The Gazette 1989

GAZETTE

OCTOBER 1989

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 S.II 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, S.II of the Social Welfare Act, 1986, and S.II 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, Sup.Ct. 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 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. • HENNIGAN AND COMPANY Rateable Valuation Consultants 2 3. [1973] I. R. 432, H. Ct. 2 4 . [1956] A. C. 185, H. L.

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.

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