The Gazette 1981

GAZETTE

APRIL 1981

years working-life lost to the decedent and discounted to present value, gave the sum of £6,656. He held and the House of Lords affirmed, that the decedent's estate was entitled to recover this sum in respect of the decedent's loss of earnings during the "lost years." On the Fatal Accidents Act claim, the judge held that the father's dependency was £250 and the mother's dependency was £1,750. In the result, then, the total of the dependencies (i.e., the economic loss) of the boy's parents was only £2,000, i.e., less than one-third of the assessed loss of income in the "lost years" recoverable in the adminis- trator's action under the Law Reform Act. In Furness v. B. & S. Massey, Ltd., the appeal in which was heard with that in Gammell, a young unmarried man of twenty-two and in steady employment had been wrongfully killed. His parents' dependencies under the traditional Fatal Accidents Act claim were assessed at a mere £2,028. In the Law Reform Act action, however, the parents, as administrators of his estate, recovered £ 17,275 on behalf of the estate in respect of the decedent's lost earnings of the "lost years." The claim under the Law Reform Act on behalf of the estate is completely unaffected by any Fatal Accidents Act claims brought by the dependants of the decedent. The converse, however, is not the case. If certain dependants of the decedent succeed to his estate as swelled by the amount recovered in the personal representatives' action, their economic loss resulting from the decedent's death is necessarily diminished and the amount recoverable under the Fatal Accidents Act will be correspondingly reduced or eliminated entirely. Thus, in both Gammell and Furness, the effect of the award made in the personal representatives' action was to eliminate the entitlement of the parents to recover anything under the Fatal Accidents Act, because each of them would be receiving more, by reason of their son's death intestate, than was the amount of their respective dependencies. The parents were, nevertheless, left with a net "profit" of some £4,600 in Gammell's case and of £15,000 in the Furness case. Liability has thus been created for defendants were none existed before. Moreover, had the decedent in Gammell or Furness made a will before his death leaving his estate away from his dependant parents, the result would have been that they would not have benefited from the amount awarded in the Law Reform Act action. Their economic loss resulting from their son's death would, therefore, be unaffected and their Fatal Accidents Act claim would succeed. In such cir- cumstances, the defendant would suffer double recovery. The beneficiary under the will would recover in respect of the lost earnings of the "lost years" awarded in the Law Reform Act action and the dependant parents would recover the value of their dependencies under the Fatal Accidents Act. Repercussions on Irish Law The Republic of Ireland law of wrongful death appears to be poised on the slippery slope to a Gammell ruling by our courts. Section 7 of the Civil Liability Act, 1961, contains provisions for the survival of causes of action for the benefit of the estates of deceased persons and is similar in material respects to the corresponding

provisions of the English Law Reform Act. Indeed,s.7 is of such a nature as to lend even greater force than does its English counterpart to the proposition that a cause of action in respect of the lost earnings of the "lost years" survives, by virtue of the section, for the benefit of the decedent's estate. The Irish courts appear, moreover, to have already accepted the proposition that a living plaintiff may recover in a personal injury action in respect of the lost earning of the "lost years": Doherty v. Bowaters Irish Wallboard Mills, Ltd.* The twin rules which compelled the House of Lords to rule as it did in Gammell appear established in Irish law and appear to render inevitable a Gammell- type ruling by the Irish courts. A comprehensive discussion of Gammell and its likely repercussions on the Irish law of wrongful death must await a further article. In concluding, however, reference may be made to what is, perhaps, the most tantalising prospect in likely post- Gammell developments. The dependants' Fatal Injuries claim under Part IV of the Civil Liability Act, 1961, and the estate's action under s.7 are juridically distinct entities. Therefore, com- promise of, or judgment in, a dependant's Fatal Injuries action does not bar a subsequent claim on behalf of the decedent's estate under section 7. This principle, when combined with the proposition that recovery by the estate in a s.7 action is in no way affected by recovery by the dependants in their Fatal Injuries action, may be productive of startling results. If the principle of Gammell is accepted by the Irish courts, it ought, in logic, follow that one may — provided the limitation period has not expired — "resurrect" settled Fatal Injuries claims in the glory of a s.7 action on behalf of the estate. It appears that plaintiffs' solicitors have their quarry at bay and it may well be that nothing short of swift legislative intervention can save it from a proper bloodying!!

FOOTNOTES 1. 119811 1 All E.R. 578, H.L.

2. Now replaced in England by the Fatal Accidents Act, 1976, and in Ireland by the Fatal Injuries provisions of Part IV of the Civil Liability Act, 1961, s.49 of which confers an additional entitlement to an award in the nature of solatium not to exceed £1,000. 3. [19791 1 All E.R. 774, [19801 A.C. 136, H.L. 4. [19681 I.R. 277, S.C.

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