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g a z e t t e
a p r i l 1982
was not entitled to damages for his loss of earnings during
the "lost years" and furthermore (if the cases referred to
by counsel in arguing the Appeal are an accurate guide)
that the point was not argued before the Supreme Court.
Of all the cases dealing with the right of Plaintiffs to
damages for loss of earnings during the "lost years"
referred to by the House of Lords in delivering their
judgments in the
Gammell
and
Furness
cases, only that of
Oliver v Ashman
was referred to — significantly, it would
seem, by the Plaintiff. It will be remembered that in 1968
Oliver vAshman
was authority for the proposition that the
Plaintiff was not entitled to damages in respect of the "lost
years". It is therefore respectfully submitted that this case
offers questionable support to the
Gammell
decision.
In any event, the
Doherty
case, if it is a binding
authority, can be conclusive only in the case of a Plaintiff
who has himself suffered a diminution of his life
expectancy as a result of the Defendant's negligence. In
considering whether the
Gammell
and
Furness
decisions
can assist the Irish Courts in a fatal case, one has to
consider in addition whether the relevant provisions of the
Irish Civil Liability Act, 1961 correspond with those of
the English Law Reform (Miscellaneous Provisions) Act,
1934.
Section 7(2) of the Civil Liability Act, 1961 provides
that where a cause of action survives for the benefit of the
estate of a deceased person, the damages recoverable for
the benefit of the estate of that person shall not include
exemplary damages "or damages for any pain or suffering
or personal injury or for loss or diminution of expectation
of life or happiness". The corresponding Section of the
1934 Act (Section 1(2) (a)) does not include the words in
quotations at all, excluding only exemplary damages.
What must then be considered is whether the additional
words contained in the 1961 Act preclude the personal
representative of a deceased in a proper case from
recovering damages for loss of future earnings during the
"lost years". Reference to one of the judgments in the
Gammell
and
Furness
cases is of assistance in this regard.
Lord Edmund-Davies (at page 584) in the course of
considering whether such an action lay at all stated — "It
is impossible to distinguish in legal principle between a
claim in respect of a shortened expectation ot lite on the
one hand and in respect of shortened expectation of
working
life on the other." If it be correct that there is no
distinction to be made between the two, then, as recovery
of damages for loss or diminution of expectation of life is
precluded by Section 7(2) of the 1961 Act, it is submitted
that damages for loss of earnings in the "lost years" is
equally precluded.
This submission would seem to get further support from
the fact that at the date the Civil Liability Act, 1961
became effective (17th August 1961), English Law
countenanced payment of a "conventional sum for loss of
expectation of life (
Benham v Gambling
, (1941] 1 All
E.R. 7 and (1941 ] A.C. 157) and that in
Oliver v Ashman
it had just previously been decided that loss of earnings
during the lost years was only "an ingredient" of the loss of
expectation of life and was not to be valued as an item on
its own. As already pointed out, the Civil Liability Act,
1961 expressly excludes recovery of damages for loss of
expectation of life.
Moreoever, having regard to the criticisms of the law
made by the House of Lords (quoted earlier in this article),
it is submitted that the Irish Courts, unless feeling
themselves otherwise bound by overriding precedent,
should decide that no damages for loss of earnings during
the "lost years" should be recoverable.
Finally, it is submitted that the
Pickett
decision, insofar
as it decided the only deduction from earnings during the
"lost years" should be the Plaintiffs living expenses,
should have no application where the injury is a fatal one
and should not be followed in such a case.
There is neither logic nor justice in deciding in a fatal
case that the only deduction to be made from the future
loss of earnings should be the deceased's own "living
expenses which he would have expended during the "lost
years"." It is submitted that in addition all sums which the
deceased had he lived would have paid in support of his
dependants should also be first deducted. This approach
has the merit of immediately disposing of any question of
"double recovery" insofar as that proportion of the
deceased's loss of earnings which in the ordinary way he
would have paid to his dependants was concerned. The
House of Lords in the
Gammell
case expressed ver
clearly its disapproval of "double recovery".
The practical effect of this would be that if, in addition
to first deducting living expenses, sums which would have
been paid to a deceased's dependants be also deducted,
where (as is likely to be the position in the majority of
cases) the sum of a deceased's living expenses and the
amounts paid by him to his dependants effectively exhaust
his total net income after tax, the sums which a Plaintiff
could recover under the "loss to deceased's estate" claim
will be limited to special damages and funeral expenses
(and these only to the extent to which they had not already
been recovered in a contemporaneous claim by the
statutory defendants under Part IV of the Civil Liability
Act 1961).
Of course, if there was evidence that the amount
expended by the deceased on his own living expenses and
in support of his dependants was less than his total net
income, the capitalised value of the difference is a
measurable loss arguably accruing to his estate, although
this argument does ignore the consideration that the
deceased had he lived might very well have spent (rathe
than saved) such difference in which event no loss would
have accrued to the estate at all. Evidence of a pattern of
saving would obviously be relevant.
It should also be observed that the decision in the
Gammell
case appears to take no cognisance of the high
degree of probability that a young man such as Gammell,
dying at an early age, leaving no widow or children, would
in the ordinary way have survived his father and mother,
with the result that they would have received no benefit
whatever from his estate and accordingly would appear to
have doubtful entitlement to claim damages for any
reduction in or loss of such benefit certainly by reason of
any loss of future earnings of the deceased, the calculation
thereof taking into account earnings of the deceased at a
time when very likely they would in the ordinary course of
events be deceased. The dependants' rights it is submitted
should be confined to a claim for damages under Part IV of
the Civil Liability Act, 1961.
It is further submitted that if, notwithstanding the
foregoing, the law in the Republic of Ireland today does
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