Grace Davoren v HSE, John Lee & Oliver McAnena

The Plaintiff in this case brought proceedings for the wrongful death of her husband against the Defendants arising out of the negligent treatment afforded to him at Merlin Park Hospital and University College Hospital, Galway whilst under the care of the second and third named Defendants in 2003. An admission of liability was made in respect of the allegations of negligence approximately three weeks before the commencement of the trial (and over 7 years after the death) and the matter proceeded as an assessment of damages only. The Plaintiff claimed damages under the Civil Liability Act, 1961 on behalf of her and her four children for the mental distress caused by her husband’s death (capped at €25,400), funeral and miscellaneous expenses, the loss of dependency on her husband as a result of the loss of the farm income and the value of an inheritance he would have received had he survived from his mother. Damages relating to the mental distress, funeral and miscellaneous expenses were agreed and not in dispute between the parties. The value of the financial dependency claim and the lost inheritance were also agreed however the Defendants argued that the Plaintiff and her four children was not entitled to recover any damages under these two headings and these were the issues to be decided upon by the Court.

The case came on for hearing before Mr Justice O’Neill on the 24th November 2011 and lasted for 5 days. Judgment was reserved by the trial judge and handed down on the 21st December 2011. During the course of the trial it was argued that the Plaintiff and her four children were entitled to be awarded the sum of €275,000 in respect of the loss of support which they would have received over the deceased’s lifetime from his work as a farmer. The Defendants argued that although the figure was accepted as correct, the Court was not entitled to make such an award due to the exercise of a legal and actuarial principle known as the accelerated benefit. This arises in circumstances where because of the deceased’s early and untimely death the Plaintiff and her four children found themselves inheriting his estate many years earlier than would have otherwise been the case. As a consequence of this an advantage or benefit has been conferred upon them in the form of accelerated receipt of that estate. The figure to which they have benefited is calculated by way of an actuarial multiplier which is applied to the value of the estate less any deductible assets (overdraft, loans etc). The figure arrived at greatly exceeded the value of the dependency claim brought by the Plaintiff and thus the Defendants argued that no award could be made under that heading. Further the Defendants contended that since the date of death and the trial, a period of 8 years, the Plaintiff had been enjoying the use of the land and therefore a further sum should be added to the accelerated benefit to take into account this 8 year period which they contended was calculated by reference to 8% compound interest rate. In effect the Defendants were nearly doubling the figure they claimed should be deducted against the financial dependency claim.

The Plaintiff though maintained that such a high value for the accelerated benefit should not be applied in circumstances where a family farm would never be sold anyway, and where the farm income bore no relationship to the actual value of the farm land and so the dependents would be greatly disadvantaged by taking the full deduction for the accelerated value of the farm. The Court held however that the full value of the accelerated benefit should be deducted from the financial dependency claim although the trial Judge found that the 8% compound interest rate had no basis in law its application to this particular case and instead calculated the value of the 8 years enjoyment of the land since the death based on an average of the annual farm profits, a figure almost 25% of that contended for by the Defendants.

The Plaintiff also claimed the value of a lost inheritance which the deceased would have received had he survived from his mother. This inheritance took the form of the neighbouring farm of sum 623 acres which had been in the deceased’s family for generations and which he devoted a considerable percentage of his working day farming in addition to his own farm in the expectation that he would one day inherit it from his mother. The deceased’s mother ultimately passed away in 2009 and the farm was inherited by the deceased’s only sister and no benefit bestowed on the Plaintiff or any of her four children. The Court heard evidence from the solicitor who acted for the deceased’s mother and who prepared her will and he confirmed that, at the date of death of the deceased, there was a will in existence that left the entire estate to him. Subsequent to his death a new will was drawn up which left the estate to her eldest grandson and then a third will was created leaving the entire estate to her daughter. The Court found that as a matter of high probability, near certainty, that the deceased would have inherited his mother’s farm and, in turn, passed it on to his wife and children. The Defendants resisted this claim on a number of grounds including that it was too remote a possibility and to lay this sort of loss at the door of the Defendant was unjust and that there was a novus actus interveniens or, separate intervening event, which was the proximate cause of the estate not passing to the Plaintiff and her four children.

The Court rejected these arguments and again found that, as a matter of high probability near certainty, the deceased would have inherited his late mother’s estate but for his untimely death which was the cause of the loss to the Plaintiff and her four children. The Court therefore found that it was entitled to award damages for the lost inheritance and further, that no discount should be applied to this award for any unforeseen contingencies as there was no evidence to suggest anything other than that the deceased would in due course have passed these lands on to his wife and four children.The Plaintiff and her children were awarded damages in the sum of €1,591,957.70 and their legal costs.

View a PDF of news coverage of this case in the Irish Independent and Irish Times


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03 January 2012

    Gillian and all at Augustus Cullen Law, A million thanks for a great job done. Justice for our son at last!!

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