Collateral Benefits
Civil Liability Act, 1961
Sums not to be taken into account in assessing damages.
50.—(1) In assessing damages under this Part account shall not be taken of—
(a) any sum payable on the death of the deceased under any contract of insurance,
(b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the death of the deceased.
F24[(2) In assessing damages under this Part, account shall not be taken of any charitable gift (whether in the form of money or other property) made to the plaintiff in consequence of the death of the deceased unless—
(a) the defendant is the donor of the gift, and
(b) at the time of the making of the gift he or she informs the plaintiff in writing that, should the plaintiff recover damages in an action under this Part, 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.]
Civil Liability Act, 1964
Sums not to be taken into account
in assessing damages (personal injury not causing death).
2.—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—
(a) any sum payable in respect of the injury under any contract of insurance,
(b) any pension, gratuity or other like benefit payable under statute or otherwise in consequence of the injury.
F1[(2) 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—
(a) the defendant is the donor of the gift, and
(b) (i) 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
(ii) 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 defendant in the course of his or her employment.]
Social Welfare Act 2013
RECOVERY OF CERTAIN BENEFITS
Interpretation
343L. (1) In this Part—
“Act of 2003” means the Personal Injuries Assessment Board Act 2003;
“Board” means the Personal Injuries Assessment Board;
“compensation payment” has the meaning assigned to it by section 343M;
“compensator” has the meaning assigned to it by section 343M;
“court” means, in relation to a personal injury action, the court in which that action has been
brought, being the High Court, Circuit Court or District Court, as the case may be;
“injured person” has the meaning assigned to it by section 343M and includes any person
acting on his or her behalf or his or her personal representative;
“personal injury” includes any disease and any impairment of a person’s physical or mental
condition;
“recoverable benefits” has the meaning assigned to it by subsection (2);
2476 Part 11A inserted by s.15 SW&P(MP)A 2013
2477 Part 11B (sections 343L to 343W) inserted by s.13 SW&PA 2013 and commenced by S.I. No. 308 of 2014
501
“relevant compensation payment” means any part of a compensation payment that is
attributable to loss of earnings or profits of an injured person;
“relevant statement of recoverable benefits” means a statement of recoverable benefits or,
where a revised statement of recoverable benefits has been issued, the revised statement of
recoverable benefits;2478
“revised statement of recoverable benefits” means a statement issued by the Minister under
subsection 343PA(2) specifying the amount of recoverable benefits in respect of an injured
person; 2479
“specified benefits” has the meaning assigned to it by section 343O;
“specified period” shall be construed in accordance with section 343N;
‘statement of recoverable benefits’ means a statement issued by the Minister under section
343P.2480
“statement of recoverable benefits” means a statement issued by the Minister under section
343P(3) or 343PA(1) specifying the amount of recoverable benefits in respect of an injured
person.2481
(2) In this Part ‘recoverable benefits’ means—
(a) the specified benefits paid to an injured person as a result of the personal injury
up to the date of the issuing of a statement of recoverable benefits, and
(b) any specified benefits that may be paid to the injured person as a result of the
personal injury on or after the date referred to in paragraph (a) until the end of the
specified period.2482
(2) In this Part ‘recoverable benefits’ means—
(a) in the case of a statement of recoverable benefits issued under section 343P(3) or
343PA(1)—
(i) the specified benefits paid to an injured person as a result of the personal
injury before the date of the issuing of the statement of recoverable benefits, and
(ii) the specified benefits that may be paid to an injured person as a result of the
personal injury on or after the date referred to in subparagraph (i) until the end
of the specified period,
and
(b) in the case of a revised statement of recoverable benefits issued under section
343PA(2)
2478 Inserted by s.12(1)(c)(i) SW(MP)A 2015
2479 Inserted by s.12(1)(c)(i) SW(MP)A 2015
2480 Substituted by s.12(1)(c)(ii) SW(MP)A 2015
2481 Substituted by s.12(1)(c)(ii) SW(MP)A 2015
2482 Substituted by s.12(1)(c)(iii) SW(MP)A 2015
502
(i) the specified benefits paid to an injured person as a result of the personal
injury before the date of the issuing of the revised statement of recoverable
benefits, and
(ii) the specified benefits that may be paid to an injured person as a result of
the personal injury on or after the date referred to in subparagraph (i) until
the end of the specified period.2483
Application of Part
343M. (1) Subject to subsection (2), this Part applies where—
(a) a payment (in this Part referred to as a ‘compensation payment’) is made by or
on behalf of a person (in this Part referred to as the ‘compensator’) who is, or is
alleged to be, liable to any extent in respect of a personal injury, not causing death,
suffered by any other person (in this Part referred to as the ‘injured person’),
(b) the injured person has received, is receiving, or may receive, a specified benefit
as a result of that personal injury during the specified period, and
(c) the compensation payment is made on or after the commencement of this Part
unless that payment is made pursuant to a court order, an order of the Board in
accordance with the Act of 2003 or a settlement and that order or settlement is
made before the commencement of this Part.
(2) This Part does not apply where compensation payments are made to an injured person—
(a) by the Hepatitis C and HIV Compensation Tribunal,
(b) by a court of competent jurisdiction to compensate certain persons who have
contracted Hepatitis C or Human Immunodeficiency Virus within the State from the
use of Human Immunoglobulin Anti-D, whole blood or other blood products,
(c) by the Residential Institutions Redress Board,
(d) by the Residential Institutions Statutory Fund Board,
(e) under the provisions of the Health (Repayment Scheme) Act 2006 to a relevant
person within the meaning of that Act,
(f) by the Criminal Injuries Compensation Tribunal,
(g) in relation to disability caused by Thalidomide,
(h) in accordance with the Garda Síochána (Compensation) Acts 1941 to 2003, or
(i) by a tribunal, redress board or under a scheme of compensation where that
tribunal, scheme or redress board is prescribed under subsection (3).
(3) The Minister may prescribe a compensation tribunal, redress board or scheme of
compensation for the purposes of subsection (2) where—
2483 Substituted by s.12(1)(c)(iii) SW(MP)A 2015
503
(a) compensation payments by the tribunal, redress board or under the scheme are
made from moneys provided by the Oireachtas, or
(b) the tribunal or redress board is performing functions conferred on it by or under an
enactment, or
(c) the scheme is administered by the Minister or a Minister of the Government
other than the Minister,
and the Minister is satisfied that such prescribing will assist in securing
beneficial, effective and efficient use of funds available to that tribunal, redress
board or scheme.
(4) This Part applies notwithstanding section 2 of the Civil Liability (Amendment) Act 1964.
Specified period
343N. The specified period in respect of which specified benefits are recoverable is the
period beginning on the date on which the injured person first becomes entitled to a specified
benefit as a result of the personal injury and ending on the earliest of the following—
(a) the expiration of the period of 5 years from that date,
(b) the date on which a 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, or
(c) the date on which an agreement is made under which agreement an earlier
payment is treated as having been made in final discharge of any such claim.
Specified benefits
343O. The specified benefits are:
(a) illness benefit under Chapter 8 of Part 2;
(b) partial capacity benefit under Chapter 8A of Part 2;
(c) injury benefit under section 74;
(d) an increase of disablement pension in accordance with section 77 or 77A, where
the person is incapable of work and likely to remain permanently so incapable;
(e) invalidity pension under Chapter 17 of Part 2;
(f) disability allowance under Chapter 10 of Part 3. Part 3;
2484
(g) supplementary welfare allowance paid under Chapter 9 of Part 3.2485
Application for statement of recoverable benefits
343P. (1) Subject to subsection (2), a compensator shall apply to the Minister for a statement
of recoverable benefits before making any compensation payment to, or in respect of, an
injured person.
2484 Substituted by s.17(a)(i) SW(No.2)A 2019
2485 Inserted by s.17(a)(ii) SW(No.2)A 2019
504
(2) The Board shall apply to the Minister for a statement of recoverable benefits before
issuing an order to pay under section 38 of the Act of 2003.
(3) The Minister shall, within 4 weeks within 25 working days 2486from the date of receipt of
an application under subsection (1) or (2), issue a statement of recoverable benefits to the
compensator or the Board, as the case may be.
(4) The Minister shall, at the same time as issuing a statement of recoverable benefits to a
compensator or the Board under subsection (3), issue a copy of the statement to the injured
person.
(5) The Minister may by regulations prescribe—
(a) the information required by him or her relating to the identity of the injured person
and benefits received by that person for the purposes of an application for a statement
of recoverable benefits, and
(b) the form in which the application shall be made.
Issuing of statements and revised statements of recoverable benefits by Minister
343PA.(1)The Minister may issue a statement of recoverable benefits to a compensator or the
Board, as the case may be, where—
(a) a compensator has made a compensation payment to, or in respect of, an injured
person but has not applied for a statement of recoverable benefits under section
343P(1), or
(b) the Board has issued an order to pay under section 38 of the Act of 2003 but has
not applied for a statement of recoverable benefits under section 343P(2).
(2) The Minister may issue a revised statement of recoverable benefits to a compensator or
the Board, as the case may be, where, subsequent to the issue of a statement of recoverable
benefits under subsection (1) or section 343P(3), a decision or a revised decision, within
the meaning of section 343Q(4), is given to—
(a) award a specified benefit to an injured person, or
(b) vary a specified benefit payable to an injured person.
(3) The Minister shall, at the same time as issuing a statement of recoverable benefits under
subsection (1) or a revised statement of recoverable benefits under subsection (2) to a
compensator or the Board, as the case may be, issue a copy of the statement to the injured
person.
(4) The Minister may by regulations prescribe the information to be provided by a
compensator or an injured person which is required by the Minister in relation to the identity
of the injured person and benefits received by that person for the purposes of issuing a
statement of recoverable benefits under subsection (1) or a revised statement of recoverable
benefits under subsection (2), as the case may be.
2487
2486 Substituted by s.17(b) SW(No.2)A 2019
2487 Section 343PA inserted by s.12(1)(d) SW(MP)A 2015
505
Transfer of personal data, under Part 11B, to compensator in United Kingdom2488
343PB. (1) Where—
(a) a compensator is subject to the laws, regulations and administrative procedures of
the United Kingdom, and
(b) an injured person has received, is receiving, or may receive, a specified benefit,
the Minister shall, for the purposes of this Part and subsection (2), transfer to a
compensator referred to in paragraph (a) personal data specified in subsection (3) in
respect of an injured person referred to in paragraph (b) in all or any of the following:
(i) a statement of recoverable benefits issued by the Minister under section
343P(3) or section 343PA(1);
(ii) a revised statement of recoverable benefits issued by the Minister under
section 43PA(2);
(iii) a refund made by the Minister under section 343U.
(2) The personal data referred to in subsection (1) in respect of an injured person referred to
in subsection (1)(b), that are transferred in a statement, or refund, referred to in subsection
(1), are necessary for the payment to the Minister, by a compensator referred to in subsection
(1)(a), of any specified benefit received by, or which may be received by, an injured person
referred to in subsection (1)(b) to whom, or in respect of whom, a compensation payment is
made by that compensator.
(3) The personal data referred to in subsection (1) are personal data within the meaning of
Article 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27
April 201619 on the protection of natural persons with regard to the processing of personal
data and on the free movement of such data, and repealing Directive 95/46/EC that are—
(a) required for the purposes and effective operation of this Part and subsection (2),
and
(b) held by the Minister for those purposes and that operation.2489
OJ No. L 119, 4.5.2016, p.1
Statement of recoverable benefits
343Q. (1) A statement of recoverable benefits shall, in respect of the injured person
concerned, specify the amount of recoverable benefits.
(2) A statement of recoverable benefits shall be valid for 3 months from the date that it
is issued.
(3) A person to whom a statement of recoverable benefits is issued may request the
Minister to furnish particulars of the manner in which the amount of recoverable
benefits specified in the statement of recoverable benefits was calculated.
(4) The Minister shall furnish the particulars requested under subsection (3) within 4
weeks of the receipt of such a request.2490
2488 Section.343PB inserted by s.101 WUKEU(CP)A 2020
2489 S.343PB inserted by s.101 WUKEU(CP)A 2020
2490 Substituted by s.12(1)(e) SW(MP)A 2015
506
Period of validity of statements and revised statements of recoverable benefits
343Q.(1)A statement of recoverable benefits or a revised statement of recoverable benefits
shall be valid—
(a) in a case where, at the time of issuing the statement, no recoverable benefits have
been identified—
(i) for 12 months from the date of issue of the statement of recoverable
benefits or revised statement of recoverable benefits, as the case may be, or
(ii) until such time as a decision or a revised decision is given to award a
specified benefit to an injured person,
whichever is the earlier,
(b) in a case where, at the time of issuing the statement, recoverable benefits have
been identified and no specified benefit is being paid—
(i) for 12 months from the date of issue of the statement of recoverable
benefits or revised statement of recoverable benefits, as the case may be, or
(ii) until such time as a decision or a revised decision is given to award a
specified benefit to an injured person or to vary a specified benefit payable to
an injured person,
whichever is the earlier, and
(c) in any other case—
(i) for 3 months from the date of issue of the statement of recoverable benefits
or the revised statement of recoverable benefits, as the case may be, or
(ii) until such time as a decision or a revised decision is given to vary a
specified benefit payable to an injured person,
whichever is the earlier.
(2) A person to whom a statement of recoverable benefits or a revised statement of
recoverable benefits has been issued may request the Minister to furnish particulars of the
manner in which the amount of recoverable benefits specified in the statement was
calculated.
(3) The Minister shall furnish the particulars requested under subsection (2) within 4 weeks
of the receipt of such a request.
(4) In this section—
‘decision’ means—
(a) a decision that is given by a deciding officer under section 300, or
(b) a decision that is given by an appeals officer under section 311;
2491 S 343Q substituted by s.12(1)(e) SW(MP)A 2015
507
‘revised decision’ means—
(a) a revised decision that is given by a deciding officer under section 301, or
(b) a revised decision that is given by an appeals officer under section 317.
Obligation to pay recoverable benefits
343R. (1) Subject to subsection (2), a compensator shall pay to the Minister the amount of
recoverable benefits specified in the statement of recoverable benefits relevant statement of
recoverable benefits 2492 before making any compensation payment to, or in respect of, an
injured person.
(2) Where the recoverable benefits specified in the statement of recoverable benefits
relevant statement of recoverable benefits 2493 exceed the amount of the relevant
compensation payment and that relevant compensation payment was the subject of an order
of a court or assessment by the Board in accordance with the Act of 2003, the compensator is
liable only to the extent of that amount so ordered or assessed.
(3) A compensator who fails to comply with subsection (1) or otherwise fails to pay the
amount of recoverable benefits due to the Minister is liable to pay on demand to the Minister
that amount of recoverable benefits so due.
Reduction of compensation payment to injured person
343S. (1) A compensator who pays an amount equal to the total amount of the recoverable
benefits to the Minister in accordance with section 343R may reduce the relevant
compensation payment payable to the injured person by that amount and shall notify the
injured person accordingly.
(2) The compensation payment, other than the relevant compensation payment, payable by a
compensator to an injured person shall not be reduced by the compensator where the total
amount of the recoverable benefits exceeds the amount of the relevant compensation payment
payable to an injured person.
Discharge of liability to injured person
343T. Where this Part applies to a claim for a compensation payment by or on behalf of an
injured person, that claim, in so far as it relates to a relevant compensation payment, shall be
treated as discharged to the extent that the compensator has made a payment. to the Minister
in respect of that claim in accordance with section 343R.
Refund to compensator where specified benefit not paid
343U. (1) Where a compensator has made a payment to the Minister in accordance with
section 343R and any part of that payment includes specified benefits referred to in
subsection (2), the Minister shall refund to the compensator the amount of that payment
which represents those benefits.
(2) The specified benefits referred to in subsection (1) are those benefits, within the meaning
of paragraph (b) paragraph (a)(ii) or (b)(ii) 2494 of the definition of recoverable benefits, not
paid by the Minister to the injured person at the end of the specified period.
2492 Substituted by s.12(1)(f)(i) SW(MP)A 2015
2493 Substituted by s.12(1)(f)(ii) SW(MP)A 2015
2494 Substituted by s.12(1)(g) SW(MP)A 2015
508
Appeals under section 311
343V. (1) This section applies where an appeal is brought under section 311 (amended by
section 13 (c) of the Social Welfare and Pensions Act 2013) against a decision given by a
deciding officer on a question under paragraph (hh) (inserted by section 13 (b) of the Social
Welfare and Pensions Act 2013) of section 300(2).
(2) Where on the determination of an appeal referred to in subsection (1) an appeals officer
decides that the amount of recoverable benefits specified in the statement of recoverable
benefits relevant statement of recoverable benefits 2495 exceeds the amount of recoverable
benefits due to the Minister, the Minister shall refund the amount of that excess to the
compensator.
(3) Where on the determination of an appeal referred to in subsection (1) an appeals
officer decides that the amount of recoverable benefits specified in the statement of
recoverable benefits relevant statement of recoverable benefits 2496 is less than the amount of
recoverable benefits due to the Minister, the compensator is liable to pay the Minister the
difference between the amount paid to the Minister in accordance with section 343R and the
amount of recoverable benefits due to the Minister as decided by the appeals officer.
More than one compensator making compensation payment
343W. Where two or more compensators are liable by virtue of this Part for recoverable
benefits for the same personal injury, they shall be liable jointly and severally to the Minister
in relation to those benefits and Part III of the Civil Liability Act 1961 shall be read as
applying to that liability with all necessary modifications.
2497
Transitional Arrangements
343X. Any statement of recoverable benefits issued prior to the coming into operation of
section 12 of the Social Welfare (Miscellaneous Provisions) Act 2015 shall be valid for the
period specified in that statement or until a decision or a revised decision, within the meaning
of section 343Q(4), is given to award a specified benefit to an injured person or to vary a
specified benefit payable to an injured person, whichever is the earlier.
Cases
Hogan v. E.S.B.
[1999] IEHC 64 (17th December, 1999)
THE HIGH COURT
1996 No. 1555p
BETWEEN
ANTHONY HOGAN
PLAINTIFF
AND
THE ELECTRICTY SUPPLY BOARD
DEFENDANT
JUDGMENT of Mr Justice O’Higgins dated the 17th day of December 1999 .
1. The Plaintiff at the time of the accident was working as a general operative in the ESB. He had been employed as such as such for over 17 years prior to the date of the accident. On Monday 27th February, 1995 the Plaintiff and another general operative were working at the ESB’s 38KV station in Roscommon. The person in charge of work was Mr Paschal Macken an electrician.
2. The Plaintiff’s duties involved cleaning a house transformer in the station with a wire brush with a view to painting it later. This transformer was enclosed in a cubicle made of wire grill. In the morning the transformer had been taken out of commission prior to the commencement of work on it. At lunch time the house transformer had been put back into commission and was energised with electricity. Shortly after 2 o’clock, following his lunch break the Plaintiff returned to the transformer, unbolted the mesh grill and suffered very serious burns and shock when he came into contact with the live transformer. He was fortunate to survive the accident, and is left with very nasty scarring as described in the medical reports. He also suffered from post traumatic stress disorder and from depression.
THE FACTS
3. There is a serious conflict in evidence on a number of vital matters in this case. The Plaintiff’s case is that he was not present at lunch-time when the transformer was put back into commission and that he was not told that it had been energised. He says that at that time he had gone to a hut to get some paint to have it ready for the afternoon and that Mr Macken, who was in charge, and Mr Westman, the general operative stayed back in the cubicle. The Plaintiff says they came in around 1 o’clock for their tea. He maintained that he did not see what was done at the cubicle nor did he see the connection being made or the earths being taken off. He was in the hut at the time. The Plaintiff’s evidence was to the effect that he came out of the hut with Mr Macken and he said to Mr Macken “I’ll take you out of bad humour, Packie, I’ll go and do the painting now.” This was an indication that he was going back to work and Mr Macken did not prevent him from so doing, notwithstanding the fact that the transformer was live.
4. Mr Macken said however, that at about 1 o’clock he told both the Plaintiff and Mr Westman to clear the cubicle and that he was going to put the house transformer back into commission. He saw Mr Hogan leave the cubicle. Moreover, he saw Mr Hogan in the process of bolting back the screen. Mr Hogan seemed to be struggling with the screen and Mr Macken asked “are you okay?”. Mr Macken also denied that he left the hut with the Plaintiff and denied that the Plaintiff told him that he was going down to paint the transformer.
5. The account given by Mr Macken is substantially corroborated in its essentials by the evidence of Mr Westman. He had no doubt that the Plaintiff was present when Mr Macken said that he was going to put the transformer back into service. Moreover, he said that Mr Macken went off first to make a telephone call after lunch leaving the Plaintiff and Mr Westman in the hut. He left the hut at about the same time as the Plaintiff, he then returned to get warmer clothing.
6. Mr Macken gave evidence that after coming upon the appalling scene of the accident that the Plaintiff was conscious and said to him twice, “sorry Packie, I just forgot”. The Plaintiff has no recollection of such conversation. Mr Relihan the surgeon says that one should be cautious in placing reliance on what a person says when they are in severe shock.
7. Angela Dobson, sister of the Plaintiff said that she had a conversation in the hospital with Mr Macken and she said “whatever happened?”, and he said “I am so sorry Angela” , either “ I didn’t know the power was on ”, or “ he didn’t know the power was on”. She cannot be sure which was said. Mr Macken says he may have spoken but he did not have any conversation about who was at fault or that type of thing.
8. While I find Mr Macken to be a truthful conscientious witness I believe he is wrong in this respect, and that a conversation did take place between himself and Angela Dobson. However, in my view, the conversation was more likely to be that he, the Plaintiff, did not know the power was on, rather than that Mr Macken did not know that the power was on. In my view, it is extremely unlikely that Mr Macken would have told Mrs Dobson that he, Mr Macken, did not know that the power was on since the factual position was manifestly otherwise.
9. There is no animosity between Mr Macken and the Plaintiff. In fact they are friends. No reason has been suggested why Mr Macken should be inventing his account. It is not likely to be a mistaken recollection. In my view the evidence of Mr Macken and Mr Westman is more likely to be correct than the evidence of Mr Hogan. I therefore, accept the account of the accident given by them rather than the account given by the Plaintiff
10. Mr. Tennyson, the engineer for the Plaintiff, made a number of criticisms of the Defendant’s system of work. They are as follows:
1. The failure to have task specific, easily understood instructions.
2. The failure of Mr. Macken, the electrician, to supervise the tightening of the bolts on the screen.
3. The failure to fully implement the “declaring off” procedure.
4. The failure to implement a “roping off” procedure.
5. The turning on of the transformer at lunch.
6. The breach of statutory duty.
1. The failure to have task specific, easily understood instructions . While there is a “Distribution procedure; safety on switch out” document, the fact that there is no mention in it either of temporary restoration of power or of refixing the screens is criticised. In my view it is not negligent of the Defendant not to have the procedures set out in the detail stipulated by Mr. Tennyson. The Plaintiff had seventeen years experience and he was familiar with the dangers of live electricity. He does not make the case that he did not know how to do his job. In any event such failure did not cause or contribute in any way to the accident herein.
2. The failure of Mr. Macken to supervise the tightening of the bolts . The Plaintiff maintains that in view of the very dangerous nature of the equipment that Mr. Macken should have supervised the tightening of the bolts by Mr. Hogan. I cannot agree with that contention. In my view, when a general operative of seventeen and a half years experience is asked to tighten a bolt on a screen, it is reasonable to assume that he is capable of so doing and that he will do so properly.
3. The “declaring off” procedure . The yellow book of safety rules of 1993 at page 32 contains the following rule:
4.11.1 Declaring off; and removal of Local Earths . When the work is completed and the person in charge of the work has checked that all the persons under his/her charge have been declared off and that the appartus for which he/she is responsible is ready for operation he/she shall personally remove or supervise the removal of all local earths put on by him/her, or under his/her supervision.
11. Earlier at page 6 of the book “declared off” is defined as:
“Confirmation that all persons who had been engaged in work on a particular apparatus are now clear of same and have been instructed to remain clear.”
12. The Plaintiff puts great stress on the formality of this procedure. The Plaintiff maintains that this procedure was not carried out with sufficient formality, and that it was not carried out in full because the Plaintiff was not specifically instructed to remain clear. The Defendants maintain that the ‘declaring-off’ procedure was not necessary at the time because the work was not completed. Furthermore they say that since the accident did not take place at that time that another safety rule applies. In particular they maintain that the Plaintiff is in breach of rule 6.1.3 which says:
“No person shall commence or recommence work on H.V. or L.V. apparatus unless he/she complies with the following requirements:
(1) he/she has been instructed by the person in charge of the work, who shall be of known identity, that he/she may commence, or recommence work ”
13. In my view, the declaring off procedure is appropriate not only on completion of the entire work, but also on completion of a session of work involving a change such as re-energising the transformer in the cubicle. The above rule contemplates the situations where the apparatus is being re-energised. I accept that the procedure takes place before the removal of the earth wires and that the order to clear the cubicles was part of the declaring off procedure. The Defendants were in default, however, in not fully complying with that procedure. Although the Plaintiff was told to clear the cubicle he was not specifically told to remain clear of the installation. In my view, it is likely that such failure contributed, albeit to a relatively small extent, to the accident which took place, particulary in view of the fact that during that tour of duty at the transformer station, the house transformer was probably the only item which was put back into commission at lunch-time.
4. The roping-off procedure . The roping off procedures are described in a document called D.O.M. 5.45. The procedures for roping off are described as necessary precautions for the safe execution of work in stations, but are not to be regarded as a substitute for the safety rules. The procedure of roping off is in preparation for work on equipment which has been taken out of service and otherwise made safe for work. It is a procedure to be used when the equipment within the roped off area is de-energised. Mr. Tennyson maintained that it could have been used as “a poor substitute” for a fully secured screen or as a “poor alternative”. However, if the system of roping off the area had been used, it would have been the proper practice to remove the roping once the system had been re-energised. If that procedure had been followed therefore, there would have been no roping off at the time of the accident. While some adaptation of the roping off procedure could have been used, I do not consider that the Defendants through Mr. Macken were negligent in failing to have one on that day. Likewise, while it would have been possible to put up a red flag on the recently re-energised house transformer – I do not consider it negligent of Mr. Macken not to have done so. There was no rule or special practice if the screen was in place and the Plaintiff had been made aware approximately 45 minutes prior to the accident of the re-energising of the house transformer.
5. Turning on of the transformer at lunch . Insofar as it may be suggested that it is negligent of the Defendants to turn on the transformer at lunchtime for relatively trivial purposes, that in my view, does not constitute negligence on the part of the Defendants. It is a quite valid operation for them to turn on the transformer. If the prime purpose, or even the sole purpose of doing so was to supply electricity for the kettle and the heating of the hut, there is nothing dangerous about the procedure if properly carried out. Indeed I do not think this point has been pressed by Counsel.
6. The breach of statutory duty .
14. It is alleged that the Defendant was in breach of the provisions of Section 52(1) the Safety Health and Welfare at Work (General Application) Regulations, 1993. S.I. No. 44 of 1993. Section 52(1) reads as follows:-
“Fencing of Outdoor Equipment
“Whenever a transformer or switch gear, in which high voltage is used is installed otherwise than in a building, the transformer or switch gear shall be adequately protected either by suitable fencing not less than 2.4 metres high or by some other effective means for preventing any unauthorised person from gaining access to the equipment or to have anything connected thereto which is used as a conductor.”
15. While Section 52 of the Regulations is primarily directed at outside persons gaining access to equipment, there is nothing in the wording of the section to indicate that it is confined to such people. There is no doubt at the time in question that the Plaintiff was not authorised to go into the cubicle, in fact he was expressly forbidden to do so by Rule 6.1.3 of the Safety Rules which states as follows:-
“No person shall commence or recommence work on HV or LV apparatus unless he/she complies with the following requirements:
1. He/she has been instructed by the person in charge of the work, who shall be of known identity that he/she may commence or recommence work.
16. The transformer was not adequately protected as all that was necessary for the Plaintiff to do was to open the bolt which was only hand tightened. The Plaintiff therefore prima facie comes within the ambit of Section 52. However, in this case the breach of Section 52 of the Regulations was caused by the act or default of the Plaintiff himself whose job it was to tighten the bolts on the screen. The Plaintiff cannot take advantage of his own negligence to attach liability to the Defendant.
17. This accident occurred largley through the Plaintiff’s own fault. He was told that the house transformer was being re-energised. He bolted the screen in the context of that transaction. Unfortunately he forgot about it. He was responsible for tightening the bolt and failed to do so properly. He was prohibited by Rule 6 from recommencing his work after lunch without being specifically told to do so. He failed to comply with this requirement. He failed to advert to the significance of the screen (albeit not fully tightened) and he failed to appreciate the significance of the earths not being connected and the disconnection bars being in the live position – even though these matter were apparent. Because of the foregoing, the Plaintiff must bear most of the responsibility for the unfortunate accident.
18. However, because of the failure to comply fully with the declaring off procedure, the Defendant must bear some share of liability for the accident, which I would assess as being fifteen percent. The Plaintiff is, accordingly, eighty-five percent at fault.
THE INJURIES
19. Following the accident the Plaintiff was brought in a shocked but conscious state to Roscommon County Hospital. He had very severe burns to his back, both arms and legs. He was detained in Roscommon County Hospital from the 27th day of February 1995 until the 16th day of March 1995 and he was then transferred to St. James’s Hospital, Dublin where he was an in-patient until the 27th day of March 1995. He had skin grafts on his back, both arms and on his right leg. On the 6th day of April 1995 he was still having his dressings changed three times a week. On the 12th day of April 1995 he had extensive itchiness. He was reviewed on the 20th day of June, the 18th day of July, the 14th day of August, 29th day of September and the 10th day of October 1995 during which period recovery continued and on the 10th day of October 1995 he was given a certificate to allow him to return for work.
20. He was seen by a doctor on behalf of the Defendants on the 31st day of May 1996 and was suspended from work on full pay for a year and afterwards suspended without pay. Following his suspension his mental health began to deteriorate and he suffered from insomnia, irritability and depression. Doctor Brennan saw him on the 20th day of December 1996, the 5th day of April 1997, the 21st day of November 1997, the 10th day of March 1998, the 24th day of September 1998 and the 5th day of June 1999 and on all those visits found him to be suffering from depression.
21. The scarring has been described in the various medical reports. On the 15th day of June 1995, Mr. McHugh found:-
1. The whole of the back of the left forearm was completely scarred stretching from his elbow down to his wrist and involving almost half of the circumference of the forearm,
2. On his back he had three areas of scarring:
(a) an area over the left shoulder measuring two inches in diameter
(b) an area just inside of this measuring two inches in diameter
(c) an area on the right shoulder measuring two inches in diameter.
3. He had an area of scarring over the right elbow joint.
22. The only area for the skin graft was on the back of the right thigh stretching from his buttock to his knee and covering half the circumference of this thigh. This was red and raw as of the 14th day of June 1995, but has healed very well since then. He had a scar on the outside of his right leg, half way down, measuring four inches by four inches. He had an area of scarring inside of the right arm measuring two inches by one inch and he had a small area of scarring outside of his right forearm measuring two inches by one inch. On inspection, the scars, particularly on the back and the left arm, are very unsightly indeed.
PSYCHOLOGICAL SEQUELAE OF THE ACCIDENT
23. After his return from hospital to his parents, the Plaintiff could not sleep at all and he got constant flashbacks to the accident and could hear the bang and revisualise the scene. It is fair to say that these flashbacks have diminished in frequency. As of the 23rd day of June 1995, his sleep pattern was still badly disturbed. He suffered from occasional depressive episodes and was conscious of the scars on his body. He was diagnosed as suffering from Post Traumatic Stress Disorder of severe degree and was also diagnosed as having some symptoms of depression. There was a report on the 19th day of December 1996 which assessed him as being depressed. His sleep was disturbed and he had little energy or motivation. The problems of a psychological nature were ongoing.
24. In short, Mr. Hogan, following the accident, developed symptoms of a psychological nature including depression, exacerbation of alcoholism and post traumatic stress disorder symptoms; these symptoms have now settled down to some extent and his psychiatrist considers that they should further improve. He still has flash backs to the accident and some disturbance of his sleep pattern.
25. The Plaintiff suffered terribly in this horrific accident. He continues to suffer. While the prognosis is relatively good, the Plaintiff is left with permanent unsightly scarring.
26. In my view the proper compensation on the basis of full liability would be £70,000 for pain and suffering to date and £20,000 for pain and suffering in the future, and accordingly the Plaintiff is entitled to fifteen percent of that sum. In addition, the Plaintiff is entitled to fifteen per cent of the special damages. In my view, the suspension from work of the Plaintiff was not caused by or contributed to by the accident, but to a long standing and pre-existing problem in respect of which the Plaintiff had been repeatedly warned. In those circumstances the Plaintiff’s special damages amount to £4,325.75. The Plaintiff is entitled therefore to fifteen per cent of £94,326.00 which is a sum of £14,148.00.