McKinley v Minister for Defence

• Jurisdiction: Ireland
• Judge: Carney J.
• Judgment Date: 12 June 1997
• Neutral Citation: [1997] IEHC 93
• Court: High Court
• Docket Number: [1984 No. 1263P],Record No. 1268 P/1984
• Date: 12 June 1997

[1997] IEHC 93

THE HIGH COURT

Record No. 1268 P/1984

MCKINLEY v. MIN DEFENCE & MIN JUSTICE

BETWEEN

FINOLA MC KINLEY

PLAINTIFF

AND

THE MINISTER FOR DEFENCE THE MINISTER FOR JUSTICE DANIEL GREEN IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

RSC O.25 r1

SPAIGHT V DUNDON 1961 IR 201

O'HARAN V DEVINE 1964 100 ILTR 53

CIVIL LIABILITY ACT 1961 S35

CONSTITUTION ART 50

BEST V SAMUEL FOX & CO LTD 1952 AC 716

COPPINGER V WATERFORD CO COUNCIL 1996 2 ILRM 427

Synopsis:

Damages

Negligence; damages for loss of consortium; plaintiff's husband suffered severe personal injury in course of employment; claim for loss of consortium and servitium by wife; whether wife entitled to claim for total or partial loss of consortium; measure of damages; whether level of damages recoverable in respect of distress suffered on death of spouse; newspaper report of case; constitutional right of access to court Held: Wife entitled to total or partial loss of consortium; level of damages to be awarded as for mental distress in the case of a death of a spouse High Court: Carney J.12/06/1997) [1997] 2 IR 176

McKinley v. Minister for Defence

1 Judgment delivered the 12th day of June 1997 by Carney J.

2 The Plaintiff is a married woman and at all material times her husband Seamus served as a private soldier in the defence forces of the State.

3 On February 17th, 1981 the Plaintiff's husband was on duty at Croch na gCaorach, Dungloe, Co. Donegal and was engaged in blowing up surplus explosives, including gelignite, at a quarry, the property of the Defendants. In the course of these operations the Plaintiff's husband sustained severe blast injuries to his genital area which has severely curtailed his capacity to engage in sexual activity which in consequence has severely impaired the Plaintiff's ability to have sexual relations with her husband and has deprived her of the opportunity of bearing any further children by him. The Plaintiff's husband has been compensated in a substantial sum for the personal injuries sustained by him.

4 By a plenary summons dated the 13th February, 1984, the Plaintiff claimed that by reason of the negligence and breach of duty of the Defendants her husband suffered serious personal injuries (including injury to his scrotum which rendered him sterile and impotent) by virtue of which she suffered loss and impairment of consortium and servitium.

5 By Notice of Motion dated the 16th April, 1987, the Defendants sought an Order pursuant to O.25, r. 1 of the Rules of the Superior Courts directing that the issue of whether or not the Plaintiff's statement of claim disclosed any cause of action be set down for hearing as a preliminary issue and disposed of before the trial of the action.

6 On the 11th May, 1987, the High Court (MacKenzie J.) made an Order that the issue raised by the Notice of Motion be set down for trial by the Defendants. Notice of trial was served on the 15th May, 1987. The matter came on for hearing before the High Court (Johnson J.) on the 15th November, 1989.

7 Johnson J. gave an ex-tempore judgment in the following terms:-

"The issues are simple. The action arises out of loss of consortium and as to whether a wife has a right to claim for loss of consortium. Whatever the views are as to its origin or its relevance it is clear that in Spaight -v- Dundon [1961] I.R. 201the Supreme Court held that such a right existed in respect of a husband and this was confirmed in O Haran -v- Devine (1964) 100 I.L.T.R. p.53. In 1961 the legislature recognised, in s.35 of the Civil Liability Act, 1961, the existence of such a right.

It is conceded by the defendants that to accord such a right to a husband only is discriminatory in the extreme and unconstitutional. It is only proper that they should do so.

In defence to the claim by the plaintiff I have been asked to declare unconstitutional the right to consortium thereby declaring unconstitutional s.35 of the Civil Liability Act, 1961. Had it been argued in full it might not have caused me any difficulty. In so doing however I would have to reverse the Supreme Court and this is not within my power. I will allow the plaintiff to continue her case whether the claim is based on total loss of consortium or impairment. The extent of that right is a matter for the trial judge to determine. The plaintiff is entitled to her costs with a stay in the event of an appeal."

8 By Notice of Appeal dated 13th December, 1989, the Defendants appealed against the Order of the High Court. The grounds relied on in the Notice of Appeal were:-

9 The learned trial Judge erred in law holding:-

10 1. That the common law right of action of a husband to sue for loss of consortium and servitium continued to be in full force and effect notwithstanding Article 50 of the Constitution.

11 2. That the right of action was extended by operation of the Constitution, and in the absence of legislation, to a wife.

12 3. That the plaintiff had a right of action irrespective of whether her claim was based on total or partial impairment.

13 The appeal was heard by the Supreme Court (Finlay C.J., McCarthy, O'Flaherty, Egan and Hederman J.J.) on 2nd June, 1992.

14 By Order of the Supreme Court made the 27th day of July, 1992 the said Appeal was dismissed but it was directed that the issue as to whether the Plaintiff's cause of action exists for total loss of consortium only or also for impairment of consortium be tried in the High Court as an issue arising in the Action.

THE ISSUE

15 In Spaight -v- Dundon 1961 I.R. p.201, the former Supreme Court held by a majority of four to one that a husband whose wife has been injured by the negligence of a third party cannot successfully maintain an action for impairment as opposed to total loss of her consortium arising from the injury. By virtue of the direction of the Supreme Court in the instant case I am free to consider the matter afresh.

16 The language of the older cases (principally Best -v- Samuel Fox & Co. Limited, 1952 A.C. p.716 and Spaight -v- Dundon) is in stark contrast to the language and attitudes to be found in the modern cases (the Judgment of the Supreme Court in the instant case reported in 1992, 2 I.R. p.333 and the Judgment of Geoghegan J. in Coppinger -v- Waterford County Council, 1996 2 I.L.R.M. p.427. In illustration of the earlier attitudes, I would quote a passage from the speech of Lord Reid in Best -v- Samuel Fox & Co. Limited at p.735:-

"In the old cases a number of words are used to describe the husband's loss or damage. He has, by the act of the wrong-doer, lost his wife's services, assistance, comfort, society, etc. Sometimes...