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GAZETTE
JANUARY/FEBRUARY 1978
He took as an example an assessment of damages,
where liability was admitted, arising out of a fatal
accident to a married man with a surviving wife and
young children. He indicated that in such a case an
Actuary being asked to assess damages would like to
receive the following information from the instructing
solicitor:
1. Date of death.
2. Date of birth of deceased, his wife, of each of his
children and of any other statutory dependants who
were financially dependant on deceased.
3. Deceased's gross earnings at the time of death.
4. If deceased were still alive what would he now be
earning and how and with effect from what dates
would this have been altered between the date of death
and the present time.
5. What deductions were being made for tax and Social
Welfare at the time of death and what deductions for
these items would now be made.
6. How did deceased spend his income.
a) Did he give his total income to his wife who in turn
gave him pocket money,
or
b) Did he withhold some for pocket money and give
the balance to his wife,
or
c) Did he give his wife a fixed amount
and
d) Did he contribute to any other member of the
family.
7. What was the cost of household overheads such as
rent, rates, lighting, heat, fuel, TV, etc.
8. Who paid the overheads.
9. Did deceased run a car and if so what was the cost of
running same and who paid for it.
10. Did deceased provide services in and around the
home which are not now provided, e.g., growing
vegetables, cutting turf, painting, decorating, etc.
11. How was deceased's health before his death and how
is the present health of his financial dependants.
12. When would deceased have retired and what would
his income then have been.
13. What assets did deceased leave.
14. Information concerning the likely period of
dependancy of deceased's children (unless
information is received by an Actuary to the
contrary, children will be assumed to be dependant
up to the age of 18).
The above information should, in most cases, allow the
Actuary both to calculate the capital value of the past loss
of £1 per week payable at the date of death and the
capital sum equivalent to the future loss during the period
of dependancy.
Mr. Delaney dealt in some detail with the effect of
other payments and assets received on death by the
dependants upon the actuarily calculated figure for the
purposes of the Civil Liability Act. He pointed out the
anomaly that exists in the case of the death of an
individual drawing the dole whose widow and children are
entitled to widows and orphans pensions and thus in fact
suffer no financial loss by virtue of his death. The Civil
Liability Act, Section 50, provides that these pensions
must be ignored in computing damages and thence the
family ends up better off than when the father was alive.
In injury cases, Mr. Delaney pointed out that the
Actuary is required to give only the capital value of each
£ 1 per week for future loss of income and/or expenses.
14
He pointed out that the Actuary here was concerned not
only to quantify the amount per week lost but must also
identify the type of loss, i.e., loss of income or pension or
both, and the type of expenses incurred and must also
decide upon the duration of the loss to be assumed in
arriving at the capital loss figure. He obviously needs
instructions sufficient to permit him to make judgments
on these points.
The Lecture is most practical and helpful to those
engaged in personal accident litigation.
PROFESSIONAL LIABILITY FOR NEGLIGENCE
Summary of Lecture given by Brian
McCracken, S.C. at Autumn Seminar
Professional Liability for negligence
The question of the liability of a person who is acting in
a professional or skilled capacity is undergoing a slow
change of emphasis in the Courts and the tendency
appears to be to widen the scope of such liability
considerably. Unfortunately this is an aspect of the law
upon which there are very few Irish authorities and one
has to rely primarily on English precedents, although
most Judges would probably tend to follow the type of
thinking which is prevalent in the English Courts. These
are perhaps typified by the cases of
Hedley Byrne &
Company Limited v Heller and Partners Limited
(1964)
AC 465. While neither of these cases are what
would normally be considered negligence actions
against a professional person, the principles involved
appear to be very far reaching.
The nature of the liability of a professional person is
generally lumped under the general term of "negligence"
but in fact, in many cases, this is a misnomer. Negligence is
now a tort in its own right but the vast majority of actions
against professional persons, and in particular solicitors,
are not founded on die tort of negligence at all, but arise
by virtue of the contractual relationship between a
solicitor or other professional person and his client.
Although certain professional persons can be sued in
tort for negligence, it would appear, on the authorities, that,
certainly in the case of a straightforward claim for
professional negligence, some professional people,
including solicitors, architects and stockbrokers, are only
liable for breach of contract and not for the tort of
negligence.
Mr. McCracken considered at length the various
authorities where actions had been taken both in contract
and in tort and took the view that the time was probably
very close where this distinction would no longer be
recognised.
Undertakings
Many solicitors who give undertakings every day in
their conveyancing practice do not realise that in so doing
they are acting as officers of the Court and that they can
be made to answer to the High Court for their failure to
comply with such undertakings. The reasoning behind
this is that a solicitor is at all times an officer of the Court
and therefore if he acts in breach of an undertaking given
as a solicitor, i.e. as an officer of the Court, he is in
contempt of the Court. The position is stated in Cordery
on Solicitors, 1953 Edition, at page 159.
There is no doubt that, certainly in England, there
exists to this day an inherent jurisdiction in the Courts to
commit a solicitor to prison for contempt of Court for not