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GAZETTE
JANUARY/FEBRUARY 1978
which he had valuable agencies the
Plaintiff apparently was unable to
trade successfully. The Plaintiff
wished to turn to the confectionary
business, and applied for consent to
change of user which was refused by
the Defendants, because other
tenants of theirs had stated that their
businesses would be adversely
affected and had objected. Two of the
tenants concerned were a publican in
the same office block and the
proprietor of a confectionery shop
which was attached to a nearby
cinema.
Held:
(McWffiiam J.) having
cons i de r ed
Rice
v.
Dublin
Corporation
[1947] I.R. 425,
W.
<&
L. Crowe Limited v. Dublin Port and
Docks Board
[1962] I.R. 294, and
Egan Film Service Limited
[1952]
86 I.L.T.R. 188, that it was clear
that the onus was on a tenant to show
that the consent was being
unreasonably withheld and that a
landlord may reasonably base a
refusal upon the ground of general
policy in relation to the management
of his estate; that "reasonably"
may be contrasted with "arbitrarily"
or "capriciously"; that however in
this case the refusal, while not
capricious, was an arbitrary decision
to refuse consent solely on the
ground that one or more of the
landlord's other tenants alleged he or
they would or might be prejudiced
without any threat or expectation of
consequential loss or detriment to the
landlord. Consent to assignment
found to be unreasonably withheld.
Bernard While v. Carlisle Trust
Limited
— High Cou rt —
McWilliam J. — unreported — 16
November, 1977.
NEGLIGENCE
It Is normally contributory negligence
if Iqjnry to Plaintiff results, wholly or
partly, from fallnre to wear an
available front seat belt.
The Plaintiff was a front seat
passenger in her husband's car on the
2 September, 1973, when it was
involved in a collision with a car the
property of the Defendant. At the
trial of the Plaintiffs claim for
damages the Defendant admitted
negligence but sought to have the
question of contributory negligence
left to the jury on the ground that, at
the time of the accident, the Plaintiff
was not wearing a seat belt, although
one was fitted in the car for use by
the front seat passenger. The trial
Judge refused to allow this question
to go to the jury in the absence of
evidence on behalf of the Defendant
that the accident would not have
happened if she had been wearing a
seat belt, or that if a seat belt had
been worn, she would not have
suffered the type of injuries sustained
by her. The only question, therefore,
left ot the jury was that of damages
and she was awarded £6,000 for
general damages. The Defendant
appealed
(inter alia
) on the question
whether the Judge had correctly ruled
that the question of contributory
negligence did not arise
Held:
(Griffin J.) that any person
who travelled in the front seat of a
motor car, be he passenger or driver,
without wearing an available seat belt
must normally be held guilty of
contributory negligence if the injuries
in respect of which he sued were
caused wholly or in part as the result
of his failure to wear a seat belt.
Th e r e may be
e x c u s i ng
circumstances for not wearing a seat
belt such as obesity, pregnancy, post-
operative convalescence and the like,
where the wearing of a seat belt could
be thought to do more harm than
good, but it is for the Plaintiff who
has not worn it to raise and prove
such excusing circumstances.
Froom
Butcher
[1976] Q.B. 286,
fcuowed.
Per Griffin J. "The Road Traffic
(Construction Equipment and Use of
Vehicles) (Amendment) Regulations
1971 (S.I. No. 96 of 1971) made it
obligatory to fit safety belts and
anchorage points in motor cars for
use by the driver and front seat
passenger farthest from him . . .
When the Oireachtas made it
compulsory to fit seat belts to motor
cars, it must have been intended that
they should be worn, although the
wearing
of seat belts was not made
compulsory. The Plaintiff cannot but
have been aware of the advisibility of
wearing a seat belt and the risks
incurred if she failed to do so."
Margaret HamiD v. Kenneth
Oliver
— Supreme Court (per Griffin
J. with O'Higgins C.J. and Henchy
J.) — unreported — 24 June, 1977.
REVENUE
High Court will not upsetfinding by
Appeal Commissioner if based on
sufficient evidence. A single
transaction may not constitute
carrying on a trade. Appeal to
Supreme Court dismissed.
The Income Tax Act 1967, ("the
1967 Act"), Part IV, imposes a
charge to tax under Case 1 of
Schedule D on the annual profits or
gains accruing from any trade.
Section 17 of the Finance
(Miscellaneous Provisions) Act
1968, ("the 1968 Act") deems
certain .transactions (not otherwise
within that charge) to constitute the
carrying on of a trade of dealing in
land.
The transaction to which the case
related took place before the
introduction of Capital Gains Tax.
The respondent company had
purchased property in Dublin with a
view to developing and holding it as
an investment from which an annual
income would be derived. Planning
permission was obtained ánd
architects and estate agents
instructed. Subsequently the
respondents sold the premises for a
substantial profit. They conducted no
other transaction. The Appeal
Commissioner dismissed a claim to
tax the profit under the 1967 Act and
the 1968 Act.
The Inspector of Taxes maintained
that the profit arose from the
carrying on of a trade within the
meaning of those Acts, and argued
that (a) a presumption that the
respondent company and its parent
company were in business to make
money and thus had contemplated
dealing in property one way or
another and (b) the businesslike way
the transaction had been conducted
were indicative of trade.
The respondent company argued
that the High Court was not entitled
to review any finding of fact by an
Appeal Commissioner provided there
was evidence on which he could
make such a finding, that the finding
had been that the premises had been
acquired as a long-term investment
and not for an early sale, and that the
disposal had been an isolated
transaction and should not be
construed as evidence of a trade of
dealing in property.
Held:
(Kenny J.) (1) (Without
determining whether his decision had
been one of fact or of law) the Appeal
Commissioner had found facts from
which he was entitled in law to draw
his conclusion that the activities of
the respondent company did not
constitute trading. (2) Section 17 of
the 1968 Act was inappropriate to
the circumstances of the case.
Per Kenny J. The findings of a
Commissioner in many cases will rest
on mixed questions of fact and law,
which will be matters of degree, and
his conclusions "should not be