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Torts affecting family relations

R Costello lecturer and my own research
Module

Law Of Torts (LW151)

143 Documents
Students shared 143 documents in this course
Academic year: 2019/2020
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National University of Ireland Maynooth

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Purpose of torts  Protecting fam members from interferences from third parties in their relations  Several premised on idea of family members acting in service role to parents and to

father/husband as head of fam unit  More archaic abolished by Family Law Act 1981  Reform of remaining recommended but largely not acted on

Loss of Consortium  Husband's right to sue for interference with his relationship with his wife- loss of her service and companionship o Whether wife could claim for loss of consortium with husband? E&W , eng no- here yes  Best v Samuel fox and co ltd - Eng- HL was divided on the q- should a husband only

be able to recover where there is a total loss of consortium?- since then - can recover even for partial loss  McKinley v Minister for Defence - iri -  In 1984, the plaintiff issued proceedings claiming that by reason of the negligence

and breach of duty of the defendants her husband suffered serious personal injuries which inter alia rendered him sterile and impotent by virtue of which she suffered loss and impairment of consortium and servitium.  In a reply to a notice for particulars the plaintiff stated she had been deprived of normal sexual relations since the accident, that she had been deprived of her husband's company while he was in hospital receiving treatment for his injuries and that she suffered impairment of the comfort and companionship ordinarily associated with the marriage relationship.  Further, it was alleged that the plaintiff's husband was unable to perform those services (particularly the domestic ones) which he had performed in the past.  The issue as to whether or not the plaintiff's statement of claim disclosed any cause of

action was tried as a preliminary issue.  The High Court held that despite the absence of express legislation the right to

claim for loss of consortium and servitium extended to a wife by virtue of the provisions of the Constitution.  Further her right to bring the action did not depend on whether the loss suffered was

total or partial. On appeal to the Supreme Court from the judgment and order of the High Court it was argued on behalf of the defendants that at common law the right to claim for a loss of consortium and servitium only vested in the husband. It was based on a proprietary or quasi proprietary right which he had in his wife.  This common law right was unconstitutional in that it discriminated against married

women and accordingly did not survive the enactment of the Irish Constitution  On behalf of the plaintiff it was argued that the right to bring an action for loss

of consortium and servitium could be extended, by the application of the principle of equality enshrined in Article 40 of the Constitution, to a married woman who, as a result of injuries sustained by her husband due to the negligence of another, loses the rights and benefits she enjoyed as normal incidents of married life. Held : by SC- That 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.  Total loss necessary? Conflicting answers

 Contributory neg not considered  LRC Working paper 1979 recommendations o Removal of service element o Gender neutral , any fam member o Reasonable expenses and losses incurred by fam as well as for mental distress  PH v John Murphy and sons ltd - father damaged after employers negligence - family claimed loss of consortium and loss of time with kids as a result- only husbands and wives can claim not kids

Seduction  Where an unmarried woman/girl has a child outside marriage or where no pregnancy

has resulted but there has been sexual contact - family of woman/girl compensation from father of child/partner  Contract of service between parents and children  LRC report 1981 recommended its abolition and replacement with offence of seduction of U18> not adopted  McM & B shadow of unconstitutionality o Infringement of the con right of autonomy o No real victim in such cases o Criminal redress  O'Riordan v O'ReillyNorris v McGee

Enticement and harbouring a child  Where a person entices a child away from his or her parent or harbours a child who

had been removed from parent's control then the parent may sue for damages  How it would practically apply o Father no longer has right to determine religion etc of children o Awareness o Children's rights  Lough v Ward - english and welsh case- child taken by def's wife to a cult and won't let

child leave - not entirely sure if child left against her will but she wasn't allowed leave so he was successful

 LRC recommended abolition

o Remove service aspect o Welfare of child

Injuries sustained before birth/wrongful birth and wrongful life  Matter of doubt - o walker v great northwestern railway co of ireland  P on train - driven negligently and crashes - child born soon after and proven that it's as a result of the crash and has injuries- she also has injuries- she claims she should be able to claim for child as well- e&w courts reject this as child did not buy ticket so only she had a contractual relationship with railway - so they only owed a duty of care to her not her unborn child  Statute has intervened - s 58 Civil Liability act 1961

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Torts affecting family relations

Module: Law Of Torts (LW151)

143 Documents
Students shared 143 documents in this course

University: National University of Ireland Maynooth

Was this document helpful?
Purpose of torts
Protecting fam members from interferences from third parties in their relations
Several premised on idea of family members acting in service role to parents and to
father/husband as head of fam unit
More archaic abolished by Family Law Act 1981
Reform of remaining recommended but largely not acted on
Loss of Consortium
Husband's right to sue for interference with his relationship with his wife- loss of her
service and companionship
oWhether wife could claim for loss of consortium with husband ? E&W , eng
no- here yes
Best v Samuel fox and co ltd- Eng- HL was divided on the q- should a husband only
be able to recover where there is a total loss of consortium?- since then - can recover
even for partial loss
McKinley v Minister for Defence - iri -
In 1984, the plaintiff issued proceedings claiming that by reason of the negligence
and breach of duty of the defendants her husband suffered serious personal injuries
which inter alia rendered him sterile and impotent by virtue of which she suffered
loss and impairment of consortium and servitium.
In a reply to a notice for particulars the plaintiff stated she had been deprived of
normal sexual relations since the accident, that she had been deprived of her
husband's company while he was in hospital receiving treatment for his injuries and
that she suffered impairment of the comfort and companionship ordinarily associated
with the marriage relationship.
Further, it was alleged that the plaintiff's husband was unable to perform those
services (particularly the domestic ones) which he had performed in the past.
The issue as to whether or not the plaintiff's statement of claim disclosed any cause of
action was tried as a preliminary issue.
The High Court held that despite the absence of express legislation the right to
claim for loss of consortiumand servitium extended to a wife by virtue of the
provisions of the Constitution.
Further her right to bring the action did not depend on whether the loss suffered was
total or partial. On appeal to the Supreme Court from the judgment and order of the
High Court it was argued on behalf of the defendants that at common law the right to
claim for a loss of consortium and servitium only vested in the husband. It was based
on a proprietary or quasi proprietary right which he had in his wife.
This common law right was unconstitutional in that it discriminated against married
women and accordingly did not survive the enactment of the Irish Constitution
On behalf of the plaintiff it was argued that the right to bring an action for loss
of consortium and servitium could be extended, by the application of the principle of
equality enshrined in Article 40 of the Constitution, to a married woman who, as a
result of injuries sustained by her husband due to the negligence of another, loses the
rights and benefits she enjoyed as normal incidents of married life.
Held: by SC-
That 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.
Total loss necessary? Conflicting answers

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