O'Sullivan v Córas Iompair Éireann

• Jurisdiction: Ireland
• Judge: GRIFFIN J
• Judgment Date: 07 April 1978
• Neutral Citation: 1978 WJSC-SC 1912
• Court: Supreme Court
• Docket Number: (177-1976),[1975 No. 68 P.]
• Date: 07 April 1978

1978 WJSC-SC 1912

THE SUPREME COURT

Henchy J.

Griffin J.

Parke J.

(177-1976)

O'SULLIVAN v. CORAS IOMPAIR

HIGH - 5.10.76

BETWEEN:

ANNE O'SULLIVAN

Plaintiff

and

CORAS IOMPAIR EIREANN

Defendants

1 Judgment delivered on the 7th day of April 1978 by GRIFFIN J. (nem. diss.)

2 On the 22nd of April 1974, a collision occurred between a motor car driven by Timothy O'Sullivan, (the husband of the plaintiff), and a tractor the property of the defendants, at Farranfore in the County of Kerry. As a result of this collision, the plaintiff's husband received injuries from which he died on the same day. This action is brought by the plaintiff to recover the loss suffered by her and her four young children (one of whom was born posthumonsly) as a result of the death of her husband. The action was tried at Limerick by Mr. Justice Murnaghan sitting without a jury on the 29th and 30th of July 1976. Liability was not contested by the defendants. The trial Judge reserved judgment and, in his judgment delivered on the 5th of October 1976, he assessed the damages in respect of the injury resulting to the dependants from the death of the deceased at the sum of £21,139.50p. From that judgment, the plaintiff has appealed to this Court. The relevant facts are sufficiently set out in the judgment of the trial Judge and it is not necessary for me to repeat them.

3 By virtue of section 49 (1) (a) of the Civil Liability Act 1961, the damages to be recovered by the dependants of the deceased (apart from compensation for mental distress and funeral and other expenses actually incurred by the deceased or the personal representative by reason of the wrongful act of the defendants, in respect of which there is no dispute in this case) are "the total of such amounts (if any) as the jury or the Judge, as the case may be, shall consider proportioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought". The damages are accordingly to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. It is to be noted that the action is given to the dependants as individuals, so that each of them is entitled to be compensated for the loss resulting to him personally. How this loss should have been arrived at by the trial Judge is the question that arises in this appeal - the plaintiff alleges that the trial Judge erred in principle in adopting the method which in fact he applied and in not adopting one or other of two alternative methods proposed by the plaintiff.

4 At the trial, the case on behalf of the plaintiff was presented on three alternative bases, i.e. what were called (1) the conventional method of assessing the loss; (2) the differential bases, and (3) the capitalised value of the services of the deceased. In respect of each basis, it was assumed by the actuary called on behalf of the plaintiff that each of the four children would have been dependant on the deceased until age twenty, and that upon each child reaching twenty years of age, one half of what had been expended on that child would have reverted to the wife and one half to the husband. The defendants" actuary acted on the same assumption. Further, Doctor Bielenberg, an agricultural economist called on behalf of the plaintiff, gave it as his opinion that profits from dairy farming increased by some 50 per cent between 1974 and 1976, and both actuaries took this into account in their calculations.

5 In assessing the damages under section 49 (1) (a) (i) of the 1961 Act, (i.e. those excluding the undisputed amounts), the trial Judge adopted the conventional method of assessing the loss to the dependants - he ascertained, as best he could, the contributions of the deceased in money, services and kind to his wife and children for their support and maintenance, and capitalised these by applying appropriate actuarial multipliers. This was, in fact, the manner in which the plaintiff's case was made in the pleadings. Very detailed particulars had been sought by the defendants and were furnished by the plaintiff, the effect of which was that at the time of his death the deceased was contributing on average the sum of £30 per week towards the expenses of the family household (which included the deceased) and in addition provided vegetables and turf which were valued at £3 per week. He had purchased a car for approximately £1,000 in 1971, and this car was used in the main by the deceased. In relation to the £33 per week which the deceased contributed to the household, the defendants" actuary proposed a distribution of £10 per week towards the support of the plaintiff, £4 per week towards that of each child (including the posthumous child), and £7 per week towards the support of the deceased. In addition, he proposed a sum of £5 per week in respect of the plaintiff's loss of use of the family car, thus bringing her weekly loss up to £15. Having regard to Doctor Bielenberg's evidence in relation to the increase of 50 per cent in dairying profits between 1974 and 1976, this actuary considered that it was reasonable to assume that the contributions of the deceased to the household would, had he lived, have increased in the same proportion, and he accordingly added 50 per cent to his figures to bring them up to 1976 values, arriving at a sum of £22.50 per week towards the plaintiff's support, and £6 per week towards that of each of the four children, making a total of £46.50 per week. These amounts were then capitalised by the application of the multipliers set out in the judgment of the trial Judge, and this produced a gross loss of £38,660.

6 In applying the conventional method, the plaintiff's actuary approached the problem in a somewhat different way. Doctor Bielenberg had given evidence that a profit of £4,383 per annum (or £84 per week) might reasonably be expected from a well run dairy farm of 56 acres in 1976. The £84 per week was distributed by him as to £60 per week for the support of the plaintiff and as to £6 per week for the support of each child, and he capitalised these sums to produce a gross loss of £77,000.

7 Faced with this evidence from the two actuaries, the trial Judge had to make a choice and accepted the approach and the calculations a made by the defendants" actuary. He was entitled to do so, and, in my view, was quite justified in doing so. The notional sum of £84 per week represented gross profit, which is not to be equated with gross loss. Assuming that the deceased, if he had lived, would have made that profit, he himself would require to be supported and maintained out of it. No deduction was made for his own support and maintenance, although approximately £60 per week had been allowed for the support of his wife. Again, there was, as the trial Judge accepted, an unrealistic division of the notional amount coming into the household each week amongst the members of the household. In addition, the multipliers used by the plaintiff's actuary were significantly higher than those of the defendants" actuary. They had been calculated on the basis of the full amount of the future loss, discounted back to the date of death, with the addition of interest from the date of death to the date of trial, the future loss being calculated on the notional losses in 1976, which were almost double the notional losses in 1974. The defendants" multipliers were arrived at by discounting...