Plaintiff and the children of the deceased were wholly dependent on him for his support and by his death have lost the means of support and have suffered loss and damage. The Plaintiff claimed £15,000 damages to include a sum of £636.84 funeral expenses.

25 Both Defendants filed defences herein and all issues were open namely negligence and quantum. In addition the defence of the first named Defendant further pleaded that the deceased by Plenary Summons entitled "1983 No. 7104p, The High Court between Noel Mahon Plaintiff and Gerard J. Bourke and Mid Western Health Board Defendants" instituted proceedings for the recovery of damages arising out of the matters alleged in this action which said action aforesaid was compromised by payment made by the Defendants to the said Noel Mahon in settlement of the said claims. The deceased by reason of the said settlement and payments was not at the time of his death entitled to maintain any action in respect of the negligence alleged herein.

26 At the trial before his Honour Judge John Gleeson the Defendants challenged the Plaintiff's right on the aforesaid grounds that she did not have vested in her any cause of action due to the aforesaid compromise.

27 The matter was tried on the 13th of November 1987, the 19th of November 1987 and the 16th of December 1987. In his Judgment his Honour Judge Gleeson made an award permitting the Plaintiff to recover the funeral expenses in the aforesaid sum.

28 At the appeal heard before me it was submitted by Mr. Sutton, Counsel for the Plaintiff, that by virtue of Section 48 (1) of the Civil Liability Act the death of the deceased constituted a new event and he submitted an interpretation of the statute that where the death of a person is caused by the wrongful act of another such as would have entitled that person to maintain an action then that such person shall be liable to a beneficiary of the deceased notwithstanding a compromise by the deceased of his cause of action. In essence Mr. Sutton submited that the Plaintiff, in order to succeed under Section 48 of the Civil Liability Act 1961, does not have to prove that there was vested in the deceased a cause of action before his death. He also submitted that the learned Judge was correct in holding that Section 49 subsection (2) was a separate subsection which could be interpreted so as to enable the Plaintiff to maintain...