The Court of Appeal, in a judgment of 18th February 2016, has clarified the current legal position regarding the method of calculation of claims for financial dependency by statutory dependents arising out of the wrongful death of a person.  The case of Grace Davoren v Oliver McAnena, John Lee and Health Service Executive was originally heard in the High Court by Mr Justice O’Neill in November 2010. The case arose out of the tragic death of the Plaintiff’s husband at University College Hospital, Galway in August 2003 following his treatment and surgery for ulcerative colitis under the care of Professor Oliver McAnena and Dr John Lee. The Plaintiff claimed damages for the wrongful death of her husband due to the negligence of the Defendants and also claimed damages for the loss of the financial contribution her husband made to the household and in particular their four young children. There was an unusual feature of this claim in that it was alleged that as a direct result of the death of her husband, the Plaintiff and her children were excluded from an inheritance of a large agricultural holding in County Clare. This appeared to be the first time that such a claim was litigated before an Irish court.  Liability was admitted by all three Defendants seven years after the death of the Plaintiff’s husband and only a few weeks before the trial was due to commence. The case proceeded before Mr Justice O’Neill as an assessment of damages and the Defendants contested the Plaintiff’s right to bring the claim for the lost inheritance. In his judgment Mr Justice O’Neill awarded the Plaintiff and her four children the sum of €1,591,957.70 and noted that it was a matter of “high probability to the point of near certainty” that the deceased would have inherited his mother’s farm and that as a matter of “high probability” he would have passed this on to his wife and children.

The decision of the High Court was appealed by the Defendants and came on for hearing before the Court of Appeal on 19th May 2015. The essential contention on appeal of the Defendants was that the claim regarding the inheritance was one which could not succeed due to the remoteness of the loss and that it was not reasonably foreseeable by the Defendants. The Court however rejected these arguments and noted that the claim was based on a statutory entitlement to damages under Part IV of the Civil Liability Act, 1961 and that once liability was admitted, the standard tort or contract law principles did not apply to the quantification of damages to which the Plaintiff was entitled. The Court of Appeal concluded that the correct approach to assessing the damages in this case was as follows:

  • firstly, determine on the balance of probabilities if the Plaintiff has established a loss of a reasonable (not merely speculative) expectation of pecuniary benefit if the life had continued
  • secondly, if satisfied that such a loss has been established, assess the quantum by reference to the contingencies relevant to the particular expectation of pecuniary benefit

The Court of Appeal upheld the claim of the Plaintiff that she and her children had a reasonable expectation of a financial benefit and that they were entitled therefore to recover damages for the inheritance of the farm which they had been denied as a result of the negligence of the Defendants. The Court of Appeal did however reduce the award to the sum of €1,003,112.04 but awarded the Plaintiff 75% of the costs of the appeal in circumstances where the fundamental issue before the Court was resolved in the Plaintiff’s favour.

For further information please contact Jamie Hart, Partner and Michael Boylan, Partner in our Medical Negligence Department.

30 April 2016

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

    Catherine, Liam & William

    Dear Michael, A great result was achieved because of your efforts and we were truly blessed to have you on our side.

    Kathleen, Medical Negligence Client

    Dear Joice…you are and have been very professional, sympathetic and dignified in all of your dealings with us and I put that down to one simple fact. You listened.

    James, Medical Negligence Client

    Geraldine, Thank you most sincerely for all your hard work and commitment to these children.

    Freda McKittrick, Head of Barnardos Beacon Guardian Ad Litem service

    Neil is an absolute gentleman to deal with – kind, tactful and very efficient. We could not praise him highly enough. He brought us through a horrible time.

    Sean, Medical Negligence Client

    Many thanks again for a job well done. We really appreciate all your hard work and practical advice.

    Corporate client in a commercial litigation matter

    Dear Jamie, You and your team in ACL were so professional, diligent and prompt. I have recommended you and the firm, and will continue to do so

    Lorraine McCarthy

    Gus Cullen and the firm’s approach to addressing the key issues was professional, yet personal, efficient yet attentive.


    The process is a difficult one and when you deal with people who are so professional and yet genuine/real people, it makes it so much easier... so thanks a million.


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