The Gazette 1978

1 MAY 1978

GAZETTE

dependants, the actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand, the loss to him of the future pecuniary benefit and, on the other, any pecuniary advantage which comes to him by reason of the death. A dictum of Kingsmill Moore J. in Byrne v. Houlihan (1966) I.R. 274 was cited and approved. (3) "However, in the case of a farm, or a family business, the value to be put on deductible assets can present some difficulty." Account must only be taken of the accelera- tion in the timing of the receipt of the inheritance which ultimately would have passed to the plaintiff and her children, under the provisions of the Succession Act, 1965. The valuation of the acceleration is a deductible asset. (4) The trial Judge had not erred in principle in adopting the con- ventional method of assessing the damages and no ground existed for disturbing the award which he had made. Anne CSullivan v. Coras Iompair Éíreann — The Supreme Court (per Griffin J. with Henchy and Parke JJ.) — unreported — 7 April, 1978. INSURANCE LAW Employees who happen to be driven to work by their employer and not under contractual obligation are covered, in the case of their being injured as a result of an accident in so travelling, by the employer's motor insurance policy, and not by his employer's liability policy. The employers are entitled to indemnity for any damages awarded to such employees from the motor insurance company. The first-named Plaintiff carried on business at Main Street, Millstreet, Co. Cork. In connection with this business, the company had in operation an Employer's Liability Policy issued by the second-named defendants and a Road Traffic Policy issued » by the third-named defendants. These policies covered those employed in the Millstreet business only. The accident, the subject of these proceedings, occurred on 7 October, 1967. Some time prior to this date, the company acquired premises in Academy Street, Cork for the purpose of developing its business there. The new store was opened on 5 October, 1967. Prior to the opening, a number of the employees in Millstreet

had been working in the Academy Street premises for the purpose of preparing for the opening and assisting in the early stages after opening. The Company took out a further Employer's Liability Policy with the first-named defendants in respect of the employees of the new business in Academy Street. With regard to the two employees who were involved in the accident, the practice was for the second- named Plaintiff who was a Director of the first-named Plaintiff, to drive them each morning from Millstreet, where they lived, to Academy Street in Cork, where they were directed to work. They were under no obligation, contractual or otherwise to be so driven to work. The accident was due to the negligence of the second- named plaintiff. An action was successfully broght by the two injured employees against the second- named Plaintiff and the company and damages were awarded. Dispute and controversy arose as to which insurance company was in cover in respect of the accident liability. It was endeavoured to resolve the matter by arbitration but this proved unsuccessful. The Plaintiffs discharged the amounts due to the two injured employees and then commenced proceedings for the purpose of obtaining a court declaration as to what policy applied to the liability involved in the accident. The High court having held that the two employees suffered bodily injury arising out of and in the course of their employment in the Academy Street business decided that the first-named defendants were liable. Against this decision, these defendants appealed to the Supreme Court. Held: (per O'Higgins, C. J.) that the appeal would be allowed and the third-named defendants were liable to indemnify the Plaintiffs in respect of the damages and costs involved in the claims. The essential question was whether the employees were under an obligation by the terms of their employment to travel in the vehicle in question. This test, asserted by Lord Denning, M.R. and Sachs, L. J. in Vandyke v. Fender & Ors. [ 19701 2 All. E.R. 335, was expressly approved of. As there was no evidence that the employees were obliged to travel in this manner to their work, this was a simple road accident case and the motor insurers' cover applied. Buckleys Stores Ltd. and Patrick

DAMAGES There is no one method of arriving at the appropriate damages which is suitable to all circumstances. Where the High Court has awarded damages by the conventional method of assessing loss, the Supreme Court cannot interfere with such an award unless the High Court has acted on a wrong principle of law, or has mis- understood the facts, or has made a wholly erroneous assessment (whether inadequately or ex- cessively) of the loss. The plaintiffs husband died as a result of injuries received in the course of a road crash. Murnaghan J. awarded the plaintiff and her four young children £21,139.50 for the loss suffered as a result of the death. The plaintiff objected to the method by which the trial Judge calculated the award. The case on behalf of the plaintiff was presented on three alter- native bases: (1) the conventional method of assessing the loss; (2) the differential basis; and (3) the capitalised value of the services of the deceased. The plaintiff alleged in her appeal that in adopting the first method, the trial Judge erred in principle. Section 49 (1) (a) of the Civil Liability Act, 1961, provides that the damages to be recovered by the dependants of the deceased (apart from compensation for mental distress and funeral and other expenses actually incurred by the deceased or the personal representa- tive) are "the total of such amourfts (if any) as the jury or the Judge, as the case may be, shall consider pro- portioned to the injury resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought." Murnaghan J. ascertained, "as best he could", the contributions of the deceased in money, services, and kind to his wife and children for their support and maintenance, and capitalised these by applying appro- priate actuarial multipliers. He accepted the calculations of the defendants' actuary. In dismissing the appeal, the Supreme Court (per Griffin J.) held: (1) Where there is no material upon which evaluation of an prob- able future savings of the deceased might be calculated, "probable future savings" have to be discounted in computing the award of damages. (2) In computing loss suffered by

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