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GAZETTE
JULY
Social Welfare benefits payable
on his death;
(2) The Tribunal wrongfully
purported to assess the Social
Welfare benefits without giving
the prosecutrix an opportunity of
making submissions.
This Tribunal was set up by direct
executive act and by means of a
Scheme which the Minister for
Justice laid before the Houses of the
Oireachtas in February, 1974, and
not by any statute. Briefly the
Scheme provided that this Tribunal
could pay ex
gratia
compensation in
.pect of an injury which is directly
attributable to a crime of violence, or
if the victim attempted to assist the
prevention of crime or the saving of
human life. The Tribunal is free to
determine the amount of the
compensation, and there is no appeal
from its verdict. Despite these
conditions, the High Court on
Certiorari can intervene if the
principles of Natural Justice are not
observed.
The prosecutrix is the widow of
John Hayes, who, whilst an employee
of- Aer Lingus, was killed by the
setting off of a bomb at Dublin
Airport. She duly brought an
application before this Tribunal for
compensation on behalf of herself
and other dependents. The
application was supported with an
actuarial report based on the earnings
of the deceased which the Tribunal
considered in detail. The scheme
provides that the compensation tr
awarded will be on the basis
damages under the Civil Liability
Act, 1961. Section 50 of the Civil
Liability Act provides that, in
assessing damages for fatal injuries,
account shall not be taken of any
pension, gratuity, or other like benefit
payable under Statute. This clearly
excludes as a deduction any Social
Welfare benefit payable to a
dependant. The Tribunal contends
that, if on the ordinary construction
of the word "claimant", it means any
person entitled to claim, the Scheme
provides that any person claiming
compensation from this Tribunal,
which is entirely funded by the
Government, should be prevented
from obtaining further funds from
Government sources. Therefore, as
regards Point (1) ante, the Tribunal
was acting entirely within its
jurisdiction. As regards Point (2), the
prosecutrix gave evidence before the
Tribunal, and her legal representative
was invited to make submissions with
regard to her claim. The prosecutrix
was duly informed at the hearing that
the Tribunal intended to deduct the
Social Welfare benefits from the
amounts payable for compensation.
Accordingly there was no want of
Natural Justice in the proceedings
before the Tribunal, and the Tribunal
was correct in its approach to the
matter. It follows that the Order of
Certiorari will be discharged, and the
cause shown against the making of
the Order will be made absolute.
The State (Monica Hayes) v. The
Criminal Injuries Compensation
Tribunal —Finlay P. - Unreported
- 24 May, 1977.
Negligence — Fatal Injury
New trial directed on the issue of
damages and of mental distress —
Correct actuarial evidence not
applied in assessing damages.
The plaintiff was the mother of the
deceased, and, as a dependant under
the Civil Liability Act, 1961, took an
action for negligence on behalf of
herself and nine other dependants, in
respect of the death of Jeremiah
Dowling in the course of his
employment at defendant's factory at
Monkstown, Co. Cork, on 23rd
May, 1973. The action was heard by
Murnaghan J. in Cork sitting without
a jury, and damages in the sum of
£3,060 were assessed, The Judge
also awared £940 for mental distress,
making a total award of £4,000. The
plaintiff appealed against this award,
seeking to have it set aside, on the
ground that the Judge failed to have
regard to the evidence of the actuary
in assessing damages, and that the
total sum awarded was perverse,
inadequate and against the weight of
evidence.
The deceased was bom in July,
1955, and was not yet 18 years of
age at the date of the accident. The
amount of his wages varied
according to the number of hours
worked, as he was employed at an
hourly rate. He had been employed by
the defendants for 5 months before
his death. There were nine children in
the family. The deceased paid about
£12.00 per week to his mother, and
the net value to the family of his
contribution was £8.00.
Although the actuarial evidence did
not substantiate this, the trial Judge
was quite satisfied that the reasonable
probability in that case was that
certainly by the time he reached the
age of 23 years the deceased would
have left home, and probably would
have got married. As the deceased
was not 18 at the time of his death,
there was no evidence of any kind
touching his intentions with regard to
marriage.
Walsh J., in considering what a
Court should do in such a situation,
stated that a Court could only have
resort to such probable pattern as might
reasonably be deduced from available
statistics. The plaintiff was not absolved
from the primary duty of discharging
the necessary burden of proof which
required not merely the evidence given
by the actuary but a more detailed
analysis of that evidence than was in
fact given. Walsh J. said that the trial
Judge admittedly misunderstood the
nature of the actuarial evidence. The
figure of the actuary was based on a
calculation which related particularly to
a case of a person who was unmarried
but who would probably get married in
accordance with statistics. It followed
that a new trial should be ordered in
respect of the damages resulting from
the loss of dependancy.
Walsh J. said that it was not possible
to detect upon what evidence the trial
Judge awarded £940. The correct
approach was for the Judge to make a
notional award in the sum which he
would on the evidence be justified in
giving to each of the persons who
suffered mental distress, without taking
into account the maximum sum of
£1,000. If the total of the notional
figures, when arrived at, exceeded
£1,000, then the figures should be
scaled down proportionately, so that the
total is reduced to £1,000. As this
procedure has not been followed in this
case, a new trial was directed on the
issue of compensation for mental
distress as well as on the issue of
damages.
Dowling v. Jedos Ltd. — Supreme
Court (Walsh, Kenny, and Parke
JJ.) per Walsh J - unreported - 30
March, 1977.
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