The Gazette 1989

GAZETTE

OCTOBER 1989

Invalidity pension 15 is essentially a benefit paid to persons who pay P.R.S.I. under categories A,E,F,G,H, and N and who have been receiving disability benefit for at least a year and who are permanently incapable of work. In a general way it should be noted that the practice is to leave it to the Deciding Officer or, in the case of an appeal, the Appeals Officer to decide if a person is entitled to a benefit. One can appeal to the High Court on a point of law. In practice most claims are dealt with by the Deciding Officer and do not go any further. B Fatal Accidants In respect of fatal accidents there are two main exclusionary pro- visions. The first such provision is S.50 of the Civil Liability Act, 1961, (hereinafter referred to as " t he 1961 Ac t " ), which provides that " . . . any sum payable on the death of the deceased under any contract of insurance . . . " and " . . . any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased . . ."' shall not be taken into account. The expression " . . . any pension, gratuity or other like benefit . . . " was judicially considered in Feeney -v- Ging. 2 In that case the deceased's children were in receipt of university grants which would not have been payable had the deceased lived. The submission was made that S.50 of the 1961 Act applied to university grants which, it was said, were included in the expression " . . . or other like benefit . . .". Ellis J. decided against the submission and held that the university grants were not benefits which are excluded from assess- ment under S.50 of the 1961 Act. In coming to this conclusion Ellis J. followed the approach of the Supreme Court in O'Sullivan -v- C.I.E. 16 Griffin J. in that case quoted w i th approval from an earlier judgment in Byrne -v- Houlihan 17 where Kingsmill Moore J. said:- "That in computing the injury resulting from the death gains are in general to be set off against losses is shown by section 5 [of the Fatal Injuries Act, 1956] which by specifically excluding from such computation certain benefits by way of insurance moneys and pensions implies that benefits not

S.306 of the 1981 Act. Under S.306A in the case of personal injuries arising out of the use of a motor vehicle which is required to be covered by an approved policy of insurance any disability benefit (including any amount payable by way of pay-related benefit) or invalidity pension for the five years from the date of the accident must be taken into account. The motor vehicle must be insured in accord- ance with the provisions of S.62 of the Road Traffic Act, 1961, as amended by the European Commun- ities (Road Traffic) (Compulsory Insurance) Regulations, 1975. 12 The effect of S.306A is to extend S.68 of the 1981 Act into motor accident cases where the Plaintiff receives disability benefit and invalidity pension. S.306A goes further than S.68 because it ex- pressly provides that pay-related benefits shall also be taken into account. Furthermore the new S.306A requires that these pay- ments be taken into account not only in relation to loss of profits and earnings but also in respect of general damages. Disability benefit 13 is payable to persons who pay P.R.S.I. under categories A,E,F,G,H, and N and who are unable to work owing to illness or incapacity. It is a short- term benefit. It is paid in respect of the period of absence from work owing to temporary ill-health. Disability benefit is payable to an insured person who is ill, for instance with influenze, and is absent from work as a result, but returns when he has recovered. Disability benefit is not the same as disablement benefit. Disable- ment benefit is only available where the person loses a mental or physical faculty. Furthermore dis- ablement benefit is only available to a worker in insurable (occupational injuries) employment. Whereas disability benefit is available to a worker who is insured under the 1981 Act in an appropriate P.R.S.I. Class which procedure is less rigorous than being required to be insured under the occupational injuries provisions of the 1981 Act. Pay-related benefit 14 is an additional rate payable to persons who pay P.R.S.I. under categories A,G,H, and N over and above the flat rate payments available in respect of certain benefits including disability benefit.

so expressly excluded must be taken into account". Griffin J. felt that these observa- tions applied equally to S.50 of the 1961 Act. His Lordship also quoted with approval the observation of Lord Wright in Danes -v- Powell Duffryn Associated Collieries 18 where he stated that:- " I n computing the loss suffered by the Defendants the actual pec- uniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand the loss to him of future pecuniary benefits and, on the other, any pecuniary advantage which comes to him by reason of the death". Ellis J. felt that university grants could not be likened to the benefit of a pension or gratuity of the kind envisaged or intended under S.50 of the 1961 Act. The second exclusionary provision is S.306 of the 1981 Act which provides that widows and orphans contributory or non-contributory pensions and childrens allowance shall not be taken into account. There is one inclusionary pro- vision. Under S.68 (3) of the 1981 Act the funeral expenses component of death benefit 19 shall be taken into account. Briefly, death benefit is available to widows and orphans where an insured person in insurable (occupational injuries) employment dies. Part of the death benefit is given to pay funeral expenses. C Miscellaneous (i) Special considerations apply in Garda Compensation cases. In O'Looney -v- Minister for the Public Service 20 a Garda who was injured in the performance of his duties claimed com- pensation under the Garda Siochana Compensation Act, 1941. S.10 (3) (a) of that Act requires t hat the Judge ". . . shall take into considera- tion . . . " any pension, allow- ance or gratuity out of public funds that the plaintiff is entitled to under the relevant Acts and Statutory Orders and Regulations in respect of the injuries which are the subject of the application under the Act. The Supreme Court held that the section requires that the value of the pension the Garda received be deducted from the value of the economic loss endured.

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