O'Sullivan v Córas Iompair Éireann

• Jurisdiction: Ireland
• Judge: Murnaghan J.
• Judgment Date: 05 October 1976
• Neutral Citation: 1976 WJSC-HC 1252
• Docket Number: no. 68 P./1975,[1975 No. 68 P.]
• Court: High Court
• Date: 05 October 1976

High Court

Supreme Court

[1975 No. 68 P.]

O'Sullivan v. Córas Iompair Éireann

Anne O'Sullivan

Plaintiff

and

Córas Iompair Éireann éireann

Defendant

Cases mentioned in this report:—

¹ Murphy v. CroninIR [1966] I.R. 699.

² Byrne v. HoulihanIR [1966] I.R. 274.

³ Franklin v. South Eastern Railway Co.ENR (1858) 3 H.&N. 211.

⁴ Dalton v. South Eastern RailwayENR (1858) 4 C.B. (N.S.) 296.

⁵ Pym v. Great Northern Railway Co. (1863) 4 B.&S. 396.

⁶ Davies v. Powell Duffryn Associated CollieriesELR [1942] A.C. 601.

⁷ Gallagher v. Electricity Supply BoardIR [1933] I.R. 558.

⁸ Heatley v. Steel Company of WalesWLR [1953] 1 W.L.R. 405.

⁹ Taylor v. O'ConnorELR [1971] A.C. 115.

Damages - Assessment - Fatal accident - Claim on behalf of dependants - Apportionment - Actuarial evidence - Dependants including next-of-kin - Civil Liability Act, 1961 (No. 41), ss. 48-50.

Plenary Summons

The plaintiff was the widow and the personal representative of Timothy O'Sullivan, deceased. The plaintiff claimed damages from the defendants for their negligence in causing a collision, between a tractor driven by the deceased and a lorry owned by the defendants, on the public highway at Knockaderry, Farranfore, in the county of Kerry on the 2nd April, 1974. The plaintiff sued on her own behalf and on behalf of the other dependants of the deceased, who was killed in the accident, pursuant to s. 48 of the Civil Liability Act, 1961. The plaintiff also claimed damages for mental distress. At the date of his death the deceased was 37 years old and the plaintiff was 34 years old. One of the dependants, Catherine O'Sullivan, died between the issue of the summons and the hearing of the action aged 67 years. No claim was made at the hearing of the action by, or on behalf of, Ellen O'Leary, who was a married woman who lived with her husband.

The plaintiff was awarded as damages the sums of £8,210, £600, £329.50 and £1,000, making a total of £10,139.50. At the conclusion of the trial the defendants undertook to pay £5,000 to the plaintiff and that payment was made. In addition the defendants agreed to pay interest on the sums awarded at the rate of 13% from the conclusion of the trial to the date of the judgment. Therefore, the order of the High Court directed the defendants to pay the plaintiff £5,262.13 (£5,139.50 plus £122.63 for interest).

The plaintiff's four children were awarded as damages the sums of £2,000, £2,500, £3,000 and £3,500 respectively, to which the defendants agreed to add in respect of interest the sums of £47.73, £59.66, £71.59 and £83.52 respectively, making a total of £11,262.50 which the order of the High Court directed the defendants to lodge in court to the respective credits of the children in the proportions stated.

Part IV, consisting of ss. 47-51, of the Civil Liability Act, 1961, provides:—

"47.—(1) In this Part—'dependant', in relation to a person whose death is caused by a wrongful act, means any member of the family of the deceased who suffers injury or mental distress; 'member of the family' means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister; 'wrongful act' includes a crime . . .

48.—(1) Where the death of a person is caused by the wrongful act of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.

(2) Only one action for damages may be brought against the same person in respect of the death.

(3) The action may be brought by the personal representative of the deceased or, if at the expiration of six months from the death there is no personal representative or no action has been brought by the personal representative, by all or any of the dependants.

(4) The action, by whomsoever brought, shall be for the benefit of all the dependants.

(5) The plaintiff shall furnish the defendant with particulars of the person or persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered.

(6) The action shall be commenced within three years after the death.

49. (1) (a) The damages under section 48 shall be—

1. (i) 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, and

2. (ii) subject to paragraph (b) of this subsection, the total of such amounts (if any) as the judge shall consider reasonable compensation for mental distress resulting from the death to each of such dependants.

   1. (b) The total of any amounts awarded by virtue of subparagraph (ii) of paragraph (a) of this subsection shall not exceed one thousand pounds.

1. (c) Each amount awarded by virtue of paragraph (a) of this sub-section shall be indicated separately in the award.

(2) In addition, damages may be awarded in respect of funeral and other expenses actually incurred by the deceased, the dependants or the personal representative by reason of the wrongful act.

(3) It shall be sufficient for a defendant, in paying money into court in the action, to pay it in one sum as damages for all the dependants without apportioning it between them.

(4) The amount recovered in the action shall, after deducting the costs not recovered from the defendant, be divided among the persons entitled in such shares as may have been determined.

50.—In assessing damages under this Part account shall not be taken of—

1. (a) any sum payable on the death of the deceased under any contract of insurance,

2. (b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased . . ."

Section 67, sub-ss. 2 and 4, of the Succession Act, 1965, provides:—

"(2) If an intestate dies leaving a spouse and issue—

1. (a) the spouse shall take two-thirds of the estate, and

2. (b) the remainder shall be distributed among the issue in accordance with subsection (4)."

"(4) If all the issue are in equal degree of relationship to the deceased the distribution shall be in equal shares among them; if they are not, it shall be per stirpes."

The action was tried in Cork by Murnaghan J., by consent without a jury, on the 29th and 30th July, 1976, when the sole issue between the parties was the issue of damages.

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court on the grounds (inter alia) that the trial judge was in error (a) in rejecting the method of calculating the gross sum for pecuniary loss by reference to the differential between the profits from the operation of the farm before the death of the deceased and the profits after the death; (b)in rejecting the alternative method of calculating the said sum by reference to the value of the services of the deceased; (c) in failing, when computing a figure for deduction, if any, in respect of assets, to take into account the future savings, with consequent accretion to the assets, which the deceased would probably have made had he not been killed. The appeal was heard on the 14th February, 1978.

The plaintiff's husband was killed in a collision on the public highway between a tractor that he was driving and a lorry driven by a servant of the defendant. The plaintiff's action for damages for the negligence of the defendant's servant was brought pursuant to s. 48 of the Civil Liability Act, 1961, and included claims for general damages and for damages for mental distress. The plaintiff's claims were made on her own behalf and on behalf of the other dependants of her deceased husband. The deceased, who died intestate, farmed 44 acres of land and his farm was his main asset; he was 37 years old at the date of his death. He was survived by the plaintiff and by three of their children, of whom the eldest was five years old at the date of his death; the plaintiff gave birth to their fourth child four months later. The sole issue for determination at the trial of the action was the issue of damages.

Held by Murnaghan J., in assessing damages, 1, that the notional weekly sum that the deceased would have been contributing, if he had lived, for the benefit of the other members of his household at the date of the hearing of the action, should be ascertained and apportioned between such members; that the capital value of each £1 so apportioned to a particular dependant should be ascertained by actuarial evidence; that each such capital value should be multiplied by the number of pounds per week so apportioned to the dependant in question; and that the aggregate of such sums would constitute the gross loss (apart from damages for mental distress) resulting to the dependants of the deceased from his death.

2. That there should be deducted from the amount of such loss two-thirds, in effect, of the value of the assets of the deceased (other than his dwellinghouse and two acres of his farm) in respect of the acceleration of the benefit which accrued to the dependants of the deceased as his next of kin, by reason of his premature death.

3. That the balance of the loss should be divided between the plaintiff and her four children.

4. That certain agreed special damages should be added to the share of the plaintiff and that, in view of the fact that the plaintiff's first three children were so young at the date of their father's death, the entire of the statutory maximum of £1,000 damages for mental distress should also be added to the plaintiff's share of the damages awarded.

Murphy v. CroninIR [1966] I.R. 699 considered.

On appeal by the plaintiff it was

Held by the...