The Gazette 1989

GAZETTE

OCTOBER 1989

. . 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 . . ."

O'Loughlin -v- Teeling

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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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

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

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 . . ."

Jackman -v- Corbett

the

issue was raised in the context of

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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

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

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.

S.12 of the Social Welfare Act,

1984, inserts a new S.306A after

342