The Gazette 1991

g a z e t t e

april 1991

The role of the actuary in the assessment of damages in personal and fatal injury claims (presented to the Society of Actuaries in Ireland 1st November, 1990)

1. INTRODUCTION

where Lord Justice Oliver stated that " . . . as a method of providing a reliable guide to individual behaviour patterns or to future economic and political events, the predict- ions of an actuary could be only a little more likely to be accurate (and were almost certainly less entertaining) than those of an astrologer" ([1985] All ER 930, 939, CA).

dependants of the deceased with a capital sum which with prudent management would be sufficient to supply them with material benefits of the same standard and duration as would have been provided for them out of the earnings of the Deceased had he not been killed by the tortious act of the defendant, credit being given for the value of any material benefits which will accrue to them, (other- wise then as the fruits of in- surance) as a result of his death". The Civil Liability Act, 1961, is the basis, as I understand it, for claims in this country for damages in personal injury and fatal accident cases. In a personal injury claim damages are usually sought under four headings. Past and future special damages, and past and future general damages. Special damages are in respect of monetary loss and general damages are for the pain and suffering experi- enced, or to be experi- enced. In fatal claims damages are sought and awarded under three headings: - Financial loss - Mental distress - Funeral and other ex- penses Actuarial involvement is in respect of future loss of income and/or expenses in a personal injury claim and for financial loss in a fatal case. Section 50 of the Civil Liability Act, 1961 states that in assessing damages account shall not be taken of:- (a) any sum payable on the death of the deceased 141

As far as I can ascertain, only one paper on this topic has been presented.to the Society and this was in March 1974 when Piers Segrave-Daly gave his paper on Problems in Valuing Death and Injury Claims.' 1 I shall refer to this paper again later on. There have not been many papers on the subject in the United Kingdom either. My researches have thrown up:- - Actuarial Assessment of Damages 2 which was written by J H Prevett - The Actuary in Damages Cases - Expert Witness or Court Astrologer? 3 by Robert Owen and Philip Shier presented to the Institute of Actuaries Student Society in March 1985. A paper, Compensation for Personal Injury 4 was pre- sented to the Institute in March 1980 but this paper dealt mainly with the Pearson Report. More recently, a paper Worktime lost through Sick- ness, Unemployment and Stoppages: Measurement and Application 5 was presented to the Institute in April 1990. This last paper I shall refer to again. The attitude to actuarial evidence in this country is vastly different from that in the United Kingdom. The attitude in the United Kingdom is summed up for me in the "The attitude to actuarial evidence in this country is vastly different from that in the United Kingdom." Judgement in the Court of Appeal in 1984 in Auty & Others -v- National Coal Board

by R. P. Delany, FIA

2. DAMAGES

In his judgment in the Supreme Court appeal of the personal injuries case Reddy - v- Bates [1983] IR 141, [1984] ILRM 197, SC, Mr. Justice McCarthy said that "The conventional descript- ion of damages awarded for personal injuries sustained through the tortious act of another is to ask the jury to award such sum as will, so far as money can do so, put the Plaintiff in the same position as he or she would have been if the tortious act had not occurred" ([ 1983] IR 141, 150, [1984] ILRM 197, 204). In the House of Lords in 1969 in giving judgment in the appeal of the fatal accident case Mallett -v- McMonagle, [1970] AC 166, [1969] 2 All ER 178, HL, Lord Diplock said that "the purpose of an award of damages under the Fatal Accidents Act is to provide the widow and other