McKenna v. McElvaney [1998] IEHC 121 (24th July, 1998)

Judgment of Mr. Justice Johnson delivered on the 24th day of July, 1998. 1. This case arises out of the death of one Gerard McKenna who was killed in a motor car accident on the 29th July, 1990 on the public highway at Newgrove, Monaghan when the car he was driving was in collision with another vehicle driven by the Defendants. 2. The Plaintiff had married the deceased in January of 1987. Apart from her, there survived two children, namely Conor Gerard McKenna, born on the 19th June, 1987 and Aisling Bernadette McKenna, born on the 21st September, 1989. In addition, the deceased was survived by his father and mother and a number of brothers and sisters. His father has since died. 3. The purpose of this case I am holding that there was no dependency from the mother or the brothers and sisters. 4. The claim brought by the Plaintiff is on behalf really, therefore, herself and her children in respect of loss which she claims she suffered as a result of the death of the deceased. 5. The deceased was a small time builder, at times an employee and at times apparently a sub-contractor who kept absolutely no realistic records of his business. 6. The Plaintiff claims that from the first day of their marriage until the date of his death he gave her £300 in cash or approximately that each week. Her evidence was that she had no knowledge of his business, that he never discussed his affairs with her and she demonstrated an absence of knowledge and/or apparent interest in the various bank accounts which the family had either before or after the death of the deceased. 7. Evidence in direct examination consisted of little more than a statement from the Plaintiff that she got the money and despite deep cross examination, she was apparently unable to expand in any way upon this situation. 8. Accounts which had been furnished to the Revenue Commissioners quite clearly indicate that the deceased could not have been paying the Plaintiff £300 per week as she alleged, for the accounts indicate and the evidence is that at periods he was registered for VAT, then de-registered for VAT because his turnover was less than £15,000. 9. It is quite clear in this case that the Accountants involved, Messrs. Baker & Cunningham indulged in creative accounting from working papers which they themselves created and it appears to me that the accounts which they produced were absolutely and completely unreliable. That appears both from the accounts prior to and after the deceased's death. Exactly the same way, I find the evidence given by the Plaintiff as unreliable, her claim to ignorance of the affairs of her husband equally unconvincing and the fact that there was no variation or alteration in the sum given to her per week between 1987 and 1990 when he died equally unconvincing. The frantic manner in which the Accountants appeared to increase the income in the accounts post the death of the deceased as opposed to the accounts prior to the death of the deceased is equally unconvincing. 10. In addition, I found the failure of the Plaintiff to obtain copy cheques from the Bank, particularly when requested to do so by the Defendants, can only be attributed to a deliberate attempt by the Plaintiff to frustrate the Defendants in ascertaining what the nature of the claim was and in obfuscating the accounts. I am not satisfied on the balance of probabilities as to the truth or reliability of any of the Plaintiff's evidence and I have seen the various witnesses in the witness box and I feel anything but reassured. However, whereas I do not believe that the Plaintiff was in receipt of the money she claims, I accept she was in receipt of some monies and I am doing the very best I can to attempt to do justice between the parties. I hold that she was being paid £120 per week and I will assess damages on that basis. I therefore hold the total loss of maintenance by the Plaintiff at £216,000 and of that I will allocate £21,600 to each of the dependent children and the balance of £162,800 to the Plaintiff. In addition, I will award the Plaintiff the sum of £7,500 in respect of mental distress, £500 in respect of damage to the car and £10,000 in respect of the loss of work on the house. In addition to the foregoing, I award the sum of £3,142.14 agreed as Special Damages. The sums of £7,500, £500 and £10,000 are to be paid to the Plaintiff and the sum of £3,142.14 is to be paid to the Plaintiff's solicitor for the purpose of discharging the Special Damages and so award the costs of these proceedings. With the exception of one day, that being the last day, I will make no Order as to costs. 11. Having done that, I wish then to refer the papers in this case to the Revenue Commissioners and in particular the accounts as presented by Messrs. Baker & Cunningham and which were accepted by the Revenue Commissioners themselves in 1988 and 1989 for their further investigation. © 1998 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII