The Gazette 1989

GAZETTE

OCTOBER 1989

Statutory Deductions from

Damages in Tort

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.

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

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

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,

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,

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

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.

". . . 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.

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.

Damian Maloney.

341