The Gazette 1978

JANUARY/FEBRUARY 1978

GAZETTE

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

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

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

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