Irish Law Reform Commission Papers and Reports

THE LAW RELATING TO LOSS OF CONSORTIUM AND LOSS OF SERVICES OF A CHILD

CHAPTER 1

A THE PRESENT LAW

(a) Action for Loss of Consortium

The right of one spouse to the society or services of the other spouse is generally referred to as the right of consortium – or, more accurately, consortium et servitium.

It would be difficult to explain it more clearly than was done by a Canadian judge in the following words:

Any tortious act committed against one spouse that results in a deprivation of consortium may be actionable by the spouse who has suffered the deprivation.

Consortium

The law relating to the tortious interference with marital consortium is a matter of considerable uncertainty in a number of important respects. Set out below are the main features of the law, together with a discussion of the areas of uncertainty.

 

 

History

For many centuries the courts have recognised the right of a husband to sue for damages for the loss of the consortium of his wife. The right was originally based on the husband's position as a master¹ of the household although gradually the element of consortium was stressed more than that of servitium.

Extent of Recovery

The extent of recovery is a matter of uncertainty. In England, the House of Lords in Best v. Samuel Fox & Co Ltd² was divided on the question whether a husband might recover damages only where there was a total loss of consortium, but the problem has since been resolved there in favour of recovery even in cases of partial loss.³

In this country, the former Supreme Court, in Spaight v. Dundon⁴ in 1960, stated:

1 The action in question was entitled actio per quod servitium amisit. This action still exists, being confined to injury to 'menial' servants: cf. A.G.. v. Ryan's Car Hire Ltd [1965] I.R. 642 (Sup. Ct). See also Byrne v. Ireland [1972] I.R. 241 at 286 (Sup. Ct per Walsh J.).   2 [1952] A.C. 716.   3 Hare v. British Transport Commission [1956] 1 W.L.R. 250 (Lord Goddard C.J.), Lawrence v. Biddle [1966] 2 Q.B. 504 (Brabin J.), Cutts v. Chumley [1967] 1 W.L.R. 742 (Willis J.) (subsequent petition for leave to appeal to the House of Lords from the decision of the Court of Appeal on appeal dismissed by the Appeal Committee of the House of Lords [1968] 1 W.L.R. 668).   4 [1961] I.R. 201, analysed by Delany, “Damages for the Impairment of Consortium” (1961) 27 Ir. Jur. 44; Hudson, “Impairment of Consortium” (1962) 25 M.L.R. 580.

 

 

Four years later, however, in O'Haran v. Divine⁶, the present Supreme Court appears on one view to have

5 Supra fn. 4 at 215 (per Kingsmill Moore J.). Kingsmill Moore J's judgment was concurred in by Lavery and O'Dalaigh JJ. Martin Maguire J. agreed generally with the judgment of Kingsmill Moore J., expressing the opinion that   “there is in the common law of Ireland no authority and no precedent for the recovery of damages for partial loss of consortium in an action for damages for negligence against a third party, a complete stranger, who has accidentally caused personal injuries to a plaintiff's wife in a road accident”. (Id. at 216). Maguire C.J., dissenting, could 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-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.” Id. at 206.   6 (1964) 100 I.L.T.R. 53 (Sup. Ct).

 

 

qualified the position somewhat. The facts in O'Haran v. Divine were similar to those in Spaight v. Dundon. In both cases the plaintiff had been separated from his wife for a long period during which she received medical treatment in hospital. In Spaight v. Dundon, recovery for the loss of the consortium was denied on the basis that there had not been a total loss of consortium, even for a limited period or periods. Yet in O'Haran v. Divine recovery was allowed, Mr Justice Kingsmill Moore stating (at p. 56):

This may be viewed as a liberal application of the concept of “total deprivation of [the plaintiff's] wife's company... for a limited period or periods”⁷; alternatively, it may be regarded as relaxing the previous requirement that the loss of consortium must be total.

Entitlement of Wife to Sue

Whilst it is clear that a husband has a right of action in respect of loss of consortium resulting from wrongful injury to his wife, the question whether a wife may sue in respect of loss of consortium resulting from injury to her husband has not so far been determined in this country. In support of the view that the wife has not a right of action are the following arguments:

7 Spaight v. Dundon, supra fn. 4, at 215 (per Kingsmill Moore J.) quoted supra p. 3.

 

 

8 [1952] A.C. 716.   9 Supra fn. 4.   10 Supra fn. 6.

 

 

In support of the view that the wife has a right of action are the following arguments:

Overall, the better view appears to be that the wife has a right of action for interference with the marital consortium.

Effect of Victim's Contributory Negligence or other Default on Plaintiff's Claim

Section 35(2) of the Civil Liability Act 1961 (as amended¹⁵) provides that the contributory negligence of

14 (1950) 183 F. 2d 811, at 813 (per Clark J.). See further infra, pp. 20 to 23. In the United States, the right of action of the wife has been recognised in a number of decisions on the constitutional ground of equal protection.   15 By section 4 of the Civil Liability (Amendment) Act 1964 (clarifying the position regarding vicarious liability). It should be pointed out that, under section 21 of the 1961 Act, as the nominal plaintiff or the spouse, child or servant is in the same position as a concurrent wrongdoer, the defendant may claim contribution. See further R.F.V. Heuston, Salmond on the Law of Torts, 356 fn. 76 (17th ed. 1977).

 

 

“a wife¹⁶, child or servant” is not to affect the right of the plaintiff in an action brought “for the loss of consortium or services of a wife or for the loss of the services of a child or servant”. This is also the position in England, Australia and New Zealand, but not in the United States or Canada.

(b) Action for Loss of Services of a Child

Where a defendant by his wrongful conduct causes injury to a child as a result of which the parents are deprived of the services of the child, the parents may recover damages from the wrongdoer. The principles relating to the nature of the service relationship, the concept of loss of services and other relevant aspects of the subject have been discussed in the Commission Working Paper No. 6 – 1979 (February) on the law relating to seduction and the enticement and harbouring of a child.

B NORTHERN IRELAND

There are no reported decisions on actions for loss of consortium or for loss of services of a child and the law would appear to be more or less the same as in England. The Office of Law Reform's Consultative Document, The Reform of Family Law in Northern Ireland (OLR 1 1977), does not discuss these actions.

16 The section appears to have been drafted on the assumption that the wife has not a claim for loss of consortium. Were the Supreme Court now to hold that she has, an interesting question of statutory interpretation would arise as to whether the subsection should apply to cases where the husband was contributorily negligent. It is suggested that the better view is that it should.

 

 

CHAPTER 2 THE LAW IN ENGLAND AND WALES AND IN SCOTLAND

(a) England and Wales

The English Law Reform Committee Eleventh Report (1963)

In 1961, the Law Reform Committee was invited by the Lord Chancellor to consider the desirability of abolishing the right of action by a master for loss of his servant's services and of enabling an employer to recover damages for loss suffered by him in consequence of a wrong done to his employee by a third person. It reported in 1963.

The Committee unanimously recommended¹⁷ the abolition of the employer's action per quod servitium amisit on the basis that it was “out of accord with modern ideas” and that its results were “capricious”. In its place, the majority recommended that any employer who had incurred expense in consequence of a tortious injury done to his employee should be entitled to be reimbursed to the extent that the wrongdoer's liability to the employee had thereby been reduced.

Turning to the action for loss of consortium, the Committee, after a brief description of its principal aspects, expressed its recommendations on the subject as follows (p. 9):

17 17 Law Reform Committee Eleventh Report (Loss of Services, etc.) (Cmnd 2017 (1963)).

 

 

The Committee's recommendations in respect of the action for loss of the services of a child were that the action should be abolished and that in its place a new right of action should be available to the child's parents “to recover reasonable medical expenses incurred in respect of a dependent child who is injured as well as the reasonable cost of visiting such a child in hospital or elsewhere” (para. 20 (p. 9)).

The English Law Commission Working Paper No. 19 (1968)

In 1968, the Law Commission examined the subject in a Working Paper entitled The Actions for Loss of Service, Loss of Consortium, Seduction and Enticement. It would take up

18 “The solution suggested is this: that when a married person is tortiously injured, the spouse should be allowed recovery of medical and nursing expenses, and all other costs properly incurred in connection with the illness, as well as the cost of providing domestic help to replace the injured partner. In practice this action would benefit the husband on an injury to the wife rather than the wife on an injury to the husband, but theoretically it would be open to both, and this would be free from the reproach of the present law that it provides a one-sided remedy. The remedy proposed should be in substitution for the husband's present action for loss of consortium and services. In effect it would mean abolishing the right to general damages for loss of consortium, while retaining the substance of the action with limited damages and extending it to both marital partners”. (Glanville Williams, “Some Reforms in the Law of Tort” (1961) 24 M.L.R. 101 at 104–105).

 

 

too much space in the present Paper to set out in any detail the matters that the Commission discussed and only a summary of their provisional conclusions is given below. The Commission considered:

The English Law Commission Working Paper No. 41 (1971)

Three years later the Law Commission returned to the subject in its Working Paper entitled Personal Injury Litigation: Assessment of Damages. The Commission stated that, “in the light of our consultation on Working Paper No. 19”, it had decided to recommend²² the abolition of the actions for loss of consortium and for loss of services and their replacement by a new legislative provision for the recovery, in proper cases, of damages for pecuniary loss suffered by members of the family and other persons.

21 This recommendation was supported by the Commission as being “clear[ly].... right” on the basis that   “part of the loss flows not from the tort but from the victim's own negligence and the tortfeasor should not be required to pay for this”. (para. 85).   22 As it had provisionally done in Working Paper No. 19, paras 46, 86.

 

 

The Commission altered its conceptual approach to the problem from that which it had favoured in Working Paper No. 19. It divided the losses into two categories: losses incurred by others on the victim's account and losses incurred by others on their own account. In the first category, the Commission included

Examples of such heads of damage included services for the benefit of the victim performed voluntarily by members of his family, hospital visits, attention given to him by a member of the family (such as nursing attention) and the loss of services performed voluntarily by a member of the family, as where, for example, a wife was so injured that she was unable any longer to care for her family or do any housework.

With regard to losses falling within this category the Commission expressed its provisional view that they should be recoverable by the victim where they were reasonably sustained, whether by a relative or close friend of his “or even [by] a charitable stranger”– para. 207. The Commission considered that the victim should be the person who should claim for such losses but that the court should be given power to give directions as to the disposal of the money awarded. The Commission appreciated that

 

 

With regard to the second category (losses incurred by others on their own account) the Commission considered that so far as pecuniary losses were concerned no problem would arise, since the extent to which the victim's dependants suffered such loss in consequence of his injury was normally dependent on the extent to which his earnings were reduced and his expenses increased – matters for which the victim would recover damages in his own action.

With regard to non-pecuniary losses, the Commission expressed the provisional view that they ought not to be recoverable but that,

The English Law Commission Report No. 56 (1973)

The Law Commission once more examined the law on the subject in 1973 in its Report on Personal Injury Litigation – Assessment of Damages. It stated that the description of the action for loss of consortium in Working Paper No. 19 as anachronistic had “met with no disapproval on consultation”. The Commission had “no doubt” that the action should be abolished and it also recommended that the action for loss of services be abolished.

The Law Commission reiterated its provisional proposal in Working Paper No. 41 that a victim should be entitled, in his own action, to recover damages in respect of the expenses incurred by others, subject to an overriding requirement of reasonableness. It repeated its view that there should be no statutory right of recovery against a victim who did not pass on the damages to those morally

entitled to them. The Commission also recommended that, where the victim had before his injury gratuitously rendered personal services to his dependants, he should be able to recover their reasonable past and future value from the wrongdoer.

The Commission did not recommend that the other members of the victim's family should have any right of action in respect of the non-pecuniary loss which they suffered. The only change in the law in this area that the Commission favoured was that the spouse or parents of a person killed by a wrongdoer should be made a personal award of £1,000 for the “bereavement”.

To a large extent the solution favoured by the Commission – that the victim should be able to recover for expenses incurred by others – has been achieved by the development of the case-law on the subject.²³

(b) Scotland

Whilst a spouse is entitled to reparation (i.e. damages) from a person who has wrongfully caused the death of his or her spouse,²⁴ the position regarding non-fatal injuries “is a question of some difficulty”.²⁵ The cases have been thought difficult to reconcile and it is by no means certain whether, and if so to what extent and on what basis, an action for reparation would be competent (i.e. would lie).

23 Cunningham v. Harrison /T973] Q.B. 942 (C.A.); Donnelly v. Joyce [1974] QB 454 (C.A.), referred to briefly in the Commission Report and analysed by Carr, “Measuring the Loss in Damages for Personal Injuries” (1974) 37 M. L.R. 341 and Jolowicz's Comment: “Gratuitous Services and Damages – A Full Circle” (1974) 33 Camb. L.J. 40.   24 See E. Clive and J. Wilson, The Law of Husband and Wife in Scotland, 266–272 (1974).   25 Id. 272.

 

 

CHAPTER 3 THE LAW IN OTHER EUROPEAN LEGAL SYSTEMS

(a) France

It appears that the members of a victim's family may have a right of action for damages, not only where the victim dies but also where he or she is severely injured.

Nature of Injury

Whereas a number of decisions for over forty years were to the effect that recovery should be limited to cases of death alone, it is clear that this is no longer the position. Damages may be awarded where the injuries sustained by the victim are so severe as to cause a serious disruption in family relationships.²⁶ This is a question of fact in each case.

Range of Claimants

It appears that not only the spouse of the victim but also his or her ascendants and children may be entitled to damages in appropriate cases.

Children born out of wedlock may recover damages in respect of their parents' injury or death, even where they have not been acknowledged by the parent in question. Moreover,

26 26 See H. & L. Mazeaud et A. Tunc, Traité Théorique et Pratique de la Responsabilité Civile Delictuelle et Contractuelle, 421 ff. (6 ed. 1965) and the decision of the Chambre Civile of the Cour de Cassation of 22 October, 1945, D. 1947. J. 59 (Société nationale des Chemins de fer francais c. Geneix et epoux Chamard).

 

 

persons who are in loco parentis to the child may be treated as “parents” for the purposes of claiming damages. Even engaged persons have recovered in some cases.

(b) Federal Republic of Germany

In effect, German law allows for actions for loss of consortium and for loss of the services of a child. The liability may arise out of contract or out of delict. The wife or child of A may sue B for injuries sustained in an accident caused by B. And A may also sue B for the loss of the consortium of his wife or the loss of the services of his child, which loss of consortium or loss of services has resulted to A from B's negligence. (For information and references on German law, the Law Reform Commission wishes to thank Professor W. Müller-Freienfels, University of Freiburg im Breisgau.)²⁷

(c) Denmark

There appears to be no right of action in Danish law for loss of consortium.

(d) Finland

It appears that there is no right to claim damages for loss of consortium. Only the injured spouse has a right of action in respect of his or her injuries.

27 For delict, see Civil Code, Articles 823 et seq. Also (1) Ernst Cohn's Manual of German Law, vol. I, paras 312–325 (2nd ed. 1968) and (2) International Encyclopedia of Comparative Law, vol. XI (Torts) – Chapter 8 by Hans Stoll.

 

 

(e) Greece

It appears that a person may be able to recover damages resulting from financial expenditures or other financial losses resulting from the defendant's negligent infliction of injury on the plaintiff's spouse.

(f) Italy

It does not appear that there is a remedy for the negligent infliction of damage on the marital consortium in Italy.

(g) Turkey

There does not appear to be any right of action in Turkish law equivalent to the action for loss of consortium.

(h) Sweden

It appears that there is no separate right of action for loss of consortium in Sweden, but that the victim may be compensated for damage to the marital relationship in his or her action.

(i) Netherlands

It appears that the spouse of a victim of negligence may recover damages for medical expenses and hospital visits but that he or she may not recover any damages for non-pecuniary losses.

 

 

CHAPTER 4 THE LAW IN NORTH AMERICAN LEGAL SYSTEMS

(a) The United States

Action for Loss of Consortium

Consortium has been defined in the United States as

From earliest times in the United States the husband has had a common law right to claim damages for loss of his wife's services and consortium. Thus, he may be compensated where, as a result of his wife's illness, he is obliged to pay for domestic assistance, but not, apparently, where the domestic tasks that the wife used to perform are undertaken gratuitously by other members of the family. Medical expenses may also be recovered. Deprivation of the fellowship and affectionate relations of the wife also gives rise to damages.

Before 1950, it was generally accepted that a wife had no right of action for negligent interference with the consortium of her husband.

The position was transformed in that year by the decision of the Court of Appeals for the District of Columbia Circuit in Hitaffer v. Argonne Co. Inc.²⁹ There, the

28 Pratt v. Daly (1940) 104 P. 2d 147 at 150. For a general discussion of the subject, see W. Prosser, Handbook of the Law of Torts, 873 ff. (4th ed. 1971).   29 (1950) 183 F. 2d. 811 per Clark J. supra p. 8.

 

 

plaintiff's husband had been severely injured by virtue of the defendant's negligence, one result of his injuries being inability to have sexual relations. The plaintiff sued for loss of consortium and her claim was successful.

Judge Clark disposed of a number of arguments against recognising the plaintiff's claim. The first argument was that the action depended essentially on loss of services and that the plaintiff had no right to her husband's services. This argument was rejected on the basis that

Such a standpoint was, in the court's view,

The second argument against recognising the plaintiff's claim was based on the fear of double recovery. The judge acknowledged that this matter did raise some difficulties (which he subsequently dealt with) but pointed out that the risk of double recovery related only to the services element in an award.

The third argument against recognising the plaintiff's claim was that her injuries were too indirect or remote to be compensated. Judge Clark pointed out that this did not represent an accurate statement of the general principles of negligence law and that, if it had any validity, it would also apply to the husband's claim.

 

 

The judge said he could not appreciate how a distinction could be made (as was done in a number of jurisdictions) between intentional and negligent invasions of the matrimonial consortium whereby a wife would be afforded a remedy in the former, but not in the latter, case.

Judge Clark, at p. 819, expressed the policy basis for his recognition of the plaintiff's right of action as follows:

Judge Clark then dealt with the question of the risk of double recovery. In his view, it posed “no problems”, since “[s]imple mathematics will suffice to set the proper quantum”. The judge stated:

In cases where the husband realised no such recovery in his action, as, for example, under Workman's Compensation legislation where the schedule of compensations made no distinction between married and unmarried claimants, the wife should, in his view,

Whilst Hitaffer was greeted with universal favour by academic commentators, it was at first slow to gain acceptance in the courts elsewhere in the U.S. By 1958, only four other jurisdictions, Arkansas, Georgia, Iowa and Nebraska had followed the lead in Hitaffer.

Today the position is radically different. Thirty-eight States have, either by judicial decision or legislation, now recognised the right of a wife to sue for negligent interference with her right to consortium.

The plaintiff's action for loss of consortium will be barred or the damages reduced where his or her spouse was guilty of contributory negligence.³⁰ This approach has been condemned by a number of writers.

30 Formerly contributory negligence constituted an absolute defence in almost all jurisdictions in the United States, but recently, fearing “no fault” compensation legislation, insurance companies have withdrawn their opposition to the “reduction of damages” rule so that “[t]here is at present a stampede toward comparative negligence”: Schwartz, “Comparative Negligence: Oiling the System” (1975) II Trial 58.

 

 

Action for Loss of Services of a Child

The law in the United States on this subject is largely similar to that in this country. One important difference is that damages may be recovered even where the child was too young to render any services. The contributory negligence of the child will bar the parent's action or reduce damages.

(b) Canada

(i) Common Law Provinces

It is clear that a man may recover damages for total loss of the consortium of his wife caused by the defendant's negligence, but the question whether he may recover for partial interference has been resolved differently in the various provinces. In Manitoba, Alberta, and Ontario the courts have held that a complete loss of consortium must be established. In British Columbia, Saskatchewan and Nova Scotia, however, partial impairment is sufficient. The Supreme Court of Canada decision in Montreal Tramways Co. v. McGuire³¹ would also appear to favour recovery for partial impairment. The right of a wife to claim for the loss – total or partial – has been rejected.

The Ontario Law Reform Commission Study and Report

In 1968, the Ontario Law Reform Commission examined the law relating to negligent interference with consortium in its Family Law Study. After a summary of the law in Canada,

31 31 [1953] 2 S.C.R. 404.

 

 

England, Australia, New Zealand and the United States, the Study made a number of recommendations for reform. It recommended that the existing common law action should be replaced by a statutory right available to either spouse to claim damages

The Study also recommended that the Court should have a discretion to direct that any damages awarded should be applied in whole or in part for the benefit of the children of the marriage or for the maintenance of the plaintiff spouse. On the uncertain question relating to recovery for partial interference with consortium, the Study stated that it

Lastly, on the important question of the effect of contributory negligence the Study considered that it

and it was so recommended.

The following year the Ontario Law Reform Commission dealt finally with the subject in its Report on Family Law. It confirmed the view favoured in the Study that the common

32 Study prepared for the Ontario Law Reform Commission: Family Law Project. Volume VI, Torts (1968) 203.

 

 

law action should be abolished. In its place it recommended³³ a statutory right of action available not merely to the spouse of the person negligently injured by the defendant but also to all members of the victim's family. This right of action would have the following characteristics:

Statutory Reform in Ontario

The recommendations of the Law Reform Commission were given substantial effect by the Family Law Reform Act 1978. The damage for which the members of the family may be compensated is worthy of particular attention. Section 60(2) of the Act provides that the damages may include:

(ii) Quebec

The right in Quebec law of a husband to sue for injury to the matrimonial consortium was first clearly recognised in Lister v. McAnulty,³⁴ where the Supreme Court of Canada held that the action should be recognised on the basis that

Mr Justice Hudson, at p. 329, referred to the mutual obligations of husband and wife as set out in the Civil Code³⁶ and continued:

34 [1944] S.C.R. 317. Husbands had recovered previously on less clear grounds.   35 Id. at 330 (per Hudson J.).   36 The relevant articles were as follows:   “173. Husband and wife mutually owe each other fidelity, succor and assistance. 174. A husband owes protection to his wife; a wife obedience to her husband. 175. A wife is obliged to live with her husband, and to follow him wherever he thinks fit to reside. The husband is obliged to receive her and to supply her with all the necessities of life, according to his means and conditions.”

 

 

The action appears from the case law to be available to the wife also.

Recovery may be ordered even where there is only impairment rather than total destruction of the matrimonial consortium. The contributory negligence of the plaintiff spouse will reduce the amount awarded to the plaintiff. A right of action based on loss of consortium also exists where the plaintiff's spouse is killed rather than merely injured.

37 Article 1053 provides as follows:   “Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another: whether by positive act, imprudence, neglect or want of skill.”

 

 

CHAPTER 5 THE LAW IN AUSTRALIA, NEW ZEALAND AND SOUTH AFRICA

(a) Australia

Action for Loss of Consortium

The law relating to loss of consortium in Australia differs in some important respects from that in this country. The leading decision is Toohey v. Hollier³⁸. The facts, briefly, were that the plaintiff's wife was seriously injured in a traffic accident caused by the defendant's negligence. She was unable to carry out her domestic duties and the plaintiff was obliged to employ a housekeeper. The plaintiff was awarded a sum of money by the trial judge in respect of his financial loss together with the sum of £1,000 as “general damages”. The defendant appealed against this latter award. The High Court of Australia dismissed the appeal. It differed from the approach which found some support in Best v. Fox,³⁹ the judgment of the Court⁴⁰ stating as follows:

38 (1955) 92 C.L.R. 618 (High Ct of Australia), analysed by Parsons, "Loss of Consortium" (1955) 18 M.L.R. 514.   39 [1952] A.C. 716, referred to supra pp. 2, 5 and 6.   40 Dixon C.J., McTiernan and Kitto JJ. The High Court of Australia is the final court of appeal in Australia.

 

 

In permitting recovery for impairment of consortium as well as for its total destruction, the court referred to authorities to this effect in the United States. In a somewhat laconic passage, it added:

This passage has given rise to much academic discussion since it might, perhaps, be interpreted as limiting damages to financial rather than “moral” loss. However, it appears that the court was sounding merely a warning note against fanciful claims.

Some light was thrown on this question by the New South Wales decision of Birch v. Taubmans Ltd⁴¹. There the plaintiff's wife had been injured in a traffic accident caused by the negligence of the defendant. Her injuries were of such a nature as to make her unable to have sexual

41 (1956) 57 S.R. (N.S.W.) 93, noted briefly in (1957) 31 A.L.J. 63.

 

 

relations. The plaintiff was held entitled to recover in respect of impairment of consortium. The court stated at p. 99:

Applying this test the court held that the inability of the plaintiff's wife to have sexual relations was a material or temporal injury, noting that

42 Supra p. 29.

 

 

The contributory negligence of the plaintiff's wife will not affect the defendant's liability to the plaintiff. It was so held by the final court of appeal in Australia in Curran v. Young⁴³.

The law in Australia regarding the right of a wife to sue for negligent impairment or destruction of the matrimonial consortium is difficult to state with certainty. There are conflicting decisions on the matter.

Action for Loss of Services of a Child

Australian law relating to the right of a parent to recover damages for the negligent interference with his child's services appears to be substantially the same as that in this country.

(b) New Zealand

Action for Loss of Consortium

Before 1974, the law in New Zealand relating to recovery for interference with matrimonial consortium appears to have been the same as in England.

43 (1965) 112 C.L.R. 99 (High Ct of Australia). A proviso was, however, suggested by Barwick C.J. (at p. 101) when he stated:   “The wife's failure to take care for herself which disentitles her to succeed is, in my opinion, an irrelevant circumstance in an action by the husband. The matter, of course, would be different if the husband were suing for the consequences of the defendant's negligence in circumstances where the conduct of the wife, when she was doing something which she was either expressly or impliedly authorized to do on his behalf, was a contributing cause to that damage. In such a case his responsibility for her acts may result in his being disentitled to succeed.”

 

 

An unsuccessful attempt was made⁴⁴ by a wife in 1973 to overcome her non-entitlement to sue for loss of consortium by framing an action on principles of negligence.

Since 1 April 1974, when the Accident Compensation Act 1972, which introduced a comprehensive insurance system, came into force, no action for loss of consortium may be taken nor is it possible to frame the action in terms of negligence when it is based on personal injury suffered by the plaintiff's spouse.

Action for Loss of Services of a Child

The law in New Zealand relating to a parent's right of action for loss of the services of his child caused by the negligence of the defendant appears to have been the same as in England. However, since 1 April 1974 no action may be taken for loss of the services of a child.⁴⁵

(c) South Africa

Action for Loss of Consortium

It is clear that a husband whose wife has been wrongfully injured may recover damages from the wrongdoer for the hospital and medical expenses that he has incurred, but that he may not recover for non-pecuniary damage to the consortium of his wife.

44 Marx v. A.G. [1974] 1 N.Z.L.R. 164.   45 Section 5(2) of the Accident Compensation Act 1972.

 

 

The right to recover is based on an extension of the actio legis Aquiliae. In 1911, a South African court first recognised the right of a husband to claim damages in respect of pecuniary loss sustained by him by reason of the death of his wife,⁴⁶ and in 1921⁴⁷ a similar right on the part of the husband was recognised in relation to injuries sustained by his wife. Mr Justice Villiers stated in the 1921 case:

The extent of entitlement to recover is quite limited. Non-pecuniary injury to consortium is not compensatable. The pecuniary damages are limited to the domestic context. Thus, it would appear that only that part of the wife's earnings that is used to defray household expenses may be taken into account by the court in determining the husband's loss.

The contributory negligence of the wife will not reduce the amount of damages awarded to the husband, but the defendant will have a right to contribution from her.⁴⁸

While there is no precedent in favour of recognising the right of action of the wife, there appears to be no objection in principle in South African law to the recognition of such a right.

46 Union Government v. Warneke, 1911, A.D. 657.   47 Abbott v. Bergman, 1922, A.D. 53.   48 Apportionment of Damages Act 1956, sections 2(1A) and (6) (a). As to this Act, see R.G. McKerron, The Apportionment of Damages Act 1956 (Capetown 1956).

 

 

CHAPTER 6 POLICY ARGUMENTS REGARDING REFORM OF THE LAW

(a) Action for Loss of Consortium

The principal arguments in favour of abolishing or retaining the action for loss of consortium and the services of a spouse are considered below.⁴⁹ Then, on the assumption that the action in some form should continue to exist, attention is given to those aspects in which change seems desirable.

Arguments in Favour of Abolition of the Action

The first argument in favour of abolition of the action invokes its alleged historical basis in the assumption that a man has a proprietary interest in his wife, her “services” and her comapny. The reply to this argument, which is also applicable to criminal conversation, seduction and enticement actions, is that the historical origins of a right of action do not greatly matter if the action serves a sound and desirable social policy judged by the standards of today. At best, the argument supports a legislative restatement of the action in modern terms. (See the Commission Working Papers No. 5 – 1978, p. 48 and No. 6 – 1979, p. 60, in regard, respectively, to criminal conversation and the enticement and harbouring of a spouse and to seduction and enticement and harbouring of a child.)

49 In this regard, the arguments assume that in this country the action is available to the wife as well as to the husband.

 

 

The second argument in favour of abolition of the action is that it is anomalous in permitting recovery of damages by persons not directly affected by the defendant's wrongful conduct.⁵⁰ In reply, it may be said that the law has in recent years extended considerably the range of plaintiffs entitled to recover. For example, damages may now be awarded under section 49(1) (as amended) of the Civil Liability Act 1961 for mental distress resulting to each of the dependants of a fatally injured person. Moreover, the courts have tended to look with increasing favour on claims based on non-financial loss.

Whilst cases may be envisaged where the existence of the spouse of a victim of negligence (or other wrongful act) might be quite unforeseeable by the defendant, it may be argued that such cases should be provided for in legislation on the subject and that they do not require that the action in general be abolished.

Arguments in Favour of Retention of the Action

The first argument in favour of retaining the action is that where a person wrongfully causes injury to his victim's spouse he ought to compensate that spouse for the loss

50 In Spaight v. Dundon [1961] I.R. 201 at 215 (Sup. Ct) Kingsmill Moore J. stated:   “It appears to me that in general policy the law is sound in refusing to extend liability for a tort beyond the injuries to the person against whom the tort is directly committed. Otherwise I can see no limit to the number of the persons who could claim that they had been indirectly affected to their detriment or to the nature of the claims that could be made.” (See supra pp. 2–5.)

 

 

sustained. Entitlement to compensation should not depend on any service basis. It may now justifiably be based on the solidarity of the family and the concept of the family action.

The second argument in favour of retaining the action is that, apart from the general principle that wrongfully occasioned loss should be compensated, the particular action provides a support for the family as an institution.

Conclusion

On balance the Law Reform Commission considers that the arguments in favour of retention of the action outweigh those in favour of its abolition. This does not mean, however, that the action should be retained as it is at present constituted. A number of changes in its constituents – some of them substantial – appear desirable. These are considered below.

The first change that appears desirable is to remove the “service” basis of the action and to provide that the action may arise when either spouse is the victim of the wrongful act of another. The notion of a wife being in her husband's service has clearly long been obsolete. The social policy served by the action is not the protection of some supposed proprietary interest in a spouse but rather that of protecting family solidarity and the continuity of family relationships – a basic philosophy adopted by the Commission in respect of the proposed new Family

Actions for adultery, for enticement of a spouse and for seduction, enticement and harbouring of a child proposed in the Commission Working Papers No. 5 – 1978 and No. 6 – 1979.

The second change that appears desirable is to extend the right of action to all members of the family of the victim. Once the “service” fiction is removed and the true policy of the action brought out it is clear that injury is suffered not only by the victim's spouse but by other members of the family also. A suitable model for such an extended right of action is to be found in Part IV of the Civil Liability Act 1961, which deals with the civil action for fatal injuries. The question arises as to who should fall within the category of claimants. Those entitled to claim under Part IV of the 1961 Act are the spouse, parents, grandparents, stepparents, son, daughter, grandchildren, stepchildren, brother, sister, half-brother and half-sister of the deceased person. Adopted children are treated as the legitimate offspring of their adoptive parents, illegitimate children as the legitimate offspring of their mother and reputed father, while persons in loco parentis to children are treated as their parents.

This range of claimants appears to be too wide in the present context. It is considered that it is too onerous to impose on a defendant who has behaved negligently towards his victim an obligation to compensate the victim's grandfather or grandmother, for example. Nevertheless such relatives would have a moral claim, where, for instance, they are living with, and in loco parentis to, the victim. The relationship should be one of proximity of actual association with the victim rather than one arising from consanguinity or from affinity. The Commission considers that the range of claimants should be

the same as that recommended in the case of the proposed Family Actions for adultery, for enticement of a spouse and for the seduction, enticement and harbouring of a child. In other words, the action (which should be a single family action) should be available for the benefit of all the members of the family unit residing together. The members of the family unit should be defined as comprising the parents and the children (including legally adopted children and children to whom either parent is in loco parentis). Only one action on behalf of all the members of the family would be permitted; and the court would be empowered to award such damages to each of the members of the family unit residing together as the court considered fit.

The third change that appears desirable would be for the legislation to specify the categories of loss in respect of which damages should be payable. At present, as has been indicated (supra pp. 2–4), the position is uncertain. The Law Reform Commission considers that the following losses should be recoverable:

The fourth change that appears desirable is to reverse the present rule whereby the contributory negligence of the victim is not taken into account by the court in proceedings for loss of consortium or loss of services. (See sections 35(2) and 21 of the Civil Liability Act 1961.) Professor Fleming has observed that

The Commission accordingly recommends that the present rule be replaced by a rule that damages are to be reduced by such amount as the court thinks just and equitable having regard to the degrees of fault of the victim and the defendant. On the basis of the concept of a “family action” it seems not unreasonable to identify the other members of the family with the one who is the negligent victim.

The fifth change that appears desirable is that the period of limitation should be reduced from the present six years. The Commission recommends that the period should be three years, which is the period for a negligence action for fatal injuries. (See section 48(6) of the Civil Liability Act 1961.)

(b) Action for Loss of Services of a Child

The Argument in Favour of Abolition of the Action

It may be contended that, whilst the defendant should be liable in full to any child whom he injures, he should not also be required to compensate the members of the child's

51 J. Fleming, The Law of Torts, 645–646 (5th ed. 1977). See, however, Glanville Williams, Joint Torts and Contributory Negligence, 440–444 (1951) and subsection 25(3) of his proposed Concurrent Fault Act (p. 520). See also MacIntyre, “The Rationale of Imputed Negligence” (1944) Univ. of Toronto L.J. 368 at 381 and the law in South Africa referred to supra pp. 33, 34 and fn. 48.

 

 

family, since their claim might be over-inclusive or under-inclusive. It might be over-inclusive in that undeserving claimants – parents who have maltreated their child, for example – would be able to claim: it might be under-inclusive in that it might exclude deserving claimants – a cousin or an aunt, for example, who, whilst very close to the child, is not in loco parentis to the child.

As against this, it may be said that no solution will yield totally satisfactory results in every case and that, though there may be an argument for extending the number of claimants, there is no need to abolish the action.

The Argument in Favour of Retention of the Action

The argument in favour of retention of the action is that the existence of the action serves a sound social purpose in that it aids families who suffer financial or other loss as a result of the defendant's conduct. Of course, the law is capable of improvement in several respects.

As the main changes that appear desirable have already been spelt out supra (pp. 37–41) in relation to the action for loss of consortium, there is no need to specify them again in any detail. Vary briefly, the Law Reform Commission recommends that a new action be created by statute so that the members of the family unit would have a right of action for damage done to them as a result of an injury done to a child by the wrongful act of the defendant. The losses should be those set out for the proposed new Family Action to replace the action for loss of consortium – pp. 39 and 40 supra. The defence of contributory negligence would be available – as is also suggested in respect of the new consortium action. (In the present context, it is worth

noting that recovery would not be denied on account of the fact that the child was of tender years.) Also, only one action should be capable of being brought and the period of limitation should be three years– supra pp. 40 and 41.

Note

This Paper does not include a general scheme of a Bill because, as has been indicated in the Commission Working Paper No. 5 – 1978 at page 71, it is considered that the drafting of the necessary legislation will be a relatively straightforward task once the principles upon which it is to be founded are settled following comments on Working Paper No. 5 – 1978, on Working Paper No. 6 – 1979 and on the present Paper.

 

 

CHAPTER 7 SUMMARY OF RECOMMENDATIONS

1.

The actions for loss of consortium and for loss of the services of a child should be replaced by single family actions for the benefit of all the members of the family unit residing together. The members of the family unit should be defined as comprising the parents and the children (including legally adopted children and children to whom either parent is in loco parentis). (Pages 37, 39 and 42)

2.

The damages, which should be without monetary limitation (i.e. at large) should cover

3.

The defence of the contributory negligence of the victim should be available to the defendant in proceedings brought against him by members of the family of the victim. (Pages 41, 42 and 43)

4.

Only one action should be capable of being brought; and the court should be empowered to award such damages to each of the members of the family unit residing together as the court considers fit. (Pages 39 and 43)

5.

The period of limitation should be the same as that for an action for fatal injuries, namely, three years. (Pages 41 and 43)