Page 4749 - Week 15 - Thursday, 21 November 1991
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It goes on to say, interestingly, that many practical difficulties bedevil this exercise in discovering what might have been the state of mind or actions of the person who has been killed. That indeed is very true, but that should not constitute the principal reason for moving legislation of this kind. Merely because it is difficult to decide who is responsible for the particular course of events, that should not absolve a court from deciding who may be at fault in those circumstances and who is entitled to damages of some kind.
I suspect that we have come to the stage where we treat insurance companies in particular and employers in general as milch cows, as people who may be tapped for damages in whatever circumstances injury or loss might arise in the conduct of their business. While there are insurance companies generally to meet the demands made on those employers, it is still regrettable that that state of affairs, where personal responsibility is no longer a very important factor, has arisen.
The other point I want to make about the first Bill - the Law Reform (Miscellaneous Provisions) (Amendment) Bill - relates to the notion of loss of consortium. I must say that I have always understood "consortium" to imply the notion of sexual contact or sexual relationships between husband and wife, although I see that the Attorney refers to consortium as the loss of society. The Oxford Dictionary to which I referred earlier - - -
Mr Connolly: It is just my genteel manner, Gary.
MR HUMPHRIES: Perhaps it is not; perhaps "consortium" does mean only right of association, as the Oxford Dictionary indicates. I always had some notion of the sexual relationship between a husband and wife in that context. Mr Connolly makes a very persuasive case for the archaic nature of the idea of suing and recovering for loss of consortium, this arising out of the notion that a wife was a man's chattel. This antique and outdated notion should be rapidly consigned to the history books, as I think the Attorney says.
I certainly think the notion as it operates one way - that is, that the husband's loss of consortium of his wife has been actionable up until now, but the reverse is not the case - is a very regrettable state of affairs. It seems to me that, if we consider this to be an antique and outdated provision, it would have made more sense to provide for an action for loss of consortium to a wife in respect of loss of her husband's company or sexual relationship. That surely would be a more equitable way of dealing with this matter. Is the Attorney saying - perhaps he can answer this when he rises to speak - that there is no value in consortium?
Mr Connolly: You cannot put a price on love, Gary.
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