The Gazette 1989

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GAZETTE OCTOBER 1989
was) in the High Court in
Hickey & Co. Ltd. -v- Roches
Stores Ltd.26 held that where
t he p l a i n t i ff is awarded
damages as compensation for
loss of trading profits conse-
quent upon a breach of con-
tract no deduction shall be
made from the damages in
respect of income tax. This is
because the damages for
breach of contract are them-
selves chargeable to tax.
(v) Voluntary or ex gratia pay-
ments made by a third party
where there is no obligation to
pay the plaintiff will not be
taken into account. However,
where an employer continues
to pay wages to the plaintiff
and he is contractually obliged
to do so those wages will be
taken into account.27 Conse-
quently sick pay is deductible.
NOTES
1. The statutory position as to what
payments, made in respect of personal
injury or death, shall be taken into
account is governed by S.50 of the Civil
Liability Act. 1961, S.2 of the Civil
Liability (Amendmant) Act, 1964, and
Ss.68 and 306 of the Social Welfare
(Consolidation) Act, 1981, as amended
by S.12 of the Social Welfare Act, 1984.
There were earlier statutes which
altered the Common Law position but
they have been repealed. The Fatal
Accidents Act, 1908, and the Fatal
Injuries Act, 1956, were replaced by
Part IV of the Civil Liability Act, 1961.
The Workman's Compensation Acts,
1934 to 1955, were amended by Part
V of the Civil Liability Act, 1961, and
later repealed by S.40 of the Social
Welfare (Occupational Injuries) Act,
1966, which was in its turn replaced by
Ss.68, 306 and 310 of the Social
Welfare (Consolidation) Act, 1981.
2 . Ellis J, 17 December 1982, unreported,
7032P/1978.
3. S.306 (2) of the 1981 Act provides that
subject to S.68 the following benefits
listed in Part II shall not be taken into
account: disability benefit, unemploy-
ment benefit, injury benefit, disable-
" ment benefit, death benefit, pay-related
benefit, contributory old age pension
and retirement pension including any
survivors benefit under S.87, maternity
allowance, invalidity pension, contribu-
tory widows and orphans pensions,
deserted wifes benefit, maternity grant,
death grant. S.306 (2) is not also
subject to S.12 of the Social Welfare
Act, 1984.
4. J. Casey, "The Occupational Injuries
Act: Some Reflections", 4 Ir. Jur. (n.s.)
234 at 243-246 (1969).
5. [1988] I.L.R.M. 617 (Ex tempore
judgement of MacKenzie J, H. Ct.).
6. Ss.36, 42 and 54 of the 1981 Act and
S.13 of the Social Welfare Act, 1986.
Insurable (ocupational injuries) em-
ployment is, subject to the exceptions
mentioned in S.38 of the 1981 Act, a
reference to any employment for the
time being specified in Part I of the First
Schedule to the 1981 Act, and not
being an employment specified in Part
(ii) of that Schedule.
7. Ss.43 and 45 of the 1981 Act.
8. [1987] 2 A11 E. R. 699 C. A.
9. [1983] I.L.R.M. 156, H. Ct.
10. [1987] I.L.R.M. 603, H. Ct.
11. See generally M. Hayden, "The Date of
Discoverability Rule and of the 1957
Statute of Limitations," Gazette of the
Incorporated Law Society of Ireland,
June, 1988, vol.82 (No.5), at P.125.
12. S. I. No.178 of 1975.
13. Ss.18, 19, 22 and 23 of the 1981 Act
and S.8 (I) of the Social Welfare (No.2)
Act. 1987.
14. Ss.72 and 74 of the 1981 Act, Ss.7 and
8 of the Social Welfare Act. 1983,
of the Social Welfare Act, 1986, and
of the Social Welfare (No.2) Act. 1987.
1 5. Ss.88, 89 and 56 of the 1981 Act and
S.9 of the Social Welfare (No.2) Act,
1987.
16. [1978] I.R. 409 at P.424,
17. [1966] I.R. 274 at P.278, H. Ct.
18. [1942] A.C. 601, H. L.
19. Ss.49-53 of the 1981 Act.
2 0. Sup. Ct., 15 December 1986, 1986
unreported, 53/86.
21. [1982] I.L.R.M. 210, H. Ct.
2 2 . For a contrary view see B. McMahon
& W. Binchy, Irish Law of Torts, chapter
33 (1981) at P.576 where the authors
say that the practice in Ireland seems
to be that no account is taken of
liability to tax in personal injuries
litigation. However the text predates
the decision of the Supreme Court in
Cooke-v- Walsh ([1984] I.L.R.M. 208).
2 3. [1973] I. R. 432, H. Ct.
2 4 . [1956] A. C. 185, H. L.
2 5. [1984] I.L.R.M. 208, Sup. Ct.
2 6 . [1980] I.L.R.M. 107, H. Ct.
2 7. See generally B. McMahon & W.
Binchy, Irish Law of Torts, chapter 33
(1981).
2 8. See generally G. Whyte, "Social Wel-
fare Payments and the Assessments of
Damages in Civil Actions", Gazette of
the Incorporated Law Society of Ireland
November, 1987, vol. 81 (No.9) at
P.281; R. Clark. "Damages and the
Social Welfare 'Overlap', "19 Ir. Jur.
(n.s.) 40 (1984) and J. White, Irish Law
of Damages for Personal Injuries and
Deaths (1989).
2 9. I would like to thank John Kehoe B.L.
and, my former master, Patrick
Hanratty B.L. for their helpful com-
ments on an earlier draft of this article.•
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