Toohey v Hollier

[1955] HCA 3

92 CLR 618

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA. Husband and Wife-Consortium-Injury to wife-Partial impairment of consor-

tium-Right of action of husband for partial loss of consortium. 1954,

The right of action of a husband against a third party for special damage PERTH,

to him by reason of wrongful injury to his wife is not confined to the case Oct. 20, 21

where he is deprived of her entire comfort, society and fellowship, and he is entitled to damages for the actual and prospective loss consequent on the 1955,

greatly reduced capacity of his wife, owing to her impaired health or bodily MELBOURNE,

condition, to perform the household duties, manage the household affairs and give him her support and assistance.

History of the cause of action for loss of consortium reviewed. Best v. Samuel Fox &Co. Ltd. (1952) A.C. 716; (1951) 2 K.B. 639, discussed. Decision of the Supreme Court of Western Australia (Wolff J.) affirmed.

APPEAL from the Supreme Court of Western Australia.

On 14th January 1952, Josephine Theresa Hollier, the wife of Archibald James Hollier, was injured in a collision between a vehicle in which she was a passenger and a vehicle driven by one Toohey, the present appellant. Subsequently the husband and wife joined as plaintiffs in an action in the Supreme Court of Western Australia against Toohey, claiming damages for negligence. The husband alleged in his statement of claim that "-"As a result of the injuries sustained by the plaintiff, Josephine Theresa Hollier, her husband, the plaintiff Archibald James Hollier, lost her society and her services and was put to expense in nursing her and for

92 CLR 619

medical attendances and was compelled to employ an additional servant for 37 weeks".

The appellant did not deny liability to either plaintiff and the action, limited to an assessment of damages, was tried by Wolff J. without a jury.

It appeared from the evidence that the injuries suffered by the wife were severe and that they had resulted in a great reduction in her capacity to carry out her domestic duties. Wolff J. awarded the male plaintiff the sum of £568 3s. Od. described as special damages and consisting of medical and surgical expenses arising from his wife's injury, wages paid to a housekeeper for thirty-seven weeks, the value of the housekeeper's board and lodging and certain other out-of-pocket expenses. In addition, his Honour awarded to the male plaintiff under the description of general damages an amount which he assessed at £1,000.

From this decision the defendant appealed to the High Court, the appeal being limited to the award of £1,000 in favour of the male plaintiff. This award was challenged on the ground that damages for loss of consortium could not in the circumstances be awarded to him and that such damages were excessive in any event.

K. W. Hatfield (with him I. W. P. McCall), for the appellant There is no evidence of future impairment to the wife, and the only evidence relates to medical and other out-of-pocket expenses. There are no figures before the Court to enable an accurate assessment of damages to be made. The wife's disability for any task has not been proved, nor is there any evidence of a decline in her ability to do her housework. No claim for loss of consortium for impair- ment as distinct from total loss can be made. [He referred to Best v. Samuel Fox &Co. Ltd. 1.] Where damages have been given for loss of consortium the loss has been total: see Guy V. Livesey 2. There are no reported cases where damages have been given for partial as distinct from total loss of consortium. There is a danger of paying double compensation for the one injury.

P. L. Sharp, for the respondent. The right of action for damages for loss of consortium by a husband has been firmly established by the laws of England and America and still exists. [He referred to Best v. Samuel Fox &Co. Ltd. 3; Brockbank v. Whitehaven Junction Rly. Co. 4; Guy v. Livesey (2); Hyde v. Scyssor 5

1(1952) A.C. 716; (1951) 2 K.B. 2(1618) Cro. Jac. 501 [79 E.R. 428]. 3(1952) A.C. 716, at p. 728 ; (1951) 2 K.B. 639, at p. 666. 4(1862) 7 H. &N. 834 [158 E.R. 5(1619) Cro. Jac. 538 [79 E.R. 92 CLR 620

Smith v. Hixon 1; Wright v. Cedzick 2; Clerk &Lindsell: Law of Torts, 10th ed. (1947), p. 339; Prosser on Torts (U.S.) (1941), pp. 942, 946, 948, 949 Restatement of the Law of Torts (U.S.) (1938), vol. 3, par. 693.] The right to damages for loss of consortium exists where the loss is partial as distinct from total. The contrary pro- position rests on certain dicta of the House of Lords and the Court of Appeal in Best v. Samuel Fox &Co. Ltd. 3. Total deprivation can only occur in the case of death. Damages for loss cannot be recovered where the death is immediate: see Osborn v. Gillett 4. In Baker v. Bolton 5 a wife died and there was loss between the date of injury and date of death. There was evidence of a total loss and evidence of a partial deprivation of consortium. Even if consortium is indivisible the respondent is entitled to recover for loss in respect of the wife's medical expenses, both actual and prospective. There was evidence of loss, actual and prospective, and the damages are not SO excessive as to warrant interference by this Court. [He referred to Lee Transport Co. Ltd. v. Watson 6 Owen v. Sykes 7; Coates v. Rawtenstall Borough Council 8; Mills v. Stanway Coaches Ltd. 9; Davies v. Powell Duffryn Associated Collieries Ltd. 10; Rushton v. National Coal Board 11.] To award damages to a husband for the loss of his wife's society and services does not mean that there will be a double recovery. If no award is made to the husband there will not be even a single recovery because the proprietary right of consortium including servitium is the property of the husband. [He referred to Hitaffer v. Argonne Co. 12.]

K. W. Hatfield, in reply.

Cur. adv. vult.

THE COURT delivered the following written judgment :- This appeal concerns an assessment of damages awarded to a husband in an action of negligence which he and his wife brought in the Supreme Court of Western Australia for the recovery of damages suffered by them respectively in consequence of bodily injuries sustained by the wife. The appellant is the defendant in the action which was tried by Wolff J. The respondent is the male

1(1734) 2 Str. 977 [93 E.R. 979]. 2(1930) 43 C.L.R. 493, at pp. 514, 3(1952) A.C. 716 (1951) 2 K.B. 4(1873) L.R. 8 Ex. 88. 5(1808) 1 Camp. 493 [170 E.R. 6(1940) 64 C.L.R. 1, at p. 13. 7(1936) 1 K.B. 192. 8(1937) 3 All E.R. 602. 9(1940) 2 All E.R. 586. 10(1942) A.C. 601. 11(1953) 1 All E.R. 314. 12(1950) 183 Fed. 2nd (U.S.) 811. 92 CLR 621

plaintiff in the action. No complaint is made of the award of damages to the female plaintiff and she is not a party to the appeal. The bodily injuries which she sustained were inflicted in a collision which occurred on 14th January 1952 at a junction of two streets in East Perth between a motor vehicle in which she was a passenger and a motor vehicle driven by the defendant. At the trial the defendant did not deny his liability to either party on the cause or causes of action. In the case of the female plaintiff the sole question was the amount at which the damages recoverable by her should be assessed on the ordinary principles that apply when serious bodily injuries are occasioned. In the case of the male plaintiff the defendant conceded that he was entitled to recover certain expenses to which he had been put in consequence of his wife's injuries. But the male plaintiff's claim was not confined to such expenses and the parties were not at one as to the basis upon which anything beyond them should be assessed. His claim as he pleaded it was that as a result of the injuries sustained by his wife he lost her society and her services and was put to expense in nursing her and for medical attendances and was compelled to employ an additional servant for thirty-seven weeks. Wolff J. fixed the general damages recoverable by the female plaintiff at £3,500. This covered pain and suffering and other consequences of her bodily injuries. A small sum of £20 16s. Od. was added for special damages consisting in the loss of a watch and certain other articles. To the male plaintiff his Honour awarded a sum of £568 3s. Od. described as special damages consisting in medical and surgical expenses arising from his wife's injury, wages paid to a housekeeper for thirty-seven weeks, the value of the latter's board and lodging and certain other out-of-pocket expenses. His Honour also awarded to the male plaintiff, under the description of general damages in respect of his claim, an amount which he assessed at £1,000. The defendant's appeal is limited to this award of £1,000 described as general damages. The defendant asks that the judgment in favour of the male plaintiff be reduced to the sum of £568 3s. Od. or such other sum as the Court may think proper upon the ground that damages ought not to have been awarded to the male plaintiff for loss of consortium and that the sum assessed was excessive. The appellant maintains that if any sum could be awarded in respect of loss of consortium in addition to the items included in the assess- ment of £568 3s. Od. it could only be an estimate properly made of the expenses which the male plaintiff might be expected to incur in the future for hospital and medical treatment of his wife and the replacement of her services.

92 CLR 622

At the time when the accident occurred, namely on 14th January 1952, the female plaintiff appears to have been thirty-one years of age. She was at once taken to hospital where she remained for about fifty-three days, being discharged on 7th March 1952. She then went as a convalescent to her mother's home for some weeks and after that, under medical orders, for a holiday. When she returned it was found necessary to employ a housekeeper to assist in the domestic work. One was employed from 6th April 1952 until 24th December 1952, a period of some thirty-seven weeks.

The injuries suffered by the female plaintiff were severe. They included an amount of intra-cerebral trauma which has had lasting effects. According to the evidence she had been bright, alert, capable and self-confident but she has become very sluggish in her actions and speech; she has entirely changed. She has lost thirty per cent of the acuity of hearing of her right ear and possibly twenty per cent of her total hearing. There are signs that the left cerebral hemisphere has been considerably damaged particularly the frontal lobe. Part of the sensory and motor nerves appear to be affected. This is manifested in a loss of sensation in the right side of the tongue and in the right leg the power and usefulness of which are impaired. Some medical evidence suggests a marked personality change. The temporary housekeeper who was a nurse gave evidence that when she took up her duties the female plaintiff could hardly walk, but that after a time she tried to assist in the domestic work and that when the witness left her she was trying to do it. The witness thought she could manage her domestic duties with help. In the course of his evidence the male plaintiff said that since the accident his wife was a different woman. He referred to her nerves and her treatment of himself and the children. She was most unreasonable with the children from the time they rose from bed until they went to bed she was very clumsy in the house, especially in cooking she broke down often and cried; she seemed to have something terrible on her mind he tried to pacify her; she walked clumsily. She herself described her difficulties in doing household work and her tendency to break down and her confusion in doing things like shopping.

The appellant's complaint against the assessment of the less specific damages recoverable by the male plaintiff at the amount of £1,000 was in substance that it must represent compensation to him for past or future disadvantages which the law did not recognize as legitimate heads of damage recoverable upon the husband's cause of action for loss accruing to him from his wife's injuries. The changed personality of the wife, her physical disabilities and

92 CLR 623

her neurological condition might affect his domestic life and happi- ness but that was not a matter for which damages could be recovered. The law did not take into consideration a husband's loss of any particular incident or incidents of consortium or servitium; only for a total suspension of consortium could damages be awarded. The specific damages covered all the elements of loss for which the plaintiff was entitled to compensation or at all events SO nearly covered them that an award of £1,000 could not be justified. It will be seen that this contention takes little or no account of the absence of the wife from her husband from the time of the accident until 6th April 1952 and of the discomfort and difficulty it must have brought to the male plaintiff. In any case it is by no means clear that Wolff J.'s assessment of damages for the male plaintiff proceeded upon the basis which the appellant ascribes to his Honour. At the beginning of his judgment the learned judge said that the husband claimed for liabilities incurred by him for medical and hospital attention to his wife, additional expenses of his household, and generally under the heading of the loss of consortium. Later his Honour said that he took it to be admitted that the husband was entitled to recover the actual expenses reasonably incurred by him. But, said the learned judge, the real problem on the husband's claim is whether he is entitled to recover anything more, either on the general ground of loss of consortium or on a more limited basis of loss of servitium. This his Honour describes as a question of law.

Having dealt with the female plaintiff's right to damages and the extent of her injuries, his Honour turned to the husband's case. He said that the argument of the defendant's counsel was that unless a husband is deprived entirely of his wife's consortium-for example in the sense that she is enticed away by a third party- he has no right of action. The argument was founded on some of the dicta occurring in Best v. Samuel Fox &Co. Ltd. 1 and these his Honour then discussed, saying first that before that case he should not have been disposed to doubt the husband's claim for loss of consortium involving, as it did in the present case, more emphasis on the phase of servitium during the past period of actual incapacity and in the years to come. His Honour added that in fact, on the evidence before him, he found that this was the sub- stantial sounding of the damages suffered and likely to be suffered by the respondent and that he could not attribute in a monetary sense any major degree of damages to loss of consortium arising, for instance, out of a decrease in amiability of the wife. In dis- cussing the dicta in Best v. Samuel Fox &Co. Ltd. (1) his Honour

1(1952) A.C. 716; (1951) 2 K.B. 639. 92 CLR 624

refers to the opinion of Lord Reid 1 to the effect that the old prece- dents and his Honour added, more recent cases, had based the husband's claim on loss of service, assistance, comfort and society, and that a husband could bring an action for partial impairment of consortium. His Honour's reasons for his award of damages concluded as follows Coming down to the facts of the present case, primarily what emerges from the evidence is a right on the part of the husband to be reimbursed for the actual and prospective expenses reasonably incurred or to be incurred by reason of the defendant's negligence. While the award of damages which I make is framed in the light of what I regard as the law, the damages are weighted according to the materialistic view which I have taken of the evidence". The use of the descriptions special damages and "general damages" is probably inappropriate to a case like this where the damages suffered form the gist of the action. The term "special damages" is used technically in such a case, not to describe particular or specific loss arising from the special situation in which the wrong placed the party in contrast with the more general compensation to which the commission of the wrongful act entitled him, but to require that a particular temporal loss shall accrue to the party from the wrong. It was, however, in order to make the contrast between specific or readily ascertainable items of damage and damage of a less specific kind that his Honour used the expressions.

It is clear enough that of the elements taken into account in arriving at the assessment of damages none represented distress of mind, diminished happiness, lessened enjoyment of home life or of conjugal society. There was no compensation for anything beyond the interest which the male plaintiff may be supposed to possess in the conduct by the wife of the household affairs and in the performance of domestic duties to his material advantage and the past loss of her society and assistance and the prospect of a suspen- sion again occurring of such society and assistance and of further medical or other expenses being incurred. But it seems at least probable that the assessment of the husband's less specific damages took into account the material consequences to the husband of the wife's reduced capacity to conduct the household affairs and perform domestic duties. It will be seen that the elements taken into account bear no resemblance to that in question in Best v. Samuel Fox &Co. Ltd. 2 which occasioned, perhaps necessarily, a dis- cussion of a rather abstract kind as to whether consortium between

11952) A.C., at pp. 735, 736. 2(1952) A.C. 716; (1951) 2 K.B. 92 CLR 625

husband and wife is, in the somewhat philosophical if not theological phrase of Lord Asquith, one and indiscerptible. We agree in the observation of Wolff J. that before that case little doubt would have been entertained concerning the correctness of the course his Honour followed in taking the matters to which he referred into consideration in assessing the damages recoverable by the husband.

The cause of action upon which the male plaintiff sued is very familiar and but for the ill-fated experiment of Mrs. Julia Best the common practice would probably have gone unquestioned by which the practical domestic disadvantages suffered by a husband in consequence of his wife's impaired health or bodily condition are left as matters to be considered by the tribunal of fact in assessing damages. For our part we think that a great deal of misconception has arisen through an assumption that the loss or damage to the husband made the gist of the action at common law was of a specific technical description. For historical reasons which are not material bodily injury to a wife negligently or intentionally inflicted by a stranger exposed him to an action of trespass not only at the wife's suit, a suit in which of course her husband necessarily joined, but at the suit of the husband alone. The husband's suit, however, could not be maintained simply upon the trespass to the wife's person. In the husband's suit special damage to him formed the gist of the action, notwithstanding that it was an action of trespass and not case. Of course the special damage must be a reasonable or immediate consequence of the trespass but we do not think that there is any ground for the supposition that it was restricted to particular categories or by any specific formula. Matters of senti- ment or feeling were doubtless not regarded but that is because, speaking generally, special damage is not made out except by some actual temporal loss, the deprivation of some material temporal advantage capable of estimation in money, not because such matters do not conform with some special description recognized by law as an incident of marriage for the loss of which a cause of action is given. In the Latin declarations of earlier times expressions like solamen uxoris, consilium, auxilium, servitium, and consilium et auxilium in rebus domesticis appear. The verb perdere as well as amittere is used. There are allegations of negotia domestica infecta. These are not sacramental words. They are descriptions of various things lost or temporal detriments suffered. There is no reason to suppose that the word consortium possessed or acquired a legal meaning. It is not included in the mediaeval Latin word-list and nothing has been found suggesting that in the middle ages it received any new application. Probably it was regarded as nothing but a

92 CLR 626

descriptive word sufficiently appropriate for the purpose of any pleader alleging the consequential loss or damage which any husband suffered whose wife was incapacitated as the result of a battery. The notion of sharing a domestic life was probably all that was intended. When Tacitus made Nero impute to the murdered Agrippina as one of her crimina, quod consortium imperii speravisset, the word bore much the same meaning. Solamen probably meant the same as solacium but the words do seem to have been used in mediaeval Latin and in a wide variety of meanings. It was the comfort and companionship given by a wife.

In the English pleadings of the eighteenth and nineteenth century you find a variety of expressions describing the special damage of the husband. The words "fellowship" and "comfort" recur as no doubt the English of consortium and solamen respectively. You find allegations that the husband has lost the comfort, company or fellowship of his wife and her aid and assistance in his domestic affairs and business the comfort, benefit and assistance of his wife in his domestic affairs or her comfort fellowship and assistance therein or her comfort and services or her comfort, society and fellowship, or her comfort and society: see Wentworth, Pleading (1798), vol. 8, p. 419; Chitty, Pleading, 7th ed. (1843), vol. 2, pp. 652, 653; Saunders, Pleading, vol. 2, p. 570; Bullen &Leake, 3rd ed. (1868), p. 34 Macfadzen v. Olivant 1 Brockbank v. White- haven Junction Railway Co. 2. In tort it was not necessary for a plaintiff to prove the allegations in a declaration in full he need prove enough only to make out a cause of action. It is difficult to believe that if a husband proved a definite and substantial detri- ment to himself because of his wife's injuries his action would fail because it fell short of an interruption of the entire comfort, society and fellowship. Again take the case of a tradesman's wife accus- tomed to assist in the conduct of her husband's business but disabled from doing SO by a stranger's wrongful act. It is impossible to resist the impression that in an action by the husband it would be regarded as a matter of course to award him damages in respect of consequential loss or expense incurred by him in the conduct of his business. In Best v. Samuel Fox &Co. Ltd. 3, Lord Reid said "I do not think that it is open to doubt that an impairment of a wife's capacity to render assistance to her husband was enough to found an action " 4. Some analogy exists in the master's action for his consequential loss against one who by negligence or other

1(1805) 6 East. 387 [102 E.R. 1335]. 2(1862) 7 H. &N. 834, at p. 835 3(1952) A.C. 716. 4(1952) A.C., at p. 736. 92 CLR 627

wrongful act does bodily harm to his servant or apprentice. In such a case it was enough that the injury to the servant rendered him less capable of performing his master's work. Thus in Hodsoll V. Stallbrass 1 a watchmaker's apprentice lost the top of one finger through the bite of the defendant's dog and that rendered him permanently unable to do some parts of the watchmaking business that previously he had been able to do. For the consequential loss to his master the latter recovered from the owner of the dog.

In the present case the male plaintiff has suffered and will continue to suffer a very substantial prejudice or disadvantage of a material or practical kind because of the greatly reduced capacity of his wife to perform the domestic duties, manage the household affairs and give him her support and assistance. Why should this not form a proper head of consequential damage to him ? The answer given by the appellant was that it is all a part of consortium and con- sortium is one and indiscerptible. Unless you lose it all you have no remedy. We venture to think that such an answer proceeds from a supposition which finds no justification either in the history of the cause of action or in the common law principles by which it is governed, a supposition that the husband's remedy in damages is only for the violation of a right which the law gives him to the consortium of his wife and further that there is no actionable breach of the duty to respect the right except by the commission of an act completely depriving the husband of her consortium. The common law took no such abstract and theoretical position. In the United States much consideration has been given to the existence, nature and extent of the right of recovery by husband or wife in respect of the injurious consequences which a third party may cause to him or her by a wrong done to the other spouse or by direct inter- ference in the relationship. It is enough to refer to the American Law Reports (Ann.), vol. 21, p. 151; vol. 133, p. 1156, and earlier annotations to which references are there given. This field is much wider than the particular question raised upon this appeal. Upon that question the general conclusion appears to be that such elements as mental distress are to be excluded but the material consequences of the loss or impairment of his wife's society, com- panionship and service in the home and the expense of her care and treatment incurred as the result of the injury form proper subjects of compensation to the husband. A short passage from a judgment delivered fifty years ago in Alabama seems correctly to state the position. After explaining the right of the husband to

1(1840) 11 A. &E. 301 [113 E.R.429]; (1839) 9 Car. &P. 63 [173 E.R. 741]. 92 CLR 628

recover for the cost of alleviating his wife's sufferings and curing her hurts the judgment proceeds The husband, also, of course, has a legal right to the society of the wife, involving all the amenities and conjugal incidents of the relation. This right of society may be invaded by an act which while leaving to the husband the presence of the wife, yet incapacitates her for the marital companionship and fellowship, and such incapacity may be deprivation of her society differing in degree only from total deprivation by her death. For such impairment, SO to say, of the wife's society, of his right of consortium, such deprivation of the aid and comfort which the wife's society, as a thing different from mere services, is supposed to involve, he is entitled to recover": McClellan C.J., Birming- ham Southern Railway Co. v. Lintner 1. Another passage from a yet earlier judgment delivered in Missouri may be quoted. It relates to a contention that because the injured wife dwelt with her husband there was no loss to him of her society and companion- ship :- But the answer to that contention is, that as her husband he was entitled to her society as she was when the negligence of defendant impaired her strength, her health, and her usefulness as a helpmate. Though he may still be with her, and her companionship may be even more dear to him since her injury, because of her very helplessness and need of his attention, yet that does not diminish the legal wrong he has suffered from the acts which produced that condition. He is entitled to be compensated for such loss of her society as resulted from the negligence alleged. By the term society in this connection, is meant such capacities for usefulness, aid, and comfort as a wife which she possessed at the time of the injury. Any diminution of those capacities, by the acts or negli- gent omissions of defendant, constituted a just basis for an award of compensatory damages therefor" Barclay J., Furnish V. Missouri Pacific Railway Co. 2. The application of this doctrine must, of course, be confined to material or temporal loss capable of estimation in money. It is satisfactory to note that in another common law jurisdiction a not dissimilar understanding exists of the manner in which the common law rule applies. Just as in England SO in the United States a modern tendency has grown of treating consortium as a technical conception providing the subject matter of the husband's right and of an actionable wrong consisting in its invasion. Juridically this may seem more satisfying and it might be open to little objection if the notion of consortium were itself derived from the actual course of the common law SO that the

1(1904) 141 Ala. 420, at p. 427; 2(1890) 102 Mo. 669; 22 Am. 109 Am. St. Reps. 40, at p. 42. State Reports 800, at p. 801. 92 CLR 629

word served but as a compendious and perhaps convenient label for the rights of the husband as ascertained from the true scope of his remedy. But the contention of the appellant seems to treat it simply as an abstract and somewhat metaphysical conception the content of which is ascertained by a priori reasoning and when

SO ascertained affords the exclusive measure of the entire right of the husband and of his remedy. Perhaps the use of the conception or of the word in the law of desertion may contribute to the tendency. However this may be it is not the manner in which the common law dealt with a cause of action upon which a husband sued for the consequential special damage occasioned to him by a wrongful act causing bodily injury to his wife.

The damages assessed by Wolff J. at £1,000 may perhaps appear large when compared with those recovered by the wife but it does not appear that his Honour took into account any element of damage which the foregoing views would not justify and the amount awarded to the husband cannot in itself be said to be excessive.

The appeal should be dismissed.

Appeal dismissed with costs. Solicitor for the appellant, K. W. Hatfield. Solicitors for the respondent, Maxwell &Lalor.