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GAZETTE
APRIL 1981
Insurers at Bay — Repercussions
of
Gammell
v.
Wilson
by
John P. M. White, B.C.L., LL.B., LL.M. (Harvard)
Barrister-at-Law
A
LARM bells are ringing in the insurance industry, as
a bombshell of Hiroshima proportions threatens to
strike the Irish law of wrongful death in the wake of the
recent decision of the House of Lords in
Gammell
v.
Wilson}
The decision in
Gammell
is the result of the con-
fluence of the law relating to personal injury actions,
dependants'
fatal injury actions
and
personal
representatives' actions on behalf of the estates of persons
wrongfully killed. This article confines itself, however, to
the simple objective of alerting plaintiffs' solicitors to
impending developments of some importance.
The Fatal Accidents Act, 1846
2
gave the dependants
of one wrongfully killed by another a statutory cause of
action in respect of the economic loss occasioned them as
a result of the decedent's wrongful death. Recovery was
confined by the early decisions on the Act to the financial
benefits which the preferred relatives under the Act could
reasonably have anticipated from the continued existence
of the decedent. Accordingly, recovery by the parents of
young unmarried men and women wrongfully killed
would normally be confined to a small sum, as the parents
could only expect financial contributions while their
children remained unmarried and, perhaps, some con-
tribution in their old age, depending on the parents' own
financial resources. As a result of the decision in
Gammell
v. Wilson,
however, the parents of such persons can now
look forward to a substantial windfall. A handsome
"profit" may be made by their suing, not in their own
right, as dependants of the decedent under the Fatal
Accidents Act, but by suing on behalf of the decedent's
estate in respect of the wrong done to the decedent
himself. This result follows from the combined operation
of two rules, the first judge-made and the second, the
creature of statute.
In
Pickett
v.
British Rail Engineering, Ltd}
the House
of Lords held that when a man is injured by the tort of
another and his working-life has been shortened as a
result, he may recover in his personal injury action
damages for loss of the earnings which he would have
made during the years of life which he has lost as a result of
the accident, i.e., during the years when he will now be
dead but would have been alive and working, were it not
for the accident. The measure of such damages is the
amount of his anticipated earnings, less what he would
have spent on maintaining himself during those "lost
years."
At common law, a cause of action in tort vested in a
person before his death did not survive his death. The
English Law Reform (Miscellaneous Provisions) Act,
1934, provided that on the death of a person (subject to
certain exceptions) all causes of action vested in him
should survive for the benefit of his estate. When a man is
killed — even instantaneously — as a result of the tort of
another, there is deemed to have been vested in him at the
moment before his death a cause of action in respect of
that tort. By virtue of the Law Reform Act, this right is
transmitted to his estate and the personal representatives
may prosecute the action on the estate's behalf.
The Decision in Gammell
In
Gammell
v.
Wilson
it was argued that since a living
plaintiff in his personal injury action is entitled to recover
damages in respect of the lost earnings of the "lost
years," i.e., the years by which his working-life has been
cut short by the accident, it follows that where the
potential plaintiff has been killed outright by the tort, his
right to sue for the lost earnings of the "lost years" is
transmitted to his estate and may be prosecuted on its
behalf by the personal representatives, by virtue of the
Law Reform Act. The House agreed and held that where
a person is wrongfully killed and his working-life thereby
cut short, his estate may recover in respect of the earnings
which he would have made during the working-years lost
as a result of the accident, less what he would have spent
on maintaining himself during those "lost years."
In
Gammell's
case, a 15-year-old itinerant boy had
been killed in an accident for which the defendant was res-
ponsible. The plaintiff father sued in two capacities. First,
he claimed damages for himself and his wife, as being
dependants of their dead son and thus entitled to damages
under the Fatal Accidents Act. Secondly, he claimed
damages as administrator of his son's estate, by virtue of
the Law Reform Act. The damages recoverable by the
estate in respect of the latter claim would be divided
equally between the plaintiff and his wife, as being the
persons beneficially entitled on their son's death intestate.
The trial judge in the administrator's action held that,
after making allowance for his living expenses, the
decedent would have had £416 p.a. remaining from his
income. This figure, when multiplied by the number of
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