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GAZETTE
L A W B R I E F
NOVEMBER 1996
Consortium - Loss of Companionship
by Dr Eamonn Hall*
To marry or not to marry? This is often
a difficult question. Charles Darwin, the
author of
The origin of species,
encountered this dilemma and decided
to list arguments in favour of marriage
in one column and the arguments
against in another column. He did
this in pencil, in 1837 or 1838, but
his observations have survived
for posterity.
Under the column "Marry", Darwin
described the benefits of marriage as
including a constant companion, a
friend in old age, someone to take care
of the house, someone to share the
charms of music, and "female chit-
chat". He pictured himself with a wife
on a sofa, in front of a good fire, with
books and music. However, under the
column "Not Marry", Darwin listed
some of the disadvantages of marriage
as lack of freedom to go where one
liked, limited choice of society, and loss
of conversation of clever men at clubs.
However, "trusting to chance", he
married Emma Wedgwood on 29
January 1839.
The purpose of this introduction is to
draw attention to what lawyers call
consortium.
The latin word
consortium
comes from the expression
per quod
consortium amisit,
translated literally as
"whereby he lost the company". In
effect,
consortium
means
companionship, although described in
the textbooks in arcane language as the
loss of society and services. This article
explores aspects of the law in relation to
consortium
and
servitium
or - put
simply - loss of companionship of a
husband or wife in certain defined
circumstances.
What is
consortium?
The precise issue of what constitutes
consortium
in law arose in the Supreme
Court in the case of
O'Haran
v
Devine,
100 ILTR 53 (1966). The court was
Judge Brian Walsh contributed significantly
to the development of the law on consortium.
composed of Ó Dálaigh CJ, Lavery,
Kingsmill Moore, Haugh and Walsh JJ.
The advocates in the case for Mr
Devine, the defendant, were Mr WOB
FitzGerald SC and Mr TF O'Higgins
SC (both later to be elevated to the
office of Chief Justice). Mr Ernest
Wood SC and Mr Niall St John
McCarthy SC (subsequently a judge of
the Supreme Court), together with Mr
Declan Costello BL (later elevated to
the office of President of the High
Court), appeared for Denis O'Haran
who claimed loss of
consortium
of his
wife, Marie O'Haran.
In
O'Haran,
Kingsmill Moore J
considered that
consortium
was:
"the sum total of the benefits which a
wife may be expected to confer on
her husband by their living together -
help, comfort, companionship,
services and all the amenities of
family and marriage. If by the
negligent action of the defendant, a
husband was deprived of all these,
even for a limited period, he was
entitled to recover damages."
Denis and Marie O'Haran had been
involved in a motor accident caused
by the negligence of Victor Devine.
Mr O'Haran's injuries were slight;
his wife sustained cuts to her face
which resulted in some disfigurement
which tended to become blue in colour
in cold weather; there was also a slight
pull on one nostril. Mrs O'Haran also
suffered fractures of her right femur
and humerus and an injury to her back,
all of which necessitated four
operations. Subsequently, and while
still in hospital, she began to pass
stones, accompanied by attacks of renal
colic, and she showed symptoms of
trouble in her left kidney which was
later removed. Mrs O'Haran was
separated from her husband for 29
weeks during her treatment in hospitals
in Naas and in Dublin and for 13 weeks
during her convalescence in Guernsey -
a total of 42 weeks. Her husband sued
the driver of the other vehicle and
claimed for loss of
consortium
of
his wife.
The Supreme Court held that Mr
O'Haran was entitled to damages for
loss of
consortium.
Kingsmill Moore
concluded that on the evidence:
"the wife when in hospital was in
almost continual pain and was
naturally somewhat obsessed by her
suffering ... A healthy companion
and helper was reduced to a
condition where she had to be
separated from her husband for
restoration of her health. All the
innumerable advantages, pleasures
and consolations of married life
were brought to an end - save a
limited measure of communication. It
would be unreal to say that the
husband had not been effectively
deprived of
consortium."
The court held that such deprivation
may, and should, be regarded as
sufficient to ground an action for
damages.
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