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GAZETTE
JANUARY/FEBRUARY 1991
ARE THE BENEFITS ARI S ING
FROM THE RE-MARRIAGE OF
A WIDOW OF A DECEASED TO
BE TAKEN INTO ACCOUNT IN
ASSESSING DAMAGES AND,
IF SO, ON WHAT BASIS?
The issue of the net question of law
whether the benefits arising from
the re-marriage of a deceased were
to be taken into account in assess-
ing damages and if so on what
basis arose in the case of
Fitzsimons -v- Electricity Supply
Board and Bord Telecom Eireann,
judgment delivered by Barron J on
July 31, 1990.
{The Irish Times,
Law Report, November 12, 1990).
The Facts
The case arose out of an accident
in February 1979 when the
deceased tried to pull away a
telephone wire which was live
because a portion of it had hooked
itself to an overhead 10 kv
electricity power line. The deceased
was electrocuted. The dependants
of the deceased included his
widow, then aged 34, and their five
children whose ages ranged from
two to 11. The widow of the de-
ceased remarried in February 1985
and since her re-marriage had
another child who was aged four at
the time of the judgment. No
evidence had been adduced in
relation to damages. The judge had
been told that this was so because
of the absence of authority as to
how the plaintiff's re-marriage
should be treated by the actuaries
in preparation of their reports.
Barron J. referred to the judg-
ment of Kennedy C.J. in
Gallagher
-v- E.S.B.
[1933] I.R. 558 at p. 566
where he said:
"From an early date it was
established that the damages
which may be recovered are in
the nature of a compensation for
the pecuniary loss sustained by
the parties for whose benefit the
action is brought and that
nothing in the nature of a
solatium on account of mental
suffering occasioned by such
death may lawfully be awarded
by the jury. The pecuniary loss
upon wh i ch the damages
awarded must be founded, and
by which they are to be limited,
may be actual or expected. The
damages are to be calculated by
reference to the reasonable ex-
pectation of pecuniary benefit
accruing to the claimant
whether of right or otherwise, if
the life continued:
Blake -v-
Midland
Railway
Company
(1852) 18 QB 93;
Dalton -v-
South Eastern Railway Company
(1858) 4 CB (NS) 296;
Franklin
-v- The South Eastern Railway
Company
(1858) 3 H & N 211;
Jaff Vale Railway -v- Jenkins
[1913] AC 1 . . . There must be
a f f i rma t i ve proof of the
pecuniary loss suffered by each
individual for whose benefit the
damages are claimed and the
jury may not award damages
merely on a basis of guess work
or speculation:
Hull -v- Great
Northern Railway Company of
Ireland (1890-91) 26 LR lr 289."
Barron J. stated that against such
loss there must be set off any com-
pensating benefit received. This
principle was set out in the judgment
of Kingsmill Moore J. in
Murphy -v-
Crónin
[1966] ifl 699 at page 708.
" I t is the net loss on balance
which constitutes the measure
of damages -
Davis -v- Powell
Duffryn Associated
Collieries
Limited
[1942] AC 601, 609.
Barron J, stated that Kingsmill
Moore J referred to Section 49
subsection (1) (a) of the
Civil
Liability Act 1961
which provided
that the damages are to be "a total
of such amounts (if any) as the jury
or the judge, as the case may be,
shall consider proportionate to the
injury resulting from the death to
each of the defendants respectively
for whom or on whose behalf the
action is brought".
Barron J. then stated that a
comprehensive review of the
relevant authorities was contained
in the judgment of Lord Edmund-
Davies in
Hay -v- Hughes
[1975] 1
All ER 257. Barron J. stated that,
while
Hay -v- Hughes
clearly did
not set out one clear principle, it
was support for the proposition
that reasonable expectation at the
time of death of a future benefit is
a relevant consideration.
Balancing of Losses and Benefits
Barron J. said he could see no
reason why there should not be a
recognised principle under which
benefits received should or should
not be taken into account. The
basis of the assessment of
damages for fatal injuries is the
balancing of losses and benefits.
Like any other balance sheet, it
seemed appropriate to determine
first what items could appear on
the balance sheet and then
secondly the amount of such
items. There can be little doubt but
that the amount of the items must
be determined as of the date of
assessment. Perhaps also whether
the item could appear should be
determined as of the same date.
Barron J stated it seemed more
logical that if you are establishing
a balance sheet required by
reason of a death t hat the
items to appear on it should be
determined as of that date. There
was nothing unusual in this two tier
approach.
There were many cases in Irish
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