The Gazette 1978

GAZETTE

MAY 1978

DAMAGES

There is no one method of arriving at

the appropriate damages which is

suitable to all circumstances. Where

the High Court has awarded

damages by the conventional method

of assessing loss, the Supreme Court

cannot interfere with such an award

unless the High Court has acted on a

wrong principle of law, or has mis-

understood the facts, or has made a

wholly erroneous assessment

(whether inadequately or ex-

cessively) of the loss.

The plaintiffs husband died as a

result of injuries received in the

course of a road crash. Murnaghan J.

awarded the plaintiff and her four

young children £21,139.50 for the

loss suffered as a result of the death.

The plaintiff objected to the method

by which the trial Judge calculated

the award. The case on behalf of the

plaintiff was presented on three alter-

native bases: (1) the conventional

method of assessing the loss; (2) the

differential basis; and (3) the

capitalised value of the services of the

deceased. The plaintiff alleged in her

appeal that in adopting the first

method, the trial Judge erred in

principle.

Section 49 (1) (a) of the Civil

Liability Act, 1961, provides that the

damages to be recovered by the

dependants of the deceased (apart

from compensation for mental

distress and funeral and other

expenses actually incurred by the

deceased or the personal representa-

tive) are "the total of such amourfts

(if any) as the jury or the Judge, as

the case may be, shall consider pro-

portioned to the injury resulting from

the death to each of the dependants,

respectively, for whom or on whose

behalf the action is brought."

Murnaghan J. ascertained, "as best

he could", the contributions of the

deceased in money, services, and

kind to his wife and children for their

support and maintenance, and

capitalised these by applying appro-

priate actuarial multipliers. He

accepted the calculations of the

defendants' actuary.

In dismissing the appeal, the

Supreme Court (per Griffin J.) held:

(1) Where there is no material

upon which evaluation of an prob-

able future savings of the deceased

might be calculated, "probable future

savings" have to be discounted in

computing the award of damages.

(2) In computing loss suffered by

dependants, the actual pecuniary loss

of each individual entitled to sue can

only be ascertained by balancing on

the one hand, the loss to him of the

future pecuniary benefit and, on the

other, any pecuniary advantage

which comes to him by reason of the

death. A dictum of Kingsmill Moore

J. in

Byrne v. Houlihan

(1966) I.R.

274 was cited and approved.

(3) "However, in the case of a

farm, or a family business, the value

to be put on deductible assets can

present some difficulty." Account

must only be taken of the accelera-

tion in the timing of the receipt of the

inheritance which ultimately would

have passed to the plaintiff and her

children, under the provisions of the

Succession Act, 1965. The valuation

of the acceleration is a deductible

asset.

(4) The trial Judge had not erred in

principle in adopting the con-

ventional method of assessing the

damages and no ground existed for

disturbing the award which he had

made.

Anne CSullivan v. Coras Iompair

Éíreann — The Supreme Court (per

Griffin J. with Henchy and Parke JJ.)

— unreported — 7 April, 1978.

INSURANCE LAW

Employees who happen to be driven

to work by their employer and not

under contractual obligation are

covered, in the case of their being

injured as a result of an accident in so

travelling, by the employer's motor

insurance policy, and not by his

employer's liability policy. The

employers are entitled to indemnity

for any damages awarded to such

employees from the motor insurance

company.

The first-named Plaintiff carried

on business at Main Street,

Millstreet, Co. Cork. In connection

with this business, the company had

in operation an Employer's Liability

Policy issued by the second-named

defendants and a Road Traffic Policy

issued » by

the

third-named

defendants. These policies covered

those employed in the Millstreet

business only.

The accident, the subject of these

proceedings, occurred on 7 October,

1967. Some time prior to this date,

the company acquired premises in

Academy Street, Cork for the

purpose of developing its business

there. The new store was opened on 5

October, 1967. Prior to the opening, a

number of the employees in Millstreet

had been working in the Academy

Street premises for the purpose of

preparing for the opening and

assisting in the early stages after

opening. The Company took out a

further Employer's Liability Policy

with the first-named defendants in

respect of the employees of the new

business in Academy Street.

With regard to the two employees

who were involved in the accident,

the practice was for the second-

named Plaintiff who was a Director

of the first-named Plaintiff, to drive

them each morning from Millstreet,

where they lived, to Academy Street

in Cork, where they were directed to

work. They were under no obligation,

contractual or otherwise to be so

driven to work. The accident was due

to the negligence of the second-

named plaintiff. An action was

successfully broght by the two

injured employees against the second-

named Plaintiff and the company and

damages were awarded.

Dispute and controversy arose as

to which insurance company was in

cover in respect of the accident

liability. It was endeavoured to

resolve the matter by arbitration but

this proved unsuccessful. The

Plaintiffs discharged the amounts due

to the two injured employees and

then commenced proceedings for the

purpose of obtaining a court

declaration as to what policy applied

to the liability involved in the

accident. The High court having held

that the two employees suffered

bodily injury arising out of and in the

course of their employment in the

Academy Street business decided

that the first-named defendants were

liable. Against this decision, these

defendants appealed to the Supreme

Court.

Held: (per O'Higgins, C. J.) that

the appeal would be allowed and the

third-named defendants were liable to

indemnify the Plaintiffs in respect of

the damages and costs involved in the

claims. The essential question was

whether the employees were under an

obligation by the terms of their

employment to travel in the vehicle in

question. This test, asserted by Lord

Denning, M.R. and Sachs, L. J. in

Vandyke v. Fender & Ors. [ 19701 2

All. E.R. 335, was expressly

approved of. As there was no

evidence that the employees were

obliged to travel in this manner to

their work, this was a simple road

accident case and the motor insurers'

cover applied.

Buckleys Stores Ltd. and Patrick