The Gazette 1991

april 1991

g a z e t t e

approach to the problem of the lost years which I suggest is arrived at in the following way. In a fatal case the claim for loss is based on the support which the dependants of the deceased received and would have expected to receive from the deceased. In a more simplistic way this is viewed in the British Courts as being the wages of the deceased less whatever amount thereof he might have spent on himself. A more detailed and pragmatic approach is adopted in the Irish Courts and I shall say more about that later on. In an injury case on the other hand what a plaintiff can claim is the value of the wages or income that he or she has lost. Where a person's life ex- pectancy has been impaired, as in the Doherty -v- Bowater case, what we are looking at, based upon the figures in that case, is a situation where Doherty could have expected to live for about 38 years but as a result of the accident would live for only 28 years. Is it not reasonable to say that for the reduced life expectancy he can claim the loss of wages and for the difference between the reduced expectancy and normal expectancy his de- pendants have a claim? Essentially, in my opinion, this is what the Supreme Court held in the appeal of the Doherty -v- Bowater casa Where there is any question of on-going medical or other expenses clearly these can be claimed only in respect of the reduced life span of the Plaintiff. 7. VALUING A FATAL CASE 7.1 Data The information required to enable an actuary to value a fatal case is set out in the Appendix to this paper. Most of this information will be included in the Statement of Claim and Particulars and in any request for further Particulars and the Reply thereto. It may well be that, having received and con-

period equal to the plaintiff's life expectancy. The following table shows the correct value and the value based on the life expectancy.

injuries received the question arises as to how, if at all, should damages be calculated to compensate for the "lost years".

Age

Value of £1 per week

Life

Error

Expectancy

Actuarially calculated

Based on expectancy

52.54 43.08 33.60 24.53 16.56 10.13

20 30 40 50 60

1133 1053

1161 1085

2% 3% 4% 6% 6% 6%

974 822 636 436

936 779 597 410

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6.2 Assets

In 1966 an appeal was heard in the Supreme Court in the case of Doherty -v- Bowater Mills Ltd. [1968] IR 277, SC. This was a case in which a man was seriously injured. His normal life expectancy would have been about 38 years but as a result of the injuries it was reduced by one quarter. Actuarial evidence was given at the trial as to the capital value of future earnings based on the reduced life expectancy. The evidence so given was taken and acted upon on the assumption that the Plaintiff was not entitled to recover, as part of his dam- ages, any sum in respect of the loss of wages for the number of years by which his expectation had been reduced. The trial judge expressed the view that was the correct legal position. In the Supreme Court appeal of the case Mr. Justice Walsh in his judgment said: "In my opinion the period or the length of time by which the expectation of life has been reduced must also be taken into account though, of course, for that particular period the sum to be considered would not be the gross loss of wages for the period but the surplus, if any, after providing for what it would have cost fthe Plaintiff) to live during those years if he had not had the accident". /11968] IR 277, 285). There is a common sense

In a fatal case, as well as having regard to the support lost by the dependants of the deceased, account must be taken of any assets which pass to them. Let me briefly refer again to the judgment of Lord Diplock in the Mallett -v- McMonagle case where he said: " . . . credit being given for the value of any material benefits which will pass to them . . . " Section 50 of the Civil Liability Act, 1961 excludes the proceeds of life policies and any pension, gratuity or like benefit. The practice exists also of ignoring the family home as an asset where the plaintiff is the spouse of the deceased. Clearly a dependant has gained in receiving assets as a result of the early death of the deceased. That dependant, however, had an expectation in the asset had the depend- ant survived the deceased. By virtue of the death the dependant has gained the difference between the asset received and the value of the expectation of receiving the asset in the event of the deceased predeceasing the dependant. The value of the expectation is a straight- forward actuarial calculation.

6.3 Lost years

In an injury case where the life expectancy of the plaintiff is impaired as a result of the

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