Collateral Benefits
Collateral Benefits
In assessing damages in a fatal injuries claim, account shall not be taken of any charitable gift whether, by way of money or property made to the claimant in consequence of the death of the deceased unless the defendant is donor and at the time of the making the gift, he informs the claimant in writing, that should the claimant recover damages, the defendant will apply to the court for the damages to be reduced for an amount equal to the gift.
In assessing damages in an action for personal injury not resulting in death, account shall not be taken of any charitable gift unless the defendant is the donor and so indicates expressly in the manner above at the time of giving the gift. If the claimant is employed by the defendant, if the gift consists of a series of payments that resemble, in amount and frequency, the normal remuneration that he would be entitled to receive from the defendant, in his course of employment, then account may be taken of it.
In a personal injuries action, where a claimant is claiming in relation to loss of income, profit or gain in relation to which a return has not been made before the hearing under the Taxes Act or the claimant has not otherwise notified the Revenue Commissioners of them, then for the purpose of assessing damages, the same shall be disregarded, unless the court considers that in all the circumstances, it would be unjust to disregard such income, profit or gain.
Collateral Benefits Medical Care
A person may recover in respect of the cost of his medical care. A person entitled to free hospital treatment is not obliged to avail of it, even though this might be argued to be a failure to mitigate.
The Health Amendment Act 1986 required the HSE to charge injured parties for services that they would otherwise receive free of charge if they could recover them in a personal injury case.
Cost of Care
While a close relative takes on the role of carer, it appears that compensation will be awarded for the costs of the relative’s care for the claimant, notwithstanding that he might have provided the care anyway for personal and family reasons. The claimant is generally allowed compensation to enable the carer to be repaid for the care.
The courts may value the cost of care on a commercial or discounted basis. They tend to discount the amount payable to relations relative to third-party commercial providers.
There have been instances in Ireland of carers being compensated directly, although the legal basis does not appear clear.
In cases of serious personal injury, it may be necessary to adapt the claimant’s accommodation. The claimant may be allowed compensation for the additional cost of accommodation beyond that which he or she, in the ordinary course, would have incurred. but for the accident.
Insurance
In assessing damages in an action to recover damages in respect of a wrongful act (including a crime) resulting in personal injury not causing death, account shall not be taken of—
- any sum payable in respect of the injury under any contract of insurance;
- any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury.
In assessing damages in an action to recover damages in respect of a wrong resulting in personal injury not causing death, account shall not be taken of any charitable gift (whether in the form of money or other property) made to the plaintiff in respect of those injuries unless
- the defendant is the donor of the gift, and
- at the time of the making of the gift he or she informs the plaintiff in writing that, should the plaintiff recover damages in such an action, the defendant will apply to the court for the damages to be reduced by an amount equal to the amount of the gift or the value of the gift, as may be appropriate, or
- in the case of a plaintiff who is employed by the defendant, the gift consists of a series of payments that resemble, in amount and frequency, the normal remuneration that the plaintiff would be entitled to receive from the in the course of his or her employment.
Social Welfare Benefits
The Social Welfare and Pensions Act 2013 introduced the so-called recoverable benefits and assistance scheme. Under the scheme, the Department of Social Welfare may recoup certain social welfare payments, pay the settlement or received an award in a personal injury claim. The following categories of social welfare benefit are recoverable:
- Illness benefit;
- Partial capacity benefit;
- Injury benefit;
- Disability allowance;
- Increases in disablement benefit;
- Invalidity pension;
- Incapacity Supplement.
Prior to the scheme, the benefits were deducted from the loss of earnings claim but were not refundable to the Department of Social Protection. Subsequent to the commencement of the legislation, in August 2014, the benefits are not deductible in computing the personal injury claim. The compensator/defendant must reimburse the Department of Social Protection directly.
The scheme applies to awards made by the court, the Injuries Board and settlement agreements. Payments may be recovered from the commencement point of the claim up to a maximum of five years or until the payment of the compensation and discharge of the money due to the Department of Social Protection, whichever is first.
Recoverable Benefits
Payment must be deducted by the defendant from the compensation paid to the claimant. The sum is set out in a certificate of recoverable benefits. The defendant may appeal against the amount certified. If he does appeal, he must first pay the amount certified before lodging the appeal.
The defendant must apply for a recoverable benefits certificate in every personal injury case irrespective of whether a claim is made in respect of loss of earnings. The Department of Social Protection has 28 days in which to provide a certificate of benefit to both claimant and defendant or their solicitors if represented. The certificate is valid for 90 days. Thereafter a further certificate must be applied for.
The scheme was commenced on 1 August 2014 but applies to benefits paid before that date.
A person to whom a certificate of recoverable benefits is issued may request details of the manner in which the recoverable benefits have been calculated. The Department of Social Protection must provide a breakdown within four months.
Liability to the Department of Social Welfare in respect of recoverable benefits is joint and several, where there is more than one defendant. Contribution liability agreed with the claimant may be confirmed by a court order. In the absence of an order, the defendant is liable for the full amount of recoverable claim. A full or part apportionment settlement between the parties creates a liability for full reimbursement of benefits.
However, in the case of a compensation payment arising from a court order or an Injuries Board assessment, the obligation to pay the recoverable benefits and assistance is limited to the total amount of damages assessed in relation to the loss of earnings or profits.
A compensator can offset the amount of recoverable benefits and assistance paid to the Minister against the amount of compensation for loss of earnings or profit, but not against any other elements of the compensation claim. A compensator must pay any recoverable benefits and assistance due to the Minister before making a compensation payment to the injured person.
Application for Statement
Where a compensator intends making a compensation payment to a person as a consequence of a non-fatal personal injury and that compensation payment does not arise from an Injuries Board assessment, the compensator must apply for a statement before making any compensation payment.
The Injuries Board must apply for a statement of recoverable benefits and assistance before making an order to pay under the Personal Injuries Assessment Board Act 2003 (No. 46 of 2003) (as amended).
Where the compensation payment arises from an Injuries Board assessment, the order to pay issued by the Injuries Board will state the amount of recoverable benefits and assistance.
The application for a statement of recoverable benefits and assistance will be made on form RBA01. The completed RBA01 must contain the following information for an application for a statement to be processed:
- the name of the injured person;
- the date of birth of the injured person;
- the address of the injured person;
- details of the personal injury sustained by the injured person;
- the date of occurrence of the personal injury sustained by the injured person;
- the name and address of the compensator;
- where an agent or legal representative is acting on behalf of a compensator, the name and address of the agent or legal representative, as appropriate;
- where a compensator or the agent or legal representative of a compensator has assigned a case manager to deal with a claim for compensation by an injured person, the name and address and contact details of the case manager, including their telephone number and electronic mailing address;
- where an application for a statement of recoverable benefits is made by a person other than a compensator, the agent or legal representative of a compensator or the case manager assigned to deal with a claim, the name of the person who makes the application;
- the reference number assigned to the case by the compensator or the Injuries Board.
Where an application for a statement of recoverable benefits and assistance does not include this information, the application will be returned to the compensator/Injuries Board.
Statement
RBA Section will issue a statement of recoverable benefits and assistance to the Injuries Board or the compensator within 4 weeks of receiving an application. The statement of recoverable benefits and assistance will specify:
- the amount of recoverable benefits and assistance paid as a result of the personal injury up to the date of issuing the statement or up to the end of the specified period, whichever is earlier. The amount of recoverable benefits and assistance paid will be broken down by the scheme;
- where the specified period has not ended and the injured person continues to be in receipt of a specified benefit, their weekly rate of the payment;
- where the specified period has not ended and the injured person continues to be in receipt of a specified benefit, the total amount of recoverable benefits that is expected to be paid in each week in the 13 weeks following the date of issue of the statement;the date up to which the statement is valid;
- the unique RBA reference number for the case.
On each occasion that RBA Section issues a new statement to the Injuries Board or a compensator, it will also issue a (renewal) statement to the injured person and to all other parties to whom a statement has previously issued.
Any questions as to whether benefits or assistance are recoverable will be decided by a Deciding Officer in RBA Section. Where a compensator or an injured person to whom a statement is issued is unhappy with a decision as to whether a particular benefit or assistance (or any part thereof) specified in the statement is recoverable, they may appeal that decision to the independent Social Welfare Appeals Office.
Obligation of Compensator I
Where a compensation payment arises as a result of a court order or an Injuries Board assessment, the compensator is obliged to pay to the Minister either:the total amount of compensation assessed in relation to loss of earnings or profit;or the amount of recoverable benefits and assistance specified in the statement of recoverable benefits and assistance,whichever is the smaller amount.
Where the compensation payment is the subject of a court order or an Injuries Board assessment and no damages are assessed for loss of earnings or profit – that is, the amount of compensation for loss of earnings or profit is €0 – the compensator has no liability in respect of the RBA Scheme.
The Injuries Board order to pay will specify the amount that the compensator is liable to pay to the Minister for Social Protection and the amount that the compensator is liable to pay to the claimant/injured person.
Where a compensation payment does not arise as a result of a court order or an Injuries Board assessment, the compensator is obliged to pay to the Minister the amount of recoverable benefits and assistance specified in the statement of recoverable benefits and assistance.
A compensator can offset the amount of recoverable benefits and assistance paid to the Minister against the amount of compensation for loss of earnings or profits to be paid to the injured person, but not against any other element of the compensation payment.
Where a compensator offsets the amount of recoverable benefits and assistance paid to the Minister against the amount of compensation for loss of earnings or profits to be paid to the injured person, the compensator must notify the injured person accordingly.
Obligations of Compensator II
A claim for compensation for loss of earnings or profits is discharged to the extent of the value of any recoverable benefits and assistance paid to the Minister.
The specified period in respect of which specified benefits are recoverable begins on the date on which the injured person first becomes entitled to a specified benefit and ends on the earliest of:
- the expiration of the period of 5 years from the date on which the injured person first becomes entitled to a specified benefit;
- the date on which the compensator makes a compensation payment in final discharge of any claim made by or in respect of the injured person as a result of the personal injury;
- the date on which an agreement is made under which an earlier payment is treated as having been made in final discharge of any such claim.
The specified period begins on the date on which the injured person first becomes entitled to payment of a specified benefit, that is, the start date of payment of the benefit. Where a person is paid more than one specified benefit, the latest possible date on which the specified period ends is 5 years from the start date of the first benefit the injured person was paid.
Where a compensation payment is not made as a result of an Injuries Board assessment or a court order, the compensator must pay the Minister the full amount of the recoverable benefits and assistance specified in the statement of recoverable benefits and assistance.
However, where the compensation payment is made as a result of an Injuries Board assessment or a court order, the obligation to pay the Minister is limited to the total amount of damages in relation to the loss of earnings or profits. This means that, where a compensation payment arises as a result of an Injuries Board assessment or a court order, the compensator must pay either:
- the total amount of compensation assessed in relation to the loss of earnings or profit; or
- the amount of recoverable benefits and assistance specified in the statement of recoverable benefits and assistance,
whichever is the smaller amount.
A compensator can offset the recoverable benefits and assistance paid to the Minister against compensation for loss of earnings or profits. However, the compensator cannot offset the recoverable benefits and assistance against any other element of the compensation payment (e.g. general damages, special damages for medical expenses).
Where there is more than one compensator, each compensator is liable to pay the full amount due to the Minister. Compensators should, therefore, work together to apportion their individual liability to ensure that the full amount due is paid to the Minister.
Each compensator can only reduce the amount of any damages for loss of earnings or profits paid to the injured person by the amount of recoverable benefits and assistance that s/he is paying to the Minister.