The Gazette 1989

GAZETTE

OCTOBER 1989

sented the amount which would be paid in disability benefit to the plaintiff from the date of the trial to the expiry of five years from the date of the accident assuming that the plaintiff continued to receive such benefit. MacKenzie J. did take into account the disability benefit the plaintiff had previously received but His Lordship refused to take such further sum into account because it appeared from the evidence that the plaintiff was fit for light work and would shortly be able to resume his pre-accident work. In those circumstances the Department of Social Welfare could cut off the disability benefit and, therefore, one could not say with any probability that the plaintiff would continue to be in receipt of the disability benefit. " . . . in respect of injury bene- fit. . . " Injury benefit, disablement bene- fit and death benefit are the three types of occupational injuries benefit available under the 1981 Act. Injury benefit 6 is the benefit payable to a person in insurable (occupational injuries) employment who suffers personal injury arising out of and in the course of his employment, or who suffers a pre- scribed occupational disease due to the nature of his work, which renders him incapable of work. It is payable during a period of incapa- city for work but if the incapacity lasts beyond a period of 156 days the benefit ceases although the recipient may then be entitled to disablement benefit. ". . . or disablement benefit. . ." Disablement benefit 7 is the benefit payable to a person in insurable (occupational injuries) employment who suffers a loss of physical or mental faculty arising out of and in the course of his employment. The rate of disable- ment benefit is greater if as a result of the relevant loss of faculty the beneficiary is incapable of work and is likely to remain permanently so incapable. Under S.68 (1) any increase in the disablement benefit to a beneficiary under S.46 of the 1981 Act because he requires constant care shall not be taken into account. ". . . for the five years beginning with the time when the cause of action accrued . . ." In Jackman -v- Corbett 8 the issue was raised in the context of

. . wh i ch has accrued or probably will accrue to the injured person from the injuries . . . " Thus the total loss of earnings before any deductions are made includes the loss to date and any future loss. " . . . the value of any rights . . . " Professor Casey pointed to the problem as to whether " r i gh t s" is used in a jurisprudential or com- mercial sense. He referred to English authorities where the English Courts permitted benefits which the plaintiff had received, but to which he had no legal right, to be taken into account. There the word " r i gh t s" was used in a com- mercial sense. Casey referred to other foreign case law to the effect that "rights" meant "that to which the plaintiff is legally entitled". Such an interpretation he sug- gested was fraught with difficulties since it might give rise to instances where notional benefits which the plaintiff did not in fact receive were taken into account because a Judge held that the plaintiff should have received them. Casey sug- gested that the better view would appear to be that " r i gh t s" is used in a commercial sense. " . . . which have accrued or will probably accrue . . ." In O'Loughlin -v- Teeling 5 the High Court had occasion to con- sider the phase " . . . or wi ll probably accrue . . . " wh i ch appeared in S.12 of the Social Welfare Act, 1984. The case con- cerned a personal injuries action which arose out of a road traffic collision where the defendants unsuccessfully sought to have a further sum taken into account in assessing damages which repre-

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an identical wording in S.2(1) of the Law Reform (Personal Injuries) Act, 1948 (U.K.), as to whether the value of any of the benefits accruing after the expiry of the five year period were deductible. The Court of Appeal in England held that the section exhaustively defined the extent to which the benefits named in the section could be set off against the plaintiff's loss of earnings. It seems likely that this approach would be followed in Ireland. There are at the moment two reported conflicting High Court decisions as to the interpretation of ". . . the date on which the cause of action accrued . . ." in the context of S.11(2) (b) of the Statute of Limitations, 1957. In Morgan -v- Park Developments 9 Carroll J. stated obiter that the date of the accrual in an action for negligence in the building of a housing estate was the date when the damage could reasonably have been discovered. However, in Hegarty - v- O'Loughran 10 Barron J. held that the date of the accrual in an action for negligence in the performance of a surgical operation was the date when the act causing the damage is committed. Under S.68 (2) where the damages are subject to reduction because of the plaintiff's contribu- tory negligence, the deduction in respect of the benefits as permitted by S.68 (1) is to be made from the total amount that would, apart from the deduction, have been recoverable. This operates to the plaintiff's advantage. 4 S.12 of the Social Welfare Act, 1984, inserts a new S.306A after

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