Page 3883 - Week 13 - Thursday, 17 October 1991
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Secondly, the Bill abolishes the defence of contributory negligence in breach of statutory duty cases. A claim for compensation for injury resulting from another person not obeying a particular law is known as an action for breach of statutory duty. Statutory duties protect the safety of people. Many statutory duties apply in the workplace. A typical statutory duty might require an employer to fence off dangerous machinery from human contact, to ensure that all holes in decking or factory floors are firmly sealed off, or to ensure that all employees have access to hard hats or other protective clothing.
However, as the law stands, a person sued for damages under the law can take advantage of the defence of contributory negligence. For example, if an employer breaches a statutory duty and an employee is injured, the employer can reduce the employer's liability by arguing that the employee was partly to blame for the accident.
The Community Law Reform Committee recommended that this defence should be abolished because it is illogical to apply it to breach of statutory duty claims. Statutory duties are safety standards passed by the legislature to ensure, as far as possible, that accidents do not happen, even though people are careless and will make mistakes.
It is therefore contrary to the purposes of the imposition of a statutory duty to reduce compensation for contributory negligence when that very purpose is to protect people against their own mistakes. The defence of contributory negligence has no place in claims for breach of statutory duty, where its effect is illogical and unfair and prevents proper compensation from reaching the injured person.
The third aspect is the abolition of the action for loss of consortium. The action for loss of consortium is a right belonging to a husband to claim compensation for the loss of the society and domestic services of his wife if she is injured through negligence or assault. Only husbands have this right; wives miss out. The loss of consortium action is a descendant of the mediaeval law which regarded a wife and children as the property of the husband.
The action, as we know it today, stemmed from decisions of the Court of the King's Bench in the sixteenth century, which allowed a husband to claim for loss of his wife in the same way that he could claim for the loss of a servant. It was a right of the master of the house to sue for trespass to his wife, just as he might sue for trespass to his property, farm or servant.
Developing alongside and as a part of the action for loss of consortium was the right of the husband to sue for the defilement, enticement away and harbouring of his wife. The husband could claim for loss of consortium as a result of the enticing away of his wife, as well as her abduction,
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