The Gazette 1981

APRIL 1981

GAZETTE

Insurers at Bay — Repercussions of Gammell v. Wilson

by John P. M. White, B.C.L., LL.B., LL.M. (Harvard) Barrister-at-Law

A LARM bells are ringing in the insurance industry, as a bombshell of Hiroshima proportions threatens to strike the Irish law of wrongful death in the wake of the recent decision of the House of Lords in Gammell v. Wilson} The decision in Gammell is the result of the con- fluence of the law relating to personal injury actions, dependants' fatal injury actions and personal representatives' actions on behalf of the estates of persons wrongfully killed. This article confines itself, however, to the simple objective of alerting plaintiffs' solicitors to impending developments of some importance. The Fatal Accidents Act, 1846 2 gave the dependants of one wrongfully killed by another a statutory cause of action in respect of the economic loss occasioned them as a result of the decedent's wrongful death. Recovery was confined by the early decisions on the Act to the financial benefits which the preferred relatives under the Act could reasonably have anticipated from the continued existence of the decedent. Accordingly, recovery by the parents of young unmarried men and women wrongfully killed would normally be confined to a small sum, as the parents could only expect financial contributions while their children remained unmarried and, perhaps, some con- tribution in their old age, depending on the parents' own financial resources. As a result of the decision in Gammell v. Wilson, however, the parents of such persons can now look forward to a substantial windfall. A handsome "profit" may be made by their suing, not in their own right, as dependants of the decedent under the Fatal Accidents Act, but by suing on behalf of the decedent's estate in respect of the wrong done to the decedent himself. This result follows from the combined operation of two rules, the first judge-made and the second, the creature of statute. In Pickett v. British Rail Engineering, Ltd} the House of Lords held that when a man is injured by the tort of another and his working-life has been shortened as a result, he may recover in his personal injury action damages for loss of the earnings which he would have made during the years of life which he has lost as a result of the accident, i.e., during the years when he will now be dead but would have been alive and working, were it not for the accident. The measure of such damages is the amount of his anticipated earnings, less what he would have spent on maintaining himself during those "lost years."

At common law, a cause of action in tort vested in a person before his death did not survive his death. The English Law Reform (Miscellaneous Provisions) Act, 1934, provided that on the death of a person (subject to certain exceptions) all causes of action vested in him should survive for the benefit of his estate. When a man is killed — even instantaneously — as a result of the tort of another, there is deemed to have been vested in him at the moment before his death a cause of action in respect of that tort. By virtue of the Law Reform Act, this right is transmitted to his estate and the personal representatives may prosecute the action on the estate's behalf. The Decision in Gammell In Gammell v. Wilson it was argued that since a living plaintiff in his personal injury action is entitled to recover damages in respect of the lost earnings of the "lost years," i.e., the years by which his working-life has been cut short by the accident, it follows that where the potential plaintiff has been killed outright by the tort, his right to sue for the lost earnings of the "lost years" is transmitted to his estate and may be prosecuted on its behalf by the personal representatives, by virtue of the Law Reform Act. The House agreed and held that where a person is wrongfully killed and his working-life thereby cut short, his estate may recover in respect of the earnings which he would have made during the working-years lost as a result of the accident, less what he would have spent on maintaining himself during those "lost years." In Gammell's case, a 15-year-old itinerant boy had been killed in an accident for which the defendant was res- ponsible. The plaintiff father sued in two capacities. First, he claimed damages for himself and his wife, as being dependants of their dead son and thus entitled to damages under the Fatal Accidents Act. Secondly, he claimed damages as administrator of his son's estate, by virtue of the Law Reform Act. The damages recoverable by the estate in respect of the latter claim would be divided equally between the plaintiff and his wife, as being the persons beneficially entitled on their son's death intestate. The trial judge in the administrator's action held that, after making allowance for his living expenses, the decedent would have had £416 p.a. remaining from his income. This figure, when multiplied by the number of

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