The Gazette 1986

GAZETTE

JULY/AUGUST

disregarded the future social welfare payments to be

made to the mother in assessing the children's loss. He

considered that the social security payments and the

awards made to each child ought to mean that she

would "not be worse off from a money point of view

and in theory this should be sufficient to support her

and each child." However, apart from her loss of a

reserve fund of £300, which had been kept by the father,

he emphasised that after the father's death "she will be

carrying the coal herself, and by saying that I do not

necessarily mean it to be taken literally, but she will be

doing all the many and time consuming jobs which have

to be done in a home with three young children, and will

clearly have less time and probably less energy to devote

specifically to

the

welfare of

the

children

individually."

In that respect also, therefore, the

children had suffered a loss in respect of which they

were entitled to be compensated.

The majority, however, also upheld the trial judge's

award to the children in respect of the other items of the

cost of the mother's maintenance which would not be

met by the social security payments. "In this category of

expenses paid out of the father's wages, but now beyond

the mother's means suppled by social security," said

Stephenson L.J., "are her expenses on their outings and

her air fares when she accompanies them on flights to

and from Ireland. They cannot be expected to travel

without her and would lose the benefit of those outings

and holidays if she could not afford to go with them. In

the same category of family expenses not apportionable

between mother and children come the cost of

electricity, television and washing-machine which the

father himself used to pay and the cost of gas and the

rent which she paid out of what he gave her. The

Defendants concede that the children should be paid the

whole cost of these items except electricity and perhaps

gas; but I would regard it as unreasonable to drive the

mother to bed at the same time as the children by

disallowing the estimated cost of any extra light or heat

she may use after they have gone to bed."

The approach adopted by the Court was, it is

considered, eminently reasonable, just and consistent

with principle. The broader view of Graham J. as to the

extent of the children's loss has even more to

recommend itself. In this jurisdiction, in any event, any

social welfare payments to be received by the mother

ought not, it is submitted, be taken into account unless

the statute conferring such benefit expressly provides

that it shall be taken into account. This is the effect of

Section 50 of the Civil Liability Act, 1961, which

provides that in assessing damages under Part IV of that

Act account shall not be taken of insurance monies

payable on the death of the deceased or "any pension,

gratuity or other like benefit payable under statute or

otherwise in consequence of the death of the deceased."

The remedy is not complete, however, because it can

have no application in the case of the unmarried woman

with no dependent children, and even in the case of the

unmarried woman with dependent children recovery in

respect of the mother's maintenance is limited under

this theory of recovery to the period of the children's

dependency on the mother which will usually be

considerably less than the period of the mother's

dependency on the father

. It is, however, a judicial

response to the unjustifiable statutory restriction on

dependants' entitlement to sue for wrongful death

which will hopefully recommend itself to the Irish

courts.

Footnotes

1. 9& 10 Vict. c.93.

2. Sections 2 and 5.

3. 24 & 25 Geo. c.41, section 2. The Fatal Accidents Act, 1959,

s.2, eliminated the right given to an adopted illegitimate child by

the Act of 1934 to sue not only in respect of the death of his

adoptive parent but also in respect of the death of his natural

parent.

4. No. 3 of 1956, section 2.

5. [1976] 1Q.B. 85, 91.

6. No. 41 of 1961, section 47.

7. 7 &8 Eliz. 2 c. 65, section 1.

8. 1976 c. 30 [Section 1(4) of the Fatal Accidents Act, 1959, which

amended section 6 of the Law Reform (Married Women and

Tortfeasors) Act, 1935 was not repealed]. The Act of 1976 did not

extend to Northern Ireland: section 7(3).

9. 1982 c. 53, section 3(1).

Section 3(4) of the Act of 1976 as amended by section 3(1) of the

Act of 1982, provides that in assessing the dependency of a

dependant in respect of the death of the person with whom the

dependant was living, outside matrimony, as husband or wife

"there shall be taken into account (together with any other matter

that appears to the court to be relevant to the action) the fact that

the dependant had no enforceable right to financial support by the

deceased as a result of their living together."

10. [1978] A.C. 728, 751-52, when his Lordship said: "Through the

trilogy of cases in this House,

Donoghue

-v-

Stevenson,

[1932]

A.C. 502, [1932] A11E.R. 1,

Hedley Byrne & Co. Ltd.,

-v-

Heller &

Partners Ltd.

[1963] 2 All E.R. 575, [1964] A.C. 405, and

Home

Office

-v-

Dorset Yacht Co. Ltd.

[1970] 2 All E.R. 294, [1970]

A.C. 1004, the position has now been reached that in order to

establish that a duty of care arises in a particular situation, it is not

necessary to bring the facts of that situation within those of

previous situations in which a duty of care has been held to exist.

Rather the question has to be approached in two stages. First one

has to ask whether, as between the alleged wrongdoer and the

person who has suffered damage, there'is a sufficient relationship

of proximity or neighbourhood such that, in a reasonable contem-

plation of the former, carelessness on his part may be likely to

cause damage to the latter, in which case a

prima facie

duty of care

arises. Secondly, if the first question is answered affirmatively, it is

necessary to consider whether there are any considerations which

ought to negative, or to reduce or to limit the scope of the duty or

the class of the persons to whom it is owed or the damages to

which a breach of it may give rise: (see the

Dorset Yacht Case,

(1970] 2 All E.R. 294 at 197,298, [1970] A.C. 1004 at 1007)."

. Burgess -v- Florence Nightingale Hospital for Gentlewomen

[1955]

1 Q.B. 349 where Devlin J. held that pecuniary loss to be recover-

able must originate in the family-type relationship so that a

husband's claim for his loss resulting from the death of his wife as

such was allowed but recovery was denied in respect of the

husband's damage resulting from the loss of his wife as a profes-

sional dancing partner, for the partnership was a professional

relationship independent of the relationship of husband and wife

and that damage resulted from their professional and not their

marital relationship.

12. [1976] 1 Q.B. 85.

.Ibid.,

p.96.

14.

Ibid.,

p.90, per Cairns L.J.

15. Cairns and Stephenson

L.JJ.

and Graham J.

16.

Ibid.,

p.97.

11. Ibid.,

p.97.

.Ibid.,

p. 105.

.Ibid.,

p.98.

20. Consequently, as all of the Judges in the Court of Appeal observed

-v-

J.M.P. Co. Ltd.

supra, this theory of recovery does not

place the mother in the position of a lawful wife and allow her to

recover on that basis when the legislation excludes her.

21. This theory of recovery is equally applicable in the case of a

lawfully married woman with dependent children who is barred

from recovery by section 35(l)(d) of the Civil Liability Act, 1961,

on the ground that her wrong caused the death of her deceased

husband. This point would be of practical importance where the

married mother tortfeasor was insured in respect of the tort which

caused her husband's death.

129