Spaight v Dundon
Jurisdiction | Ireland |
Judgment Date | 15 February 1961 |
Date | 15 February 1961 |
Court | Supreme Court |
Supreme Court.
Negligence - Personal injuries suffered by wife - Claim by husband for impairment of consortium - Loss of consortium - Measure of damages.
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.
So held by the Supreme Court (Lavery, Kingsmill Moore, O Dálaigh and Maguire JJ.; Maguire C.J. dissenting).
Per Kingsmill Moore J.: The husband can recover pecuniary losses."In addition he is entitled to damages for the total deprivation of his wife's company, even if such deprivation is for a limited period or periods. Such damages should not be too generous."
Best v. Samuel Fox & Co. Ltd. [1952] A. C. 716 discussed.
Appeal from the High Court.
The second-named plaintiff, Breda Spaight, a married woman, while cycling on the main Broadford to Limerick road at Athlunkard in the County of Limerick on the 25th July, 1957, was in collision with a motor car owned and driven by the defendant, Eileen M. Dundon, as a result of which she suffered severe injury to her right leg which had to be amputated at the level of, and through, the knee joint. She was detained in hospital in Limerick from the date of the accident until the 16th November, 1957, when she went to Roehampton Hospital, London, for the purpose of having an artificial limb fitted and to be trained in its use. In all she was completely separated from her husband for periods totalling nearly a year. At the date of the accident she was twenty-six years of age and was the wife of the first-named plaintiff, David Spaight, and the mother of four young children. The plaintiffs brought an action in the High Court for damages against the defendant, alleging negligence in the management and control of a motor car. The plaintiff, David Spaight, claimed, inter alia, damages for past and future loss of his wife's society and services; for medical and nursing expenses and for domestic assistance.
In the course of the trial, before McLoughlin J. and a jury, it was submitted on behalf of the plaintiff, David Spaight, that damages should be awarded for impairment, as opposed to the total loss, of consortium. It was suggested that the companionship of the wife would be less valuable than before and that she would be unable to accompany her husband on social occasions. The trial Judge directed the jury that these considerations must be left out of account
and he refused an application by counsel for David Spaight to recall the jury and re-direct them according to counsel's submissions.The jury found for the plaintiffs and assessed damages in favour of David Spaight, the first-named plaintiff, at £5,210 and in favour of Breda Spaight, the second-named plaintiff, at £7,000. Judgment was given accordingly, with costs. Against this judgment and the award of damages in favour of the first-named plaintiff the defendant appealed to the Supreme Court (1).
Cur. adv. vult.
Maguire C.J. :— |
It is settled law that a husband can bring an action per quod consortium amisit in respect of any tort by a third person resulting in injury to his wife and thereby depriving him of that consortium. As Lord Morton of Henryton said (at p. 735) in Best v. Samuel Fox & Co. Ltd.(9), that a husband has this right "is now so firmly established that it could only be abolished by statute." While this is so both in England and in this country it would appear still to be open for consideration whether any action lies unless the loss is complete. As in this case the loss of consortium was not complete it becomes necessary for this Court to decide the question. There is an absence of authority in this country on the point. It was, however, discussed both in the Court of Appeal and in the House of Lords in the above-mentioned case.
That case was concerned with the question whether a wife could claim for impairment of consortium. The decision of the House of Lords was that a wife had no claim even for total loss of consortium. It followed that she failed in her claim for damages for impairment.
Although the problem was different from that which confronts us the judgments in the Court of Appeal and the speeches in the House of Lords are very helpful towards the understanding of the nature of consortium. Lord Justice Birkett, who delivered the first judgment in the Court of Appeal (10), held that a wife is entitled to bring an action for loss of consortium caused by the
negligent act of a third person, but held that she could not sue for the impairment of consortium. He says, at P. 665:— "Consortium, I think, is one and indivisible. The law gives a remedy for its loss, but for nothing short of that." Lord Justice Cohen, although he expressed doubt as to whether a wife could succeed even for total loss of consortium, agreed with this view. Lord Justice Asquith took the view that the wife has no such a cause of action. If wrong in this, he held that "it requires . . . . a total even though temporary loss of consortium to constitute it"(p. 669).In the House of Lords (1), Lord Porter agreed with Asquith L.J. that a wife had no such right and added that he did not find it necessary to come to a final conclusion on the point whether consortium is one and indivisible. He went on to say that he found it difficult to draw a boundary between what is and what is not loss of consortium or to divide it into its component parts. Lord Goddard, having agreed that the wife had no right of action, hesitated to express an opinion "whether in any case an action would lie for the impairment, as distinct from a total loss, of consortium." He considered that consortium was essentially an abstraction and goes on to say, at p. 733:—"Where the exercise of a profession or the call of duty involves prolonged absence abroad of one of the spouses there is not an interruption of consortium, nor is there because one of them may become a permanent invalid to be waited on and nursed by the other. Again there may be loss of affection but provided the spouses continue to live together as man and wife it seems to me that it still exists however different life may be from the days of the honeymoon. Sexual relations are doubtless a most important part of the marriage relation, but if age or illness or even disinclination impairs the potency of either of the spouses who continue to live together as husband and wife I do not think the consortium is affected. It would be only if on this account one of them withdrew and decided to live apart. In truth I think the only loss that the law can recognize is the loss of that part of the consortium that is called servitium, the loss of service. And it is that to which Lord Wensleydale referred in the passage I have quoted above."
Lord Morton of Henryton, holding that there was no principle of English law which could entitle the appellant to succeed, declined to express an opinion on the question whether the right of consortium is one and indivisible.
Lord Reid was in agreement with Lord Goddard save
on this point. While feeling some hesitation in dealing with the matter he thought that he should express an opinion upon it. He examines the meaning of the term,"consortium," and says (at p. 735):—"In the old cases a number of words are used to describe a husband's loss or damage. He has, by the act of the wrongdoer, lost his wife's services, assistance, comfort, society, etc. Sometimes the word consortium is used in conjunction with one or more of these words; sometimes it appears to be intended to include them. I doubt whether there was any fixed practice. But it would seem that there was only one single cause of action in respect of loss in all these matters. There was not one action for loss of consortium and another for loss of servitium, and in the same cause of action loss or damage under any of these heads could properly be taken into account, though often the main emphasis might be on the value of the services or assistance which the husband had lost. The origin of the husband's right of action seems to have been that he was regarded as having a quasi-proprietary right, and I think that it included a right to his wife's society as well as to her services. I can see no sign of any difference in quality between his right to her assistance and his right to her society, and indeed it would be difficult to say where in fact assistance ends and society begins, either today or in the Middle Ages. No doubt her services and assistance had an additional value because her comfort and society went with them. I do not think that consortium was an abstraction: it seems to me rather to be a name for what the husband enjoys by virtue of a bundle of rights, some hardly capable of precise definition.""I do not think that it is open to doubt that an impairment of a wife's capacity to render assistance to her husband was enough to found an action. Certainly an injury which temporarily incapacitated her was sufficient, and I cannot find any ground for the view that an injury which did not produce complete incapacity at any time was insufficient even if it resulted in serious and permanent impairment of her capacity to render services. Any such injury might well deprive the husband to a large extent of his wife's comfort and society but at no time deprive him wholly of it, and I have seen nothing to lead me to think that in such a case that impairment of the consortium must be left out of account . . ."
Lord Oaksey agreed with this opinion.
I have quoted the passages from the speeches of Lord...
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