The Gazette 1982

g a z e t t e

a p r i l 1982

was not entitled to damages for his loss of earnings during the "lost years" and furthermore (if the cases referred to by counsel in arguing the Appeal are an accurate guide) that the point was not argued before the Supreme Court. Of all the cases dealing with the right of Plaintiffs to damages for loss of earnings during the "lost years" referred to by the House of Lords in delivering their judgments in the Gammell and Furness cases, only that of Oliver v Ashman was referred to — significantly, it would seem, by the Plaintiff. It will be remembered that in 1968 Oliver vAshman was authority for the proposition that the Plaintiff was not entitled to damages in respect of the "lost years". It is therefore respectfully submitted that this case offers questionable support to the Gammell decision. In any event, the Doherty case, if it is a binding authority, can be conclusive only in the case of a Plaintiff who has himself suffered a diminution of his life expectancy as a result of the Defendant's negligence. In considering whether the Gammell and Furness decisions can assist the Irish Courts in a fatal case, one has to consider in addition whether the relevant provisions of the Irish Civil Liability Act, 1961 correspond with those of the English Law Reform (Miscellaneous Provisions) Act, 1934. Section 7(2) of the Civil Liability Act, 1961 provides that where a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages "or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness". The corresponding Section of the 1934 Act (Section 1(2) (a)) does not include the words in quotations at all, excluding only exemplary damages. What must then be considered is whether the additional words contained in the 1961 Act preclude the personal representative of a deceased in a proper case from recovering damages for loss of future earnings during the "lost years". Reference to one of the judgments in the Gammell and Furness cases is of assistance in this regard. Lord Edmund-Davies (at page 584) in the course of considering whether such an action lay at all stated — "It is impossible to distinguish in legal principle between a claim in respect of a shortened expectation ot lite on the one hand and in respect of shortened expectation of working life on the other." If it be correct that there is no distinction to be made between the two, then, as recovery of damages for loss or diminution of expectation of life is precluded by Section 7(2) of the 1961 Act, it is submitted that damages for loss of earnings in the "lost years" is equally precluded. This submission would seem to get further support from the fact that at the date the Civil Liability Act, 1961 became effective (17th August 1961), English Law countenanced payment of a "conventional sum for loss of expectation of life ( Benham v Gambling , (1941] 1 All E.R. 7 and (1941 ] A.C. 157) and that in Oliver v Ashman it had just previously been decided that loss of earnings during the lost years was only "an ingredient" of the loss of expectation of life and was not to be valued as an item on its own. As already pointed out, the Civil Liability Act, 1961 expressly excludes recovery of damages for loss of expectation of life. Moreoever, having regard to the criticisms of the law

made by the House of Lords (quoted earlier in this article), it is submitted that the Irish Courts, unless feeling themselves otherwise bound by overriding precedent, should decide that no damages for loss of earnings during the "lost years" should be recoverable. Finally, it is submitted that the Pickett decision, insofar as it decided the only deduction from earnings during the "lost years" should be the Plaintiffs living expenses, should have no application where the injury is a fatal one and should not be followed in such a case. There is neither logic nor justice in deciding in a fatal case that the only deduction to be made from the future loss of earnings should be the deceased's own "living expenses which he would have expended during the "lost years"." It is submitted that in addition all sums which the deceased had he lived would have paid in support of his dependants should also be first deducted. This approach has the merit of immediately disposing of any question of "double recovery" insofar as that proportion of the deceased's loss of earnings which in the ordinary way he would have paid to his dependants was concerned. The House of Lords in the Gammell case expressed ver clearly its disapproval of "double recovery". The practical effect of this would be that if, in addition to first deducting living expenses, sums which would have been paid to a deceased's dependants be also deducted, where (as is likely to be the position in the majority of cases) the sum of a deceased's living expenses and the amounts paid by him to his dependants effectively exhaust his total net income after tax, the sums which a Plaintiff could recover under the "loss to deceased's estate" claim will be limited to special damages and funeral expenses (and these only to the extent to which they had not already been recovered in a contemporaneous claim by the statutory defendants under Part IV of the Civil Liability Act 1961). Of course, if there was evidence that the amount expended by the deceased on his own living expenses and in support of his dependants was less than his total net income, the capitalised value of the difference is a measurable loss arguably accruing to his estate, although this argument does ignore the consideration that the deceased had he lived might very well have spent (rathe than saved) such difference in which event no loss would have accrued to the estate at all. Evidence of a pattern of saving would obviously be relevant. It should also be observed that the decision in the Gammell case appears to take no cognisance of the high degree of probability that a young man such as Gammell, dying at an early age, leaving no widow or children, would in the ordinary way have survived his father and mother, with the result that they would have received no benefit whatever from his estate and accordingly would appear to have doubtful entitlement to claim damages for any reduction in or loss of such benefit certainly by reason of any loss of future earnings of the deceased, the calculation thereof taking into account earnings of the deceased at a time when very likely they would in the ordinary course of events be deceased. The dependants' rights it is submitted should be confined to a claim for damages under Part IV of the Civil Liability Act, 1961. It is further submitted that if, notwithstanding the foregoing, the law in the Republic of Ireland today does

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