COLLATERAL BENEFITS AGAIN
| Author | P. S. Atiyah |
| Date | 01 July 1969 |
| Published date | 01 July 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb01223.x |
COELATER.AL
BENEFITS
AGAIN
THE
ISSUES
A
PERENNIAL
problem in the assessment of damages
for
personal
injuries
or
for loss of,
or
damage to, property is the extent to which
benefits accruing to the plaintiff which would not have accrued
but for the tort are to be offset against the damages. The problem
.takes many forms, and the solutions are almost as various. In
the case of damage to property, for example, the usual offsetting
benefit is an insurance policy, and here
it
has long been established
that the property owner cannot recover twice over. The insurer is
subrogated to the property owner's rights and can sue the tortfeasor,
but the property owner himself cannot recover from his insurers
and also from the tortfeasor.
If,
therefore, insurers do not enforce
their subrogation rights, the result is that insurance usually sup-
plants tort law as the method
of
compensation. In the case of
personal injury the problem takes many forms
:
apart from deducti-
bility of personal accident insurance policies, questions arise about
sick pay (payable voluntarily or by virtue of some legal obligation),
about charitable
or
benevolent payments to the plaintiff, about
disability pensions and about social security benefits. Moreover,
in the case of personal accident insurance or disability pensions
the question arises whether the position is the same irrespective of
who has
''
paid for
''
the benefits and who is the defendant. For
example, a personal accident policy taken out privately and paid for
by the plaintiff himself is not necessarily in like case as the insurance
taken out by the plaintiff's employer to cover him while he is in
the course
of
his employment, especially where the employer is the
defendant. Then again, there are fatal accident cases where the
benefits may take the form of life insurance policies and social
security benefits, not to mention benefits accruing directly from
the death of the breadwinner in the form
of
property passing by his
will
or
on his intestacy.
Some of these problems have received statutory solutions
;
others
have been left to the courts to work out, and hitherto the courts
have found the problems exceptionally difficult. Few areas of
the common law have provoked such disagreement among the
judiciary in recent years as the deductibility
of
collateral benefits
in personal injury cases. Particularly ironic is the comparison
between
British Transport Commission
v.
Gourley,'
which dealt
with the income tax question, and
Pawy
v.
CleaL'er,2
with which
1
[1956]
A.C.
185.
2
[1969]
1
All
E.R.
565.
397
To continue reading
Request your trial