The Gazette 1989

GAZETTE

OCTOBER 1989

any social welfare payments payable as a result of the injury. The High Court decided that this deduction was permissive and, furthermore, held that S.50 of the 1961 Act had no application in the circum- stances. Finlay P. (as he then was) reasoned that where you are seeking compensation from an extra-statutory tribunal and that tribunal is entirely funded by Government money you are prevented f r om obtaining double payment from the same source. (iv) The Common Lay Rule, as we have seen in the Byrne v case was essentially that gains should be set off against losses. That position has been affected by statutory reform but is nevertheless relevant in many respects. Consequently when one assesses loss of future earnings in personal injuries actions one seeks the figure representing the net loss. 22 Income Tax that would have been payable by the plaintiff, under PAYE or self- assessment and also PRSI, it

(ii) Where the Plaintiff receives Social Welfare assistance, which is means-tested, under the 1981 Act as amended, sums paid by way of damages are not taken into account. The reason is that damages are regarded as capital and are treated as such for the purpose of administering the means test. (iii) Where the relief sought is not damages under the Civil Lia- bility Acts but compensation under an ex t r a - s t a t u t o ry scheme the rules provided by the scheme are applied. In The State (Hayes) -v- Criminal In- juries Compensation Tribunal 21 the widow of an Aer Lingus employee killed when a bomb exploded claimed compensa- tion in respect of the death of her husband. The Criminal Injuries Compensation Tribunal had been set up by the govern- ment without any enactment and was authorised to award compensation in such cases. The rules of the scheme provided that any award was to be reduced by the amount of

taken into account. Kenny J. in the High Court in Glover -v- B.L.N. (No.2) 23 stated that "Income tax enters into the economic lives of so many of our citizens that the law cannot ignore it when assessing damages". The Glover case followed an earlier English House of Lords decision in British Transport Commission - v- Gourley 24 which held that in assessing the plaintiff's dam- ages for loss of future earnings an allowance equivalent to the income tax that would have been paid by the plaintiff must be made in reduction of the gross amount of such damages. In Cooke -v- Walsh 25 the Supreme Court held that Income tax, PR.S.I. and other deductions which would have been made from the plaintiff's gross pay, had the plaintiff been uninjured, must be taken into account in assessing damages for loss of future earnings. Di f f erent considerations apply to actions based in contract. Finlay P. (as he then

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