McKinley v Minister for Defence

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,HEDERMAN J.,McCarthy J.,O'FLAHERTY J.,EGAN J.
• Judgment Date: 27 July 1992
• Neutral Citation: 1992 WJSC-SC 2337
• Court: Supreme Court
• Docket Number: [1984 1268P: S.C. No. 428 of 1989]
• Date: 27 July 1992

MCKINLEY v. MIN DEFENCE

FINOLA McKINLEY

Plaintiff

Respondent

and

THE MINISTER FOR DEFENCE, THE MINISTER FOR JUSTICE, DANIELGREEN, IRELAND AND THE ATTORNEY GENERAL

Defendants

Appellants

1992 WJSC-SC 2337

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

428/89

THE SUPREME COURT

Synopsis:

ACTION

Cause

Consortium - Loss - Wife - Plaintiff - Husband - Personal in juries - Common law - Development - Influence of Constitution - Civil Liability Act, 1961, s. 35 - Constitution or Ireland, 1937, Articles 40,41 - (428/89 - Supreme Court - 27/7/92) [1992] 2 IR 333

|McKinley v. Minister for Defence|

CONSTITUTION

Personal rights

Equality - Consortium - Loss - Wife - Action - Cause - Common law - Development - (429/89 - Supreme Court - 27/7/92) - [1992] 2 IR 333

|McKinley v. Minister for Defence|

HUSBAND AND WIFE

Consortium

Loss - Action - Cause - Wife - Plaintiff - Constitution - Person al rights - Equality before the law - Development of common law - (428/89 - Supreme Court - 27/7/92) - [1992] 2 I.R. 333 1992 DULJ 115

|McKinley v. Minister for Defence|

WORDS AND PHRASES

"Consortium"

Loss - Action - Cause - Wife - Plaintiff - Constitution - Person al rights - Equality before the law - Development of common law - (428/89 - Supreme Court - 27/7/92) [1992] 2 I.R. 333 [1992] DULJ 115

|McKinley v. Minister for Defence|

Citations:

MCLOUGHLIN V O BRIAN 1983 1 AC 410

SPAIGHT V DUNDON 1961 IR 201

CONSITITUION ART 40.1

CONSTITUTION ART 50

BEST V SAMUEL FOX & CO LTD 1952 AC 716

CONSITITUTION ART 50.1

CIVIL LIABILITY ACT 1961 S35(2)(b)

CIVIL LIABILITY ACT 1961 S34(1)

BROMLEY FAMILY LAW 5ED 111

MARBURY V MADISON 5 US 1 CRANCH 137 2L ED 60

CONSTITUTION ART 41.1.1

CONSTITUTION ART 41.2

CONSTITUTION ART 41.3.1

CONSTITUTION ART 41.3.2

CONSTITUTION ART 41.2.2

O'HARAN V DIVINE 100 ILTR 53

DPP, STATE V WALSH 1981 IR 412

M (C) V M (T) 1990 2 IR 52

CONSTITUTION ART 40

CONSTITUTION ART 40.3

FLEMING LAW OF TORTS 7ED 624

PROSSER & KEETON HANDBOOK OF LAW OF TORTS 5ED 931–932

1 JUDGMENT delivered on the 27th day of July 1992by FINLAY C.J.

2 This is an appeal by the Defendants against the order of the High Court made on the 15th November 1989 determining in a preliminary issue that the Plaintiff's statement of claim disclosed a cause of action.

3 In her statement of claim the Plaintiff alleged that she was a married woman whose husband was at all material times a serving member of the Defence Forces.

4 She further alleged that on the 17th February 1981, by reason of the negligence and breach of duty of the Defendants in and about the care, control, possession and handling of explosive substances, her husband was seriously injured in an explosion.

5 She pleaded that her husband's injuries included severe damage to his scrotum, thereby rendering him sterile and impotent, and then, at paragraph 4 she alleged as follows:

"By virtue of the aforesaid injuries to Seamus McKinley, the Plaintiff has suffered (and continues to suffer) serious personal anguish, shock, anxiety, distress and trauma and loss of and impairment of her consortium and servitium."

6 Upon delivery of that statement of claim the Chief State Solicitor on behalf of the Defendants, by letter, sought further particulars, and, at paragraphs, 11, 12and 13 required the following particulars:

7 2 "11. Is it alleged that the plaintiff has suffered a total loss of the consortium of the said Seamus McKinley. If the answer to the foregoing question is in the affirmative please give full details of the period or periods during which it is alleged that there has been a total loss of the aforesaid consortium. Please give full and detailed particulars of the nature and extent of the alleged impairment of the plaintiff's consortium with Seamus McKinley.

8 12. Furnish full and detailed explanation of the basis upon which it is alleged there has been loss of servitium.

9 13. Furnish full and detailed particulars of all damages alleged to have been sustained by the plaintiff."

10 In reply the solicitors for the Plaintiff, having set out in great detail the injuries sustained by the Plaintiff's husband, in reply to certain earlier particulars, answered Nos. 11, 12 and 13 in the following form:

11 2 "11. See the generality of the Replies and paragraphs 9 &10(m).

12 The Plaintiff has suffered (and continues to suffer) a total loss of consortium by virtue of her husband's said scrotal injuries and she has been (and continues to be) deprived of normal sexual relations since the said accident.

13 The Plaintiff was also deprived of her husband's society and company for some months while he was receiving hospital and surgical treatment. In addition the Plaintiff was at the loss of all the amenities of family and marriage for the aforesaid period and continues to suffer an impairment of the comfort and companionship ordinarily associated with the marriage relationship by virtue of the injuries occasioned her husband which tend to make him depressed and irritable. In this regard he is almost housebound and unable to work and has been obliged to abandon his career in the Army. The said inability to have further children has also caused the Plaintiff great distress and has placed a particular strain on the said marriage. The symptoms and disabilities afflicting the Plaintiff's husband are permanent.

14 12. The Plaintiff has suffered and continues to suffer from the inability and incapacity of her husband to perform all those services (and especially domestic) that he formerly performed on her behalf. Thus the Plaintiff lacked her husband's assistance in the context of herchildren, household chores, the care and maintenance of their home, in particular, the Plaintiff has been obliged to learn to drive (since formerly her husband did all the driving) and her entire existence has suffered a drastic change by virtue of the necessity to take up employment to support herself and her family. In the premises, the continuity, stability and quality of the Plaintiff's relationship with her husband and family has been and continues to be impaired.

15 13. See the generality of the Replies at paragraphs 11 and 12 aforesaid in addition to the other relevant matters as referred to in the generality of the Replies.

16 In addition, the Plaintiff has suffered the following damages:

17 Telephone, travel to various hospitals in Letterkenny and Dublin, over night stays in Dublin and babysitters in excess of£2,000."

18 It is clear from this notice for particulars and from the replies thereto that although in the statement of claim the Plaintiff, in addition to claiming that she suffered and continues to suffer from loss of and impairment of her consortium and servitium, claimed alsothat she suffered and continues to suffer from serious personal anguish, shock, anxiety, distress and trauma, she does not, in the reply to the notice for particulars, and in particular, in reply to paragraph 13 of it, repeat any allegation concerning the anguish, shock and trauma.

19 This fact is reflected in the judgment in the High Court of Johnson J. who, at the commencement, stated:

"The issues are simple. The action arises out of loss of consortium and as to whether a wife has a right to claim loss ofconsortium."

20 No issue appears to have arisen in the High Court as to whether the wife had any right to claim damages for nervous shock, anquish or distress arising out of the accident to and injuries sustained by herhusband.

21 No submission was made in that regard to this Court on the appealeither.

22 Considerations, therefore, of the principles laid down in the House of Lords in McLoughlin v. O Brian1983 1 AC, which were dealt with by this Court in The State (Keegan) v. Stardust Compensation Tribunal 1986 IR, do not arise on this appeal, and this judgment does not have any bearing upon them.

23 In so far as the headings of damage claimed by the Plaintiff included damages for travelling and other expenses involved by her in relation to her husband's illness, no issue arose on the appeal concerning that item of claim either.

The issues on the appeal

24 Certain matters were agreed as matters of law by counsel for each of the parties, and they are

25 1. That the common law right to claim damages for loss of consortium and servitium which existed and was identified at the time of the enactment of the Constitution in 1937 was a right confined to a husband claiming for such loss arising from injury to his wife, and that no corresponding right in the common law existed in a wife to claim in respect of injuries to her husband.

26 2. Such a right was inconsistent with the guarantee of equality contained in Article 40.1 of the Constitution, and in that form, therefore, could not have been carried forward and be of full force and effect pursuant to Article 50 of the Constitution.

27 3. The issue as to the constitutional validity of a claim for loss of consortium and servitium was not raised or decided by the former Supreme Court in Spaight v. Dundon 1961 IR, and has not previously been considered by this Court.

28 Having regard to the submissions made on behalf of the Appellants and the Respondents on the hearing of this appeal, the issues which did emanate as being the determining issues to be decided are asfollows:

29 (1) Was the common law right to claim damages for loss of consortium and servitium, which was in existence at the time of the enactment of the Constitution, one which can be viewed as constituted by two component and severable parts, that is to say, a right on the part ofa spouse to claim damages for loss of consortium and servitium, and an additional characteristic that it was confined to a husband and did not apply to a wife?

30 (2) If it was so constituted and severable, is the effect of the application of Article 50 of the Constitution to that common law right to be that there is excluded simply the confinement of it to a...