The Gazette 1991

JANUARY/FEBRUARY 1991

GAZETTE

Ireland (1890-91) 26 LR lr 289." Barron J. stated that against such loss there must be set off any com- pensating benefit received. This principle was set out in the judgment of Kingsmill Moore J. in Murphy -v- Crónin [1966] ifl 699 at page 708. " I t is the net loss on balance which constitutes the measure of damages - Davis -v- Powell Duffryn Associated Collieries Limited [1942] AC 601, 609. Barron J, stated that Kingsmill Moore J referred to Section 49 subsection (1) (a) of the Civil Liability Act 1961 which provided that the damages are to be "a total of such amounts (if any) as the jury or the judge, as the case may be, shall consider proportionate to the injury resulting from the death to each of the defendants respectively for whom or on whose behalf the action is brought". Barron J. then stated that a comprehensive review of the relevant authorities was contained in the judgment of Lord Edmund- Davies in Hay -v- Hughes [1975] 1 All ER 257. Barron J. stated that, while Hay -v- Hughes clearly did not set out one clear principle, it was support for the proposition that reasonable expectation at the time of death of a future benefit is a relevant consideration. Balancing of Losses and Benefits Barron J. said he could see no reason why there should not be a recognised principle under which benefits received should or should not be taken into account. The basis of the assessment of damages for fatal injuries is the balancing of losses and benefits. Like any other balance sheet, it seemed appropriate to determine first what items could appear on the balance sheet and then secondly the amount of such items. There can be little doubt but that the amount of the items must be determined as of the date of assessment. Perhaps also whether the item could appear should be determined as of the same date. Barron J stated it seemed more logical that if you are establishing a balance sheet required by reason of a death t hat the items to appear on it should be determined as of that date. There was nothing unusual in this two tier approach. There were many cases in Irish

Barron J. referred to the judg- ment of Kennedy C.J. in Gallagher -v- E.S.B. [1933] I.R. 558 at p. 566 where he said: "From an early date it was established that the damages which may be recovered are in the nature of a compensation for the pecuniary loss sustained by the parties for whose benefit the action is brought and that nothing in the nature of a solatium on account of mental suffering occasioned by such death may lawfully be awarded by the jury. The pecuniary loss upon wh i ch the damages awarded must be founded, and by which they are to be limited, may be actual or expected. The damages are to be calculated by reference to the reasonable ex- pectation of pecuniary benefit accruing to the claimant whether of right or otherwise, if the life continued: Blake -v- Midland Railway Company (1852) 18 QB 93; Dalton -v- South Eastern Railway Company (1858) 4 CB (NS) 296; Franklin -v- The South Eastern Railway Company (1858) 3 H & N 211; Jaff Vale Railway -v- Jenkins [1913] AC 1 . . . There must be a f f i rma t i ve proof of the pecuniary loss suffered by each individual for whose benefit the damages are claimed and the jury may not award damages merely on a basis of guess work or speculation: Hull -v- Great Northern Railway Company of

ARE THE BENEFITS ARI S ING FROM THE RE-MARRIAGE OF A WIDOW OF A DECEASED TO BE TAKEN INTO ACCOUNT IN ASSESSING DAMAGES AND, IF SO, ON WHAT BASIS? The issue of the net question of law whether the benefits arising from the re-marriage of a deceased were to be taken into account in assess- ing damages and if so on what basis arose in the case of Fitzsimons -v- Electricity Supply Board and Bord Telecom Eireann, judgment delivered by Barron J on July 31, 1990. {The Irish Times, Law Report, November 12, 1990). The Facts The case arose out of an accident in February 1979 when the deceased tried to pull away a telephone wire which was live because a portion of it had hooked itself to an overhead 10 kv electricity power line. The deceased was electrocuted. The dependants of the deceased included his widow, then aged 34, and their five children whose ages ranged from two to 11. The widow of the de- ceased remarried in February 1985 and since her re-marriage had another child who was aged four at the time of the judgment. No evidence had been adduced in relation to damages. The judge had been told that this was so because of the absence of authority as to how the plaintiff's re-marriage should be treated by the actuaries in preparation of their reports.

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