P. H. v John Murphy & Sons Ltd

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 01 January 1988
• Docket Number: [1984 No. 6775P]
• Date: 01 January 1988

P.H. v. John Murphy & Sons Ltd.

P. H. and Others (Infants) (suing by their mother and next friend B. H.)

Plaintiffs

and

John Murphy & Sons Limited, Defendant

[1984 No. 6775P]

High Court

Tort - Negligence - Damages - Loss of non-pecuniary benefits deriving from parent-child relationship - Whether recoverable at common law.

Constitution - Personal rights - Family - Whether any right to protection from a negligent act which interferes with its constitution or authority - Education - Whether children have the right to be educated by their father - Whether children have any right to protection from a negligent act which interferes with the right to be educated by their father - Constitution of Ireland, 1937, Articles 41 and 42.

The plaintiffs' father suffered severe personal injuries in the course of his employment with the defendant at the defendant's factory premises. Proceedings instituted on his behalf against the defendant alleging that his injuries were caused by the defendant's negligence were settled. Due to the severe nature of his injuries the plaintiffs' father was made a ward of court. The infant plaintiffs, suing by their mother, instituted proceedings against the defendant claiming,inter alia, damages in tort and breach of constitutional duty for the loss of the non-pecuniary benefits which the father of a family bestows on his children. The defendant denied liability and was granted an application to have the following preliminary issues determined prior to the trial of the action:— (1) Whether the defendant owed to the plaintiffs or any of them in the circumstances as pleaded by the plaintiffs any duty of care or any statutory duty, (2) Whether the damages as pleaded were too remote in law, (3) Whether the plaintiffs' claim was bad in law and whether it disclosed a cause of action against the defendant and (4) If the plaintiffs' claim did disclose a cause of action whether such cause of action was satisfied and barred by virtue of the amends in compensation paid by the defendant to the plaintiffs' father.

At the trial of the preliminary issues it was

Held by Costello J., in answering Q.1 in the negative and Q.3 in the affirmative and finding it unnecessary to answer Qs. 2 or 4, 1, that damages are not recoverable at common law for the loss of the non-pecuniary benefits deriving from the parent-child relationship.

McLoughlin v. O'Brian [1983] 1 A.C. 410 considered.

2. That Article 41, s. 1, sub-ss. 1 and 2 of the Constitution confers on the family the right to protection from legislation and from the deliberate acts of State officials which attack or impair its constitution or authority. It does not confer on the family any right to protection from a negligent act which attacks or impairs its constitution or authority.

Dictum of Kenny J. in Ryan v. A. G.[1965] I.R. 294 at 309 applied.

3. That Article 42, s. 1 of the Constitution impliedly confers on the children of a family the right to be educated by their father. It does not confer on the children of a family any right to protection from a negligent act which interferes with their right to be educated by their father.

Cases and materials mentioned in this report:—

McLoughlin v. O'Brian [1983] 1 A.C. 410; [1982] 2 W.L.R. 982; [1982] 2 All E.R. 298; [1982] R.T.R. 209.

Peabody Donation Fund (Governors of) v. Sir Lindsay Parkinson and Co. Ltd. [1985] A.C. 210; [1984] 3 W.L.R. 953; [1984] 3 All E.R. 529; 83 L.G.R. 1.

Ryan v. The Attorney General [1965] I.R. 294.

L.R.C. W.P. No. 7 — 1979 "Loss of Consortium".

L.R.C. 1 — 1981 "First Report on Family Law".

Motion on Notice.

On the 5th September, 1984, the infant plaintiffs, suing by their mother, issued a plenary summons against the defendant seeking damages in tort and breach of constitutional duty for the loss of the non-pecuniary benefits which the father of a family bestows on his children. On the 5th May, 1986, pleadings having been closed, the defendant issued a notice of motion pursuant to O. 25, r. 1 of the Rules of the Superior Courts, 1962, seeking an order directing certain issues to be tried by a judge in such manner as deemed fit prior to the trial of the action. The application was heard by the High Court (Lynch J.) on the 29th May, 1986, when it was ordered that the issues be tried before a judge without a jury prior to the trial of the action. The issues are fully set out in the headnote supra.

Article 41, s. 1 of the Constitution of Ireland, 1937, provides:—

"1. 1 The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2 The State...