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Cite as: [1997] 2 IR 176, [1997] IEHC 93

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McKinley v. Minister for Defence (No.2) [1997] IEHC 93; [1997] 2 IR 176 (12th June, 1997)

THE HIGH COURT

Record No. 1268 P/1984

BETWEEN

FINOLA MC KINLEY

PLAINTIFF

AND

THE MINISTER FOR DEFENCE THE MINISTER FOR JUSTICE

DANIEL GREEN IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

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

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

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

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

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

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

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

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

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

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

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

8. The learned trial Judge erred in law holding:-

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

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

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

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

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

THE ISSUE

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

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

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

12. While Lord Reid went on to support the Plaintiff's position in the present issue the passage quoted demonstrates to my mind that there is no assistance to be derived from the older authorities in relation to the determination of rights in this area under a modern democratic constitution committed to the determination of rights and obligations on a basis of equality, including sexual equality.

In Spaight -v- Dundon , Maguire C.J. at p.206 expressed the following dissenting view:-

"I see no reason if damages may be recovered for complete loss of consortium why they may not be recovered for a partial loss. It is true of course that drawing a line poses a difficulty. In my opinion, however, a jury should be able from the evidence to form an opinion as to the extent which the bundle of rights which make up the consortium have been interfered with. It is to my mind not proper to take into consideration, as some of the Judges in Best -v- Samuel Fox & Co. Ltd . 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-à-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."

13. In the instant case, McCarthy J. said at p.354 of the report:-

"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".

14. I agree with the views expressed by Maguire C.J. and McCarthy J. and the Supreme Court having held that the Common Law right to sue for loss of consortium extends to a wife, I hold that the said right of action extends to partial as well as total loss or impairment of consortium.

DAMAGES

15. The Plaintiff's husband suffered destruction of his testicles and has been left impotent and infertile. His impotence responds to testosterone injections and this treatment will need to be continued indefinitely.

16. Prior to the accident the Plaintiff and her husband had a good sexual relationship which she said was important to her as she was an emotional person who needed a lot of reassurance.

17. On the date of the accident two army officers came to the door and said Seamus was involved in an accident but that it wasn't too serious. She went to the hospital and he was wheeled in accompanied by a priest. She knew then that it was serious. He suffered amongst other injuries a gross loss of tissue in the perineum and buttocks, rupture of the scrotum and loss of most of the testicular tissue.

18. When the husband came home from hospital there was no sexual relationship and none was attempted for a year. The attempt then was unsuccessful. After nine years the couple discovered testosterone injections. During the nine year period the Plaintiff says that she was still young, still had all the feelings but he didn't. She said she just had to bottle it all up.

19. When the instant case was before the Supreme Court, O'Flaherty J. gave me some guidance in relation to the assessment of damages for which I am grateful. At p.358 he said:-

"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."

20. The sum being referred to at the time by O'Flaherty J. was capped at £7,500.

In Valerie Coppinger -v- Waterford County Council , 1996 2 I.L.R.M. p.427, Geoghegan J. said at p.431:-

"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 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 has been a loss of consortium action brought by a wife such as Mrs. Coppinger 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 15 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."

21. It so happens that the said sum of £7,500 has just been updated by Ministerial Order to £20,000 and I propose to accept the guidance of O'Flaherty J. by assessing damages in this updated sum. The significantly higher award made by Geoghegan J. in the Coppinger case which concerned brain damage is based on a finding that the injuries to Mrs. Coppinger by reason of loss of consortium was infinitely worse than the mental distress which she would have suffered if her husband had died in the accident. No such case has been made here.

THE DAILY STAR

22. The Plaintiff was gravely upset by the coverage of the Supreme Court phase of this case by the Daily Star. As already noted, the Supreme Court tried the legal issue as to whether the statement of claim herein disclosed a cause of action. The Daily Star is hardly noted for its reportage of points of law in the Supreme Court but it interested itself in this case so that it could run the headline "Wife sues as Private hubby loses his privates". The first paragraph read "a Private who lost part of his private parts saw his wife sue for the loss of his yearnings yesterday".

23. This report came to the Plaintiff's attention when she and her husband were subjected to sniggering at a wedding which she had to leave in tears and caused her great distress.

24. This reporting was, in my view, despicable. The Daily Star is entitled under the law to behave despicably. What concerns me, however, is whether the reporting came close to amounting to an unlawful interference with the constitutional right of access to the Courts in that a person of lesser courage than the Plaintiff could well have been intimidated against bringing her case to a plenary hearing by the cheap ridicule to which she and her husband were subjected at an interlocutory stage.