Public policy may preclude counting undeclared income in dependancy claim

Negligence - Personal injuries - Liability - Action brought by plaintiff on her own behalf and on behalf of dependants of deceased - Stone propelled from wheel of truck - Duty of care of truck driver to examine wheels - Whether duty breached - Whether risk of injury reasonably foreseeable - Quantum - Whether court can take into account expectation of enhancement of pecuniary benefits had deceased lived - Whether public policy prohibits court from going behind level of income declared to Revenue Commissioners - Civil Liability Act 1961 (No 41), section 47.

The High Court (before Miss Justice Laffoy); judgment delivered 12 June 1998.

A duty of care is owed by a lorry driver to other road users in circumstances where that lorry is driven over rough terrain where loose stones or rocks are resting, such as a building site. In such circumstances a lorry driver should, on leaving the area, carry out an adequate search to ensure that the wheels of the truck are free from debris. In assessing quantum the court can have regard to potential improvement in the income of the deceased but public policy considerations may prevent the court from having regard to the difference between the deceased's declared income and his alleged real, undeclared income. The High Court so held in deciding that the first defendant was negligent and his negligence caused the death of the husband of the plaintiff.

Harry Whelehan SC, Gerard Clarke SC and Conor Foley BL for the plaintiff; Marcus Daly SC and Noel McCarthy BL for the first defendant; Paul Gilligan SC and Eileen Lydon BL for the second defendant.

Miss Justice Laffoy outlined the factual background to the case. The plaintiff brought these proceedings on her own behalf and on behalf of the other dependants of her deceased husband, including her five infant children, under section 47 of the Civil Liability Act 1961. The proceedings arose out of an accident which occurred on 28 October 1994 on the main Galway to Barna road when a large stone shattered the windscreen of the car which the plaintiff's husband was driving, hitting him on the head. The plaintiff contended that the stone was violently propelled from the rear twin wheels of the first defendant's lorry due to the negligence and breach of duty of the first defendant. Alternatively it was claimed that the stone was violently propelled by or from a lorry being driven by an untraced or unidentified driver and due to the negligence of that driver.

The plaintiff was a front seat passenger in her husband's car travelling in the direction of Barna at the time of the accident. She gave evidence that when approaching the junction of the Barna Road and the Cappagh Road at approximately 5.30 pm she heard a heavy truck working through its gears coming out of the junction, driving in their direction. As the truck passed she testified that the windscreen shattered causing her husband severe injury and rendering him unconscious. She succeeded in stopping the car, preventing a collision with an approaching BMW car, by pulling up on the handbrake and putting it into neutral and then went to her husband's assistance.

She said that she could hear the lorry which had passed them going in the Galway direction with what she described as "a terrible rattly sound" and when she opened the driver's door she testified that a large stone fell out at her feet. A lorry, owned by Iggy Madden Transport and coming from the Barna direction, had to take evasive action and came to a halt directly in front of Mr Fitzpatrick's car breaking a headlamp on it. This evidence was found to be generally consistent with what she told gardai in the casualty department in University College Hospital just after the accident.

The driver of the BMW car was one Michael Pender, a director of Kenny Developments Ltd, a company involved in the construction industry in the Galway area. This company was engaged at the time in the construction of a residential estate, now known as the Ros Ard estate, in an area about 275 metres from the junction of the Cappagh Road and the Barna Road. Mr Pender testified that on the evening of 28 October 1994 he had business at the Ros Ard estate between 5pm and 5.30 pm. He further stated that at the entrance to the estate he saw a lorry exit and make a left turn down the Cappagh Road to the junction with the Barna Road. Mr Pender stopped in the estate for approximately five seconds and then drove down the Cappagh Road. He said he could not see the lorry but knew it had gone ahead of him. He turned left in the direction of Galway at the junction and then became aware of a Ford Sierra about one hundred metres from him coming in his direction with a sizeable hole on the drivers side of what was a shattered windscreen. A collision was avoided and on subsequently becoming aware of the accident through a Garda appeal he identified the lorry he met at the entrance to the Ros Ard estate as that of the first defendant. Miss Justice Laffoy found this recollection of events to be accurate and reliable, subject to the approximation of times.

Mr Padraic O'Hare, who drove the lorry belonging to Iggy Madden Transport, testified that he came upon the scene but did not see any lorry travelling in front of him on his journey from Spiddal towards the junction of the Cappagh Road and the Barna Road. Miss Justice Laffoy was satisfied that one could not infer from his evidence that the revving which the plaintiff heard at the time of the impact was coming from the Iggy Madden Transport lorry. Another witness, one Teresa Broderick, gave evidence that she was driving along the Barna Road at the time of the accident towards the Cappagh Road junction. She saw the car in which the plaintiff was travelling go out of control and associated that with a lorry having passed that car going in the Galway direction. Her account differed from that of the plaintiff in that she remembered the lorry coming along the main road, not out of the Cappagh Road junction. However, the evidence of the plaintiff was preferred as Ms Broderick admitted that the events leading up to the accident were overshadowed by its aftermath and the plaintiff's recollection was likely to be more accurate as she was centrally involved and acutely aware of what was transpiring.

On October 28 1994 the first defendant was a self-employed haulier and delivered a consignment of concrete blocks to the Ros Ard estate for Roadstone Province Ltd. He was completely oblivious to the accident until contacted by the Garda on 1 November 1994 when he made his lorry and tacograph available to the Garda for inspection. The inference drawn from the evidence afforded by the tacograph chart was that the first defendant was in a hurry and the lorry was "rattling" at speed while travelling down the Cappagh Road. Mr Furey testified that he stopped the lorry at the entrance to the Ros Ard estate and having checked between the tyres on the twin wheels on the two rear axles on either side of the lorry he found nothing. He further said that he would have been aware of the noise of a trapped stone but heard no unusual noise.

Miss Justice Laffoy said that the evidence of black rubber on the side of the stone which went through Mr Fitzpatrick's windscreen was consistent with the stone having been "sandwiched" between the tyres of twin wheels of a lorry. While the evidence could not establish as a matter of fact that the source of the stone was the lorry of the first defendant the evidence of the plaintiff combined with the evidence of Mr Pender, who identified the lorry which preceded him down the Cappagh Road as that of the first defendant, did establish as a matter of probability that the stone which injured Mr Fitzpatrick was propelled from the gap between the tyres of the twin wheels on the rear axle of the first defendant's lorry. As the lorry had been driven through the Ross Ard estate, over terrain in a building site under construction on which native granite rock and stone was likely to be found, the inference to be drawn was that the first defendant's lorry picked up the stone on the Ross Ard estate.

Miss Justice Laffoy said that the chance of a lorry, such as the first defendant's, with twin wheels on both rear axles picking up a large rock or stone on a building site and subsequently expelling it as a dangerous missile was a foreseeable risk. Further, in order to discharge his duty of care to road users in this regard the lorry driver should carry out an adequate search of his tyres for rocks, stones and other debris. The first defendant testified that he did in fact carry out a thorough visual and tactile search of his tyres on leaving the estate. Such search as was carried out was, however, inadequate in the circumstances having regard to the fact that the lorry was leaving a building site without adequate light at dusk. Accordingly, the first defendant was negligent and this negligence caused the death of the Mr Fitzpatrick.

Mr Fitpatrick was a self-employed dental technician aged 43 at the date of his death. Financially the plaintiff and her five children were totally dependent on the deceased whose only source of income was his practice. The plaintiff argued that Mr Fitzpatrick's real profit from his practice was greater than that which could be gleaned from accounts submitted to the Revenue Commissioners and to that end the plaintiff sought to adduce evidence of largely unvouched expenditure for the accounting year ending 31 July 1994. This evidence showed that Mr Fitzpatrick earned £6,000 more than was declared to the Revenue Commissioners for that year. The first defendant submitted that as a matter of public policy the court should only have regard to the deceased's declared income. The plaintiff, however, argued that as this was a representative action on behalf of the dependants of the deceased the court was entitled to look at the reality of the situation and assess the dependants' position on the basis of the deceased's real income. Miss Justice Laffoy noted that White: The Irish Law of Damages states that in circumstances where a deceased would be precluded from recovering in respect of loss of earnings tainted with illegality in a personal injury action his dependants may still recover in a wrongful death action as their cause of action is separate from that of the deceased, unless the defendant can show knowledge or conduct on the part of the dependants which renders such recovery contrary to public policy. The author also suggested that as the action of each dependant is separate then recovery ought not to be denied child dependants who are of such an age that their knowledge or conduct can be regarded as irrelevant.

Miss Justice Laffoy said that in the present case the plaintiff, who is entitled to the greater part of the dependency claim, had made a declaration to the Revenue Commissioners which she knew to be false. While the court accepted that the plaintiff did the best she could in the circumstances prevailing at the time, public policy considerations precluded the court from quantifying the dependency claim on the basis of Mr Fitzpatrick's declared and undeclared income for the accounting year prior to his death. The plaintiff further argued that had Mr Fitzpatrick lived he would have developed the prosthetic side of his business. It was submitted that the dependants therefore had a reasonable prospect of enhancement of pecuniary benefits from Mr Fitzpatrick had he lived and this was something the court should take into account in assessing the size of the claim. Miss Justice Laffoy said that while there was an element of speculation in assessing what Mr Fitzgerald's profit would have been at the end of 1997 and the beginning of 1998 had his career plan been implemented, the evidence established that Mr Fitzpatrick would have had a net income of around £13,500 per annum by early 1998. The plaintiff's actuary capitalised the dependency claim at £274,000 on the basis of a net income of £13,489 and this figure was adopted by the court. However, that figure had to be reduced to £260,000 to take account of adverse contingencies. Special damages were agreed at £7,000 and £7,500 was awarded for mental distress. The court therefore awarded a total of £274,500 against the first defendant.

Solicitors: Kilrane, O'Callaghan & Co (Roscommon) for the plaintiff; MacDermott & Allen (Galway) for the first defendant; J. T. Deane & Associates (Dublin) for the second defendant.