Wright v Cedzich [1930] HCA 4

Wright v Cedzich [1930] HCA 4 - HCA 1930 case summary — Zoe

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The same question was discussed in the Irish Exchequer Chamber and in the House of Lords in Lynch v. Knight (1), an action for slander brought by a husband and wife. In that case the husband was joined as plaintiff, but the action was treated as being in sub- stance the action of the wife, the husband being joined for conformity. The declaration alleged that in consequence of the defamatory words the wife had been deprived of the consortium of her husband, and a point at issue was whether such loss constituted legal damage to the wife. In the Exchequer Chamber it was held, by majority, that the action lay, but on appeal to the House of Lords the judg- ment was reversed. Lord Campbell, Lord Cranworth and Lord Brougham thought that the loss or special damage relied on by the plaintiff was not the natural and probable consequence of the injury complained of, namely, the speaking of slanderous words. Lord Campbell thought that the loss of consortium constituted special damage because an action founded on loss of consortium or conjugal society would lie at the suit not only of the husband but also of the wife. Neither Lord Brougham nor Lord Cranworth found it neces- sary to express a decided opinion on the question whether the loss of consortium constituted legal damage, Lord Brougham being inclined to the opinion that it did not and Lord Cranworth being inclined to agree with Lord Campbell that it did. Lord Wensleydale based his decision wholly on the ground that an action for loss of consortium would not lie at the suit of a wife. In that case, as in this, it was argued that the action might be supported by analogy to the action which a husband may unquestionably maintain for an. injury to the wife per quod consortium amisit. But Lord Wensleydale expressed his agreement with Fitzgerald B. in the view that the benefit which the husband has in the consortium of the wife is of a different character from that which the wife has in the consortium - of the husband, and pointed out that the husband was entitled to the assistance of the wife in the conduct of the household and the education of his children, that this assistance resembled the service of a hired domestic, tutor, or governor, and was of material value, capable of being estimated in money, and that the loss of it might properly form the subject of an action. The next reported case in ~

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which the question arose was Gray v. Gee (1), decided in 1923 by ling J. at nisi prius. The learned Judge appears to have thought that if a husband might bring such an action there was no reason _ why a wife should not, and that the reason why such an action had "never been brought before was that there had been difficulties of procedure which had been swept away by the Married Women's Property Act 1882 - which at the time of his decision had been in force for forty years. The jury found for the defendant, and there was consequently no occasion to challenge the decision on the point of law. In Johnson v. Commonwealth (2), decided in 1927, the Supreme Court of New South Wales thought the decision in Gray Gee should be followed. In delivering the judgment of the ourt Ferguson J. summed up the reasons for the decision as ows (3): " Once it is admitted, as it must be, that loss of con- vumis an injury which the law can recognize as the basis of an action for damages, I see no reason why such an action should not be main- ible by the wife as well as by the husband." In 1920 McCardie J,,in Butterworth v. Butterworth (4), pointed out that it was doubtful ifa wife had any right of action against a woman who entices away husband, and referred to the observation of Lush J. in his treatise the Law of Husband and Wife, 3rd ed., at p. 13, that "the wife is under the coverture and protection of the husband, but the husband is not under the coverture or protection of the wife." It s difficult to see how the opinion of Darling J. that the reason why uch an action had not been brought before was that there had been lifficulties of procedure which had been swept away by the Married 'omen's Property Act, can be sustained. It is clear from the 'ision in Lynch v. Knight (5) that, if a wife had a cause of action for wrongfully enticing away her husband whereby she was deprived if his society and comfort, no difficulty in procedure stood in the vay of her suing on that cause of action. No other explanation is d to account for the fact that there is no report of any such n having been brought by a wife before the year 1923, and in bsence of a satisfactory explanation that fact strongly supports

view that a wife has no such cause of action.

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In the middle of the 19th century Maze J. in Wenman v. Ash (1) pointed out that the unity was only " a strong figurative expression," and that "For many purposes, they are essentially distinct and different persons" as, for instance, to protect "the honour and the feelings of the husband." Why notherown? And now, wellinto the 20th century, amid legal and social surroundings so openly and utterly opposed to the theory relied on, that the argument cannot but shock the conscience, it devolves upon this Court to take up a position that no matter how it may be shaded off with gentle phrases, neces- sarily means alignment either with Petruchio or Bentham. Hither the status of a wife imposes upon her a dependent lifelong servitude. as a menial in her husband's house, terminable only by legal separa- tion or by death, or else it leaves her with the independent right, now unimpeded by obstacles of procedure, to protect herself from the wrongful deprivation of her honourable rights as a wife. For myself, I cannot hesitate an instant as to the proper choice. To a suggestion that modern circumstances, including enlightened legis- lation, have emancipated married women from their former subord- inate position, the answer is made that it is only an additional reason for denying them redress, since it also makes the husband's. remedy out of date. That last view, however much I disagree with it, has at least this merit, that in effect it concedes to the two parties. to the marriage status that they ought in this regard to stand in the same position, whatever that position may be. In truth, however, nothing more was needed in modern circumstances to effectuate the wife's remedy, and to place her in that respect on a level with her husband, than our improved procedural law, which has removed ancient disabilities standing in the way of asserting her rights. Those fundamental rights, so far as relevant in this case, have never' changed, because they are basically entrenched in the very concep- tion of marriage.

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to the present conditions of society. Still less is there any justifica- tion for rummaging among the ruined and abandoned structures of the past to find materials for erecting a barrier against the wife's claim for redress, when a clearly recognized principle of law admits it. It may, however, be added, the exploration rendered necessary by the objections taken will demonstrate that the materials sug- gested are now seen to be imaginary. The ground on which the appellant's case, in my opinion, firmly rests may be thus sufficiently marked out : - (a) the rights and obligations of persons are some- times derived from the circumstances and from the relative positions of the parties (see Dominion of Canada v. City of Levis (1)); (b).a violation of legal right committed knowingly is a cause of action (Rogers v. Rajendro Dutt (2) ), and it is a violation of legal right to inter- fere with contractual relations or other legal relations without sufficient cause or justification for such interference (Quinn v. Leathem (3) ; Mogul Steamship Co. v. McGregor, Gow & Co. (4), and National Phonograph Co. v. Edison-Bell Consolidated Phonograph Co. (5) ); (¢) causing a violation of the husband's marital obligations in regard to society, comfort, protection and support, is a violation of the wife's legal right and is prejudicial to her, and as on the allegations in the statement of claim, which must be taken as true, those obliga- tions were consequently broken, the breach imports damage, and if actual pecuniary damage is necessary to be alleged, the required averment exists. In my opinion that is sufficient to end the matter. Had this been a husband's action, the principles stated would main- tain his claim without controversy. But then it is said a husband has no legal obligations towards his wife but that of maintaining her, and as to that her only redress is to sue him for maintenance. True, it is said, if her obligations towards him are broken, he has various remedies, and may pursue the wrongdoer also, But she, according to the contention, is not permitted to pursue a wrongdoer ; she has a right merely to sue her husband under special statutory provisions. The reasoning appears to me to fail at every point. The mutual relations of all persons in the community are regulated by the

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assistance in all the vicissitudes of the united life into which the man and the woman have entered - obligations that cannot be accurately measured in money, but are real and substantial and carry temporal benefits, and the deprivation of which by a wrongdoer are quite as open to be compensated for as physical suffering. depriva- tion of hospitality, personal insult by defamation, or many other injuries recognized every day as legitimate grounds for compensation. When the husband is the complaining party against a man or a woman who, it may be, has deprived him of his consortium, these considerations are acknowledged as sound and proper. Why not also when the wife is the injured party ? This is quite consistent with the natural leadership, and in most cases the decisive voice of the husband as head of the family in the management of domestic affairs. But his leadership is not that of a despot or a slave-master. and it is accompanied with mutual and correlative rights and duties which the law will recognize and enforce. I utterly reject the view that consortium in point of law means, on the part of the woman, - her society and services (using those terms in the most unmeasured sense), and, on the part of the man, the one duty of cash remunera- a tion in maintaining her, for which she may sue her husband directly - if he fails to provide it. Sitting here, I decline to declare judicially _ that Australian wives occupy such a repellent position of legal and moral degradation. Legally, it is and always has been wrong. Bishop on Divorce, 6th ed., vol. 1., p. 617, par. 805 a., says - "Important as is the duty of a husband to support his wife, it is not so completely of the essence of matrimony that its performance will take away the effect of his desertion. He owes to her his society and personal protection." That was so held by the Full Court in Macdonald vy. Macdonald (1). In Yeatman v. Yeatman (2) Lord Penzance said: "A wife is entitled to her husband's society, and the protection of his name and home, in cohabitation." That this is a legal right is incontestable since its denial constitutes the matri-_ monial offence of desertion. As to morality, what, when stripped of | technical embroidery, is the doctrine contended for in effect but legalized white slavery ? ,

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to the wife's right of redress while two already referred to held the contrary. On appeal to the House of Lords, Lord Oampbell L.C., referring to the ground already formulated, said (1): "If it can be shown that there is presented to us a concurrence of loss and injury from the act complained of, we are bound to say that this action lies." Then he said: " Nor can I allow that the loss of consortium, or conjugal society, can give a cause of action to the husband alone." He then immediately proceeds to point to a distinction essentially necessary for the proper understanding of the early authorities. He observes : - ''If the special damage alleged to arise from the speaking of slanderous words, not actionable in themselves, results in pecuniary loss, it is a loss only to the husband ; and although it may be the loss of the personal earnings of the wife living separate from her husband, she cannot join in the action. But the loss of conjugal society is not a pecuniary loss, and I think it may be loss which the law may recognize, to the wife as well as to the husband. The wife is not the servant of the husband, and the action for criminal conversation by the husband does not, like the action by a father for seduction of a daughter, rest on any such fiction as a loss of the - services of the wife." Then he points at why a wife cannot main- _ tain an action for criminal conversation against a paramour of her husband who had merely seduced him, the reason being that she does not thereby necessarily lose his consortium. Lord Cranworth said he was strongly inclined to think Lord Campbell's view was correct. He defined the wife's consortium as "the conjugal society of her husband "'(2). Lord Brougham was " rather inclined " to think the action did not lie (3). Lord Wensleydale (4), even under the pro- cedural conditions of that period, admitted "there is a considerable doubt upon"? it, but added: "Ihave made up my mind that no such action will lie." I have, it needs scarcely be said, most attentively considered the reasons of the learned Lord, and weighed them all _ with the respect due to so great a jurist. But there were also illustrious lawyers to Whose opinions his was opposed, and though

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her in his car, to assist her into it and out of it, to accompany her when she visits the theatre or friends, are facts " resembling " those of a hired chauffeur or attendant; to feed and tend her when she is ill is to do acts "resembling " those of a hired nurse; to bind a wound is to act as if he were a paid medical man. But the truth is, such analogies are entirely strained and misleading, and must be brushed aside. The marriage compact, as it is reasonably and indeed necessarily understood, is a natural standing by each other in all the vicissitudes of life, and, however much some of its incidents resemble isolated events in other relations, they are all referable to the one unique category - the marriage status - and must be adjudged of in that relation. A wife's services, if analogy is permissible, are those not of a hired employee, but of a partner in the common undertaking. The husband may be the managing partner in many respects, but the business of life in which both parties have embarked is a life partnership, whether viewed from the individual standpoint or that of the community. With deep respect, this is the true correction of Lord Wensleydale's dictum. The mass of indefinable duties and rights are conveniently gathered under the one word consortium, and that is a word of equality, subject only to natural, not legal, diversities, and betokens not a state of despotism on the one side and submission on the other, but of honourable intercourse which neither is rightfully entitled to abridge, and with which no third person may interfere without responsibility. If that be the correct connotation of "consortium," it follows as a necessary legal consequence that the interference alleged here, being without lawful excuse or justification, the appellant has a right of action. That Lord Wensleydale's view of consortium was too narrow is, I venture respectfully to think, shown by many cases both before and since 1861, dealing with damages recoverable by the injured husband. Among them I would refer to Bell vy. Bell and Marquis of Anglesey (1), before Sir Cresswell Cresswell, Watson B., and Hill J., sitting as the Full Court. There the Judge Ordinary said to the jury that they had "to consider the loss the husband has sustained by being deprived of his wife, not his pecuniary loss" (2). "It has always been considered that the only question

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But now it is also necessary, as I have said, to examine the negative opinion in order to test the foundations on which it is said to rest. It is true that in some ancient texts there are found statements that lend some colour to the notion that a husband has dominion over his wife and a right to the possession of her person. For instance, Bacon's Abridgment, Baron and Feme (B), 7th ed., vol. 1., p. 693, says: ''The husband hath, by law, power and dominion over his wife, and may keep her by force within the bounds of duty, and may beat her, but not in a violent or cruel manner." That is a type of the so-called authorities which underlie the demurrer in this case. Now in 1891 this doctrine was challenged and came up for examination before a Court of Appeal, consisting of Lord Halsbury L.C., Lord Esher MR. and Fry LJ. (R. v. Jackson (1)). Learned counsel for the husband, who claimed the right to take and hold possession of his wife against her will, certainly disclaimed reliance on the old authorities so far as castigation was concerned, but they still relied on the "* dominion " and " possession " portions, just as those supporting the demurrer do to-day. To this Lord Halsbury (2), during the argument, offered the crushing obser- vation which he amplified in his judgment: " Where ancient dicta, - which state that a husband is entitled to imprison his wife, also state that he has a right to beat her, can they be rejected as authorities for the latter proposition without being affected as authorities for the former?" Clearly not, one would think. The whole orienta- i tion is wrong. And so in the present case. In R. v. Jackson (3) there was specifically argued " the common law right of the husband _ to the custody of the wife," and notwithstanding that Lord Campbell in R. v. Leggatt (4) had expressly ruled that the husband had no such right at common law. The Lord Chancellor in his judgment: : said (5) : - ''I confess that some of the propositions which have been - referred to during the argument are such as I should be reluctant to suppose ever to have been the law of England. More than a century ago it was boldly contended that slavery existed in England ; but, if

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It is necessary to distinguish between the various actions that a husband could by the common law bring in respect of wrongs concerning his wife. For actual battery of his wife, simpliciter, he sued in her right, and both baron and feme had to be joinea. The cause of action was personal to her, but she could not sue alone, and the damages recoverable became his. If it were alleged in such an action that the husband had loss and delay in business or, as it was expressed in Latin, "per quod negotia ipsius infecta remanserunt," that was not the gist of the action; it was aggravation only, and it was held that evidence of that ought not to be admitted. See Russell v. Corne (1), and s.c. in Salkeld (2), with the notes thereto. Also Buller's Nisi Prius, Tth ed., at p. 21a. Indeed, Powell J. said in that case (3): " I do not know what they mean by saying, per quod negotia sua infecta, &c.a woman is to comfort herhusband." Holt C.J. said (4): "Tf it had been, per quod consortium amisit, the wife could not have been joined." The husband's action per quod consortium amisit, on the other hand, was brought not in the wife's right, but in that of the husband. The gist of the action was not the battery of the wife, 5 but for "the loss and damage of the husband for want of her com- pany and aid." It was never " servitium," and when the word - " services " was used it had no relation to servitium (Guy v. Livesey (5); Hyde v. Scyssor (6) ). Inthis action the wife could not be joined (Russell y. Corne; Anon (7)). Notwithstanding recovery in such _ an action, the wife could, after her husband's death, sue for the | battery, or during his life she could join with him - so distinct were the causes of action (Young v. Pridd (8) ). This law was recognized - in Smith v. Hixon (9), where the consortium action was still con- sidered as founded on érespass vi et armis. That was in 7 Geo. II. (1734). But in 1745 a new and notable departure with regard to consortium actions took place, the true significance of which must _ not be overlooked. It marks a new era for that class of action. And even more, it had, as will presently be perceived, a distinct influence

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no action was brought by a wife for a husband's admitted breach of duty: when until the Married Women's Property Act his presence as a plaintiff was necessary ? (See Weldon v. Winslow (1); Lowe v. Fox (2); Edwards vy. Porter (3).) The question has only to be asked to be answered. That, however, does not touch the exist- ence of a good cause of action, but merely the right or power to bring it. In Edwards y. Porter (4) Lord Sumner said: "In the action of tort he" (the husband) "had to be joined if the action was to be properly constituted, but I do not know that the wife could compel him to sue against his will." If the husband himself were actually beaten or imprisoned, that was in itself a direct and complete cause of action in him, he alone could sue, even if his wife were incidentally assailed, the injury to her by the same act being matter of aggravation (see the notes and cases in Salkeld (5), at foot of Russell v. Corne). She could not in these cases be properly joined. So that we need not wonder why no precedent existed of an action for loss of consortium to what Lord Sumner in Edwards v. Porter (3) calls "the legal emancipation of the married woman." With regard to the action by a master per quod servitiwm amisit, it was for a long time rested on the notion of trespass. That, as stated in the judg- ment under appeal, was recognized in Woodward v. Walton (6), where it was held to be an action in trespass and not in case, contrary to the opinion of Buller J. Sir Frederick Pollock, as to this doctrine in his work on Torts, 13th ed., at p. 234, note, observes: " How this can be accounted for on principle I know not, short of regarding the servant as a quasi chattel.'"" Still, down to 1814, in Ditcham v. Bond (7), the doctrine prevailed. At last, in 1839, as pointed out in Pollock, at p. 234, it was definitely settled in Chamberlain v. Hazle- wood (8) that servitium actions, as well as consortium actions, could be brought in case. Lord Abinger C.B. and Parke B. had no doubt about it. Parke B.'s observations on Woodward v. Waiton are significant. Pollock mentions that no other reason was

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held that the plaintiff had no cause of action because the mere loss of her husband's consortium not brought about by an act in itself wrongful affords no cause of action. The argument by which the action is supported is that a similar action can be maintained by the husband, and that his case is indistinguishable in principle from he wife's save that before the Married Women's Property Act she suffered a procedural disability. The correctness of this argument r lepends upon the nature of the principle which enables the husband to maintain an action for the loss of consortium. The argument assumes that the principle simply is that a spouse by virtue of the status of marriage has a right to the consortium of the other spouse 'and that this right is a right in rem. It is, therefore, necessary to certain with some precision what the husband's cause of action is and upon what it depends. This cannot be determined by un- informed reasoning a priori but only by an investigation of the state the law before the Married Women's Property Act and the con- siderations upon which it depended. At the time when the legal tight of the husband was established to recover damages from those who deprived him of "the comfort, fellowship, society, aid and assistance of his wife in his domestic affairs " or to the services therein of his children, the husband was considered in point of law to be the head of the household. This was in accordance with the notions which animated not merely Anglo-Saxon law but Roman The early stages and development of the English law are hortly described by Sir W. S. Holdsworth, History of English Law, vol. .,at pp. 427-430. Itis instructive to see how the condition of the law stood at the end ofthe 13th century, because from the principles then adopted our modern law has evolved. In Pollock and Mait- 's History of English Law, vol. 1r., bk. 11., ch. VIL., sec. 2, at pp. -404, it is said at p. 403 : - "If we look for any one thought ich governs the whole of this province of law, we shall hardly ind it. In particular we must be on our guard against the common ef that the ruling principle is that which sees a * unity of person' ween husband and wife. This is a principle which suggests itself from time to time ; it has the warrant of holy writ ; it will serve to tound a paragraph, and may now and again lead us out of or into a

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difficulty ; but a consistently operative principle it can not be. We do not treat the wife as a thing or as somewhat that is neither thing nor person; we treat her as a person. Thus Bracton tells us that if either the husband without the wife, or the wife without the husband, brings an action for the wife's land, the defendant can take exception to this 'for they are quasi one person, for they are one flesh and one blood.' But this impracticable proposition is followed by a real working principle : - 'for the thing is the wife's own and the husband is guardian as being the head of the wife.' The husband is the wife's guardian : - that we believe to be the fundamental principle; and it explains a great deal, when we remember that guardianship is a profitable right." A In the later law there are many legal consequences of this view. It was petit treason when a servant slayeth his master or a wife her husband. A wife was considered to be so under the direction of her husband that she was, and still is, presumed, until the contrary be shown, to have acted under his coercion in the commission of a crime at which he was present. Further, the husband could sue in trespass for violence offered to the wife resulting in temporal damage to himself. The significance of this depends on the nature of that form of action. An action of trespass vi et armis lay when the wrong complained of consisted of the invasion of a right given by law of what may be called control. Trespass to the person is an invasion of personal freedom, the free control of one's self. Trespass de bonis asportatis to personal property and quare clausum to the occupation of land. The distinction between trespass and case once funda- mental in personal actions was really a distinction between immediate and consequential injury. "' The solid distinction is between direct or immediate injuries on the one hand, and mediate or consequential on the other" (per Blackstone J. in Scott v. Shepherd (1)). "The same evidence that will maintain trespass, may also frequently maintain case, but not e converso. Every action of trespass with a "per quod' includes an action on the case. I may bring trespass for the immediate injury, and subjoin a ' per quod' for the conse- quential damages ; or may bring case for the consequential damages,

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2dly. Actionable without special damage. 3dly. Actionable with special damage. In the first case, the damage resulting to the hus- band is the sole ground of action, and the wife must not be joined. As, where the action is brought for calling the wife a bawd, per yuod the husband lost his customers. And to join the wife in such a case would be bad on demurrer, in arrest of judgment, or in error. But secondly, where the words are actionable, and no special damage is laid, the wife must be joined, and the declaration must conclude ad damnum ipsorum, for there the action survives ; and she must be joined in an action for any slander published of her before her marriage. But thirdly, where the words spoken of the wife are actionable, and special damage has accrued in consequence to the husband, great complexity has arisen on the question whether the wife should be joined or omitted. The difficulty, in this case, proceeds from the circumstance of two distinct causes of action being involved in one and the same transaction, - the actionable words spoken of the wife, and the special damage resulting to the husband. For the former, the husband is not entitled to damages without making his wife a party, and the cause of action survives her. In the latter case, the loss is several, and peculiar to the husband, and ought not, therefore, to be stated as the loss of both. Accordingly, where the husband has brought the action alone, it has been con- tended that he ought to have joined his wife in respect of the action- able words spoken of her, that at all events the action would survive to her, and therefore that the defendant would twice make compensa- tion for the same injury. And in similar cases, when the wife has been joined, it has been argued that the joint action was improper, since the special damage accrued. From a review of the decisions upon this point, it appears, that the wife is not barred by the hus- band's action, though the special damage result from actionable words spoken of the wife, which removes the objection to a separate action, in which he alone is entitled to recover damages."

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the common law gives an action on the case, and for which she and her husband may sue, since she cannot sue alone, and since there is no technical reason for her not suing jointly with her husband." Monahan ©.J. concurred. Christian J. stated that the objections raised by the defendant were, first, that the consequences were too remote, and, secondly, that the law does not recognize, as actionable damages, sufferings of the kind which the plaintiffs complained of. Having dealt with the question of remoteness and having decided that the consequence was not too remote, he proceeded to deal with the second question. In doing so he first gave reasons for denying that what he calls materialism is a necessary element in special damage. He then proceeds (1) : - " Granted that the law will enter- tain the question of mental suffering as a thing to be compensated in damages, will it refuse to do so when the sufferer is a wife who has been deprived of the company and society of her husband by the act of a defamer ? If words were spoken of her which imputed some petty misdemeanour for which, if convicted of it, she might undergo a week's imprisonment, the law would give her an action - an action in her own right, prosecuted in her own name if her husband died after the injury, with his name joined for conformity if he were still alive. If words not actionable of themselves were spoken of any person but her, that person would have an action, provided they were followed by special damage. The reason why, generally speaking, she would have no action in sucha case is, that almost always the special damage, if there be any, is her husband's, not hers. But here is a species of damage which, as I have shown, the law will take notice of, which is exclusively hers, of which her husband is the instrument and not the recipient." With him Ball J. agreed. Hughes B. and Fitzgerald B. dissented on the ground that no material or temporal damage was alleged, and they distinguish the case of the husband upon the ground that the consortium is as it were the property of the husband and its loss is damage accruing to the husband only. From this judgment error was brought to the House of Lords. The account of the proceedings in Ireland will show that no question arose as to the wrong but only as to the damage. In considering the question of damage the wife's right

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by the husband did not, like the action by a father for seduction of a daughter, rest on any such fiction as a loss of the services of the wife. The better opinion is, that a wife could not maintain or join in an action for criminal conversation against the paramour of her hus- band, who had seduced him. But I conceive that this rests on the consideration that, by the adultery of the husband, the wife does not necessarily lose the consortium of her husband, for she may, and under certain circumstances she ought, to condone, and still enjoy his society; whereas condonation of conjugal infidelity is not permitted to the husband, and, by reason of the injury of the seducer, the consortium with the wife is necessarily for ever lost to the husband." His explanation of the action of criminal con- versation has little justification in history or in principle, but apart from this it is an extremely doubtful inference from his reference to crim. con. that he thought that in all other cases of loss of consortium a wife could maintain an action. It seems more probable that he meant only that the wife's loss of consortium was a lawful head of damage when caused by the commission of a tort. Lord Cranworth's statement of the late Lord Chancellor's opinion is certainly confined to this. He said (1) : - 'In order to sustain the judgment of the Court below, the defendants in error must maintain two propositions: first, that for slanderous words spoken of a wife, not actionable in themselves, but occasioning special damage to her by depriving her of the consortium or conjugal society of her husband, the husband and wife may maintain an action against the slanderer ; and, secondly, that supposing such an action to be maintainable the words spoken in this case were such as might naturally occasion the wife to lose the consortium or society of her husband. My late deceased noble and learned friend, the late Lord Chancellor, I know entertained a strong opinion on the first point in favour of the right of action. He thought that the conse- quential damage arising to the wife in such a case afforded her a good ground of action, that the right of action on that ground was not confined to the husband. In the view which I take of this case I do not feel called on to express a decided opinion on this point.

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The books make it clear that the husband had a right of action against any person for abducting his wife, for criminal conversation with her (though this cause of action is now abolished), for assaulting her, and for enticing her away from him (2 Co. Inst. 434; Bacon's Abridgment, vol. v., "' Marriage and Divorce," p. 327; Buller's Nisi Prius, 7th ed., p. 24a; Guy v. Livesey (1) ; Hyde v. Scyssor (2); Russell vy. Corne (3) ; Winsmore v. Greenbank (4) ). A modern extension was an action for personal injuries to his wife owing to the negligence of another (Brockbank v. Whitehaven Junction Railway Co. (5): De Alba v. Freehold Investment and Banking Co. of Australia (6) ). Some of these forms of action were developed from the old common law action for depriving a master of his servant. They were not actions, whether _ brought in trespass or in case, in respect of harm done to the wife, but for the particular loss of the husband - the consortium of his wife. "An analogous right might of course be conceivably recognized as vested in the wife" (Holland, Jurisprudence, 11th ed., p. 172), and ruthless logicians may well insist that "' the actual injury to the wife from the loss of consortium . . . is the same as the actual injury to the husband from that cause" (Bennett v. Bennett (7)). But in the - case of injuries in family and domestic relations ** the development of the law has," as Sir Frederick Pollock observes (Torts, 11th ed., - p. 227), "been strangely halting and one-sided." '' In the Middle : Ages the peculiar status of wards, infants, wives and servants was _ very much more emphasized than it is in modern law. . . . It is in the period when these ideas were predominant that the law _ relating to these kinds of wrongs originated, and all through the - history of this branch of the law they have made their influence felt" _ (Holdsworth, A History of English Law, vol. vutt., p. 427). And in Blackstone' s time (Commentaries, vol. 111., p. 142) " notice " was "only : taken of the wrong done to the superior of the parties related by the ;

At a glance

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Before

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Judgment (210 paragraphs)