The Gazette 1996

GAZETTE

NOVEMBER 1996

L A W B R I E F

Consortium - Loss of Companionship

by Dr Eamonn Hall*

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.

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. "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." In O'Haran, Kingsmill Moore J considered that consortium was:

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