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GAZETTE
Is a wife entitled to sue?
Could a
wife
recover damages for the
loss of her husband's
consortium
against a person who negligently injured
the husband? This matter was fully
discussed in the House of Lords in
Best
v
Samuel Fox and Co Ltd
[1952] AC
716. In that case, it was held that a wife
did not have a similar right to that of the
husband. The issue arose for
consideration in Ireland in
McKinley v
Minister for Defence, the Minister for
Justice, Ireland and the Attorney
General
[1992] 2 IR 333, where Mrs
McKinley claimed for loss of
consortium
and
servitium
because of the
negligence and breach of duty of the
relevant Ministers in relation to the
injury suffered by her husband as a
result of an explosion.
Mrs McKinley claimed that her
husband's injuries included severe
damage to his scrotum, thereby
rendering him sterile and impotent. She
claimed that by virtue of her husband's
injuries she had suffered serious
personal anguish, shock, anxiety,
distress and trauma and loss of her
permanent
consortium
and
servitium.
Section 35 of the
Civil Liability Act,
1961
recognises the existence of the
right of action in the husband to sue for
loss of
consortium
and
servitium.
The
Supreme Court in
McKinley -
Hederman, McCarthy and O'Flaherty JJ
(with Finlay CJ and Egan J dissenting) -
held that in principle where a common
law right offends against the principle
of equality, the court must redress the
inequality by a positive declaration that
the right vests in the party discriminated
against. Accordingly, the common law
right of a husband to sue for loss of
consortium
and
servitium
was, by virtue
of the application of the principle of
equality enshrined in Article 40 of the
Constitution and the special recognition
afforded to marriage in Article 41 of the
Constitution, extended to a wife.
The court considered that section 35
of the
Civil Liability Act, 1961
must
be construed so as to include a wife
within its terms. O'Flaherty J noted,
however, that the level of damages to
be awarded should not vary in a
significant degree from that awarded for
mental distress under the
Civil Liability
Act, 1961.
The Coppinger case
The most recent reported case on
damages for loss of
consortium
is
Coppinger v Waterford County Council
[1996] 2 ILRM 427. In
Coppinger,
Geoghegan J of the High Court held that
Waterford County Council was liable in
law to compensate David Coppinger as
a result of a collision in which his car
collided with the rear of a truck owned
by Waterford County Council. The
learned judge held that in failing to have
an under-run barrier on the rear of the
truck, Waterford County Council had
breached Council Directive
70/156/EEC, thereby causing the
injuries suffered by Dermot Coppinger.
consortium means
companionship, although
described in the textbooks in
arcane language as the loss of
society and services
Mr Coppinger was awarded
compensation in respect of breach of the
directive, but Geoghegan J held that he
had been guilty of contributory
negligence to the extent of 75%.
Accordingly, while damages were
assessed at £981,918, judgment for a
sum of £245,479.50 was entered.
Valerie Coppinger, Dermot Coppinger's
wife, claimed damages for loss of her
consortium.
Geoghegan J awarded
Valerie Coppinger £60,000 for the loss
of
consortium
of her husband.
Geoghegan J said that in
O 'Haran v
Devine,
above, the plaintiff s husband
suffered 42 weeks' loss of his wife's
consortium.
In
O' Haran,
a jury had
assessed damages for loss of
consortium
at £350. In real terms, £350 would
approximate to £4,000 in 1996.
Geoghegan J was 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 had
already suffered total loss of
consortium
for ten years and as a matter of
probability would continue to do so for
another 16 or 17 years. Effectively, Mrs
Coppinger had to be compensated for
26 years' loss of
consortium.
Geoghegan J considered that, if Mrs
Coppinger's husband had died at the
NOVEMBER 1996
time of the accident, she would have
been very upset but would likely have
rebuilt her life. "She was, and still is, an
attractive and intelligent woman and
there was no reason to believe that she
would not have found another husband
if she had wished to re-marry", stated
Geoghegan J. The judge noted that she
suffered real agony in her loss of
consortium.
Accordingly, he allowed
the sum of £60,000 which he did not
reduce by reason of Mr Coppinger's
contributory negligence.
•
*Dr. Eamonn Hall is the Company
Solicitor in Telecom Eireann.
Claims against the
Dow Corning
Corporation
Some solicitors may have clients who
are pursuing claims against the US-
based Dow Corning Corporation over
problems allegedly caused by silicone
implants made by the company. Dow
Corning has filed for protection under
Chapter 11 of the US Bankruptcy Code.
The largest class of potential claimants
are those who have had silicone breast
implants made by the company. Any
solicitors who may have an implant
claim against the Dow Corning
Corporation must file that claim with
the court-ordered docketing agent so
that it is actually received by
14 February 1997. All other claims must
be filed by 15 January 1997. After these
dates, it is impossible to file a claim.
Women who have had silicone breast
implants must file if they have a claim
against the Dow Corning Corporation or
who wish to preserve their rights to
assert a claim in the future, even if they
are already registered in other breast
implant litigation, including the multi-
district litigation 'global settlement.'
Solicitors wishing to file a claim with
the Dow Corning Corporation must call
the United States on (1) (402) 445 9273
to request a Proof of Claim Form.
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