Curran v Young [1965] HCA 14

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Owen JJ. Curran v Young [1965] HCA 14

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1965, April 8 Barwick C.J.

A wife, driving a car for purposes of her own, was injured by the negligence of the appellant, with the result that her husband was put to expense in providing her with hospital and medical treatment and lost the benefit of the services which she usually performed in the household. He sued the appellant per quod consortium amisit. It was found at the trial of the action that the appellant was negligent but that the wife had failed to take adequate care for her own safety. On these findings a verdict was directed for the appellant. The Full Court of the Supreme Court on appeal set aside this verdict and ordered a new trial limited to damages.

The appellant has submitted that both in point of principle and of authority the action of the husband per quod is derived through his wife and that he cannot succeed in it in any circumstances in which, in the opinion of the tribunal deciding the husband's claim, she would fail in an action brought by her against the defendant because of her own contribution to her injury.

In my opinion this submission is clearly erroneous. The action of the husband of its very nature is quite independent of that of the wife and is in no sense dependent on her ability to obtain a verdict for herself against the defendant. Although the husband's action may be grounded upon the same act of the defendant as would be an action by the wife for her own injury, the damage is entirely different. He sues, not for the injury to her, but for the damage suffered by himself by the wrongful act of the defendant, albeit because she was injured thereby. The act of the defendant causing injury to the wife in breach of the defendant's duty to her does not lose its tortious character because she is unable by reason of her own conduct to succeed in an action against the defendant. Its tortious character remains, both as against the wife and as against the husband. So does its causal relationship both to the injury to the wife and the damage to the husband.