The Gazette 1982

g a z e t t e

a p r i l 1982

Gammell v Wilson and Ors. A Further Commentary

by David R. Pigot, Solicitor

T HE decisions of the House of Lords in the cases of Gammell v Wilson and Ors. and Furness andAnor. v B. & S. Massey Ltd. (both reported at [ 1981 ] 1 All E. R. 578) have aroused feelings on the one hand of concern, and on the other of pleased anticipation, amongst lawyers in this jurisdiction — which depending upon the side they tend normally to find themselves in compensation claims. The purpose of this article is, hopefully, to demonstrate that these decisions will have no application in similar cases in the Irish Courts or, if they have, to suggest in what way the law in the Republic of Ireland could (and should) be amended. The facts of the two cases are well known but it may be helpful briefly to summarise them once again. The Plaintiffs in these two actions were the parents of two young men killed in accidents as a result of the negligence of the respective Defendants. Both deceaseds died intestate and the Plaintiffs were therefore the Administrators of their estates. Both sets of Plaintiffs claimed damages against the defendants under the Fatal Accidents Act (in the Gammell case the Act of 1976 and in the Furness case the Acts of 1846 to 1949) on behalf of themselves as dependants, and under the Law Reform (Miscellaneous Provisions) Act, 1934 on behalf of the deceased's estate. In each case, the damages awarded under the 1934 Act exceeded those awarded under the Fatal Accidents Acts. By reason of the fact that under the Fatal Accidents Acts the Court was required to take into account any benefit accruing to a dependant from a deceased's estate, no award was made in respect of the claims under those Acts. The damages awarded included, inter alia, damages for the deceaseds' loss of future earnings during the years of life lost to them ("the lost years"). Previously, the Court of Appeal in Oliver v Ashman (reported at [ 1961 ] 3 All E.R. 323 and[ 1962] 2 Q.B. 210) had held that such loss of future earnings was irrecoverable. This decision was over-ruled in the case of Pickett v British Rail Engineering Ltd. (reported at |1979] 1 All E.R. 774). Briefly, the House of Lords in the Pickett case decided that where a Plaintiff, as a result of a Defendant's negligence, suffered diminution of his life expectancy, such Plaintiff had been deprived of an asset of value which could be assessed in money terms. Accordingly, the House of Lords decided that the damages recoverable by Pickett in his action should include his loss of future earnings for such period as he was likely to have continued

at work. Those damages were to be assessed objectively disregarding loss of financial expectations which were too remote or unpredictable and speculative and after deducting the Plaintiffs own living expenses which he would have expended during the "lost years". There can be little doubt that the House of Lords was very largely influenced in coming to this decision by the fact that Pickett had died before his Appeal (and the Defendant's Cross-Appeal) was disposed of and accordingly, as he had recovered damages for his personal injuries in proceedings brought during his own lifetime; his dependants no longer could bring an action for damages against the same Defendants under the Fatal Accidents Act, 1976. The Pickett decision, coupled with the provisions of Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934, effectively left the House of Lords with no alternative but to decide the Gammell and Furness cases as they did, although it is respectfully submitted that the method of calculating the damages for the "lost years" was incorrect. The law in England as a result is now clear. It must nevertheless be pointed out that while the House of Lords had no hesitation in deciding what the law of England was, they did not believe that that was what it should be. Lord Diplock stated that he did not think the outcome was "either sensible or just" and that successive judicial decisions had "led into a morass from which I think that only Parliament can extricate us". Lord Fraser found the law "difficult to justify". Lord Russell that "the law has gone astray" and Lord Scarman that "It was a mischief which should be removed from our law". (It is in fact under- stood that a firm commitment has been made by the English Government to amend the law at the next legislative oppor- tunity to preclude future "Gammell" type decisions). The question which then arises is —"Is what undoubtedly is at the present the law in England also the law in the Republic of Ireland?" Proponents of the Gammell and Furness decisions have referred to the earlier Irish case of Dohertv v. Bowaters Irish Wall board Mills Ltd [ 1968| I.R. 277. It certainly appears from the judgment of Mr. Justice Walsh that the Supreme Court took the view that in assessing the damages to which the Plaintiff was entitled for loss of earnings "the length of time by which the expectation of life has been reduced must also be taken into account". A feature of this case, however, is the fact that it was apparently accepted in the High Court that the Plaintiff 65