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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Yardley (A Minor) v Brophy Practising as Brophy Solicitors [2008] IEHC 14 (23 January 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/H14.html Cite as: [2008] IEHC 14 |
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Neutral Citation No: [2008] IEHC 14
HIGH COURT
JUDICIAL REVIEW
[2006No. 700P]
BETWEEN
SEAN YARDLEY (A MINOR) SUING BY HIS GRANDMOTHER AND NEXT FRIEND, ROSALIND DIANE YARDLEY
PLAINTIFF
AND
KEVIN BROPHY PRACTISING UNDER THE STYLE AND TITLE OF BROPHY SOLICITORS
DEFENDANT
EX TEMPORE JUDGMENT of O'Neill J. delivered the 23rd day of January, 2008.
On the 28th November, 1992 there occurred an appalling road traffic accident near Gorey in the County of Wexford. The plaintiff was travelling in a car driven by his father. His mother, Anne Marie Yardley, and his older brother, Alex, were also passengers in the car. The plaintiff's mother, father and brother were tragically killed in the accident. The plaintiff, who was born on the 2nd August, 1988, was then four years old. He survived the collision with relatively minor injuries.
An action was brought by the plaintiff through his next friend against a representative of his father claiming damages in negligence in respect of the deaths of his mother and brother. Unfortunately, this action was brought outside the relevant statutory limitation period. Eventually, on the 14th December, 2004, that action was dismissed in a reserved judgment by Herbert J. on that ground.
These proceedings were then commenced claiming damages in negligence against the solicitors who acted for the plaintiff in the previous action.
When the action came on for trial before me on the 22nd January, 2008, it proceeded as an assessment of damages only.
There were a number of items of agreed damages. These were solatium in respect of the deaths of the plaintiff's mother and brother of £7,500 Irish punts or €9,500.23 in respect of each, being the statuary solatium then prevailing. In addition, there is the sum of €2,673 for funeral expenses.
A sum of €8,162 was claimed as the fees due to an English solicitor who had acted for the plaintiff in relation to the claim against the plaintiff's father prior to that action being taken on by the defendant in these proceedings.
I am not satisfied that the plaintiff has discharged the onus on him of establishing that that sum is recoverable in these proceedings against the defendant in these proceedings.
The major aspect of the damages claimed relates to the cost of the care of the plaintiff up to September 2005 when he went to university and to a much lesser extent in respect of the housekeeping expenses thereafter.
The uncontradicted evidence is that immediately following the accident the plaintiff was taken into the care of his maternal grandmother in Dublin. Very soon thereafter, his paternal grandmother, Mrs Rosalind Yardley, arrived from abroad and took over his care to the extent of selling her home in the United Kingdom and buying a house in Glasthule into which she moved with the plaintiff. From there the plaintiff attended Harold's National School in Glasthule. When the plaintiff was about seven or eight years of age, his grandmother sold the house in Glasthule and moved to Bromley in the United Kingdom. There she purchased a house adjacent to schools for the benefit of the plaintiff. The plaintiff has been reared exclusively by his paternal grandmother since the accident.
The plaintiff did well at school and achieved a high standard in his A level examination. Following this in September 2005, he went to University College London to study physics. This necessitated leaving his home with his grandmother and living in rented accommodation near the university. He goes home to his grandmother for holidays and about once a month and at other times as required. Mrs Yardley is now in failing health and does not go out. She lives with an uncle of the plaintiff.
It is clear that Mrs Yardley has, since 1992, taken on the role of rearing and caring for the plaintiff and devoted herself full time to this. In effect, she took on the maternal role and the current success and wellbeing of the plaintiff is ample evidence of how well she has discharged that role.
In assessing damages in respect of the cost of the care of the plaintiff over the years of his childhood, the court must attempt to compensate for the value of the cumulative services provided by Mrs Yardley in supplying, as she did, the place of the plaintiff's mother.
This is not an easy task. Both sides have engaged experts to identify the services involved and to calculate their cost or value. Whilst there are relatively small differences in the amounts ultimately assessed by Ms Breslin for the plaintiff and Mr Baxter for the defendants, their approaches to the problem are essentially similar.
Each starts out by identifying the elements of childcare and housekeeping needed, starting in 1992 and calculating forward to 2005.
In the initial years, Mr Baxter finds a higher figure for childcare than Ms Breslin, i.e. €377 per week as against €292 per week in 1992. Thereafter, Mr Baxter progressively reduces the amount of childcare needed as the plaintiff grows and becomes less physically dependent. Ms Breslin does not do this. She continues the same level of childcare on the basis that the level of care estimated in fact falls considerably short of the actual hours of care provided and hence the non-reduction in the childcare hours estimated over the period 1992 to 2005 results in an average which more fairly reflects the very extensive, i.e. round the clock, commitment which the role discharged by Mrs Yardley actually involved, and which would have been provided by the plaintiff's mother had she survived.
In my view, the court in compensating for the loss of the care of the plaintiff's mother, has to focus on or cater for the situation in which the plaintiff actually found himself after this tragic accident, namely, he lost a full time mother and carer. Assessing compensation on the basis that he would have had to share the time and services of his mother, with his brother, Alex, and another sibling, is not an appropriate approach. A child of tender years cannot have half or a third of a carer. The entirety of their childhood needs have to be provided for, as indeed they were, by Mrs Yardley Senior, and would have been by the plaintiff's mother had she lived.
This level of care necessarily extends to 168 hours a week for 52 weeks of the year. It is, of course, the case that active services are not provided all of the time, but it is essential that a child of tender years has available all the time the protection of and supervision of a carer or guardian. In addition, a myriad of services must be provided to cater for the child's physical needs and his or her intellectual social and moral development, all of this is what Mrs Yardley, the grandmother, provided and no doubt Mrs Yardley, the mother, would have had she survived.
The approaches adopted by Ms Breslin and Mr Baxter to estimating the services to be compensated for and their value or cost are necessarily an imprecise yardstick against which to assess the loss to the plaintiff of his mother's role in his upbringing. I accept that these approaches are the best that can be achieved having regard to the need to compute the loss in terms of monetary compensation.
I am of opinion that the approach taken by Ms Breslin better reflects the actual loss of the totality of the maternal caring role and hence I propose to accept her figures in that regard as the basis of calculation of the damages. In fairness to Mr Baxter it should be said that in fact there are only very slight differences between them in the final figures.
In two respects, both to do with housekeeping expenses, I prefer the approach adopted by Mr Baxter. His estimate of five hours per week housekeeping after the plaintiff went to the university in September 2005 is, in my opinion, a truer reflection of the reality of the life of a student attending university away from home.
I also prefer Mr Baxter's estimate of 10.5 hours per week in respect of the housekeeping requirement from 1992 to 2005. In my view, 21 hours per week as estimated by Ms Breslin is excessive in terms of the housekeeping needs of the plaintiff living in the same home and sharing the same domestic facilities with his grandmother.
Thus, I would assess the plaintiff's losses in respect of childcare and housekeeping cost as follows.
For the period up to the age of fifteen, I assess the loss in respect of childcare in the sum of €250,000. The costing of Ms Breslin's estimate in this respect comes to €213,909. The same figure on Mr Baxter's estimate is €218,566. With regard to the obvious fact that these are estimates of hours of childcare that by and large correspond to a working day and hence do not reflect the fact that the plaintiff, like all children, needed the availability of supervision and protection from a carer round the clock, in my opinion it is right that the compensation under this heading should be rounded up to the sum of €250,000. On the same basis, I would round upwards the sum in respect of childcare of €65,749 from years fifteen to seventeen to €70,000. As the plaintiff's need for that kind of supervisory and protective role would have lessened during those years, the addition way of rounding up is obviously going to be much less. The sum claimed for housekeeping to date on Ms Breslin's estimate works out at €162,377. As indicated earlier, I would reduce this by half and round it to the sum of €82,000. This makes the total for losses to date of €402,000. To that I would add the sum of €15,000 in respect of the plaintiff's housekeeping requirements for the future on the basis set out above.
This brings me to the question of interest. Mr Lynch, the actuary called for the plaintiff said that in his figures he had added in interest at the rate of 8% i.e Courts Act interest, to Ms Breslin's figures, both in respect of childcare and housekeeping to reflect the fact that the loss is expressed at its historical cost and because of the passage of time commencing in 1992 and the diminution in the value of money over the intervening years, compensating in 2008 at 1992 values or the relevant historical values for the intervening period, would be inadequate to replace the plaintiff's actual loss. It was his evidence that the addition of 8% interest in these circumstances has been standard practice for many years for fatal accident cases. He said that an alternative approach would be to advance historical prices or values to their present day equivalent.
Mr Byrne, the actuary for the defendants, disputed this approach except where actual cost had been incurred.
I am of opinion that if the plaintiff were to be awarded now, compensation for the loss of services in 1992 and the intervening years on the basis of a 1992 price of that service or the relevant price during the intervening years, that would work an injustice to the plaintiff and would be an unjustified benefit to the defendant. The services in question were provided in 1992 and the years thereafter. Hence, in my view, they are rightly to be regarded as the equivalent of a cost actually incurred then. To do otherwise, is to treat the generous and voluntary provision of these services by the plaintiff's grandmother as in effect a benefit to the defendant or as a negligible loss to the plaintiff or a loss which is to be discounted solely for the benefit of the defendant.
I am satisfied, therefore, that the historical figures should be updated to reflect present day values. In most cases, where the action is brought in a timely manner after the accrual of the cause of action, this problem will not arise. In these rare cases where compensation has to be assessed in respect of compensatable events which have occurred many years before, in my view, this approach is appropriate.
I am satisfied that using the Courts Act interest rate is not an appropriate and fair method bringing historical cost up to present day values because the 8% rate of interest greatly exceeds the prevailing rates of inflation over the intervening years.
Clearly, the best way of doing this is to increase the historic figure annually in accordance with inflation as reflected in the Consumer Price Index, or depending on the particular cost involved, some other more relevant measure of inflation.
In response to my request to the parties for assistance in this regard, Mr Lynch, the plaintiff's actuary was recalled and gave evidence that the average rate of inflation over the period from 1992 to date was 3.1% which could be accurately expressed as a 24% uplift on the historical figures.
Mr Fox, S.C. for the defendant, did not wish to offer any evidence on this point.
I propose to adopt the addition of average rate of inflation of 3.1% or the uplifting of values by 24% as the best and fairest method of bringing historical values to their present day equivalent. I am of the view that this approach is best suited to rendering justice between these parties.
Accordingly, I would increase the figure of €402,000 by 24% which is €96,480 to the sum of €498,480. That must be added to the sum of €15,000 in respect of future housekeeping expenses and the agreed items, namely €19,046 and €2,673. This brings the total damages to €535,199 and there will be judgment for that sum.
Approved: O'Neill J.
