The Gazette 1989

GAZETTE

OCTOBER 1989

Statutory Deductions from Damages in Tort

". . . there shall in assessing those damages be taken into account . . . " Professor Casey has considered the equivalent wording in the con- text of S.39 of the Social Welfare (Occupational Injuries) Act, 1966. 4 He was of the view that the words ". . . there shall be taken into account. . . " mean not simply "there shall be borne in mind" but "there shall be deducted". This was how the English Courts had construed the equivalent wording in English statutes. He thought it likely that the same approach to this matter would be followed in Ireland. " . . . against any loss of earnings or profits . . . " Hence in personal injuries actions payments which must be taken into account must only be deducted against loss of earnings or loss of profits and cannot be deducted against general damages or any other item of special damages. However, in the case of personal injuries arising out of road traffic accidents payments which must be taken into account under S. 12 of the Social Welfare Act, 1984, are deductible against all damages, including general damages, which the recipient might otherwise receive.

Lawyers frequently deal with actions involving the assessment of damages for loss of earnings or profits in personal injuries actions, and the assessment of damages in fatal accident actions. Various statutory provisions regulate what must be taken into account by way of money payments, pensions, gratuities, benefits or allow- ances in assessing such damages. 1 In the following paragraphs it is proposed inter alia to examine in detail the provisions in the Civil Liability Acts and the Social Welfare Acts which determine payments which must be taken into account. A Personal Injuries not Causing Death

1964, and section 306 of this Act, in an action for damages for personal injuries (including any such action arising out of a con- tract) there shall in assessing those damages be taken into account, against any loss of earnings or profits which has accrued or probably will accrue to the injured

In respect of personal injuries not causing death there are two main exclusionary provisions. Firstly, S.2 of the Civil Liability (Amendment) Act, 1964, provides that " . . . any sum payable in respect of the injury under any contract of insur- ance. . . " and "... . any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury . . . " shall not be taken into account. In Feeney -v-Ging 2 the High Court held that university grants were not included in the expression ". . . or other like benefit. Secondly, S.306 (2) of the Social Welfare (Consolidation) Act, 1981, (hereinafter referred to as " t he 1981 Ac t " ), provides for a number of Social Welfare benefits which the section says shall not be taken into account viz. those listed under Part II of the 1981 Act, 3 together with the non-contributory widows or orphans pension and the childrens allowance. In respect of personal injuries there are t wo main inclusionary provisions. They are S.68 of the 1981 Act and S.12 of the Social Welfare Act, 1984. It is proposed to discuss these in some detail. Under S.68 of the 1981 Act all rights to injury benefit or dis- ablement benefit wh i ch have accrued or probably will accrue in the five year period following the accrual of the cause of action shall be taken into account. S.68 (1) of the 1981 Act reads as follows:- " Notwithstanding section 2 of the Civil Liability (Amendment) Act,

By Dam i en Ma l oney B . A . (Mod . ), Bar r i s t er - a t -Law

person from the injuries, the value of any rights which have accrued or will probably accrue to him there- from in respect of injury bene- fit . . . or disablement benefit. . . for the five years beginning with the time when the cause of action accrued". "Notwithstanding section 2 of the Civil Liability (Amendment) Act, 1964, and section 306 of [the 1981 Act] . . . " These are the two exclusionary provisions referred to in the pre- ceding paragraphs. " . . . in an action for damages for personal injuries (including any such action arising out of con- tract) . . . " Thus S.68 operates whether the cause of action is founded in tort or contract. It is proposed to con- fine the present discussion to personal injuries actions founded on the commission of a tort, which is the usual case, as different con- siderations apply to actions based in contract.

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I Damian Maloney.

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