The Gazette 1982

g a z e t t e

a p r i l 1982

Gammell v Wilson and Ors.

A Further Commentary

by David R. Pigot, Solicitor

HE decisions of the House of Lords in the cases of

Gammell

Wilson and Ors. and Furness andAnor. v

B. & S. Massey Ltd.

(both reported at [ 1981 ] 1 All E. R.

578) have aroused feelings on the one hand of concern,

and on the other of pleased anticipation, amongst lawyers

in this jurisdiction — which depending upon the side they

tend normally to find themselves in compensation claims.

The purpose of this article is, hopefully, to demonstrate

that these decisions will have no application in similar

cases in the Irish Courts or, if they have, to suggest in what

way the law in the Republic of Ireland could (and should) be

amended.

The facts of the two cases are well known but it may be

helpful briefly to summarise them once again. The

Plaintiffs in these two actions were the parents of two

young men killed in accidents as a result of the negligence

of the respective Defendants. Both deceaseds died

intestate and the Plaintiffs were therefore the

Administrators of their estates. Both sets of Plaintiffs

claimed damages against the defendants under the Fatal

Accidents Act (in the

Gammell

case the Act of 1976 and

in the

Furness

case the Acts of 1846 to 1949) on behalf of

themselves as dependants, and under the Law Reform

(Miscellaneous Provisions) Act, 1934 on behalf of the

deceased's estate.

In each case, the damages awarded under the 1934 Act

exceeded those awarded under the Fatal Accidents Acts.

By reason of the fact that under the Fatal Accidents Acts

the Court was required to take into account any benefit

accruing to a dependant from a deceased's estate, no

award was made in respect of the claims under those Acts.

The damages awarded included, inter alia, damages for

the deceaseds' loss of future earnings during the years of

life lost to them ("the lost years").

Previously, the Court of Appeal in

Oliver

Ashman

(reported at [ 1961 ] 3 All E.R. 323 and[ 1962] 2 Q.B. 210)

had held that such loss of future earnings was

irrecoverable. This decision was over-ruled in the case of

Pickett

British Rail Engineering Ltd.

(reported at

|1979] 1 All E.R. 774).

Briefly, the House of Lords in the

Pickett

case decided

that where a Plaintiff, as a result of a Defendant's

negligence, suffered diminution of his life expectancy,

such Plaintiff had been deprived of an asset of value which

could be assessed in money terms. Accordingly, the

House of Lords decided that the damages recoverable by

Pickett in his action should include his loss of future

earnings for such period as he was likely to have continued

at work. Those damages were to be assessed objectively

disregarding loss of financial expectations which were too

remote or unpredictable and speculative and after

deducting the Plaintiffs own living expenses which he

would have expended during the "lost years".

There can be little doubt that the House of Lords was

very largely influenced in coming to this decision by the

fact that Pickett had died before his Appeal (and the

Defendant's Cross-Appeal) was disposed of and

accordingly, as he had recovered damages for his personal

injuries in proceedings brought during his own lifetime; his

dependants no longer could bring an action for damages

against the same Defendants under the Fatal Accidents

Act, 1976.

The

Pickett

decision, coupled with the provisions of

Section 1 of the Law Reform (Miscellaneous Provisions)

Act 1934, effectively left the House of Lords with no

alternative but to decide the

Gammell

and

Furness

cases

as they did, although it is respectfully submitted that the

method of calculating the damages for the "lost years" was

incorrect. The law in England as a result is now clear. It

must nevertheless be pointed out that while the House of

Lords had no hesitation in deciding what the law of England

was, they did not believe that that was what it should be.

Lord Diplock stated that he did not think the outcome was

"either sensible or just" and that successive judicial

decisions had "led into a morass from which I think that

only Parliament can extricate us". Lord Fraser found the

law "difficult to justify". Lord Russell that "the law has

gone astray" and Lord Scarman that "It was a mischief

which should be removed from our law". (It is in fact under-

stood that a firm commitment has been made by the English

Government to amend the law at the next legislative oppor-

tunity to preclude future "Gammell" type decisions). The

question which then arises is —"Is what undoubtedly is at

the present the law in England also the law in the Republic of

Ireland?"

Proponents of the

Gammell

and

Furness

decisions

have referred to the earlier Irish case of

Dohertv

Bowaters Irish Wall board Mills Ltd

[ 1968| I.R. 277. It

certainly appears from the judgment of Mr. Justice Walsh

that the Supreme Court took the view that in assessing the

damages to which the Plaintiff was entitled for loss of

earnings "the length of time by which the expectation of

life has been reduced must also be taken into account". A

feature of this case, however, is the fact that it was

apparently accepted in the High Court that the Plaintiff