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The Influence of Insurance on the Award of Damages
Published online by Cambridge University Press: 12 February 2016
Extract
Sec. 55(1)(b) of the Civil Wrongs Ordinance, 1944, which deals with compensation for the tortious death of a person, prescribes:
“Provided that, in assessing such compensation—(i) any sum paid or payable on the death of the deceased under any contract of assurance or insurance, …shall not be taken into account.”
This provision is taken from sec. 52(1)(b) of the Cyprus Civil Wrongs Law, 1932(s. 53(1)(b) of the 1950 edition of the Laws of Cyprus) and goes back to sec. 1 of the English Fatal Accident (Damages) Act, 1908 (now sec. 2 of the Fatal Accident Act, 1959).
There is a more general provision in sec. 65 of the local Ordinance (sec. 86 of the New Version):
“In assessing any compensation payable by reason of any civil wrong any sum paid or payable under any contract of assurance or insurance in connection with such civil wrong shall not be taken into account.”
This section reproduces sec. 62 (sec. 63) of the Cyprus Law, and an explanation given of that provision states that “this incorporates the general principle of English Law”.
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References
1 Sec. 81(1) of the New Version (Hebrew).
2 Tedeschi, and Rosenthal, , Civil Wrongs Ordinance, 110, 113.Google Scholar
3 Ibid. 146.
4 This view of the Cypriot draftsman recently received the backing of the House of Lords in Parry v. Cleaver [1969] 2 W.L.R. 821, at 830.
5 The Heron II [1967] 3 All E.R. 686; [1967] 3 W.L.R. 1491.
6 [1955] 1 Q.B. 13, at 24.
7 [1959] 2 Q.B. 226, at 243.
8 An unusual case was decided by the Israel Supreme Court in Reif v. “Hassneh” Ltd. (1966) (II) 20 P.D. 393. The owner of a car had insured the life of passengers in addition to his liability for negligence. The Court applied sec. 55(b) of the Ordinance, relying on the English cases quoted in nn. 6 and 7 above.
9 In Browning v. The War Office [1963] 1 Q.B. 750, at 764–65, Diplock, L.J. criticized the use of terms such as wrongdoer or tortfeasor, since the person liable to pay damages may be quite innocent, e.g. the tortfeasor's employer or an insurance company.
10 Bradburn v. Great Western Rly. [1874] L.R. 10 Ex. 1, at 3.
11 [1951] All E.R. 910, at 912; [1952] 1 K.B. 26, at 36.
12 (1956) 10 P.D. 190, at 196.
13 [1960] 1 All E.R. 607; [1960] 1 W.L.R. 328.
14 See n. 11 above.
15 But now see Lord Pearce in Parry v. Cleaver [1969] 2 W.L.R. 821, at 843: “Each [i.e. the pension as well as the accident] is certainly a causa sine qua non and probably each is entitled to be called a causa causans.”
16 [1951] All E.R. 910, at 914.
17 Bowskill v. Dawson [1955] 1 Q.B. 13; Green v. Russel [1959] 2 Q.B. 226.
18 [1956] A.C. 185; [1955] 3 All E.R. 796.
19 [1963] 1 Q.B. 750; [1962] 3 All E.R. 1089.
20 [1968] 1 Q.B. 195; [1967] 2 All E.R. 1168.
21 See n. 16.
22 [1968] 1 Q.B. 195, at 207; [1967] 2 All E.R. 1168. at 1171–72.
23 [1969] 2 W.L.R. 821.
24 [1964] 1 Q.B. 95, at 143.
25 The House of Lords, in Parry v. Cleaver, now rejects the distinction between pensions receivable as of right and discretionary pensions: see loc. cit. at p. 829 and 849.
26 [1968] 1 Q.B. 195, at 206–07.
27 [1874] L.R. 10 Ex. 1.
28 [1912] A.C. 673, at 690.
29 [1963] 1 Q.B. 750, at 760.
30 In Oxygen Warehouses v. Bernstein's Estate (1968) (II) 22 P.D. 914, 922–23 it was found that a workers' pension fund grants benefits of different kinds and the one called “pension” was not based on an insurance contract. The payment in dispute was considered a life insurance in the meaning of sec. 65: A worker joins the society at will, so that his payments are based on contract. The amount paid to his survivors is derived from his payments, and the employer's contribution to the fund by virtue of the collective agreement is in the nature of an addition to the worker's pay. The payment is conditioned on the member (and his employer) having made payments for at least 12 months of work and the member not having attained the pension age. It would hardly be possible to say that joining the fund is not a matter of contract, and that a contract to pay a certain amount in case of death is no contract of life insurance. See also note 32. But severance-pay insurance, paid chiefly by the employer, is treated differently: Yaron v. “Tnuva” (1966) (III) 20 P.D. 320; “Geula” v. Vardi (1969) (I) 23 P.D. 345.
31 Apparently also in Germany. See the interesting judgment of the Federal Supreme Court of 29.10.1968 (NJW 69/98, at 100, second col.).
32 In respect of a contract of insurance in the meaning of sec. 65 it makes no difference if the insurance is arranged with a private insurance company or with a mutual insurance society or with the pension fund of “Mivtahim” which is The Worker's Social Insurance Institute Ltd.: Lapidot Ltd. v. Schliesser (1968) (II) 22 P.D. 379, at 385 (para. 6 of Cohn J.'s judgment).
33 Hereafter: N.I.L.
34 Sec. 154 N.I.L. (Cons. Vers.) erroneously mentions the similar provision of sec. 81 (1) instead of sec. 86 of the Ordinance (N.V.).
35 Mekorot v. Greenberg (1967) (II) 21 P.D. 706, at 709.
36 Before the 1956 amendment of sec. 62 of the Ordinance this result had to be inferred by a somewhat cumbersome deduction from sec. 70 N.I.L. See the criticism of the law as then in force in Magen-Chetwood v. Grossberg (1956) 10 P.D. 190 at 194. See also the official explanation to the amendment of sec. 62: Hatza'ot Hok No. 238, 1955, p. 156.
37 (1967) (I) 21 P.D. 443.
38 Tedeschi and Rosenthal, op. cit. 168.
39 Linzer v. New Zealand Insurance Co. (1960) 23 P.M. 22; see also Aharoni v. Shalom (1960) 25 P.M. 44.
40 Where insurance benefits are limited as in the case of national insurance against work accidents, he may receive less than full compensation, retaining his claim against the party liable in respect of the balance, provided he can prove the fault necessary for tort liability: sec. 62(2) 82(a)) of the Ordinance: “the benefit [of the national insurance] shall be deducted from the amount of compensation due to him … from his employer.…”
41 On unsuccessful proposals in Denmark to free the author of the damage in cases where insurance by the other party was customary, see Stig Jørgensen in a mimeographed paper entitled Ersatz und Versicherung.
42 Williams, , Joint Torts and Contributory Negligence (1951) 281.Google Scholar Cf. the Israel Contract Law (Remedies for Breach of Contract) Bill 1969, sec. 13(b).
43 The effectiveness of such clauses to bar tort claims against subsidiaries of the stipulator, who are not themselves parties of the contract, constitutes a problem beyond the scope of this article.
44 Cf. Tedeschi, “On the Concept of Tort” (1968) 3 Is.L.R. 161, at 176.
45 Apart from the now authoritatively recognized, non-contractual privilege of the British barrister.
46 See examples given in the Explanations to the German Referenten-Entwurf eines Gesetzes zur Aenderung und Ergaenzung Schadensersatz-rechtlicher Vorschriften (1967) vol. II, pp. 37–39. See also n. 41 above.
47 In Pilkington v. Wood [1953] Ch. 770, at 777–78, such an attempt was rejected on other grounds.
48 (1967) (II) 21 P.D. 706.
49 Ibid. 709.
50 (1967) (I) 21 P.D. 281.
51 Ibid. 286.
52 (1966) (I) 20 P.D. 468.
53 Ibid. 472.
54 See the paper quoted in n. 41.
55 [1961] A.C. 388, at 422.
56 [1967] A.C. 645, at 663.
57 See above n. 9.
58 See also Tedeschi, , “Recovery of Compensation for Personal Injuries” (1965) 21 Hapraklit 231, esp. 241.Google Scholar
59 “Factors Determining the Amount of Damages” (1969) 4 Is.L.R. 175.