The Gazette 1996

GAZETTE

NOVEMBER 1996

Is a wife entitled to sue?

The Coppinger case

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 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. Commercial Research Tor Case Preparation, Client Guidance or Investment Appraisal. Evidence Interviews. Group Attitude Surveys. Market Sector Analyses. Corporate Acquisition/Merger/Disposition/Alliance Research Discretion and Confidentiality Assured. Legally Qualified Principal. Conimex Research. 284 6555 • 14 February 1997. All other claims must be filed by 15 January 1997. After these

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 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

321