Coppinger, Valerie, v Waterford County Council

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [1987 No. 8605P]
• Court: High Court

High Court

[1987 No. 8605P]

Valerie Coppinger v. Waterford County Council

Valerie Coppinger

Plaintiff

and

The County Council of the County of Waterford, Toyota Motor Distributors (Ireland) Limited and Toyota Motor Corporation

Defendants

Cases mentioned in this report:-

Mallett v. Dunn [1949] All E.R. 973.

McKinley v. Minister for Defence [1992] 2 I.R. 333.

O'Haran v. Divine (1964) 100 I.L.T.R. 53.

Spaight v. Dundon [1961] I.R. 201.

Consortium - Husband very seriously injured in accident - Whether action lies on part of wife for loss of consortium.

Damages - Apportionment - Whether wife's damages for loss of consortium would be subject to reduction arising from finding of contributory negligence on part of injured husband - Civil Liability Act, 1961 (No. 41), ss. 34(1), 35(2)(b) - Constitution of Ireland, 1937, Article 40.

Damages - Quantum - Measure of damages for loss of consortium.

Plenary Summons.

The facts have been summarised in the headnote and are fully set out in the judgment of Geoghegan J.,infra.

The plenary summons was issued on the 23rd September, 1987, against the first defendant.

By order of the court dated the 5th December, 1988, on the application of the plaintiff, the second and third defendants were added.

By order of the court dated the 27th June, 1988, on the application of the first defendant, the proceedings were consolidated with those in case no. 7105P of 1986 and were ordered to proceed as one action.

The cases were heard on the 18th, 19th, 22nd, 23rd, 24th, 25th, 26th, 29th, 30th and 31st January, and the 1st and 2nd February, 1996.

Section 35(2) of the Civil Liability Act, 1961, provides,inter alia:-

"For the purpose of subsection (1) of section 34, the contributory negligence:-

• (a) of a nominal plaintiff, or

• (b) (where the action is brought for the loss of theconsortium or services of a wife or for the loss of the services of a child or servant) of a wife, child or servant, shall, neither bar recovery nor reduce the damages awarded;"

The plaintiff's husband was very seriously injured in an accident. The injuries were such that the husband is now permanently hospitalised, permanently brain damaged, largely paralysed and has effectively lost his speech. In an action by the husband for damages, the first defendant was found liable but there was a finding of 75% contributory negligence against the husband.

The plaintiff had also taken an action against the same defendants for loss of consortium arising out of her husband's injuries. The loss of consortium dated from the time of the accident and would continue indefinitely into the future. Since the finding of liability was against only one defendant she discontinued her action against the other defendants.

Held by Geoghegan J., in awarding damages to the plaintiff, 1, that, in principle, an action lay against the defendant by the plaintiff.

McKinley v. Minister for Defence [1992] 2 I.R. 333 applied.

2. That, since the first defendant had been found liable for the injuries of the plaintiff's husband and since there had been and would be a total loss of consortium, the plaintiff was entitled to recover damages.

3. That, it would be completely contrary to the principle of equality as provided for in Article 40 of the Constitution and the Supreme Court decision inMcKinley v. Minister for Defence, if a wife were to suffer a reduction in damages by reason of her husband's contributory negligence when in the reverse situation, having regard to the express terms of s. 35(2)(b) of the Civil Liability Act, 1961, a husband would not suffer any reduction as a result of any contributory negligence on her part. Accordingly, there would be no reduction in the damages awarded to the plaintiff by reason of her husband's contributory negligence.

4. That, having regard to the fact that...