The Gazette 1991

g a z e t t e

april 1991

under any contract of insurance, (b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased, Section 2 of the Civil Liability (Amendment) - Act, 1964 provides that where damages are sought for injury not causing death account shall not be taken of:- (a) any sum payable in respect of the injury under any contract of insurance, (b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury. Perhaps, I should mention, also, that in an injury case certain payments received under the Social Welfare Acts are expressly deductible from damages. Section 39 of the Social Welfare (Occupational Injuries) Act, 1966 provides that, irrespective of Section 2 of the Civil Liability (Amend- ment) Act, 1964, there shall be deducted from damages any injury benefit or disable- ment benefit received during the five years after the accident. Section 12 of the Social Welfare Act, 1984 extended the deductions to include, in the case of accidents involving mechani- cally propelled vehicles, disability benefit including pay-

related benefit, and invalidity benefit receivable during the same five year period. ACTUARIAL EVIDENCE In 1972 the Chief Justice in his judgment in the appeal of Donnelly -v- Brown (unreport- ed), Supreme Court, 15 May 1972, said that he was satisfied that the Trial Judge " . . . was right in the circumstances of the case to admit actuarial evidence. Without such evidence the jury could not be expected to calculate the deduction appropriate to be made for the payment now of wages that would fall to be paid over many years stretching into the future." In the same case Mr. Justice FitzGerald said "While actuarial evidence is generally properly addressed in cases where the wage earner has died or has been permanently totally in- capacitated from earning anything, it appears to me that it is relevant, and consequently admissible, where there is evidence of diminution in wage earning capacity either certain or probable. In the present case there is dear evidence of a probable, if not certain, diminution of earning capacity and the actuarial evidence is, in my view, consequently admissible".

In his judgment in the Reddy -v- Bates appeal Mr. Justice Griffin said "It has been decided by this Court in many cases over the past 20 years that where future loss of earnings, or a likelihood of regular neces- sary payments for medical, hospital or other expenses, form a substantial part of a plaintiff's claim, an actuary should give evidence" /11983] IR 141, 146 [1984] ILRM 197, 201). "It is a/so right to observe that actuarial figures are a calculation on the basis of steady loss of wages, and, where appropriate, some allowance must be made for the uncertainties of the employment market and of human health." In the same appeal Mr. Justice FitzGerald said "It should, however, be appreciated that the actuarial figure is based on an assumption that the pre- accident rate of earnings would have been maintained for the man's working life time irrespective of any loss of earnings from incapacity due to ill health or to the risk arising from the condition of In the Donnelly -v- Brown appeal the Chief Justice remarked

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