The Gazette 1989

GAZETTE

OCTOBER 1989

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.

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

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

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.

Invalidity pension

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.

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.

Griffin J. in that case quoted

w i th approval from an earlier

judgment in

Byrne -v- Houlihan

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

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

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

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

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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