Family Relations Interference
Cases
McKinley v. Minister for Defence
[1992] 2 IR 333 Supreme Court
Finlay C.J.(dissenting)
This is an appeal by the defendants against the order of the High Court made on the 15th November, 1989, determining as a preliminary issue that the plaintiffs statement of claim disclosed a cause of action.
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.
She further alleged that on the 17th February, 1981, by reason of the negligence and breach of duly of the defendants in and about the care, control, possession and handling of explosive substances, her husband was seriously injured in an explosion.
She pleaded that her husband’s injuries included severe damage to his scrotum, thereby rendering him sterile and impotent, and then, at para. 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.”
Upon delivery of that statement of claim the Chief State Solicitor, on behalf of the defendants, by letter sought further particulars, and, at paras. 11, 12 and 13, required the following particulars:
“11. It is alleged that the plaintiff has suffered a total loss of theconsortium 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.
12. Furnish full and detailed explanation of the basis upon which it is alleged there has been loss of servitium.
13. Furnish full and detailed particulars of all damages alleged to have been sustained by the plaintiff.”
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 particulars 11, 12 and 13 in the following form:
“11. See the generality of the replies and paragraphs 9 and 10 (m). 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.
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 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.
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 her children household chores and the care and maintainence 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.
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.
In addition, the plaintiff has suffered the following damages:
Telephone; travel to various hospitals in Letterkenny and Dublin; overnight stays in Dublin, and baby-sitters in excess of £2,000.”
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 also that 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.
This fact is reflected in the judgment in the High Court of Johnson J. who, at the commencement, slated:
“The issues are simple. The action arises out of loss of consortiumand as to whether a wife has a right to claim loss of consortium.”
No issue appears to have arisen in the High Court as to whether the wife had any right to claim damages for nervous shock, anguish or distress arising out of the accident to and injuries sustained by her husband.
No submission was made in that regard to this Court on the appeal either.
Considerations, therefore, of the principles laid down in the House of Lords in McLoughlin v. O Brian [1983] 1 A.C. 520 which were dealt with by this Court in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642, do not arise on this appeal, and this judgment does not have any bearing upon them.
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
Certain matters were agreed as matters of law by counsel for each of the parties, and they are:
1. That the common law right to claim damages for loss ofconsortium 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.
2. Such a right was inconsistent with the guarantee of equality contained in Article 40, s. 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.
3. The issue as to the constitutional validity of a claim for loss ofconsortium and servitium was not raised or decided by the former Supreme Court in Spaight v. Dundon [1961] I.R. 201 and has not previously been considered by this Court.
Having regard to the submissions made on behalf of the plaintiff and the defendants on the hearing of this appeal, the issues which did emanate as being the determining issues to be decided are as follows:
(1) Was the common law right to claim damages for loss of consortiumand 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 of a 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?
(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 husband and that it becomes otherwise a right carried forward into our law and exercisable by either spouse?
(3) Whether, even if the common law right to claim damages for loss of consortium and servitium cannot be severed in this manner, being a common law right capable of development, are there grounds on which the Court should in its discretion develop it by making it applicable not only to a husband but to a wife also?
Since the agreement of two parties could not constitute, by that fact alone, the establishment of a principle of constitutional law, I should make it clear that I have no doubt that, quite apart from that agreement, the common law right to claim for loss of consortium and servitium which was identified in the decision of the former Supreme Court in Spaight v. Dundon [1961] I.R. 201 as being confined to a husband and not available to a wife, offends against the guarantee of equality contained in Article 40, s. 1 of the Constitution and, therefore, in that form, could not have been carried forward and be in force as part of the laws of the State pursuant to Article 50 of the Constitution.
In the course of his judgment in Spaight v. Dundon [1961] I.R. 201, Kingsmill Moore J., at p. 214, having quoted extensively from the decision of the House of Lords in Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716, stated as follows:
“I agree with the eminent judges who considered the action for loss of consortium to be anomalous and founded on a mediaeval view that the husband had a proprietary or, at least, a quasi-proprietary right in his wife, analogous to his right to the servitium of his servant. Human relationships are so varied that an injury to one person nearly always involves injury of some kind or another to other people but, except where loss of consortium is produced, the common law treats such injury as too remote to found an action for damages.”
The judgment of Kingsmill Moore J. was, in effect, the judgment of the majority of the Court in Spaight v. Dundon [1961] I.R. 201, and Maguire C.J., who disagreed with the other members of the Court on the issue which arose as to whether damages were recoverable only for total loss of consortium or could be recovered for partial loss of consortium,in the course of his judgment accepts the same anomaly and confinement of the right, in the following passage at page 206:
“It is to my mind not proper to take into consideration, as some of the judges in Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716 did, that the right to damages for loss of consortium is based upon a conception of the relationship of husband and wife which in modern times may be regarded as an anomaly. The alteration in the position of a wife vis-a-vis her husband by various legislative enactments may be a good reason for changing the law and abolishing the right of the husband to damages for loss of consortium. While the right exists, it seems to me illogical to deny a husband a right to damages for its impairment.”
I am satisfied that having regard to this identification of what the common law right to damages for loss of consortium and servitiumconsisted of, and the principles upon which it was based at the time of the enactment of the Constitution in 1937, it is not possible to view it as containing two constituents which are severable, namely, as is urged by the respondent on this appeal, first, a right to damages for loss of or impairment of consortium and servitium, and secondly, a restriction of that to the husband. The whole basis of the right to damages and its origin makes it inevitable and a constituent part of it that it must be confined to the husband. It is by reason of the particular quasi-proprietary right of the husband to the services of the wife that the right to claim damages for loss of them has been recognised in the common law. For this reason, I cannot accept the contention that the right can logically be viewed, as defined and identified by the common law at the time of the enactment of the Constitution, as one in two severable portions, part of which, namely, the right to damages for loss of consortium, could be carried forward and the other part of which – its confinement to a husband and its non-application to a wife – could not.
There remains, therefore, on the issues raised before this Court on this appeal, the further question as to whether, this being a common law right, it is appropriate for the Court in order to avoid what might be described as its extinguishment by virtue of the provisions of Article 50 of the Constitution, to develop it so as to make it applicable to the wife as well as to the husband, therefore removing from it the constitutional frailty of its unequal application.
It is very clear that the consequences of serious injuries to either spouse, such as the injuries which are outlined in the particulars, if they are established in this case, must necessarily inflict on the person whose spouse, be it husband or wife, has been as seriously injured in the manner which is indicated in these particulars, very considerable trauma, distress, anxiety, and a great disturbance of the convenience and happiness of life. I would accept that considerations of the provisions of the Constitution protecting, in particular, the institution of the family and the marriage upon which it is founded, could be attractively urged in support of an extension of the right to damages to cases where one of two spouses has been injured in the manner alleged to have occurred in this case.
I cannot accept, however, that such a development of the law, not taking place on the basis of any extension of foreseeability, or the persons within the ambit of those entitled to claim damages for injury to another, such as has been considered in McLoughlin v. O’brian [1983] 1 A.C. 520, but rather, as is urged in this case, as a “development” of the common law right of the husband to damages for loss of or impairment of consortium and servitium of his wife, could possibly be correct. To establish such a “development” would logically be to remove from the doctrine of the right to damages or loss of consortium and servitium the entire reasoning upon which it was originally based, and upon which it was based at the time of the enactment of the Constitution in 1937.
Article 50, s. 1 of the Constitution reads as follows:
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.”
That provision cannot, in my view, be construed as imposing, as counsel on behalf of the defendants urged on the hearing of this appeal, upon the Court an obligation as far as possible to amend or alter common law rights existing and in force in Saorstat Eireann at the dale of the passing of the Constitution so as to make them comply with the Constitution.
I am, therefore, satisfied that neither of the two possible grounds upon which it was urged that this right of damages for loss of consortiumand servitium could be available to a wife as part of the common law has been established and that this appeal should be allowed and an order should, in my view, be made striking out so much of the plaintiff’s claim as consists of a claim for loss of consortium and servitium, there being other items of the claim which would appear to survive.
In reaching that conclusion, I have had regard to the submissions which were made and considerations which arise by reason of the provisions of s. 35, sub-s. 2 (b) of the Civil Liability Act, 1961. That sub-section provides, so far as is material, as follows:
“2. For the purposes of sub-section (1) of section 34, the contributory negligence –
(b) (where the action if brought for the loss of consortium 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; but the provisions of section 21 shall apply in favour of the defendant against the said nominal plaintiff, wife, child or servant, as the case may be.”
It was urged that this reference to the right of action of a husband for loss of consortium and servitium, firstly, raised a rebuttable presumption that it was a valid right and consistent with the Constitution, and, secondly, it was urged that for the Attorney General in these proceedings to contend that this sub-section was inconsistent with the constitutional position would be an impermissible anomaly.
I am not satisfied that the terms of this section constitute a setting out or establishment of the right of action, but merely contain a purported recognition of its survival in the law of the State. As such, it does not constitute anything more than an apparent legislative acceptance of a situation which, for the reasons I have set out, I am satisfied is constitutionally incorrect.
Furthermore, I am also satisfied that no matter how anomalous it may be, in the particular circumstances of this case, that the Attorney General as a defendant should be contending for a constitutional frailty in a section of a statute passed by the Oireachtas, that fact could not possibly permit this Court to declare a position with regard to constitutional law which was otherwise than in accordance with its view of the applicable provisions of the Constitution.
If the view of the majority of the members of this Court differs from the view which I have just expressed, and if the decision of the High Court is upheld to the effect that the wife has a right to claim for loss ofconsortium and servitium, then, I feel I should express a view on the other issue which, in the amended notice of appeal, was brought before this Court, namely, as to whether such a right could be claimed for total loss of consortium only or for impairment of it as well. I agree with the view expressed by other members of the Court to the effect that, having regard to the decision in Spaight v. Dundon [1961] I.R. 201 and to the decision, in particular, in O Haran v. Divine (1964) 100 I.L.T.R. 53, that it is not appropriate for this Court, on this preliminary issue, to reach any decision concerning the extent of impairment or loss which attracts damages in such a right. That would fall to be decided by the High Court, if the matter is being tried before it, on the facts as proved before that court.
Hederman J.
The factual background to this case is fully set out in the judgment of the Chief Justice and need not be repeated.
The plaintiff claims, in addition to other matters, that due to injuries wrongfully caused to her husband she has suffered loss and impairment of consortium and servitium. Consortium means living together as husband and wife with all the incidents that flow from that relationship.
In a passage in Bromley on Family Law (5th ed.) at p. 111, which I would adopt, it is stated:
“Consortium connotes as far as possible the sharing of a common home and a common domestic life. It is difficult to go beyond this and to define with more precision the duties which the spouses owe to each other. This is after all a matter of common knowledge rather than a subject for legal analysis.”
I do not accept that Article 50 of the Constitution is of relevance to this appeal. Both sides accept that the entitlement to a claim for loss ofconsortium was confined to the husband and denied to the wife. This, however, was the position at common law prior to the enactment of the Constitution. Since then all that can be said with certainty is that such a claim has never, until now, been asserted by any wife in any court in this jurisdiction.
I do not accept that the word “laws” in Article 50 restricts common law procedures or remedies only to those current in 1937. I regard as surreal the argument of the Attorney General in this case that our appropriate answer should be that because of the equality provisions of the Constitution a husband who loses the consortium of his wife because of injury to her by a wrongful act should be denied his claim for this loss. This argument is made in the context of a Constitution which gives special protection to marriage, to the family and to children and prohibits divorce. The logical extension of this argument of the Attorney General would be to believe that the framers of the Constitution had more advanced ideas about the procreation of children than was scientifically possible in 1937.
I do not accept that every possible heading of damages arising for a tortious act has to be spelled out in specific legislation. As medical science, physical and psychological, extends our knowledge and understanding of the human condition so the headings of damage may increase and extend. Indeed, s. 5, sub-s. 2 (b) of the Civil Liability Act, 1961, appears to be a case in which the right of a husband to claim for loss of consortium as existed at common law was carried over expressly by legislation. The fact that wives were not specifically mentioned does not to me create any insurmountable difficulty.
Even in common law countries without written constitutions such as ours, as the tempo of social change in the past fifty years has accelerated beyond imagination, so the challenge to the law has become more powerful and more urgent. It has been said that it is almost certain that the common law would no longer exist if judges had not from time to time accepted the challenge and boldly laid down new principles to meet new social problems.
It is perhaps even more important in countries such as Ireland with a written Constitution that we face the problem of the role of the courts in the evolution of law. This problem was dealt with well by Justice Cardozo of the United States Supreme Court when he wrote “The Nature of the Judicial Process”. He stated:
“Logic and history and custom and utility and the accepted standards of right conduct are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case must depend largely upon the comparative importance of value of the social interest that will be thereby promoted or impaired.”
Justice Cardozo having dealt with the symmetrical development of the law, that development based on history and custom and precedent, goes on to say:
“But symmetrical development may be bought at too high a price. uniformity ceases to be good when it becomes uniformity of oppression. The social interest served by symmetry or certainty must be balanced against the social interest served by equity and fairness or other elements of social welfare.”
Finally, asking how the judge was to know when one interest outweighs another, he concluded by saying:
“I can only answer that he must get his knowledge just as the legislator gets it from experience and study and reflection; in brief, from life itself. Here indeed is the point of contact between the legislator’s work and his.”
That philosophy, which I would follow, is echoed in the view to be expressed by McCarthy J. in the judgment which he is about to deliver that the correct solution is to declare the equality between citizens of this State by positive rather than by negative acts. In this regard I have in mind the words of Chief Justice Marshall of the United States of America almost two hundred years ago in Marbury v. Madison (1803) 5 U.S. 1 when he stated:
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule . . .”
I believe that the essential background to be borne in mind in the determination of this case is to be found in the first sentence of Article 40. In that portion of the Constitution entitled “Fundamental Rights”and sub-titled “Personal Rights” it is stated:
“All citizens shall, as human persons, be held equal before the law.”
The provisions of Articles 41 and 42 lay special emphasis on the uniqueness of the family, the special care to be given to the institution of marriage and the particular care to be given to women whether mothers or not. Article 41, s. 1 states:
“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, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.”
Article 41, s. 2, states:
“1 In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2 The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”
Article 41, s. 3, states:
“1 The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
2 No law shall be enacted providing for the grant of a dissolution of marriage.”
While Article 40 of the Constitution ensures that all persons shall be equal before the law, Article 41 underlines the particular status which is attached to marriage. That status attaches to the woman by virtue of Article 41, s. 2, perhaps even to a greater extent than it attaches to the man. This case, therefore is not based on a question of a discrimination in favour of men pre-dating the Constitution but rather, in my view, it is based on the status which the Constitution gave to marriage and to married women in particular. It seems clear to me that Articles 40 and 41 should be construed in accordance with the statement contained in the Preamble to the Constitution that the People gave to themselves the Constitution in order that amongst other objectives “the dignity and freedom of the individual might be assured.” That dignity and freedom
to which the plaintiff is entitled is assured only by the dismissal of this appeal and the affirmation of the order of Johnson J.
The evolution of the common remedies by judicial interpretation is a well established procedure but can, of course, be affected by Acts of the Oireachtas, as for instance the common law right arising from criminal conversation. In the instant case the legislators have not intervened to assert the wife’s entitlement but have, as I have already demonstrated, recognised the existence of the common law remedy.
McCarthy J.
In my opinion, where a common law rule offends against the principle of equality in a marriage relationship, the solution is to identify and declare the equality by positive rather than negative action. Whatever the origin of a particular common law right, however artificial its base as viewed from a modern standpoint, if, as here, such a right is so firmly established as part of the common law, equality amongst equals requires a court declaration to that effect, rather than what would be judicial legislation by denying such a claim to the husband.
The claim
The plaintiff alleges that she has suffered and continues to suffer a total loss of consortium. She says, in answer to a request for particulars, that,
“[she] has been (and continues to be) deprived of normal sexual relations since the said accident.
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.”
The defence
Whilst the defence denies negligence, it was accepted that the only issue, other than damages itself, is that raised by paragraph 1: “The plaintiff’s statement of claim discloses no cause of action.”
MacKenzie J. directed the trial of an issue as to whether or not the statement of claim disclosed any cause of action and Johnson J. held that it did, whether or not the plaintiff’s claim was based on total loss ofconsortium or impairment.
The appeal
The amended notice of appeal alleges that the trial judge erred in law:
“1. In holding that the common law right of action of a husband for loss of consortium and servitium continued to be in full force and effect notwithstanding Article 50 of the Constitution.
2. Furthermore, in holding that the said common law right of action was extended by operation of the Constitution, and in the absence of legislation, applied to a wife in the same manner as to a husband.
3. In holding that the plaintiff has a right of action, whether her claim was based on total loss of consortium or impairment.
4. In holding as a matter of law that if an action for loss ofconsortium exists, that the same extends to partial loss ofconsortium or impairment.”
The common law
In Spaight v. Dundon [1961] I.R. 201, the former Supreme Court, (Maguire C.J. dissenting), held 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 consortiumarising from the injury.
Maguire C.J. began his judgment by saying:
“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.”
It could only be abolished by statute.
In O Haran v. Devine (1964) 100 I.L.T.R. 53, this Court upheld an award to a husband in a case where “it would be unreal to say that the husband had not been effectively deprived of consortium.” No reference to the Constitution is to be found in either report. Presumably there have been many other cases in which damages have been awarded, by consent or otherwise, to husbands for similar loss. This is the first case where the wife has claimed for loss of consortium, total and partial, because of injury to her husband. It is agreed that it would be quite anomalous and an invidious discrimination if the wife is to be denied such a right, when the husband has it. But, so the argument goes, the husband’s right at common law was not carried over by Article 50 of the Constitution.
The argument
The husband’s right was a quasi-proprietary right; at common law, the wife had no such right – she had no proprietary interest in her husband. Therefore, the wife having no such right, the husband’s right failed the constitutional test under Article 40. Thus equality is restored.
The answer
It is unequal, but the solution is not to deny the husband’s right but, pursuant to Article 40, to enforce the wife’s right – to make the common law of Ireland conform with constitutional requirements. Further, s. 5, sub-s. 2 (b) of the Civil Liability Act, 1961, expressly refers to the husband’s right of action, to which counsel for the Attorney General responds that the relevant sub-paragraph is invalid having regard to the provisions of the Constitution.
The case law
1. The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412 was a case of contempt of a Special Criminal Court in which the full Supreme Court ruled that the High Court had jurisdiction to try the respondent summarily without a jury. When the contempt proceedings were heard, “the strange submission [was] put forward on behalf of the appellant Conneely that, because of coercion on her husband’s part, it [was] he, and not she, who could be found guilty of contempt,” (see page 448). On the facts, Henchy J., with whom Kenny and Griffin JJ. agreed, held against this appellant, and went on to say:
“That is how I would dispose of this point if the presumption of coercion of a wife by the physical presence of her husband were applicable. But, in my judgment, that doctrine is no longer extant in this State. The idea that, where a wife performs a criminal act, there should be a prima facie presumption that the mere physical presence of her husband when she did it overbore her will, stultified her volitional powers, and drove her into criminal conduct which she would have avoided but for his presence, presupposes a disparity in status and capacity between husband and wife which runs counter to the normal relations between a married couple in modern times . . . In particular, I would hold that the presumption relied on is inconsistent with the Constitution and was therefore, by virtue of Article 50, not given validity in the legal system after the Constitution came into force. A legal rule that presumes, even on a prima facie and rebuttable basis, that a wife has been coerced by the physical presence of her husband into committing an act prohibited by the criminal law, particularly when a similar presumption does not operate in favour of a husband for acts committed in the presence of his wife, is repugnant to the concept of equality before the law guaranteed by the first sentence of Article 40, s. 1, and could not, under the second sentence of that Article, be justified as a discrimination based on any difference of capacity or of social function as between husband and wife. Therefore, the presumption contended for must be rejected as being a form of unconstitutional discrimination.”
The note of the argument presented to the Supreme Court (at p. 445) does not indicate that this question was argued at all; indeed, it might have been thought appropriate to invite argument from the Attorney General. The Stale (Director of Public Prosecutions) v. Walsh [1981] I.R. 412 appears to be a case in which an important decision on constitutional law was reached without argument and as a moot. At first sight, I do not find it necessarily inconsistent with the constitutional guarantee of equality, to say that in an ordinary marriage relationship it might not be presumed, subject to rebuttal, that a wife acts under the influence of her husband. I find Walsh’s case less than compelling.
2. C.M. v. T.M. (No. 2) [1990] 2 I.R. 52. The doctrine of dependent domicile of the wife had been swept away by principles of equality before the law and equal rights in marriage which were enshrined in the Constitution, in particular Article 40, ss. 1 and 3 and Article 41. This is a far cry from the rebuttable presumption instanced in Walsh’s case.
Conclusion
Neither case bears upon the direct issue here. In The State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412, the presumption in favour of the wife of acting under her husband’s coercion, rebuttable at law, was inconsistent with equality in marital status; in C.M. v. T.M. (No. 2) [1990] 2 I.R. 52 the infringement of the wife’s right to choose her own domicile coming from the common law rule of dependent domicile was inconsistent with Article 40. The present is not a case corresponding to either of these; the question is whether or not the fact that the common law rule did not, apparently, envisage an action for loss of consortiumby the wife should result in a denial to the husband of such a right because of an alleged inconsistency with Article 40. That denial, incidentally, would be made in a case not involving a husband and, a fortiori,one in which the husband was not heard. The simpler solution is to make the common law conform to the Constitution by declaring that the established right of the husband still exists and to deny such a right to the wife would be an infringement of Article 40. In ruling in that fashion, the Court would not be legislating in matters of social policy; it would be removing discrimination. If it were to declare that the husband’s right (upheld in Spaight v. Dundon [1961] I.R. 201 and in O’Haran v. Divine (1964) 100 I.L.T.R. 53) did not survive the enactment in 1937, the Court would be legislating in a matter of social policy. The origin of the right of action is of historical interest only; the right was so well established that, as quoted by Maguire C.J. in Spaight v. Dundon [1961] I.R. 201, it could only be removed by legislation.
No precedent has been cited for the Attorney General to challenge the validity of any part of a post-1937 statute; he is a necessary party to any challenge. I would not entertain the argument challenging the sub-section of the Civil Liability Act.
Total or partial loss.
In my view, the right of action for total loss is clear; like Maguire C.J. I can find no logic in holding against partial loss as giving a right to claim. Difficulty of assessment of damages has never been an answer to a claim of right. It seems to me however quite invidious that any effort should be made to deal with that aspect of the case without first finding the facts.
The implications.
Does it extend to claims by children or in respect of children by parents? I think not. The principle of equality between husband and wife is peculiar to them. Parents and children are not equal and do not have equal rights. Parents are legally bound to support their infant children; no child has any legal obligation to support a parent. Reference to possible extensions of liability – to employees and so on – is not relevant. Here we are dealing with the case of husband and wife. The husband’s right of action in respect of the loss of the society and comfort of his wife is recognised; so also should that of the wife in respect of her husband.
O’Flaherty J.
Should a wife be entitled to bring an action per quod consortium amisit in respect of a wrong done to her husband by a third party and which thereby deprives her of that consortium? Consortium may be taken to mean companionship, the rendering of services, sexual intercourse and affectionate relations between spouses. That the present state of the law recognises that a husband has such a cause of action in respect of such a wrong cannot be doubted. In Spaight v. Dundon [1961] I.R.201 it was regarded as settled law that such a cause of action existed. The Civil Liability Act, 1961, in s. 35, sub-s. 2 (b) recognises the existence of such a cause of action.
In this case counsel for the State invites the Court to hold that this cause of action which developed at common law was inconsistent with the Constitution and, consequently, was not carried over in our law after the enactment of the Constitution. This submission was founded on the point that historically only the husband could bring such an action, not the wife; that this is clearly discriminatory and, therefore, violates the equality provisions of Article 40 of the Constitution.
I do not think it necessary to delve too deeply into the dark past of this particular remedy which not only involved a clear discrimination against wives but consigned them to an inferior status. It is well chronicled. It will be sufficient for me to quote from Lord Wensleydale’s speech in Lynch v. Knight (1861) 9 H.L.C. 577, which was an appeal from the Court of Exchequer Chamber in Ireland, where he said at p. 598:
“The relation of the husband to the wife is in most respects entirely dissimilar from that of the master to the servant, yet in one respect it has a similar character. The assistance of the wife in the conduct of the household of the husband and in the education of his children resembles the service of a hired domestic, tutor or governess; is of material value, capable of being estimated in money . . . It is to the protection of such material interests that the law chiefly attends.”
While this was never the unanimous judicial view on the matter, it had strong support and so when the matter came to be considered by the Supreme Court in Spaight v. Dundon [1961] I.R. 201 Kingsmill Moore J., in the majority judgment, said at p. 214:
“I agree with the eminent judges who considered the action for loss of consortium to be anomalous and founded on a medieval view that the husband had a proprietary – or at least a quasi-proprietary right – in his wife, analogous to his right to the servitium of his servant.”
How, so the submission goes, can such a cause of action of such discredited and anomalous ancestry and one so clearly discriminatory of wives be said to be part of our living law?
Of course, one answer is that by extending the remedy to wives then both the anomaly and the discrimination are removed at one fell swoop. The alternative course is for us to declare that the cause of action went out of existence in 1937 on the enactment of the Constitution. I would regard that as an extreme step. It would involve a finding that the Supreme Court was in error in entertaining the cause of action at all inSpaight v. Dundon [1961] I.R. 201 and O’Haran v. Divine (1964) 100 I.L.T.R. 53. It would also run counter to the consideration given to the matter by the legislature when the Civil Liability Act, 1961, was enacted. Extreme or not, if that is where our duty lies we must not hesitate so to declare. But would such a decision be justified?
The House of Lords was faced with the same question as to whether a wife could bring an action based on loss of consortium except that it, of course, did not have to resolve the question in the context of a written constitution. In Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716 where the history of this cause of action was gone into in great detail, as it had been by the Court of Appeal, Lord Porter, at p. 728, concluded as follows:
“Even if it be conceded that the right of husband and wife ought to be equalised I agree with the Lord Chief Justice that today a husband’s right of action for loss of his wife’s consortium is an anomaly and see no good reason for extending it. If the change is to be made I should prefer to abolish the husband’s right rather than to grant the like remedy to the wife.”
Counsel for the State in effect asks us to take the same course.
For my part I would decline the invitation. If the history of the law is not only logic, but experience, that experience goes to show that many matters that started out as anomalies in the course of time and by a process of refinement were brought into alignment so as to ensure that a just solution was evolved. The history of the development of the equitable jurisdiction of the courts is replete with such examples. So, too, is the history of the development of the law relating to employers and employees. The law originally regarded the master as having a property in his servant. A random glance through any law digest of the last thirty years or so will show how far “ownership” has come around to providing extensively instead for the duties that an employer owes to his employees.
It should be emphasised, too, that the action for loss of consortium,like most actions, ultimately involves a claim for damages for a wrong. I think it appropriate to point out by reference to another, domestic, example how the law has developed by extending a head of damages. I appreciate the comparison is not precise because the example I am about to afford deals with a head of damages rather than a cause of action giving rise to an entitlement to damages but, in the result achieved, the distinction is not important. Formerly it was thought that a husband, wife, parent or child should not be entitled to be compensated for looking after a relative who had been injured. It was thought that these services should be rendered gratuitously. That meant that the wrongdoer was saved the obligation to make due compensation. Indeed, there is an echo of this in Kingsmill Moore J.’s judgment in Spaight v. Dundon [1961] I.R. 201, when he said, at the date of that decision, that a husband constantly claimed and recovered for medical and domestic expenses to which he had been put owing to an injury to his wife. He went on to say:
“As to the first, I think his claim really lies in his legal obligation to provide proper maintenance and comfort, including medical and surgical aid, for his wife, and the fact that the wrong does cause that obligation to be incurred is regarded as giving him a right to recover, while the latter [i.e. the domestic expenses] is truly a remnant, and perhaps the last, of his right to sue for the loss of servitium . . .”
Nowadays, I do not think any judge would require a claim to be thus framed. He would regard a wife or a husband or child or parent to be entitled to be justly compensated in respect of their endeavours in regard to the injured party but as part of the injured party’s claim for damages.
The changes brought about in various common law countries since the decisions in Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716 and in Spaight v. Dundon [1961] I.R. 201 are described in Fleming, The Law of Torts (7th ed.) at page 624. In the United States of America it is noteworthy that in certain decisions there the extension of this remedy to the wife has been based as a matter of equal protection under constitutional provisions; see Prosser and Keeton, Handbook of the Law of Torts (5th ed.), pages 931-932.
I have come to the conclusion that the right of action should extend to the wife and I base my judgment not only on the equality provisions of the Constitution but also on the fact that the Constitution gives marriage a special recognition and lays down that no law shall be enacted providing for the dissolution of marriages. That highlights the need to afford equal rights to both spouses.
As regards the matter decided in Spaight v. Dundon [1961] I.R. 201, that the loss of consortium must be total, Mr. Clarke, for the plaintiff, submitted to us that, on the pleadings, he would be able to bring his case within the confines described by Spaight v. Dundon . Therefore, I reserve by position on whether Spaight v. Dundon requires reconsideration in the light of developments since it was decided. The question of what should be regarded as loss of consortium giving rise to an entitlement to damages may require fresh definition. But since the matter of impairment was not debated before us and, obviously, could not have been debated before us since it had not been canvassed before the learned High Court Judge, I need say no more than that it seems to be difficult to justify a distinction based on total loss of consortium for a limited period and a total loss of a significant element of consortium which is permanent.
When the matter proceeds in the High Court the judge will be venturing on largely unchartered territory, and he is entitled, I believe, to some guidance on the question of the quantum of damages in respect of this cause of action. Kingsmill Moore J. in Spaight v. Dundon [1961] I.R. 201 was of the opinion that such damages should not be “too generous” (at page 215). That precept, of course, applies to any award of damages. However, I think a benchmark might be sought and found in the level of damages that are awarded for mental distress under the Civil Liability Acts in the case of the death of a spouse. It would seem clear, in principle, that damages for loss of consortium should be related to those recoverable for the death of a spouse.
I would dismiss the appeal.
Egan J.
1. The plaintiff in this case was at all material times the wife of Seamus McKinley who she alleged was seriously injured in an explosion at a quarry on the 17th February, 1981, and that his injuries were caused by the negligence of the first, second and third defendants. By order of the High Court made on the 11th May, 1987, it was directed that an issue should be tried as to whether or not the statement of claim disclosed any cause of action.
2. The fourth and fifth defendants were added as parties and on the hearing of the issue the learned judge of the High Court, in his judgment delivered on the 15th November, 1989, directed that the plaintiff should be allowed to continue her case whether the claim was based on total loss of consortium or impairment thereof.
The defendants now appeal from the said order and judgment on the grounds that the learned High Court Judge erred in law:
1. In holding that the common law right of action of a husband for loss of consortium and servitium continued to be in full force and effect notwithstanding Article 50 of the Constitution.
2. Furthermore, in holding that the said common law right of action was extended by operation of the Constitution and, in the absence of legislation, applied to a wife in the same manner as to a husband.
3. In holding that the plaintiff has a right of action whether her claim is based on total loss of consortium or impairment.
4. In holding as a matter of law that if an action for loss ofconsortium exists, that the same extends to partial loss ofconsortium or impairment.
The position at common law was that a husband had a right to damages for the loss of consortium or servitium in respect of his wife. Such a right was confined to the husband alone – Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716.
The husband’s right was recognised by the former Supreme Court in Spaight v. Dundon [1961] I.R. 201 but the loss had to be total deprivation even though the duration might be limited. The matter was again considered in O’Haran v. Divine (1964) 100 I.L.T.R. 53 with a similar result.
It is somewhat strange to note that no reference was made to the Constitution in either case. Article 50 provides:
“Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.”
I have commented on what I consider to be a strange omission or oversight in the two cases I have mentioned because it seems clear that there is a strong argument to suggest that the common law in relation to claims for loss of consortium was and is inconsistent with the Constitution and, in particular, Article 40, s. 1, thereof which provides:
“All citizens shall, as human persons, be held equal before the law. This shall not be held to mean, that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”.
The common law recognised a right of action by a husband for the loss of consortium or servitium of his wife but the wife had no similar or any claim in respect of the loss of consortium or servitium of her husband. The plaintiff alleges that this is inconsistent with the constitutional guarantee of equality and it is conceded that to accord such a right to a husband only is clearly discriminatory and repugnant to the Constitution.
This recognition of discrimination does not, however, deter the plaintiff. It is argued on her behalf that the fact of a husband having a right of action in respect of loss of consortium and servitium is not per serepugnant to the Constitution but that the repugnancy lies in the failure to recognise a similar right for a wife.
This argument suggests that the courts should create a right of action (which was non-existent at common law) for the purpose of protecting the constitutionality of another law and saving it from being declared invalid. I am far from saying that this approach would be impermissible in every type of case but I am satisfied that it would be wrong in the case of actions in respect of loss of consortium.
In Spaight v. Dundon [1961] I.R. 201 Kingsmill Moore J. gives many instances of the manner in which persons (other than spouses) can be gravely affected as a result of personal injuries sustained by another person. None of these persons had a right of action. The law made one exception, i.e., the right of a husband to claim damages for loss ofconsortium and servitium suffered by him as a result of injury to his wife. Many eminent judges took the view that such a right of action was anomalous. It was based on the historical concept of a wife being obliged to render services and in a sense to be regarded as her husband’s property. Such an idea would be regarded as an anathema in the present day. Admittedly the right was firmly entrenched in the common law but it is high time it was eradicated.
Finally it was argued that s. 35, sub-s. 2 of the Civil Liability Act, 1961, revives any destruction of the right caused by the Constitution. It provides, so far as is material:
“For the purpose of sub-section (1) of section 34 the contributory negligence –
(b) (where the action is brought for the loss of consortium or services of a wife or for the loss of services of a child or servant) of a wife, child or servant, shall neither bar recovery nor reduce the damages awarded . . .”
This sub-section, at best, only recognises the existence of a right of action in a husband for loss of consortium or services without recognising any similar right in favour of a wife. Accordingly the sub-section itself has a constitutional infirmity.
I am of opinion, therefore, that the plaintiff has no cause of action and that the appeal should be allowed.
Valerie Coppinger v. Waterford County Council
[1998] 4 IR 220
Geoghegan J. 245
The plaintiff is the wife of Dermot Coppinger who was very severely injured as a consequence of a collision between his car and the rear of a truck, the property of the first defendant, Waterford County Council. In the substantive proceedings for damages brought by Mr. Coppinger against the same three defendants, the action against the second and third defendants was discontinued but as against the first defendant, Mr. Dermot Coppinger has recovered damages as a consequence of a judgment just delivered by me against the first defendant, Waterford County Council for breach by that defendant as an emanation of the State, of the requirements of European Directives in relation to the fitting of under-run safety barriers at the rear of trucks. Mr. Coppinger, however, was found to be guilty of contributory negligence to the extent of 75%. As has been fully explained in the judgment in Mr. Coppinger’s case, he is now permanently hospitalised and permanently brain damaged to the extent that he has only very limited movement in one arm and has effectively lost his speech and is doubly incontinent. I do not find it necessary to detail Mr. Coppinger’s injuries again in this judgment. A full account is to be found in the judgment which I have just delivered in his action. The plaintiff in this action now seeks damages for loss of consortium. Her claim, of course, can only lie against the first defendant and she discontinues the proceedings as against the other two defendants.
There cannot be any dispute that, in principle, such an action lies having regard to the majority decision of the Supreme Court in McKinley v. Minister for Defence [1992] 2 I.R. 333. As this court has found the first defendant to be liable to the plaintiff’s husband and as there has been since the accident and will continue to be indefinitely into the future a total loss of consortium, the plaintiff must recover damages in this action.
Two questions immediately arise however. These are:-
1. Is the plaintiff to get judgment only for 25% of the damages assessed as appropriate for her loss of consortium?
2. How should a court measure the damages?
On the first question, I have no doubt at all as to what should be the legal position. If the situation was reversed and the action for loss of consortium was the traditional action brought by Mr. Coppinger arising from injury to his wife, Mrs. Coppinger, there could be no question of reducing the damages by reason of the wife’s contributory negligence, having regard to the express terms of s. 35(2)(b) of the Civil Liability Act, 1961, as amended by the Civil Liability (Amendment) Act, 1964. Furthermore, that provision was merely a statutory enactment of what had generally been understood to be the common law position in most common law jurisdictions including, in particular, England (see Mallett v. Dunn [1949] All E.R. 973). Indeed, the reasoning behind that principle is fully explained in Mallett v. Dunn. The husband’s action for loss of consortium was not historically regarded as a derivative action only, but an independent action for a different kind of damage. He could not be identified with his wife for the purposes of contributory negligence. Now that the Supreme Court has held in McKinley v. Minister for Defence [1992] 2 I.R. 333, that a wife can bring an action for loss of consortium on grounds of equality, it would be completely contrary to that principle if a wife were to suffer reduction by reason of her husband’s contributory negligence when in the reverse situation, that would not happen. Furthermore, I think it quite clear that when the Oireachtas enacted s. 35(2)(b) of the Civil Liability Act, 1961, it was taking the view (rightly I think) that the common law in Ireland corresponded to the common law in England as expressed in Mallett v. Dunn. There will therefore be no reduction in the plaintiff’s damages by reason of her husband’s contributory negligence.
I now turn to the much more difficult question as to how to assess the damages. The older cases in England before this cause of action was abolished in England indicate that damages for loss of consortium as such tended to be low. Those cases must be read in the context of lower money values at that time, the generally recognisable trend of lower damages in England as against Ireland for similar injury and the fact that, in many instances the damages were for relatively short periods of loss of consortium. In my view, there is adequate Irish case law to guide me and I do not propose, therefore, to pay much attention to the older English authorities. As I have already mentioned, the latest reported Irish case on this cause of action is McKinley v. Minister for Defence [1992] 2 I.R. 333. The judgments of the Supreme Court in that case were essentially dealing with the question of whether such an action could be brought by a wife. The question of the measure of damages was not before the court. Nevertheless, O’Flaherty J. by way ofobiter dicta had this to say at p. 358:-
“When the matter proceeds in the High Court the judge will be venturing on largely uncharted territory, and he is entitled, I believe, to some guidance on the question of the quantum of damages in respect of this cause of action. Kingsmill Moore J. in Spaight v. Dundon [1961] I.R. 201, was of the opinion that such damages should not be ‘too generous’ (at page 215). That precept, of course, applies to any award of damages. However, I think a benchmark might be sought and found in the level of damages that are awarded for mental distress under the Civil Liability Acts in the case of the death of a spouse. It would seem clear, in principle, that damages for loss ofconsortium should be related to those recoverable for the death of a spouse.”
In the context of this case, I think it important to indicate how I interpret thoseobiter dicta of O’Flaherty J. In particular, it is necessary to point out what he has not said. I would therefore, make the following observations:-
1. The learned judge was not suggesting that mental distress for which damages are recoverable for the death of a spouse is in any way a similar kind of injury to loss of consortium.
2. The use of the work “benchmark” would indicate to me that the judge was not in any way suggesting that because there was a particular ceiling under the Civil Liability Acts for damages for mental distress, that that same ceiling should apply also to damages for loss of consortium.
3. In viewing the £7,500 maximum allowable for mental distress as a benchmark, it is necessary to view that figure as it was in real terms in 1981, the year of the Courts Act which provided for that figure. Therefore, in practice, the real benchmark at present would be an updated equivalent of the £7,500 or, in other words, present value in real terms of £7,500 in 1981. As I see it, to approach the matter in any other way would be illogical. If O’Flaherty J. is correct in his approach, then if there had been a loss of consortium action brought by a wife such as the plaintiff in 1981, the court would have had to take as some kind of benchmark in arriving at the damages, the figure of £7,500 provided for by the Oireachtas for mental distress. It does not make sense that in the context of assessing damages fifteen years later, the same £7,500 would be the yardstick simply because of the fact that the Oireachtas has never brought that figure up to date.
4. Although O’Haran v. Divine (1964) 100 I.L.T.R. 53, was cited in argument in McKinley v. Minister for Defence [1992] 2 I.R. 333, in relation to the main issues with which the Court had to deal, it may not have been adverted to that the Supreme Court Judges in that case expressed useful views as to the measure of damages for loss of consortium. In the particular passage which I have cited, O’Flaherty J. does not advert to those views. For my own part, I find that particular case extremely helpful in pointing me to an appropriate assessment of damages for the plaintiff’s loss of consortium.
In O’Haran v. Divine (1964) 100 I.L.T.R. 53, the plaintiff’s husband suffered 42 weeks loss of his wife’s consortium. The jury assessed damages for loss of consortium at £350. An appeal was brought by the defendant on a number of grounds, one of which was that the award of £350 was too high. Kingsmill Moore J., delivering the main judgment of the Court, said he had come to the conclusion that the sum of £350 was “not so much in excess of what a reasonable jury might give as would warrant a new trial of this item of damages”. Ó Dálaigh C.J. and Haugh J. agreed in full with the judgment of Kingsmill Moore J. but Lavery J. not only considered that £350 was well within the competence of the jury to award, but he did not consider the award excessive and indeed, he regarded it as moderate. Walsh J. agreed with Lavery J. that the award of £350 was a moderate figure. In real terms, that £350 would now be a figure of approximately £4,000. I am therefore prepared to take the view that £4,000 would be regarded as a reasonable sum for loss of consortium for 42 weeks. But Mrs. Coppinger has already suffered total loss of consortium for 10 years and as a matter of probability, will continue to do so for another 16 or 17 years. Compensation for loss of consortium can only be given, of course, for periods in which the spouse is alive. Effectively, the plaintiff has to be compensated for 26 years loss of consortium. In so far as any comparisons are to be made as suggested by O’Flaherty J. with mental distress in the case of fatal injuries, and assuming that I am right in my interpretation of his use of word “benchmark”, I would be firmly of opinion that the injury to the plaintiff in this case by reason of loss of consortium is infinitely worse than the mental distress which she would have suffered if her husband had died in the accident. Indeed, even if there had been no statutory ceiling of any kind, whether updated or not, on damages for mental distress, the figure for loss of consortium would have to be altogether higher in this case. If the plaintiff’s husband had died at the time of the accident, she would have been very upset but I think it likely that she would have rebuilt her life. She was and still is an attractive, intelligent woman and there is no reason to believe that she would not have found another husband if she had wished to remarry. Although account must be taken of the fact that she is still able to communicate with her husband, he is not the man that she married and I think that she has suffered real agony in her loss of consortium. Bearing in mind particularly the figure allowed in O’Haran v. Divine (1964) 100 I.L.T.R. 53, and applying modern values tempered, however, with some conservatism in accordance with the traditional approach to assessing damages in cases of this kind, I will allow the sum of £60,000 for loss of consortium and as I have already indicated, I will not reduce it by reason of Mr. Coppinger’s negligence.
It may well be that if third party proceedings had been instituted in this case bringing in Mr. Coppinger as a third party, the defendant could have recouped 75% of the damages from Mr. Coppinger in a contribution claim. This view is certainly expressed by Dr. White in his book on damages. But as the issue is not before me, I express no view on it.
P.H. v. John Murphy & Sons Ltd.[1987] IR 621 Costello J.
Mr. E. H. suffered a severe electric shock on the 9th September, 1981, whilst working for the defendants in their factory premises in Cork. This caused him devastating injuries, the most serious being irreversible brain damage which has meant that since the accident he has been permanently hospitalised and has been unable adequately to communicate. Proceedings on his behalf were instituted against the present defendant alleging that the accident was caused by their negligence. His claim was settled (with the approval of the President of the High Court, Mr. H. having been made a ward of court) by payment into court of the sum of £420,000. Thereafter these present proceedings were instituted. At the time of his accident Mr. H. was a married man with five young children whose ages ranged from four to twelve years. Each of the plaintiffs, his children, was, it was claimed, at the time of the accident a member of a family unit of which Mr. H. was father and head and each was entitled to the benefits of a moral, intellectual, religious and educational nature, being the benefits which flow from the love and affection, the guidance and example which the father of a family bestows on and gives to his children. The plaintiffs, it is claimed, have been permanently deprived of these benefits as a result of the personal injuries which their father suffered personal injuries which were caused by the defendant’s careless acts. The alleged liability of the defendant to compensate Mr. H.’s children is based on two separate claims. Firstly, it is said, that its liability arises in tort because in the circumstances of this case the defendant not only owed a duty of care to Mr. H., their employee, but in addition a separate duty of care to Mr. H.’s children, which duty of care was breached. Secondly, it is said that the defendant’s careless act amounted to an infringement of the rights conferred on each of the plaintiffs by Article 41 (The Family) and Article 42 (Education) of the Constitution and it is said that they are entitled to be compensated for the injury they have suffered by virtue of the infringement of these rights.
The defendant denied liability on a number of grounds and when the pleadings were closed applied to have a number of preliminary issues of law tried by a judge without a jury. The court acceded to this request and the issues which I have been asked to determine are as follows:
(1) Did the defendant owe to the plaintiffs or any of them in the circumstances as pleaded by the plaintiffs any duty of care or any statutory duty as alleged or at all?
(2) Are the damages as pleaded too remote in law?
(3) Is the plaintiffs’ claim bad in law and does it disclose no cause of action against the defendant?
(4) If the plaintiffs’ claim does disclose a cause of action whether such cause of action (if any) was satisfied and barred by virtue of the amends in compensation paid by the defendant to E. H., a ward of court?
[ I propose to answer these questions firstly by considering the defendant’s liability under the law of torts and then whether they are liable under the Constitution to compensate the plaintiffs.
The claim for damages for negligence
The plaintiffs’ claim raises a number of issues in the law of tort, including the basic question whether on the facts of this case it can be said that Mr. H.’s employers owed a duty of care to his children. This branch of the law of negligence has been a developing one, particularly in the English courts. Recently the House of Lords has held that a careless driver owed a duty of care to the wife of another road user because the nervous shock which she suffered from learning of the accident to, and seeing its effects on, members of her family was a reasonably foreseeable consequence of his careless driving (see McLoughlin v. O’Brian [1983] 1 A.C. 410). It is, however, unnecessary for me to decide whether our courts should follow this decision and extend it so as to hold that a careless road-user (and by analogy, a careless employer) owes a duty of care to the children of a person he injures by his wrongdoing. Nor need I enter into the debate which occurred in McLoughlin as to what considerations are proper to take into account to deny the existence of a duty of care even when the injury caused by the negligent act is reasonably foreseeable (in which connection the later House of Lords’ decision in Peabody Fund v. Parkinson [1985] 1 A.C. 210 would have to be considered). This is because the plaintiffs’ claim in these proceedings is in any event unsustainable at common law because the harm which it is alleged they suffered is not of a kind for which compensation will be awarded.
Whilst damages for “nervous shock” are recoverable at common law (i.e. damages for injury to the human body caused by the impact of external events on the mind, to quote Lord Wilberforce in McLoughlin v. O’Brian [1983] 1 A.C. 410 at p. 418) damages for grief and sorrow are not recoverable (the intervention of the Oireachtas, it will be recalled, was required to permit damages to be awarded to children for mental distress caused by the death of their father). It seems to me that the harm which the plaintiffs say they suffered in this case (the deprivation of the non-pecuniary benefits derived from the parent-child relationship) must also be irrecoverable. It is true that damages may be awarded against a wrongdoer in favour of the husband of a wife injured by the wrongdoer’s negligent conduct for the interruption of the husband-wife relationship, but this claim (for damages for loss of consortium) was originally based on the husband’s position as master of the household, and in no common law jurisdiction has it been extended, except by legislative intervention, to allow a claim for damages of the sort the plaintiffs seek to recover in this case. This point is borne out by the conclusions of the Law Reform Commission on the law relating to loss of consortium contained in its Working Paper 7-1979, and First Report on Family Law (LRC 1-1981). The Commission recommended the enactment of amendments to the law by the Oireachtas which would permit damages to be recovered by the members of the family of an injured person “in respect of damage to the continuity, stability and quality of the relationship with the injured person” (see s. 13, sub-s. 2 of the draft Bill on page 17 of the First Report on Family Law), the sort of heading of damage which the plaintiffs have in mind in this case. I respectfully agree with the Commission’s view; and conclude that the common law does not permit an award of damages in the circumstances of this case, and so hold that the statement of claim discloses no cause of action.
Damages for infringement of constitutional rights
(i) Article 41
The constitutional rights which the plaintiffs claim were infringed by the defendant are derived, they say, from Article 41 (The Family) and Article 42 (Education). In connection with the claim for damages in respect of rights protected under both these articles a preliminary point should be made. Whilst at common law a claim for an award of damages for the harm it is alleged the plaintiffs sustained does not lie, this is not the case if the harm resulted from an infringement of constitutionally protected rights. If the defendant’s careless act amounted to a constitutional wrong which inflicted harm on the plaintiffs then I think damages are in principle recoverable; otherwise, the protective provisions of the Constitution would be vacuous and valueless. If therefore the plaintiffs can establish that the defendant was guilty of a breach of a constitutionally imposed duty which inflicted harm on the plaintiffs then damages are recoverable even though at common law an award in respect of such harm could not be made.
Turning, then, to Article 41 (on which the plaintiffs principally rely) it will be seen that its first paragraph contains an impressive recognition by the State of the rights of the Family, which is referred to as “the natural primary and fundamental unit group of Society” and is termed a “moral institution”,and a moral institution which possesses “inalienable and imprescriptible rights antecedent and superior to all positive law”. Whilst this paragraph contains a “recognition” by the State of the Family’s “imprescriptible”rights it makes no attempt to define or otherwise enunciate what these rights are. Instead, it goes on in the next paragraph to impose specific and clearly defined duties on the State in relation to the Family. Arising from the nature of the Family, which is acknowledged in the first paragraph of Article 41, and as a consequence of it, its second paragraph provides that the State”guarantees to protect the Family in its constitution and authority” and explains that it is doing so because the Family is “the necessary basis of social order” and because it is “indispensable to the welfare of the Nation and the State”. It will be noted that this sub-section (Article 41, s. 1, sub-s. 2) imposes duties on the State vis-Ã -vis the Family. The rights which the Family enjoys vis-Ã -vis the State are those which are correlative to the duties imposed by the sub-paragraph and can be ascertained by reference to those duties.
This action, however, is one in which the alleged infringer is not the State but a non-statutory company. Uniquely, the Irish Constitution confers a right of action for breach of constitutionally protected rights against persons other than the State and its officials. In this case the basis for such a claim should be sought in Article 41, s. 1, sub-s. 1 rather than in Article 41, s. 1, sub-s. 2 which relates to the State’s obligations towards the Family. But the undefined rights which obtain constitutional protection by virtue of the provisions of the first sub-paragraph must be the same as those which obtain protection under Article 41, s. 1, sub-s. 2 for it would be an unreasonable construction of the Constitution to suggest that the rights which obtain protection from the State’s “recognition” in Article 41, s. 1, sub-s. 1 are either more extensive or more restricted than those which the State”guarantees to protect” in Article 41, s. 1, sub-section 2. This was the conclusion which Kenny J. reached in Ryan v. The Attorney General [1965] I.R. 294 at 309 and I respectfully agree with what he there said. I will, therefore, look a little closer at the duties imposed on the State by Article 41, s. 1, sub-s. 2 and from these derive the rights which obtain constitutional protection under both sub-sections of Article 41, section 1.
The guarantee which the State gives in Article 41, s. 1, sub-s. 2 is a guarantee to protect the Family “in its constitution and authority”. So, if it could be shown that the Oireachtas had enacted a law which in some way failed to protect the “constitution” of the Family or the “authority” of the Family (as defined in the Constitution) then the State’s guarantee would have been breached. Again, the State would have failed in its obligation to protect the Family if one of its officials deliberately acted so as to attack or impair the “constitution” or the “authority” of the Family and an action for damages would lie unless the impugned acts could in some way be justified under some other provision of the Constitution. But the “constitution” and the “authority” of the family unit could be impaired, indeed, destroyed, by the negligent and careless act of a State official for example, by the negligent driving of an army lorry which killed the parents of young children and which resulted in the dispersal of the children into different foster homes. Could it be said that the State had then broken its Article 41, s. 1, sub-s. 2 guarantee? I do not think so. It must be remembered that the court is construing a constitutional document whose primary purpose in the field of fundamental rights is to protect them from unjust laws enacted by the legislature and from arbitrary acts committed by State officials. It would require very clear words to construe the State’s constitutional obligations (as distinct from its common law obligations) as including a duty to ensure that its officials would not drive carelessly. I do not think that the words employed in Article 41 are apt to do so, and the State’s guarantee of protection does not, in my judgment, include a guarantee that its officials will drive State vehicles without negligence.
It follows that the rights which are conferred by Article 41, s. 1, sub-s. 2 are (a) the right to protection from legislation which attacks or impairs the constitution or the authority of the Family and (b) the right to protection from the deliberate acts of State officials which attack or impair the constitution or authority of the Family. It would also follow that a private person whose negligent act had so seriously injured the head of a Family that the constitution of the family unit was fatally impaired had not thereby infringed any constitutional right enjoyed by members of the affected Family under either paragraph of Article 41, section 1. In the light of these conclusions I must hold that the defendant in this case had not been guilty of any breach of a constitutional duty imposed on them by this Article.
(ii) Article 42
For similar reasons I must conclude that no breach of a constitutional duty imposed by Article 42 has been established in this case.
This Article contains an acknowledgment by the State that the Family is the primary and natural educator of the child and under its provisions the State guarantees “to respect the inalienable right” of parents to provide for the education of their children. Certainly, in this case, Mr. H. is unable to exercise this right because of the fearful injuries he has sustained and his children’s rights to be educated by their father (which I think are to be implied from this Article) have certainly been impaired by the negligent act which caused those injuries. Whether they have been unconstitutionally infringed will depend on whether the negligent act constituted a breach of constitutional duty imposed by this Article. I do not think it did. The State has given a “guarantee to respect” Mr. H.’s right to educate his children, but I do not think that by these words the rights which Mr. H. enjoyed under this provision included an ancillary right not to be injured by a negligent act which interfered with his ability to exercise his rights vis-Ã -vishis children. His children would not therefore enjoy any implied ancillary right that their father would not be negligently injured. This being so the defendant’s negligent act did not infringe any of their Article 42 rights.
Conclusion
I propose therefore to answer the questions raised in the order of the 29th May, 1986, as follows:
(1) In the circumstances of this case no duty of care was owed by the defendant to the plaintiffs by virtue of the Constitution. Because of the answer to (3) it is unnecessary to decide whether a duty of care existed by virtue of the common law or under statute.
(2) Because of the answer to (3) this question does not arise.
(3) The damages which it is alleged the plaintiffs suffered are not recoverable at common law and the plaintiffs’ claim does not therefore disclose a cause of action at common law.
(4) Because of the answer to (1) and (3) this question does not arise.