The Gazette 1977

GAZETTE

JULY

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.

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

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

Dowling v. Jedos Ltd. — Supreme Court (Walsh, Kenny, and Parke JJ.) per Walsh J - unreported - 30 March, 1977.

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