The Gazette 1978

JANUARY/FEBRUARY 1978

GAZETTE

He took as an example an assessment of damages, where liability was admitted, arising out of a fatal accident to a married man with a surviving wife and young children. He indicated that in such a case an Actuary being asked to assess damages would like to receive the following information from the instructing solicitor: 1. Date of death. 2. Date of birth of deceased, his wife, of each of his children and of any other statutory dependants who were financially dependant on deceased. 3. Deceased's gross earnings at the time of death. 4. If deceased were still alive what would he now be earning and how and with effect from what dates would this have been altered between the date of death and the present time. 5. What deductions were being made for tax and Social Welfare at the time of death and what deductions for these items would now be made. 6. How did deceased spend his income. a) Did he give his total income to his wife who in turn gave him pocket money, or b) Did he withhold some for pocket money and give the balance to his wife, or c) Did he give his wife a fixed amount and d) Did he contribute to any other member of the family. 7. What was the cost of household overheads such as rent, rates, lighting, heat, fuel, TV, etc. 8. Who paid the overheads. 9. Did deceased run a car and if so what was the cost of running same and who paid for it. 10. Did deceased provide services in and around the home which are not now provided, e.g., growing vegetables, cutting turf, painting, decorating, etc. 11. How was deceased's health before his death and how is the present health of his financial dependants. 12. When would deceased have retired and what would his income then have been. 13. What assets did deceased leave. 14. Information concerning the likely period of dependancy of deceased's children (unless information is received by an Actuary to the contrary, children will be assumed to be dependant up to the age of 18). The above information should, in most cases, allow the Actuary both to calculate the capital value of the past loss of £1 per week payable at the date of death and the capital sum equivalent to the future loss during the period of dependancy. Mr. Delaney dealt in some detail with the effect of other payments and assets received on death by the dependants upon the actuarily calculated figure for the purposes of the Civil Liability Act. He pointed out the anomaly that exists in the case of the death of an individual drawing the dole whose widow and children are entitled to widows and orphans pensions and thus in fact suffer no financial loss by virtue of his death. The Civil Liability Act, Section 50, provides that these pensions must be ignored in computing damages and thence the family ends up better off than when the father was alive. In injury cases, Mr. Delaney pointed out that the Actuary is required to give only the capital value of each £ 1 per week for future loss of income and/or expenses. 14

He pointed out that the Actuary here was concerned not only to quantify the amount per week lost but must also identify the type of loss, i.e., loss of income or pension or both, and the type of expenses incurred and must also decide upon the duration of the loss to be assumed in arriving at the capital loss figure. He obviously needs instructions sufficient to permit him to make judgments on these points. The Lecture is most practical and helpful to those engaged in personal accident litigation. PROFESSIONAL LIABILITY FOR NEGLIGENCE Summary of Lecture given by Brian McCracken, S.C. at Autumn Seminar Professional Liability for negligence The question of the liability of a person who is acting in a professional or skilled capacity is undergoing a slow change of emphasis in the Courts and the tendency appears to be to widen the scope of such liability considerably. Unfortunately this is an aspect of the law upon which there are very few Irish authorities and one has to rely primarily on English precedents, although most Judges would probably tend to follow the type of thinking which is prevalent in the English Courts. These are perhaps typified by the cases of Hedley Byrne & Company Limited v Heller and Partners Limited (1964) AC 465. While neither of these cases are what would normally be considered negligence actions against a professional person, the principles involved appear to be very far reaching. The nature of the liability of a professional person is generally lumped under the general term of "negligence" but in fact, in many cases, this is a misnomer. Negligence is now a tort in its own right but the vast majority of actions against professional persons, and in particular solicitors, are not founded on die tort of negligence at all, but arise by virtue of the contractual relationship between a solicitor or other professional person and his client. Although certain professional persons can be sued in tort for negligence, it would appear, on the authorities, that, certainly in the case of a straightforward claim for professional negligence, some professional people, including solicitors, architects and stockbrokers, are only liable for breach of contract and not for the tort of negligence. Mr. McCracken considered at length the various authorities where actions had been taken both in contract and in tort and took the view that the time was probably very close where this distinction would no longer be recognised. Undertakings Many solicitors who give undertakings every day in their conveyancing practice do not realise that in so doing they are acting as officers of the Court and that they can be made to answer to the High Court for their failure to comply with such undertakings. The reasoning behind this is that a solicitor is at all times an officer of the Court and therefore if he acts in breach of an undertaking given as a solicitor, i.e. as an officer of the Court, he is in contempt of the Court. The position is stated in Cordery on Solicitors, 1953 Edition, at page 159. There is no doubt that, certainly in England, there exists to this day an inherent jurisdiction in the Courts to commit a solicitor to prison for contempt of Court for not