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  • Four Courts, Dublin

    High Court, Dublin

    In the High Court Decision of Mr. Justice O’ Neill delivered on the 21st December 2011 the Plaintiff Grace Davoren, widow of the late Michael Davoren, was awarded substantial damages in sum of €1,591,957.70 for fatal injuries arising from medical negligence, including €1,546,982 in lost inheritance where the mother of the late Michael Davoren had changed her Will after the death of her son.

    The plaintiff was the widow of Michael Davoren deceased, who died on 31st August, 2003. She sued on behalf of the dependents of the said Michael Davoren for Damages pursuant to the provisions of Part IV of the Civil liability Act 1961. In the action, the plaintiff alleged that the death of Michael Davoren was caused by the negligence and breach of duty of the defendants, the HSE and Oliver McAnena and either of them, in the medical and surgical treatment of the plaintiff`s late husband in the period between 18th July, 2003, and 31st August, 2003. When the action came on for hearing, the defendants did not contest liability and the matter proceeded as an assessment of damages only.

    Agricultural lands


    Michael Davoren, the deceased, was born on 25th December, 1956. The plaintiff, who was born on 7th August, 1960, married the deceased on 6th April 1991. They had four children. His mother Maura Daveron, who was born on 29th September 1928, was a dependent within the meaning of Part IV of the Civil Liability Act 1961 when the action commenced, but she died on 6th August 2009.

    Michael Daveron was a farmer by occupation since the age of approximately sixteen years. He grew up on his parent’s farm near Ballyvaughan in County Clare. This farm was known as Ballyalben. When Michael Daveron left school, he took up fulltime occupation on his father’s farm. His father also Michael Daveron, died on 2nd October, 1991 and was then in his 80s and had been in poor health for some time before that. It is clear that for several years prior to the death of his father, Michael Daveron had taken over the running of the family farm at Ballyalben in conjunction with his mother.

    Some time prior to his death Michael Daveron Snr. had given Michael Daveron Jnr. deceased, a farm known as Ballycahill, which adjoined the farm at Ballyalben. The farm at Ballycahill was separated from the Ballyalben farm by a road. The Ballycahill farm was at that time scrubland and the deceased Michael Daveron, devoted a considerable amount of his time to reclaiming that land. This farm contained 269 acres. In due course the deceased succeeded in making the Ballycahill farm a successful enterprise and at the time of his death in 2003 he had a suckler herd of 80 cows on it.


    The intense work of farming

    In addition to running the Ballycahill farm the deceased Michael Daveron, continued after the death of his father to also run the Ballyalben farm with his mother. This farm was an extensive one amounting to 623 acres, although approximately 500 of that was winterage on the Burren. The Ballyalben farm was stocked with approximately 40 cows. When Michael Daveron deceased set up a separate farm in Ballycahill it was necessary for him to apply for a separate herd number and for the purposes of gaining entitlement to grants and subsidies it was expedient and indeed, apparently necessary for him to lease from his mother 316 acres of the Ballyalben farm. This lease continued but would expire in 2012. It was apparent from the evidence that the deceased was devoted to farming and enthusiastic about everything to do with his farming activities and the development of that enterprise. He maintained a large stock of agricultural equipment as he did not engage contractors and did all of the work on both farms himself. He was keen to develop his farming enterprise and in that regard planned setting up a trekking business. He was passionate about food and grew all his own vegetables and was an accomplished cook.

    Since his death the plaintiff, who was a fulltime resource teacher now working in Kinvara National School, had been obliged to greatly scale down the farming enterprise. Immediately after the death of Michael Daveron in 2003 his mother appointed a manager to look after the Ballyalben farm. The plaintiff with the assistance and generous support of her neighbour Mr. Droney, was able to keep the farming enterprise at Ballycahill going, but on a much reduced scale, having cut the herd down to approximately 26 cows. She also sold the farm machinery accumulated by her late husband because it was no longer necessary and because of her apprehension that it could be abused and in particular because there was an expectation that her son Michael Daveron would start driving a tractor.

    Prior to the death of Michael Daveron in 2003, there had obviously been a very close relationship between Maura Daveron and her son and his family. Michael Daveron spent a great deal of his working time on the Ballyalben farm and after he got married, a barn or outbuilding on the Ballyalben farm was converted into a dwelling house in which he lived with the plaintiff and their children and where the plaintiff still lived with the children. This converted barn became jointly owned by Michael Daveron and the plaintiff and was located quite close to the dwelling house on the Ballyalben farm.
    Unfortunately, after the death of Michael Daveron, there appeared to have been a falling out between the plaintiff and Michael Daveron’s mother, brought on, it would seem, by a belief on the part of the deceased’s mother that in some way or another the plaintiff was responsible for the death of her son and exacerbated or heightened by the sale by the plaintiff of the farm machinery which had been kept on the Ballyalben farm.

    As was normal, the Plaintiff claimed for compensation for Solatium in sum of €25,400 and all other consequential losses arising on the death of her husband but she also claimed loss of an inheritance by her husband which would have been obtained under his mother’s estate which would in due course would have been inherited by the dependents of Michael Davoren but for his death. (Solatium is a sum capped by statute at €25,400 and is the maximum allowable for the suffering and distress caused to the family of the deceased. This sum is to be shared among the dependents.)

    Valuation of Benefits


    The Field

    There was some dispute as to the correct approach to the valuation of the farm benefits accruing to the dependents arising on the death of the deceased.  This arose from the fact that there was an accelerated receipt of a benefit accruing to the dependents arising on the untimely death of Michael Davoren. The Court acknowledged the principle that in arriving at Damages to compensate for loss of support as a result of a wrongful death, benefits or advantages which accrue to the dependents arising from the death must be taken into account and deducted so that the ultimate compensatable loss is the net loss, giving credit for the benefits or advantages that have accrued from death.  The Court was required to ascertain whether the correct deduction in respect of agricultural land should be made on the basis of the income derived from the land, rather than the capitalised value of the early receipt of the land.

    The Court was influenced by the fact that the plaintiff was a fulltime teacher in the National School in Kinvara, earning a good salary and had been in that occupation all of her adult life. She did not come from a farming background and it was clear that she did not intend to take on the role of a fulltime farmer. None of her children, and in particular, her son, Michael had evinced, so far, any interest in farming, although, apparently, Michael did have an interest in horses. It was noteworthy, in the Judge`s opinion, that in the course of her evidence, the plaintiff did not disavow any intention of selling the land.

    The Judge determined that the correct deduction to be made was the capitalised value of the early receipt of the land.

    The Claim for Loss of Inheritance


    Farmlands divided

    The Judge was satisfied, based on evidence received, that the late Michael Davoren would have inherited the farms from his mother and that he would have wanted to have handed these farms to one or more of his children in due course.  It seemed to him highly probable that the entirety of the deceased’s estate would have been inherited by his wife and children.  He was satisfied therefore that the Plaintiff was entitled to claim for this loss to the dependents of the deceased.

    This was not simply a matter of “loss of chance”, as argued by the Defendant’s Counsel, but was very probable.

    Novus Actus Interveniens

    The Defendant’s Counsel submitted that the fact that the deceased’s mother Maura Davoren changed her Will after the deceased’s death was simply a Novus Actus Interveniens. (Novus actus interveniens is a Latin term which means a new intervening act.)  That is, he argued that other events caused Maura Davoren to change her Will. The Court however accepted the submission of the Plaintiff’s Counsel that the falling out between the Plaintiff and her mother-in-law was itself the direct consequence of the wrongful death of Michael Davoren deceased and was not a Novus Actus Interveniens.

    New Act

    Novus Actus Interveniens

    Remoteness of Loss

    The Defendants` Counsel submitted that the loss was not and could not be a foreseeable consequence of a breach of the duty owed by the defendants to Michael Daveron deceased.  The Judge however disagreed and stated that this loss of inheritance was an entirely natural and predictable consequence of the wrongful death of Michael Daveron deceased.


    Tort Law


    The Defendant’s Counsel also submitted that these claimed losses depended on a number of contingencies existing, such as the assumption that the deceased would have outlived his mother, that his mother would have had to leave the entire of her estate to the deceased, that the deceased would have preserved the estate, that the deceased would have left his entire estate to his wife, that his wife would not have pre-deceased him and that he would have left his entire estate in the alternative to his children and that the relationship between the plaintiff and the deceased would have endured throughout the expected lifespan of the deceased.  The Judge was however satisfied that the dependents of the deceased would, as a matter of probability, have succeeded to the estate of Maura Daveron were it not for the wrongful death of the deceased Michael Daveron.

    What is foreseeable and what is not foreseeable?

    Mr. Justice O’ Neill commented that when a doctor is treating a patient, it would be wholly unreal to suggest that they should become acquainted in any detail with the financial circumstances of the patient or of the extended familial relationships and financial aspects of these. He believed however that tortfeasors (the persons who commit the wrong) in these situations, including medical practitioners, must be deemed to take the victims of their tortious actions as they find them, including their myriad financial circumstances.

    Are tortfeasors masters of their own destiny?

    Courts Service of Ireland

    Courts Service

    Where a defendant, as a tortfeasor, causes injury or loss to a victim the loss to that victim may not always be readily ascertainable. Most certainly, in the case of Fatal Injury Claims the consequences of death can often lead to compensation claims which far exceed anything imagined by the defendant at the time of the incident giving rise to the Claim. In common legal parlance, the defendant takes the victim as he finds him.

    Morgan McManus solicitors practise in the Republic of Ireland and Northern Ireland. Whether your Claim arises in Counties Monaghan, Cavan, Fermanagh or Tyrone contact Brian Morgan for further advice at 0035347 51011