1. This
is an Action for personal injuries arising out of a motor accident which
occurred on the 10th June, 1991. The car driven by the Plaintiff came into
collision with a juggernaut truck and the Plaintiff was for some time trapped
in her own car. Liability has been being determined at fifty percent in other
proceedings and therefore this Court is only concerned with an assessment of
damages. Judgment will be given for fifty percent of the sum so assessed.
2. It
is quite clear to me from the evidence that this accident has had very serious
consequences indeed for the Plaintiff. From being a well paid and ambitious
professional in an executive role she is now in a debilitated state. Although
she did have genuine physical injuries, I am satisfied that the most serious
consequence of this accident is that she has suffered from some kind of post
traumatic disorder involving what has been described as post traumatic
migraine. The facts of the accident were horrific. It was a collision between
a car driven by the Plaintiff and what she describes as a "huge juggernaut".
She became trapped for a considerable period in the car following on the
accident. Several times in the witness box she broke down when recalling the
actual facts of the accident. I do not think that any of this was contrived or
put on. I believe that her post traumatic disorder is closely related to the
constant presence in her mind of the facts of the accident itself. I think,
however that once the proceedings are over and the facts of the accident begin
gradually to recede from her mind, there will probably be improvement by
degrees and I think that having regard to her previous history of high
intelligence and enterprise there is every reason to hope that she may in time
make a complete recovery. I therefore must approach the assessment of damages
in that light.
3. Before
I detail the injuries and symptoms I should make some reference to the fact
that the Plaintiff had two other accidents. I have come to the conclusion,
however, that she made normal recoveries from the injuries sustained in those
accidents and that all her present problems stem from the accident the subject
matter of this action.
4. I
have already mentioned that the Plaintiff has been suffering from what has been
described as a post traumatic migraine. She has had very severe headaches and
I think that this is the most plausible explanation for them. In the period
since the accident, she sustained double vision, some loss of sight in the
right eye, deafness, pain in the chest and back and in her two ankles, urinary
problems in the form of frequency, nausea, vomiting, phobias concerning the
accident, problems about travelling in a car, depression, mood swings,
personality change so that she can be truculent and difficult and has had rows
with her mother and former fiancee. She has also sustained aggravation of some
degenerative problems. She was badly scarred across the body which can be seen
in photographs. There were other symptoms also which she believes were
connected with the accident such as vaginal infection, constipation, piles but
I do not think that the evidence sufficiently connects them with the accident.
I have not set out her injuries and symptoms in any particular order and it is
important to note that they did not all arise immediately after the accident
and their connection with the accident can therefore be suspect. But I believe
that subject to the exceptions which I have mentioned the connection is there.
Within a spectrum she is suffering from a severe form of post traumatic
disorder.
5. However,
the really important consequence of the accident is that the Plaintiff is no
longer able to work. At the time of the accident and for a period after it she
held the post of Clinical Research Associate with the well known Elan
Corporation in Athlone. That post involved her co-ordinating and monitoring of
what was known as Phase I to IV clinical trials. Her post was treated as a
management grade and she reported directly to the head of the medical
department. It was a well paid post that included apart from salary various
perks such as a company car and other benefits. Before she took on that post
in 1988, the Plaintiff's history was as follows. She was born on the 20th
February, 1954 as the older of two girls. She was educated at Laurel Hill
Convent School in Limerick and subsequently trained to be a nurse. After
periods in two different hospitals in Limerick she spent three years as a
public health nurse in Limerick, from 1978 to 1981. She then moved out of
nursing and worked with the Irish Epilepsy Association for some time but later
became a Medical Executive with Cow & Gate in Wexford. She remained with
that company until 1985 but after various other positions in the pharmaceutical
business, she eventually applied for and obtained the post in Elan. Following
on the accident in June 1991, she found herself unable to go back to work for a
considerable period. This was largely because of continuing headaches, urinary
frequency, spasmodic double vision, some diminution of sight in the right eye
and other symptoms. She eventually went back to work on the 25th November
though she didn't feel able for it. She did so, however, under persuasion.
Her mother travelled up to be with her and help her. The Plaintiff found she
was not able for her work but she remained until her holidays on the 19th
December, 1991. She was due to return to work on 6th January, 1992 but did not
feel able to do so. By that time she had these migraine headaches which had
become much worse and she had some deafness and loss of balance. By a letter
dated the 15th May, 1992, Elan notified the Plaintiff that she was being made
redundant on the grounds that they no longer had need of her post. She was
informed, however, that her full salary would be paid until the 31st July,
1992. The Plaintiff initially did not accept this redundancy as being genuine
and lodged a claim before the Employment Tribunal. That claim was ultimately
settled on a basis of her leaving the company. There was evidence before this
Court that Elan shortly after this redundancy notice advertised a new post
which the Plaintiff alleged was in practice similar. Although, the new post
required medical qualifications which the Plaintiff did not have. The
Plaintiff alleges that persons with medical qualifications were rival
applicants for her post in 1988. The Plaintiff's failure to return to work was
a very real problem for Elan and I cannot help being suspicious that the
redundancy might have been less than genuine. But suspicion is not enough and
I am satisfied that the Plaintiff has not discharged the onus which would be on
her to satisfy this Court that the redundancy notice would not have been served
if she had not had the accident and that she would have remained with Elan.
For the purposes of assessing loss of earnings in this case, therefore, I am
assuming that the redundancy was genuine and operative. As she was paid her
salary in full up to the 31st July, 1992 she can only claim loss of earnings
from that date.
6. I
must now turn to consider on what basis I should approach the question of loss
of earnings. There is of course a difficult and important question of whether
a deduction will have to be made of monies paid or payable to the Plaintiff
under a disability policy taken out for her benefit by her former employer
Elan. I will be dealing with that question in some detail later on in this
Judgment. First I must consider the question of what loss of earnings should
be awarded if no deduction were to be made. First of all, I am satisfied that
the Plaintiff by reason of her medical condition which in turn flowed from the
accident has been unable to do any work since the 31st July, 1992. Secondly, I
believe that the Plaintiff's medical condition will gradually improve once
these proceedings are disposed off. Thirdly, I must accept the evidence from
Ms. Paula Smith as it conforms with common sense, that having regard to the
Plaintiff's age and medical history it would be extremely difficult for her to
get herself back in a few years time on to the job market. I believe, however,
that once she made a reasonable recovery she would have the motivation to
become at least self-employed in some capacity or other. She might for
instance do freelance nursing perhaps on a part-time basis at first but more
probably she might, as suggested at the hearing, start her own business such as
for instance a nursing home. The trouble with all these cases of
post-traumatic syndrome is that there can be no guarantee that the Plaintiff
will in fact recover and if that happens an injustice may be done by not giving
her full loss of earnings into the future. But I can only act on probabilities
and it seems to me that on the medical evidence which I have heard, I could not
hold that she will never again be capable of earning a living. I do accept
however that her full recovery will be gradual and that even if she did decide
to start her own business it would take some time before she would be achieving
earnings of the order that she would have enjoyed if there was no accident. As
against that, I must also take into account that if there had been no accident
there would have been some inevitable delay between her being made redundant
and acquiring a suitable alternative post.
7. Before
I specify the figures which I have arrived at based on the foregoing
principles, I must now deal with the difficult question of whether monies of
which she is and will continue to be in receipt pursuant to the policy of
insurance taken out by her former employers must be deducted from her loss of
earnings. I will first of all explain the nature of the policy and the
payments and then outline the two opposing arguments put forward at the
hearing. The Elan Corporation had an Employee Benefit Plan designed to provide
a retirement pension related to salary before retirement, the opportunity to
take a tax free cash sum at retirement in lieu of part of the pension, benefits
on death in service prior to retirement, benefits on early retirement and an
income in the event of long term injury or illness. What is relevant to this
case is the last of these benefits. This arose under the second of two
separate arrangements which together constituted the Employee Benefit Plan.
This second arrangement was called "Disability Benefit Plan" and it was clear
that the benefits under this plan were separate from those under the Retirement
and Death Benefit Plan and were governed by a policy issued to the company by
the Irish Life Assurance Plc. Benefits under the Disability Benefit Plan
became payable, if arising from sickness or accident, the employee was not
undertaking any other occupation for profit or reward. Under the plan, when
the employee was totally disabled for a continuous period of six months an
income was paid equal to 75% of the salary at the date of disablement inclusive
of the basic social welfare disability benefit. The income was to be paid
until recovery, death or reaching normal pension date and would increase during
payment at the rate of 5% per annum compound. For partial disablement a
proportionate payment would be made. The trustee of the plan is Coyle Hamilton
Trustees Limited but, in practice, the Irish Life Assurance Plc deals directly
with the Plaintiff in this case and the Plaintiff has been receiving full
disablement benefit under the policy from Irish Life. There was a dispute at
one stage as to whether she was entitled to this once she was made redundant
but this dispute was resolved by an agreement under which Irish Life undertook
to continue to make the payment on an ex gratia basis subject to the terms and
conditions of the policy. This in itself raises a tricky question because it
may be arguable as to whether there is a continuing legal liability on the part
of Irish Life. There is no doubt that such contract of insurance as there is
was made with Elan and not with the Plaintiff as it was a policy taken out for
the benefit of persons such as the Plaintiff. The fact remains that she has
been in receipt of monies due to her on foot of full disablement and will as a
matter of probability continue to be in such receipt as long as she is
disabled. The question obviously now arises as to whether the value of these
payments should be calculated and deducted from the Plaintiff's loss of
earnings claim.
8. Ms.
Clark, Counsel for the Plaintiff argues that they ought not to be deducted. In
making this submission she relies on the wording of Section 2 of the Civil
Liability (Amendment) Act, 1964. That Section reads as follows:-
9. Ms.
Clark says that the payments made by Irish Life to the Plaintiff are payments
under a contract of insurance. They are in respect of her injury. She said
that though the Plaintiff was not a party to the contract of insurance, the
contract of insurance was nevertheless made for her benefit. She further
argues that the statutory provision is couched in broad terms and that it does
not say that the contract of insurance has to be made with the person who is
injured nor that that person should have paid the premiums.
10. Mr.
Hickey, Counsel for the Defendant submits that the Irish Life Policy in this
case is not a contract of insurance of the kind contemplated in Section 2 of
the 1964 Act because of the fact that the premiums were paid by the employer.
In making this submission he relies mainly and indeed almost exclusively on the
decision of the House of Lords in
Hussain
-v- New Taplow Paper Mills
1988 1 All E.R. 541. Mr. Hickey partly relied also on a reference in Kerr on
the Civil Liability Acts 1961 and 1964 at p.134 to a case of
Dennehy
-v- Nordic Cold Storage Limited,
an unreported decision of Hamilton P. (as he then was) dated 8th May, 1991. It
appears from the author's note that in that case an employee, absent from work
due to an injury, received a regular payment of monies from his employer
pursuant to a non-contributory income protection plan and subsequently sued his
employer for loss of earnings. The employer was indemnified, pursuant to a
contract of insurance for the income continuance payments and the Plaintiff
argued that Section 2 of the Civil Liability (Amendment) Act, 1964 applied and
that the money so paid should not be taken into account. Hamilton P. held that
such a contract of insurance did not fall within the Section's ambit and that
consequently the monies received by the employees ought to be deducted from the
assessment of damages. The author then goes on to state the following:-
11. I
read this as being Mr. Kerr's own analysis of the ruling of Hamilton P. There
is no Judgment available and it appears to have been a ruling in the course of
a trial. But I rather doubt that Mr. Kerr is correct in his interpretation of
the basis of the decision. It would seem to me more likely that as the
contract of insurance in that case appears to have been simply a contract
indemnifying the employer against a liability which the employer himself took
on it was not within the category of contracts of insurance covered by Section
2. I would respectfully agree with that but it is interesting to note that
even if Mr. Kerr's analysis is correct the contract of insurance in this case
is totally different from the contract of insurance in the Dennehy case as this
contract of insurance was not an indemnity contract but rather a contract taken
out by the employer for the benefit of persons such as the Plaintiff. It seems
to me therefore that the Dennehy case is not really in point. There does not
appear to be any Irish case relevant to the question of whether monies payable
on the type of policy that pertained in this case should be deducted or not
having regard to the terms of the 1964 Act. The English case law including the
Hussain case relied on so heavily by Mr. Hickey has to be approached with great
caution because in England the question of whether insurance monies have to be
deducted or not in any given personal injury case has always been governed by
the common law and not by statute. In England, the opposite however has always
been the case in relation to fatal injury cases. It is only because of statute
that the English courts have countenanced any non deduction of insurance monies
in a fatal injury claim. It would seem likely and indeed both Ms. Clark and
Mr. Hickey seem to be in agreement about this, that the whole purpose of
Section 2 of the Civil Liability (Amendment) Act, 1964 was to provide a
corresponding statutory provision for personal injury actions to Section 50 of
the Civil Liability Act, 1961 which provided for equivalent non deductions in
fatal injury claims. The 1964 Act was a short act of what might be described
as a tidying up nature covering relevant matters not already provided for or
inadequately provided for in the Civil Liability Act, 1961. But Section 50 of
the 1961 Act is largely a re-enactment of earlier statutory provisions in the
interpretation of which the Courts have held that the deceased need not be a
party to the contract of insurance and need not have paid the premiums. It
seems reasonable in the circumstances to assume that Section 2 of the 1964 Act
was intended by the Oireachtas to be interpreted similarly to Section 50 of the
1961 Act and therefore, as I see it, the Oireachtas would not have intended
that the injured party had to be a party to the contract of insurance or that
the injured party had to be the person paying the premiums.
12. I
will now as briefly as I can, trace the separate histories of the treatment of
insurance monies in fatal injury actions on the one hand and personal injury
actions on the other. In the 15th Edition of McGregor on Damages at paragraph
1594 the general position relating to non deductibility of collateral benefits
in fatal injury claims is succinctly stated:-
13. McGregor
goes on to say that gradually serious inroads were made by Statute upon this
rule of deduction of collateral benefits. The first of these was the Fatal
Accidents (Damages) Act, 1908 which provided in Section 1 as follows:-
14. I
would make the passing comment at this stage that there is no material
difference relevant to this case between that provision and the statutory
provision relating to insurance monies contained in Section 50 of the Civil
Liability Act, 1961. Section 50 of course is itself a re-enactment of Section
5 of the Fatal Injuries Act, 1956 which had replaced Section 1 of the 1908 Act.
During all this period of legislative history in relation to fatal injuries and
until the Civil Liability (Amendment) Act, 1964 there was no statutory
provision relating to non deductibility of insurance monies in relation to
personal injury claims. The principles were governed and developed solely by
the common law. But the common law in relation to non deductibility of
insurance monies for personal injury claims was quite different than the pre
1908 Act common law in relation to non deductibility of insurance claims for
fatal injuries.
15. In
more recent legislation in England the deductibility of items in fatal injury
claims has been extended but even under the earlier English legislation which
was similar to the Irish legislation it was unsuccessfully contended by the
Defendant in
Bowskill
-v- Dawson
(2) 1955 1 Q.B. 13 that the statutory provisions relating to non deductibility
of insurance monies only applied where the deceased was himself a party to the
insurance contract. It was again unsuccessfully argued by the Defendant in
Green
-v- Russell
1959 2 Q.B. 226 that the narrower earlier legislation in England (similar to
the Irish legislation) only applied where there was an enforceable right in the
estate or their dependants to the monies. It is clear on the English
authorities that a policy taken out by employers for the general benefit of
employees one of which may be the deceased is sufficient.
16. As
I have already indicated, the question of non deductibility of insurance monies
in a personal injury claim as distinct from a fatal injury claim was until 1964
in Ireland and still is in England governed solely by the common law and not by
statute. The original leading case in relation to personal injury claims was
Bradburn
-v- Great Western Railway
(1874) L.R. 10 Ex. 1. Although there has been a tendency in the English case
law progressively to cut down on the categories of collateral benefits which
are non deductible, this decision according to McGregor on Damages "has
withstood all the recent changes of judicial heart over the issue of collateral
benefits". McGregor explains the basis on
Bradburn
as follows:-
17. The
explanation of the
Bradburn
principle was further put by Lord Reid in his speech in
Parry
-v- Cleaver
1970 AC 1 at 14:-
18. Despite
this clear exposition quite an amount of confusion arose as to when benefits
were to be deducted or not (see
Payne
-v- Railway Executive
1952 1 K.B. 26,
Browning
-v- The War Office
1963 1 Q.B. 750 and
Parsons
-v- B.N.B. Laboratories Limited
1964 1 Q.B. 95). It may well have been because of the uncertainty of the
common law at that time that the Oireachtas decided to enact Section 2 of the
Civil Liability (Amendment) Act, 1964 simplifying the position and in effect
applying to personal injury actions the same rules as to non deductibility as
already applied to fatal injury actions under Section 50 of the Civil Liability
Act, 1961. In each case the expression "under any contract of insurance" is
used and I therefore see no reason why the broad interpretation which has
always been given to that expression in the fatal injury cases should not now
be applied to personal injury actions. Of course this does not mean that a
simple indemnity policy indemnifying the employer against some contractual
undertaking by it to continue making salary payments to an employee who had
become incapacitated would come within the Section. I think that it clearly
would not. But that is totally different from the type of policy in place in
this case.
19. There
is one superficial objection which can be made to the broad interpretation of
"under any contract of insurance". It could be said that an anomalous
injustice could occur if the Defendant was himself the employer. In that case
it might be argued that there was no third party claiming advantage from the
Plaintiff's own insurance benefits. But I do not think that the interpretation
of the clear words of the section should be governed by such considerations.
In most cases the benefit policy will form part of the total remuneration and
the employee will therefore be indirectly contributing to the premiums. In
other cases it may be possible to imply a term permitting deductibility in the
contract of employment. None of that arises in this case. Elan did not cause
the Plaintiff's injuries.
20. The
English position in relation to personal injury actions is still governed by
the common law and as Mr. Hickey has rightly pointed out, the latest authority
is the House of Lords decision in
Hussain
-v- New Taplow Paper Mills Limited
1988 1 All E.R. 541. For the reasons which I have indicated, I take the view
that it is now the statute and not the common law which governs the position
and therefore the Hussain case is not really relevant. But even if it were
relevant, it can, I think, be distinguished from this case in that in the
Hussain case the employers assumed a direct contractual liability to the
plaintiff to pay partial salary in the event of incapacity and it was held that
the fact that the defendants happened to have insured their liability to meet
those contractual commitments as they arose did not affect the issue in any
way. It is, however, true that Lord Bridge of Harwich does describe as a well
established exception to the deductibility rule the situation "where a
plaintiff recovers under an insurance policy for which he has paid the premiums,
citing
Bradburn -v- Great Western Railway Company
.
But although the Plaintiff in this case did not pay premiums the insurance
arrangements were part of her remuneration package and, as I understand her
contractual arrangements with her employer, if for instance the insurance
company had become insolvent or in some way unable to meet its commitments
there would have been no right of action by her against her employer.
Furthermore, even though the benefit was calculated by reference to salary it
was a disability benefit and not salary. Even if the common law position
pertained, therefore, I think that a strong argument could have been made in
favour of non deductibility but as I have explained that does not arise as in
my view the question of deductibility is entirely governed by Section 2 of the
Civil Liability (Amendment) Act, 1964 and for the reasons which I have
indicated I accept the submissions of Ms. Clark. The disability payments
already paid or to be paid ought not to be deducted.
31. The
damages must obviously be reduced by 50% and State disability benefit of
£10,435.10 must be deducted.