Curran v Young

[1965] HCA 14

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Owen JJ.

CURRAN v. YOUNG

(1965) 112 CLR 99

8 April 1965

Negligence

Negligence—Action per quod consortium amisit—Contributory negligence of wife—No defence to husband's action.

Decisions

1965, April 8.
The following written judgments were delivered:-
BARWICK C.J. A wife, driving a car for purposes of her own, was injured by the negligence of the appellant, with the result that her husband was put to expense in providing her with hospital and medical treatment and lost the benefit of the services which she usually performed in the household. He sued the appellant per quod consortium amisit. It was found at the trial of the action that the appellant was negligent but that the wife had failed to take adequate care for her own safety. On these findings a verdict was directed for the appellant. The Full Court of the Supreme Court on appeal set aside this verdict and ordered a new trial limited to damages. (at p100)

2. The appellant has submitted that both in point of principle and of authority the action of the husband per quod is derived through his wife and that he cannot succeed in it in any circumstances in which, in the opinion of the tribunal deciding the husband's claim, she would fail in an action brought by her against the defendant because of her own contribution to her injury. (at p100)

3. In my opinion this submission is clearly erroneous. The action of the husband of its very nature is quite independent of that of the wife and is in no sense dependent on her ability to obtain a verdict for herself against the defendant. Although the husband's action may be grounded upon the same act of the defendant as would be an action by the wife for her own injury, the damage is entirely different. He sues, not for the injury to her, but for the damage suffered by himself by the wrongful act of the defendant, albeit because she was injured thereby. The act of the defendant causing injury to the wife in breach of the defendant's duty to her does not lose its tortious character because she is unable by reason of her own conduct to succeed in an action against the defendant. Its tortious character remains, both as against the wife and as against the husband. So does its causal relationship both to the injury to the wife and the damage to the husband. (at p101)

4. 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. (at p101)

5. On principle, therefore, in my opinion, the appeal should fail. So far as the authority of decided cases is concerned, in my opinion, the decision of Hilbery J. in Mallett v. Dunn (1949) 2 KB 180, followed by Devlin J. (as he then was) in Drinkwater v. Kimber (1951) WN (Eng) 496, is correct and, except that I do not regard contributory negligence as in any relevant sense "wrongdoing" (see (1949) 2 KB, at p 186), I am content to adopt his reasoning. (at p101)

6. I should add that I find no incongruity in a husband being able to recover for damage which flows from injury sustained by his wife by the wrong of another. No doubt the supposed proprietary right of the husband in the person of the wife as a basis for the action per quod is an anachronism and now vestigal. But I do not subscribe to the view that for that reason the right of the husband to be compensated for his loss by the tortious conduct of another is anomalous and should be denied or curtailed. (at p101)

7. With the substantial developments which have taken place in the concept of negligence it may well be that where negligence provides the tortious quality of the defendant's act the husband's claim to damages might now be regarded simply as an action in negligence, of breach of duty towards the husband. Most if not all of the substantial damage which the husband can now recover in his action per quod might well be regarded as foreseeable within the doctrine of the "Wagon Mound", Overseas Tankship (U.K.) Ltd. v. Morts Dock &Engineering Co. Ltd. (1961) AC 388. However, the present case can be disposed of both upon principle and upon authority without reaching any conclusion on these matters. (at p101)

8. I have had the advantage of reading the judgment prepared by my brother Taylor, in which he analyses and comments upon the Canadian cases. I agree with him completely both in his analysis of them and in his criticism of such of them as decide or adopt cases which decide that the husband's right of action per quod is derivative so that he is so far identified with his wife that her failure to take care for herself warrants a verdict against him in his action. I also agree generally with his Honour's reasons for judgment. (at p102)

9. In my opinion the appeal should be dismissed. (at p102)

McTIERNAN J. The action is a claim based on negligence for loss of consortium and for compensation for expenditure incurred by the plaintiff in consequence of his wife sustaining personal injury. The question to be decided is whether contributory negligence of the wife is a defence to the action. In New South Wales there has been no alteration or variation of the rule of common law that contributory negligence is an answer to the plaintiff's claim in an action for personal injury. In the present case the jury found that the defendant and the plaintiff's wife were both negligent. The trial judge decided that on these findings the jury should find for the defendant and they did so. On appeal, the Supreme Court of New South Wales decided to the contrary and ordered a new trial of the action. In the present appeal to this Court the defendant asks for the restoration of the verdict returned at the trial in his favour. (at p102)

In Mallett v. Dunn(1949) 2 KB 180 Hilbery J decided that at common law contributory negligence of a wife is no answer to her husband's claim for damage suffered by him as a result of negligence of the defendant causing injury to her. In the course of his reasons Hilbery J. said: "I have searched for any authority which lays it down that such an action by a husband for a tort done to his wife per quod consortium amisit was defeated by the defendant showing that the wife had been guilty of contributory negligence. Nor do I see any sound reason why it should be. The claim by the wife was answered if at the conclusion of the case all that had been established was that both she and the defendant had tortiously caused her injury and damage, that is to say, if the defendant had proved that she had been guilty of contributory negligence. But it was implicit in such a result that the defendant had been guilty of negligence, id est the tort alleged against him. It might be just to say that the plaintiff wife ought not to obtain compensation out of the defendant's pocket where she herself was also a cause responsible for her injury and damage. In an action by the husband per quod consortium amisit he must show, as the first part of his action on the case, a wrongdoing of the defendant which has resulted in the damage which the husband claims. If in such an action the husband shows that the defendant was negligent in a way which was partly the cause of the injury to his wife as a consequence of which he suffered the damage he claims, he has proved the tort alleged" (1949) 2 KB, at p 185 This decision was applied by Devlin J. in Drinkwater v. Kimber (1951) WN (Eng) 496 In my view the decision of Hilbery J. settled the law on the question raised by the present appeal. Even if the question were arguable I think that this decision should be followed in order that common law doctrine in Australia should be harmonious with that applied by courts in England. I think diversity of judicial decision on such a question in this peculiar field would be mischievous. (at p103)

3. It is argued that the action per quod consortium amisit is derivative, and that this concept of the action involves that a defence which the defendant could plead if the wife sues for damages in respect of the injury she sustained may be pleaded in defence to a claim by the husband for loss of consortium. In my opinion the husband's action for loss of consortium and the wife's action for personal injury are entirely separate. The husband's action is not an offshoot of the wife's rights. It would seem he may maintain the action even though his wife consented to the wrong on which he bases the action: Rogers v. Goddard (1682) 2 Show KB 255 (89 ER 925) . If the wrong was negligence causing injury to the wife the husband does not sue for that damage. His claim is for loss of consortium consequential upon the injury; such loss is damage which he suffers. Contributory negligence of the wife postulates that the defendant himself was guilty of negligence as a result of which the wife suffered injury. Her negligence cannot be attributed to her husband unless the defendant proves that the wife was agent or servant of the husband: qua wife, she is not agent or servant for present purposes. (at p103)

4. In my opinion the decision of the Full Court of the Supreme Court of New South Wales is right in so far as it accords with Mallett v. Dunn (1949) 2 KB 180 . As I understand the decision of the Full Court it was on the authority of Mallett v. Dunn (1949) 2 KB 180 that the learned judges held that on the finding of negligence against the defendant, disregarding the finding of contributory negligence against the plaintiff's wife, the verdict for the defendant was wrongly entered. (at p103)

5. I agree the appeal should be dismissed. (at p103)

KITTO J. It is clear, I think, that the trial judge's direction in this case cannot be supported either on the basis that for relevant purposes husband and wife are eadem persona, or on the basis that for any other reason the wife is to be identified with the husband. In this department of the law the notion that husband and wife are to be treated as one person can hardly survive a reading of the comment made in Pollock and Maitland's History of English Law, 2nd ed. (1952) Vol II, pp 405, 406, quoted by Rich J. in Wright v. Cedzich(1930) 43 CLR 493, at p 519 See also Tooth &Co. Ltd. v. Tillyer (1956) 95 CLR 605, at pp 615, 616 And any suggestion that a wife's lack of care in a case like the present is to be attributed to the husband on some supposed principle of identification would be open to all the objections expounded by the House of Lords in Mills v. Armstrong, The "Bernina" (1888) 13 App Cas 1, esp at pp 7, 8 (at p104)

6. The learned judge's direction is in direct conflict with the decision of Hilbery J. in Mallett v. Dunn (1949) 2 KB 180 It is, however, supported by a number of cases in the United States and Canada and by some text-writers: see the references collected by Dr. Glanville Williams in his Joint Torts and Contributory Negligence (1951) p. 454. Dr. Williams himself accepts Mallett v. Dunn (1949) 2 KB 180. In the judgment which my brother Taylor has prepared in the present case many of the cases reviewed, and I respectfully adopt his Honour's discussion of them. It seems to me that in the end only one question emerges which requires serious consideration, and that is a question as to the essential ingredients of a husband's action per quod consortium amisit. It is of course a separate action entirely from the wife's action in respect of the personal injury caused to her by the defendant's conduct. It is an action for the damage caused to the husband by the injury of the wife: see generally Wright v. Cedzich(1930) 43 CLR 493. He must, of course, prove that some act or omission of the defendant was a substantial cause of the harm done to the wife. That requirement is satisfied in the present case, for the jury's first finding means that although the wife's own carelessness was a cause of her injury, and a sufficiently substantial cause of it to prevent her from recovering damages against the defendant, conduct of the defendant was also a cause of her injury, and was a cause not too remote to entail legal responsibility for that injury. But the question that remains is whether it is of the very nature of a husband's cause of action for loss of consortium that by the infliction upon the wife of the injury which he alleges caused him that loss she herself became entitled to recover damages from the defendant. (at p105)

7. The point may be brought out by reference to what was said by Willes J. in an enticement case, Winsmore v. Greenbank (1745) Willes 577 (125 ER 1330) That learned judge began his general observations in relation to actions per quod consortium amisit by pointing out that "the fact laid (i.e. in the plaintiff's declaration) before per quod consortium amisit is as much the gist of the action as the other" (1745) Willes, at p 581 (125 ER, at p 1332) That is to say that while it is essential that the damage complained of as having been caused to the husband be of the requisite kind, so also it is essential that the cause of it be conduct of the defendant of the requisite kind. Then his Lordship went on to say what quality that conduct must have. Answering a contention that the cause of action required damnum cum injuria he said: "if the fact that is laid by which he lost it (the consortium) be a lawful act, no action can be maintained. By injuria is meant a tortious act: it need not be wilful and malicious; for though it be accidental, if it be tortious, an action will lie" (1745) Willes, at p 581 (125 ER, at p 1332) Does the word "tortious" in this context mean entailing liability to the wife in an action of tort? If so, the appellant's argument in the present case should succeed. But "tortious" is contrasted with "lawful", and the learned Judge's acknowledgment that an act may be tortious though "accidental" (i.e. not wilful or malicious) shows, I think, that he meant "tortious" to refer only to the legally unjustifiable character of the defendant's conduct, a character which it possesses where it involves a breach of a legal duty of care for the safety of the wife. I see no reason to suppose that Abbott C.J. used the word "tortious" in any more limited sense in Hall v. Hollander (1825) 4 B &C 660, at p 663 (107 ER 1206, at p 1207) (at p105)

8. I can find no warrant in the English cases for going further than this and requiring that the breach of duty be one for which the wife is not disentitled by her own conduct from recovering a verdict against the defendant in respect of the damage sustained by her. Both Willes C.J. and Abbott C.J. appear to me to have been concerned with the wrongfulness of the defendant's conduct viewed generally, and not with its effects upon anyone but the husband - its effects upon the wife being relevant only as steps in the causation of the effects produced upon the husband. The wrongfulness of that conduct, its tortiousness, is not negated by a finding of contributory negligence. Such a finding negates only the second essential proposition in the wife's case, namely that the defendant's conduct, the wrongfulness of which is asserted by the first proposition, caused the damage sustained by the wife without contribution from negligence on the part of the wife herself: see per Bowen L.J. in Wakelin v. London and South Western Railway Co. (1896) 1 QB 189 (n), at p 193 (I am not here referring to the onus of proof of the latter portion of the proposition in the course of a case.) Not a single judgment in England supports the notion that the second proposition in the husband's case should read that the defendant's wrongful conduct caused the damage sustained by the husband without contribution from negligence on the part of the wife. Yet the notion, if it is to be adopted, needs historical support, for mere logic will not travel the distance. (at p106)

9. I agree that the Full Court was right in directing a new trial, and that the appeal should be dismissed accordingly. (at p106)

TAYLOR J. This is an appeal from an order of the Supreme Court of New South Wales which directed a new trial limited to damages in an action in which the plaintiff, the present respondent, sued to recover damages for the loss of the services of his wife brought about as the result of physical injuries sustained by her in a collision between two motor vehicles. The appellant was the driver of one of the vehicles involved in the collision and Mrs. Young was the driver of the other vehicle. It is material to observe at this early stage that there was nothing in the case to suggest, and it was not suggested, that the latter was in control of her car as the servant or agent of the respondent or in any circumstances otherwise rendering him responsible for her actions. In these circumstances there arose at the trial the question whether, assuming negligence on the part of the appellant, the respondent's claim would be defeated by a finding on the part of the jury that Mrs. Young had been guilty of contributory negligence. On this question the learned trial judge ruled, "with considerable doubt", in favour of the appellant and, accordingly, he left to the jury three questions:

(1) Was the defendant, Mr. Curran, negligent? (2) If the answer to question (1) is Yes, was the plaintiff's wife, Mrs. Young, guilty of contributory negligence? (3) If the answer to question (1) is Yes and the answer to question (2) is No, what amount of damages do you award to the plaintiff, Mrs. Young?

The jury answered the first and second questions in the affirmative and, in accordance with his Honour's ruling, a verdict was entered for the appellant. Thereafter, upon a motion for a new trial, the Full Court dissented from the ruling of the learned trial judge and made the order now under challenge in this appeal. (at p107)

2. The question whether, in cases such as the present, proof of contributory negligence on the part of the wife is, in the absence of statutory provision to the contrary, available as a defence has not been the subject of much judicial discussion in Australia. But it has received some attention in England and considerably more in Canada. In England, Hilbery J., in Mallett v Dunn (1949) 2 KB 180 , held that contributory negligence of a wife was not at common law a defence to an action per quod by the husband and in so holding he dissented from the general current of authority in Canada. The main body of Canadian authority up to the time of the decision in Mallett v. Dunn (1926) 1 DLR 217 seems to have stemmed from comparatively early decisions of the Ontario courts and it is substantially upon this line of authority that the appellant relies. The first of these decisions was Knowlton v. Hydro-Electric Power Commission (1926) 1 DLR 217 where Grant J. considered that contributory negligence of a wife operated to defeat her husband's action for loss of consortium resulting from physical injuries caused by the negligence of a third party. His reasons for reaching this conclusion were, in the first place, that in such cases the husband is "identified" with the wife - "the case of husband and wife and master and servant and parent and child are substantially the same in regard to the question involved in the present case" (1926) 1 DLR, at p 229 - and secondly, it seems, that it was possible to say, since the negligence of the wife had contributed to her own injuries, that they "would not have been suffered had his wife not been negligent, because had it not been for her own want of care the accident would not have happened, and therefore the action by the husband prior to the passing of the statute must have suffered the same fate as an action by the wife brought at that time, that is, have been dismissed" (3). I pause to say that the substance of this observation was directly contrary to the finding of the jury which expressly found that the wife's injuries were caused by the negligence of the defendant though she herself had been guilty of contributory negligence and, of course, the issue of contributory negligence did not and could not have arisen unless and until the jury had concluded that the defendant's negligence had been a cause of her injuries. However, the substantial criticism of this line of reasoning is to be found in the part which the defence of contributory negligence plays in actions for damages for negligence. Its history was traced in this Court in Alford v. Magee (1952) 85 CLR 437 and further referred to in Chapman v. Hearse (1961) 106 CLR 112 where the true character of the "last opportunity rule" was also adverted to. It is unnecessary to repeat what was then said but it is necessary to observe that proof of contributory negligence on the part of a plaintiff does not operate to destroy the tortious character of the defendant's negligence; it merely provides the latter with an answer to the plaintiff's claim. Indeed if the second ground which it seems was taken by Grant J. is sound then it establishes that in cases such as the present not only is the wife's contributory negligence an answer to a husband's action but would also constitute an answer to an action by a passenger in the car who happened to be injured in the collision. This is clearly erroneous and this line of reasoning must be rejected. So also must the notion that the references given by Grant J. establish that "the cases of husband and wife and master and servant and parent and child are substantially the same" (1926) 1 DLR, at p 229 in regard to the question under consideration. Before dealing with this proposition it may be observed that a few weeks after this decision the Appellate Division of the Ontario Supreme Court gave judgment in McKittrick v. Byers (1926) 1 DLR 342 and in this case the earlier case was approved. This was not a husband and wife case; it was said to be an action by a father for damages sustained by him as the result of injury to his daughter caused by the negligence of the defendant. The cause of action does not more precisely appear nor are the circumstances in which the injuries occurred stated. But it is reasonable to assume that they did not occur in circumstances which rendered the father responsible for his daughter's actions. Nevertheless it was held that her contributory negligence was an answer to the father's claim. This case seems to have had a considerable influence in subsequent cases in Canada raising the same point but in so far as it is based on the English decisions referred to in the reasons of the Court, it seems to me, with respect, that it misapplies them for all but one of them are cases in which the plaintiff was responsible for the conduct at the time of the person who had been guilty of contributory negligence. The remaining case - Hall v. Hollander (1825) 4 B &C 660 (107 ER 1206) - is not such a case. There the plaintiff father failed in his claim because his injured son was too young to render any service to the plaintiff and the case throws no light on the present problem. But the Court observed that it was authority for the proposition that "in a father's action for injury to his son by negligence the gist of the action is the loss of service to him by such injury, and if the child could not perform service the action failed"(1926) 1 DLR, at p 346. Then the reasons of the Court proceeded, "In other words the child is for the purpose of such an action in the position of a servant" (1926) 1 DLR, at p 346. The fallacy of this observation is manifest. Of course loss of services is the gist of the action in either case, but to say this is not to say that in all cases where a servant is injured by the negligence of a third party and the servant has been guilty of contributory negligence the master's action will be defeated. Whether or not the defence of contributory negligence will be available against a master in any such case will depend upon whether the injuries were occasioned in such circumstances as to render the master responsible for the servant's actions, that is to say, whether they were being done in the course of the servant's employment. (at p109)

3. The next Canadian case to which we were referred was Oliver Blais Co. v. Yachuk (1946) 1 DLR 5 where, upon the trial of a father's action for damages resulting from injuries caused to his son, the father succeeded in obtaining only twenty-five per cent of his assessed damages because his son had been held to be blameworthy to the extent of seventy-five per cent and the defendant to the extent only of twenty-five per cent. Apparently, at the trial McKittrick v. Byers(1926) 1 DLR 342 was followed without argument but upon appeal to the Ontario Court of Appeal the defendant was held to be wholly to blame and judgment was entered for the full amount. On a further appeal to the Supreme Court of Canada there was a remarkable diversity of opinion. Two justices were of the opinion that the judgment at the trial should be restored, two were of the opinion that the action should be dismissed as no negligence was attributable to the defendant, and one, that the judgment of the Ontario Court of Appeal should stand. The first two justices therefore were the only members of the Court who found it necessary to examine the point under consideration in this case. They were Hudson and Estey JJ. and the former concurred in the latter's reasons which proceeded to discuss the application of the Ontario Negligence Act on the assumption that at common law the son's contributory negligence would have been an answer to the father's claim. Estey J. said: "This section specifically provides for the apportionment of damages as between the parties who by their fault or neglect have contributed to the loss or damage. While the father was in no way associated with the events that inflicted the injury suffered by the infant plaintiff, it must not be overlooked that, although a separate and distinct cause of action, his has been regarded as a consequential or dependent action and treated upon much the same basis as the infant. The contributory negligence of the latter was a bar to his recovery at common law" (1946) 1 DLR, at pp 18, 19 . The case went on appeal to the Judicial Committee (1949) AC 386 where the order of the Ontario Court of Appeal was restored and accordingly there was no occasion to consider the point. Nevertheless their Lordships, after referring to the reduced damages awarded in the first instance, went on to say: "The question whether the terms of the Negligence Act could justify, on any view of the facts, that reduction of the damages awarded to the father did not appear to have been argued before the learned judge. It was answered in the affirmative by two judges of the Supreme Court of Canada. As will appear, no other judge had occasion to pronounce on it, and their Lordships' Board did not find it necessary to consider it."(1949) AC, at p 390. (at p110)

4. The actual point which arose in the case of Attorney-General of Canada v. Jackson (1946) 2 DLR 481, to which we were also referred, does not seem to me to govern the decision in this case and beyond saying, with respect, that I think the majority judgment in that case misapplied an observation made by Willes J. in Alton v. Midland Railway Co.(1865) 19 CB (NS) 213 (144 ER 768) I refrain from commenting upon it. Nevertheless the members of the Court referred to McKittrick v. Byers (1926) 1 DLR 342 as an analogous case and evidently approved of the decision and regarded it as consistent with current United States authority. Then in Young and Young v. Otto(1948) 1 DLR 285 the Alberta Supreme Court followed McKittrick v. Byers (1926) 1 DLR 342, observing that "It is established law, that were it not for the Contributory Negligence Act the defence herein by defendant Otto of contributory negligence on the part of Mrs. Young would have been a complete answer to her claim, and in my view, that is also the law as to the related claim of her husband James W. Young, and this action would accordingly have been dismissed as to both" (1948) 1 DLR, at p 290 . This decision was expressly rejected This decision was expressly rejected by Hilbery J. in Mallett v. Dunn (1949) 2 KB 180 . I do not think it necessary to refer to other isolated cases in which McKittrick v. Byers (1926) 1 DLR 342 was followed without question and proceed to mention the decision in Macdonald and Macdonald v. McNeil (1953) 1 DLR 755 , a decision of Ilsley C.J. in the Supreme Court of Nova Scotia. In this case the learned Chief Justice refused to follow Knowlton v. Hydro-Electric Power Commission (1926) 1 DLR 217 and McKittrick v. Byers (1926) 1 DLR 342 remarking that the latter case "was based on some American cases and on the English cases which decided that contributory negligence of a servant precludes his master from recovery" (1953) 1 DLR, at p 757 and he expressed the i ew that it seemed to him "that the English cases make it quite clear that the reason a master could not recover when there was contributory negligence by his servant was because he was at the time of the accident responsible for the acts of his servant" (1953) 1 DLR, at p 757 . This is the view which prevailed in Mallet v. Dunn (1949) 2 KB 180 where Hilbery J. examined the nature of the husband's action per quod and concluded that it lay "for any tortious act of a defendant which deprives a husband of consortium of his wife" (6) and that "his cause of action was his own and distinct from that of his wife's" (1949) 2 KB, at p 184 . Thereafter he proceeded to consider whether in cases such as the present the husband's action would be defeated by proof of the wife's contributory negligence and concluded that it would not. I do not repeat what his Lordship said but I respectfully express my agreement with everything that he then said. This is the view which was accepted by the Full Court of the Supreme Court in the present case and it is in accordance with the decision of Morris C.J. in Howard v. Loney (1956) SR Tas 57 and that of Pape J. in Lloyd v. Lewis (1963) VR 277 . Thinking, as I do, that the law is correctly stated in that case and in Macdonald and Macdonald v. McNeil (1953) 1 DLR 755 I am of the opinion that we should not adopt the reasoning of the earlier Canadian cases. (at p111)

5. In conclusion I notice a subsidiary argument of the appellant which asserted that even if the reasoning in the earlier Canadian cases is defective the actual decisions are supportable on the authority of Smith v. Selwyn (1914) 3 KB 98 - a case to which, as was pointed out, Hilbery J. was not referred. This is not surprising for that case throws no light on the present problem; it merely decided that where it was alleged that a wife had been injured by a felonious assault and that allegation was common to both the wife's claim and her husband's claim for loss of consortium the action should be wholly stayed on the ground that both claims were based upon a felony for which the defendant had not been prosecuted. (at p112)

6. I would dismiss the appeal. (at p112)

OWEN J. For the reasons given by Taylor J. I agree that the appeal should be dismissed. (at p112)

Orders

Appeal dismissed with costs.