The Gazette 1986

JULY/AUGUST

19

GAZETTE

disregarded the future social welfare payments to be made to the mother in assessing the children's loss. He considered that the social security payments and the awards made to each child ought to mean that she would "not be worse off from a money point of view and in theory this should be sufficient to support her and each child." However, apart from her loss of a reserve fund of £300, which had been kept by the father, he emphasised that after the father's death "she will be carrying the coal herself, and by saying that I do not necessarily mean it to be taken literally, but she will be doing all the many and time consuming jobs which have to be done in a home with three young children, and will clearly have less time and probably less energy to devote specifically to the welfare of the children individually." 18 In that respect also, therefore, the children had suffered a loss in respect of which they were entitled to be compensated. The majority, however, also upheld the trial judge's award to the children in respect of the other items of the cost of the mother's maintenance which would not be met by the social security payments. "In this category of expenses paid out of the father's wages, but now beyond the mother's means suppled by social security," said Stephenson L.J., "are her expenses on their outings and her air fares when she accompanies them on flights to and from Ireland. They cannot be expected to travel without her and would lose the benefit of those outings and holidays if she could not afford to go with them. In the same category of family expenses not apportionable between mother and children come the cost of electricity, television and washing-machine which the father himself used to pay and the cost of gas and the rent which she paid out of what he gave her. The Defendants concede that the children should be paid the whole cost of these items except electricity and perhaps gas; but I would regard it as unreasonable to drive the mother to bed at the same time as the children by disallowing the estimated cost of any extra light or heat she may use after they have gone to bed." 19 The approach adopted by the Court was, it is considered, eminently reasonable, just and consistent with principle. The broader view of Graham J. as to the extent of the children's loss has even more to recommend itself. In this jurisdiction, in any event, any social welfare payments to be received by the mother ought not, it is submitted, be taken into account unless the statute conferring such benefit expressly provides that it shall be taken into account. This is the effect of Section 50 of the Civil Liability Act, 1961, which provides that in assessing damages under Part IV of that Act account shall not be taken of insurance monies payable on the death of the deceased or "any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased." The remedy is not complete, however, because it can have no application in the case of the unmarried woman with no dependent children, and even in the case of the unmarried woman with dependent children recovery in respect of the mother's maintenance is limited under this theory of recovery to the period of the children's dependency on the mother which will usually be considerably less than the period of the mother's dependency on the father 20 . It is, however, a judicial response to the unjustifiable statutory restriction on dependants' entitlement to sue for wrongful death

which will hopefully recommend itself to the Irish courts. 21

Footnotes 1. 9& 10 Vict. c.93. 2. Sections 2 and 5.

3. 24 & 25 Geo. c.41, section 2. The Fatal Accidents Act, 1959, s.2, eliminated the right given to an adopted illegitimate child by the Act of 1934 to sue not only in respect of the death of his adoptive parent but also in respect of the death of his natural parent. 4. No. 3 of 1956, section 2. 5. [1976] 1Q.B. 85, 91. 8. 1976 c. 30 [Section 1(4) of the Fatal Accidents Act, 1959, which amended section 6 of the Law Reform (Married Women and Tortfeasors) Act, 1935 was not repealed]. The Act of 1976 did not extend to Northern Ireland: section 7(3). 9. 1982 c. 53, section 3(1). Section 3(4) of the Act of 1976 as amended by section 3(1) of the Act of 1982, provides that in assessing the dependency of a dependant in respect of the death of the person with whom the dependant was living, outside matrimony, as husband or wife "there shall be taken into account (together with any other matter that appears to the court to be relevant to the action) the fact that the dependant had no enforceable right to financial support by the deceased as a result of their living together." 10. [1978] A.C. 728, 751-52, when his Lordship said: "Through the trilogy of cases in this House, Donoghue -v- Stevenson, [1932] A.C. 502, [1932] A11E.R. 1, Hedley Byrne & Co. Ltd., -v- Heller & Partners Ltd. [1963] 2 All E.R. 575, [1964] A.C. 405, and Home Office -v- Dorset Yacht Co. Ltd. [1970] 2 All E.R. 294, [1970] A.C. 1004, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage, there'is a sufficient relationship of proximity or neighbourhood such that, in a reasonable contem- plation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or to limit the scope of the duty or the class of the persons to whom it is owed or the damages to which a breach of it may give rise: (see the Dorset Yacht Case, (1970] 2 All E.R. 294 at 197,298, [1970] A.C. 1004 at 1007)." 11 . Burgess -v- Florence Nightingale Hospital for Gentlewomen [1955] 1 Q.B. 349 where Devlin J. held that pecuniary loss to be recover- able must originate in the family-type relationship so that a husband's claim for his loss resulting from the death of his wife as such was allowed but recovery was denied in respect of the husband's damage resulting from the loss of his wife as a profes- sional dancing partner, for the partnership was a professional relationship independent of the relationship of husband and wife and that damage resulted from their professional and not their marital relationship. 12. [1976] 1 Q.B. 85. 13 .Ibid., p.96. 14. Ibid., p.90, per Cairns L.J. 15. Cairns and Stephenson L.JJ. and Graham J. 6. No. 41 of 1961, section 47. 7. 7 &8 Eliz. 2 c. 65, section 1. 20. Consequently, as all of the Judges in the Court of Appeal observed in K. -v- J.M.P. Co. Ltd. supra, this theory of recovery does not place the mother in the position of a lawful wife and allow her to recover on that basis when the legislation excludes her. 21. This theory of recovery is equally applicable in the case of a lawfully married woman with dependent children who is barred from recovery by section 35(l)(d) of the Civil Liability Act, 1961, on the ground that her wrong caused the death of her deceased husband. This point would be of practical importance where the married mother tortfeasor was insured in respect of the tort which caused her husband's death. D 129 16. Ibid., p.97. 11. Ibid., p.97. 18 .Ibid., p. 105. 19 .Ibid., p.98.