MITIGATION OF DAMAGES BY BENEFITS RECEIVED
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02217.x |
| Author | G. GANZ |
| Date | 01 September 1962 |
| Published date | 01 September 1962 |
MITIGATION OF DAMAGES
BY
BENEFITS RECEIVED
THE question which
will
be discussed in this paper
is
the extent
to
which damages recovered for personal injuries or death are reduced
by taking into account benefits received by the plaintin as
a
result
of
insurance
whether private
or
national, pension schemes whetha
contributory or non-contributory or voluntary gifts from third
parties, and how
far
the existing rules
appear
to
be sound in
principle.
A
brief summary
of
the existing
law
will
be
helpful.
1.
TEE
EXISTING
LAW
:
CASES
OF
Dwrra
(a)
Actions
by
dependants
In
cases
of
death the Fatal Accidents
Act,
1846,
provides
that
certain relatives
of
the deceased
can
recover for loss resulting from
the death.
At
common law,
benefits
accruing to them
from
private
insurance policies and pension schemes whether contributory
a
or
non-contributory
a
were deducted. This situation
ww
reversed by
statute which provided that insurance benefits (Fatal Accident
(Damages) Act,
1908)
and pensions and gratuities paid as a result
of
the death (Fatal Accidents Act,
1050,
8.
2)
should not
be
deducted.
It
is
interesting
to
see how these statutes came to
be
passed.
The story starts in
1864
when the Railway Passengers Assurance
Company asked for powers under a private
Bill
and the House of
Commons in a
fit
of
pious resolution
imposed
on
it
a
clause whereby
insurance money payable by the company was not
to
be
deducted
from damages recovered under the
Fatal
Accidents Act,
1846.
This
seems to have
been
good
for trade because two private insurance
companies then obtained Acts
"
contracting out
of
the
Fatal
Acci-
dents Act." When forty more
clamoured
for exemption the govern-
ment thought that the time had come
to
equelise competition
by
1
Hicks
v.
Ihwport, etc.,
Ry.,
4
B.
&
8.
403n.
but
in
caw
of
life
insumnce
death only accelerates payment and therefore
the
benefit conasto
of
the
interert
during the period of acceleration,
Ls.,
the normal
expectation
of
life
of
the
deceased, which might be com nsated by deducting from the ertimate of the
future earnings
of
the decea86r the amount
of
the premiums which
if
he had
lived he would have had to pay out of
his
earnings for the maintmmce of the
policy; see Lord Watson.
Grand
Trunk
Ry.
of
Canada
v.
Jennings
(1888)
13
Ap
CSE.
800,
806
explaining
Hicks
V.
Nswport
By.
?t
is difficult to understand why the advantage derived from accelemtion
of
the
life
plicy,ahould be cancelled out
by
the additional advantage of not
having
to
pay futtber premiums.
2
Lory
V.
G.W.
RU.
[isra] 1
~ii
E.R.
a30.
8
Baker
v.
Dalgleish
SS.
Co.
[lW9]
1
K.B.
361.
559
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