Best v Samuel Fox & Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Porter,Lord Goddard,Lord Oaksey,Lord Morton of Henryton,Lord Reid |
| Judgment Date | 11 July 1952 |
| Judgment citation (vLex) | [1952] UKHL J0711-1 |
| Date | 11 July 1952 |
| Court | House of Lords |
[1952] UKHL J0711-1
Lord Porter
Lord Goddard
Lord Oaksey
Lord Morton of Henryton
Lord Reid
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Best against Samuel Fox and Company Limited, that the Committee had heard Counsel as well on Monday the 28th. Tuesday the 29th and Wednesday the 30th days of April last, as on Thursday the 1st and Monday the 5th, days of May last, upon the Petition and Appeal of Julia Best, of 33 Hollinsend Avenue, Intake, Sheffield, in the County of York, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 10th of May 1951, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Samuel Fox and Company Limited, lodged in answer to the said Appeal ; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of His late Majesty's Court of Appeal, of the 10th day of May 1951, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
My Lords,
I agree with the view entertained, I believe, by all your Lordships that this appeal should be dismissed. The facts have been set out by the Lord Chief Justice, and it is unnecessary to repeat them.
The salient fact, as I see it, is that the wife had herself suffered no physical injury and could only base her claim upon the circumstance that she had lost the consortium of her husband by reason of the injury to him. Such a claim was put forward upon the analogy of the enticement cases of which the most recent are Gray v. Gee (1923) 39 T.L.R., 429 and Place v. Searle [1932] 2 K.B.D., 497. In the first, the jury found for the defendant, and in the latter, the statement that the wife had the same right as the husband was obiter. Both, however, take the view that wife and husband alike have a cause of action against a third party who, without justification, destroys that consortium. In that class of case, however, the wrong is a deliberate action taken with the object of inducing the wife to leave her husband or the husband to leave his wife—malicious because it is their mutual duty to give consortium to one another, and the defendant has persuaded the errant spouse not to fulfil that duty. They are not authorities for the conclusion that in all cases of tort resulting in injury to the one which deprives the other of his or her consortium the party deprived can sue the wrongdoer, and I know of no case where such a right of action has even been suggested where there is no evidence that the defendant knew of the existence of a wife or husband. Indeed it has been held (notwithstanding the vigorous opposition of Isaacs, J.) in the High Court of Australia in Wright v. Cedzich, 43 C.L.R. 493, that the wife has no such right.
On behalf of the Appellant it is urged that a husband can bring an action for the loss of the consortium of his wife by reason of any tort which deprives him of that consortium and that in the circumstances prevailing today a wife must have a similar right. Even, however, if it be assumed that in enticement cases the husband and wife have equal rights it does not follow that today they have equal rights and liabilities one towards the other in all respects. I do not think it possible to say that a change in the outlook of the public, however great, must inevitably be followed by a change in the law of this country. The Common Law is a historical development rather than a logical whole, and the fact that a particular doctrine does not logically accord with another or others is no ground for its rejection.
Undoubtedly certain differences between the position of husband and wife have been extinguished or modified by Act of Parliament with the result that the general opinion of the relationship which exists between the spouses has been changed, and it is quite true that modern text books express inconsistent opinions. Those which support the argument now presented on behalf of the Appellant appear to have founded their conclusions upon the observations of some of their Lordships who sat to adjudicate in the case of Lynch v. Knight 9 H.L.C. 577. Lord Campbell's opinion is certainly in conformity with their view. Lord Wensleydale, on the other hand, was of the opposite way of thinking and expressed a vigorous dissent, whilst the other two members of the House gave no decided opinion. Nor was it necessary to do so.
As Lord Goddard points out, the wife in that case was herself wronged by a defamatory statement, and the question which had to be decided was whether the loss of her husband's consortium constituted special damage at a time when special damage was a necessary element in the wife's claim, and the actual decision merely determined that on the facts of the case the loss was too remote a consequence of the slander. Those who reject Lord Campbell's view are able to rely upon the older authorities such as Bracton and Blackstone, and to quote the opinion of the late Sir William Houldsworth in favour of their contention, and I see no sufficient reason for rejecting the earlier view.
Even if it be conceded that the rights of husband and wife ought to be equalised I agree with the Lord Chief Justice that today a husband's right of action for loss of his wife's consortium is an anomaly and see no good reason for extending it. If the change is to be made I should prefer to abolish the husband's right rather than to grant the like remedy to the wife. On this short ground, which has been fully and clearly set out by Asquith, L.J., as the first basis of his conclusion, and by Lord Goddard in your Lordships' House. I would dismiss the Appeal.
As however Birkett and Cohen, L.JJ., decided the case in the Court of Appeal on a different ground, viz.: that consortium is one and indivisible and the wife had not lost it as a whole, and as Asquith, L.J., agreed with this contention. I think it desirable that I should express a tentative opinion upon it.
My Lords, I think there is much to be said for this view and, indeed, I find it difficult to draw the boundary between what is and what is not loss of consortium or to divide it into its component parts. But having regard to the opinion which I hold upon the other contention it is not necessary to come to a final decision upon this point in the present case.
Nor do I think that any serious damage will be done to a wife by such a conclusion. Today the damages which a husband receives for injury to his wife are commonly measured by his expenses, whether for medical treatment of the wife or in payment for household services which her injuries prevent her from performing, and little, if any, attention is paid to a loss of consortium which involves other considerations beyond those two. The expenses so recovered by the husband fall upon him whereas his wife does not incur any similar liability and therefore it is natural that he should recover and she should not. To my mind, it is desirable that causes of action should not be multiplied, but that the wrong to the husband should be compensated by damages to him. if he survives, or, if he dies, to the wife under Lord Campbell's Act or the Law Reform Act of 1934, and I see no reason for extending the liability further than the law demands. As I have said, I would dismiss the appeal.
My Lords,
The question that falls for decision in this case may I think thus be stated—has a married woman whose husband has been injured by a negligent act or omission a right of action against the person causing that injury for the loss or impairment of consortium consequential on the injury? Croom Johnson J. in a careful judgment held that no such right existed. In the Court of Appeal Birkett, L.J., who delivered the first judgment, held that a wife had a right of action but only if the consortium was wholly destroyed and not only impaired. Cohen, L.J., as he then was, agreed that the action could not lie for mere impairment as distinct from total loss, but expressed considerable doubt whether the action lay at all. Asquith, L.J., as he then was, agreed with the other two members of the Court on this point, but was of the opinion that neither for total nor partial loss of consortium had a wife any cause of action. But for the importance and novelty of the case I should have been content to say that I am in entire agreement with his conclusion.
The facts can be shortly stated. Mrs. Best is a young woman of about 25 years of age, and she is the wife of Rex Holroyd Best, a man of about 30 years of age. Mr. Best was a steel erector, and on the 23rd March, 1946, he was employed by the Steel Constructor Company, which at the trial was a third party. The Steel Constructor Company was carrying out certain work at the Defendants' premises at Stockbridge for the Defendants, and on the day mentioned Mr. Best was engaged in re-sheeting the roof of part of the Defendants' steelworks. In the course of his work he was obliged to go on to the wheel track of an overhead travelling crane, and whilst he was there, owing to the negligence of the Defendants, he was run into by the crane, knocked off the track and. in falling, sustained the most grievous personal injuries. The agreed medical report makes it plain that as a result of his injuries Mr. Best is afflicted with a form of sexual impotence....
To continue reading
Request your trial
- Wong Kong v Yee Hup Tranport Company and Others
-
Hardwick v Hudson and Another
...the defendant owed no recognisable direct duty of care to her, as there was not the necessary proximity between them (see Best v Samuel Fox & Co Ltd [1952] AC 716, 731) Her husband could therefore only recover payment for her services if there was evidence of an express or an implied contra......
-
Lai Chi Kay and Others v Lee Kuo Shin
...whose property may be on or adjoining the road which it is his duty to avoid injury, ( per Lord Goddard in Best v Samuel Fox & co [1952] 2 All ER 394, 398).The law as regards the claim of a third party for loss of expense incurred as a result of injury to another person is this. At one time......
-
Coleman and MacDonald v Smith
...should hold it on trust for her and pay it over to her. She can not herself sue the wrong doer: see Best v. Samuel Fox & Co. Ltd. [1952] A.C. 716; but she has rendered services necessitated by the wrongdoing, and she should be compensated for it…” 48 This line of authority was carried still......
-
Tort Litigation in the Context of Intra‐Familial Abuse
...case stated; it was abolished by the Administration of Justice Act 1982, s 2(a).40 See eg the judgments of Lord Goddard in Best vFox [1952] AC 716, 731–732 and McCardle J inPlace vSearle, n 35 above, 499. See also Blackstone, n 35 above, 142.41 The right of a wife to sue another for enticin......
-
WRONGS TO US.
...(suggesting that consortium spouses are not wronged--that they do not have their rights violated). (86.) See Best v. Samuel Fox & Co. [1952] AC 716 (HL) (appeal taken from (87.) Id. at 733. (88.) Id. at 735. (89.) Royal Commission on Civil Liability and Compensation for Personal Injury,......
-
Far Beyond ‘The Early Morning Crowing of a Farmyard Cock’:
Revisiting the Place of Nuisance within Legal and Political Discourse
...[1933] 1 Ch 89A-G v PYA Quarries [1957] 2 QB 169Adams v Ursell [1913] 1 Ch 269Bamford v Turnley [1862] 3 B & S 66Best v Samuel Fox & Co. [1952] A.C. 716Bradford Corporation v Pickles [1895] A.C. 587Chartered Trust PLC v Davies [1997] 2 EGLR 83Christie v Davey [1893] 1 Ch 316Cooke v Forbes [......
-
Relational economic loss (or interference with contractual relations): The last hurdle
...(n 4) 132. 16 Bernstein (n 4)132. 17 Bernstein (n 4) 134ff. 18 Bernstein (n 4) 140 and cases there cited. 19 Best v Samuel Fox & Co [1952] Ac 716, [1952] 2 All ER 394 (HL); Attorney-General for New South Wales v Perpetual Trustee Co [1955] AC 457 (PC); Bernstein (n 4) 145ff. 20 Fatal Accide......