Marian Greene (plaintiff) v Hughes Haulage Limited and Gerard Coleman (defendants).Personal Injuries - Damages - Loss of earnings - Future losses - Contract of insurance - Disability benefit policy - Whether payments deductible - Fatal injuries cases - Interpretation of statute - Common law - Civil Liability Act 1964 (No 17), section 2 - Fatal Accidents Act 1846 - Fatal Accidents (Damages) Act 1908, section 1 - Fatal Injuries Act 1956 (No 3), section 5.The High Court 9 (before Mr Justice Geoghegan); judgment delivered 28 June 1997.Where a plaintiff has received disability payments under a policy of insurance taken out by her employer in respect of injuries sustained in circumstances where the said insurance arrangements were part of her total remuneration under her contract of employment, then such payments are not deductible from the total amount of damages for loss of earnings awarded. Section 2 of the Civil Liability Act 1961.

That situation prevails irrespective of the fact that the contract of insurance was not with the beneficiary but with her employer and the premiums were paid b the employer and not by the beneficiary.The High Court so held in awarding damages to the plaintiff and refusing to deduct disability payments already paid and those to be paid in the future.Maureen Clark SC and Peter Clein BL for the plaintiff; Henry Hickey SC and John G. O'Donnell BL for the defendants.Mr Justice Geoghegan said that the plaintiff had been involved in a road traffic accident on 10 June 1991 when her car collided with an articulated vehicle. Liability was determined at 50 per cent and it was for the court to assess damages and make an award of 50 per cent of the assessment.Mr Justice Geoghegan said that the facts of the accident were horrific and the consequences for the plaintiff were very serious. She suffered acute post traumatic stress disorder, aggravation of some degenerative problems and multiple injuries. It was accepted by the court that although the plaintiff had been involved in two previous accidents, her present problems stemmed solely from the latest accident.Mr Justice Geoghegan described the plaintiff as a highly motivated and intelligent woman who held the post of clinical research associate at management grade with Elan Corporation at the time of the accident. She took the post in 1988. Following the accident the plaintiff was unable to return to work for a considerable period. However, she returned for a time in late 1991 and did not feel able to work again in early 1992. In May 1992 she was notified that she was being made redundant and was paid up until July 1992.While the court was suspicious that this redundancy was not genuine, suspicion was not enough and damages were to be assessed on the basis of the redundancy being operative.Mr Justice Geoghegan considered the issue of the plaintiff's loss of earnings. It was accepted that she was unable to work since 31 July 1992 and that due to her age and medical history, getting herself back into the job market would be difficult. However, her medical condition would gradually improve and given her motivation it was felt she would work again, perhaps doing freelance nursing or setting up her own nursing home. While in cases involving post traumatic stress recovery may be difficult to predict, the court felt that as a matter of probability the plaintiff would work again, keeping in mind that it would be a considerable time before she would regain her previous level of earnings. However, as she had been made redundant there would have been a hiatus before she would find a comparable alternative post.Mr Justice Geoghegan then dealt with the question of whether payments received by the plaintiff in the past and into the future pursuant to a policy of insurance taken out by her former employers should be deducted from her loss of earnings claim.Under a policy of insurance the plaintiff received and continues to receive full disablement benefit which payment amounts to 75 per cent of the salary at the date of the disablement inclusive of the basic social welfare disability benefit, which payments are to be made until recovery, death or on reaching normal pension age. The payments increase by 5 per cent per annum compound.It was submitted on behalf of the plaintiff that the payments were made pursuant to a contract of insurance and while the plaintiff was not a party to the contract of insurance it was made for her benefit and the benefit of other employees. Section 2 of the Civil Liability (Amendment) Act 1964 which provides that when assessing loss of earnings account shall not be taken of any sum payable in respect of the injury under any contract of insurance is couched in broad terms and does not require that the contract of insurance be with the injured party nor does it require that the injured party should have paid premiums.The defendant contended that because the premiums were paid by her employer this was not the type of contract of insurance contemplated by section 2 of the 1964 Act. The cases of Hussain v New Taplow Paper Mills [1988] 1 All ER 541 and Dennehy v Nordic Cold Storage Limited (High Court, unreported, 8 May 1991) were relied upon. Mr Justice Geoghegan distinguished the position in the Dennehy case by saying that what was involved there was a contract indemnifying the employer against a liability which the employer himself took on and it was therefore not within the category of contracts of insurance envisaged in section 2 of the 1964 Act. The Hussain case differed from the present position in that the common law and not statute law governed the situation in England.Mr Justice Geoghegan referred to section 50 of the Civil Liability Act 1961 which deals with this type of deduction in fatal injury claims. The courts have interpreted that section as one which does not require that the deceased was a party to the contract of insurance or paid the premiums. The 1964 Act in the view of the learned trial judge was enacted to clarify the position in relation to personal injury claims and as the phrasing used was identical, it was intended to be interpreted in the same manner.Mr Justice Geoghegan considered at length the development of both case law and statute law on the position of insurance monies in fatal injuries and personal injuries actions in both this jurisdiction and in England. In conclusion, the court took the view that the question of deductibility was entirely governed by section 2 of the 1964 Act and there was no reason why the interpretation of section 2 of that Act should be any different to section 50 of the 1961 Act. Although the plaintiff in the instant case did not pay any premiums, the insurance arrangements were part of her remuneration package and though the benefit was calculated by reference to salary it was disability benefit and not salary.Mr Justice Geoghegan held that the benefits already paid and those to be paid in the future were not to be deducted. Damages were assessed at £236,992 to be reduced by 50 per cent in the circumstances. State disability benefit of £10,435.10 was to be deducted from the remainder. Solicitors: O'Gorman (Limerick) for the plaintiff; Fair & Murtagh (Galway) for the defendants.