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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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