Intro week 7 PDF

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WEEK 7 TUTORIAL Exercise 7.1 – Finding a case (to be done in advance!) a. Find the reported case of Harris v Grigg [1988] 1 Qd R 514. Bring a copy to class (electronic or printed). [Hint: remember that if you don’t know which database to use, you can the Library Catalogue to search for the full name of the report series, and connect to the relevant database that way.]

b. What database did you access it with? Case Base - Lexis Advance Pacific Research

Exercise 7.2 – Legal terminology (to be done in advance!) a. Use a legal dictionary* to find the translation of the latin phrase ‘per quod consortium et servitium amisit’. (It is the cause of action raised in the above case) Lat – in consequence of which he lost her society and services. An action for damages by a

husband against any person who has committed a tortious act against his wife, depriving him of her society or services for a period of time as a result: Wright v Cedzich (1930) 43 CLR 493. The action has been abolished by statute in the Australian Capital Territory, New South Wales, Tasmania and Western Australia. The availability of the action has been extended to wives and de facto partners in Queensland, South Australia and (but only in relation to fatal accidents) the Northern Territory. b. What does this really mean – what type of loss is it describing? A husband losing his wife due to ill treatment or strain. c. What is the common law rule about the availability of this action? At common law, the action was not available to wives: Best v Samuel Fox & Co Ltd [1952] AC 716 ; [1952] 2 All ER 394.

d. Why might that rule have developed? What do you think of it? Wives were seen as property * Legal dictionaries are available to purchase from the Bookshop should you desire, or to borrow from the Law Library, or via the Library Database: Australian Encyclopaedic Legal Dictionary.

Exercise 7.3 – Reading and analysing a case (done in class) While reading the case: a. Describe Harris and Grigg, both in legal terms (e.g. plaintiff, appellant), and in a plain-English, meaningful way (e.g. in light of the facts of their dispute). b. Summarise: 

Material facts [Hint: remember, these are facts essential to the case. It includes matters leading to the dispute, as well as the procedural history – what had happened in prior hearings.] 

Ms Harris is both the pff and respondent (wife)

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Grigg is both the def and the appellant (driver)

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Husband injured as a result of the alleged negligence of Mr Grigg Wife (plaintiff) had to cease employment to provide constant nursing and support Pff suffered loss and damage including: loss of consortium - husband unable to contribute to the marriage, loss of servitium - husband unable to contribute to the marriage and loss of wages - for quitting her job to care for her husband Emotional strain of nursing her husband and his loss of confidence and self-pity caused the two to divorce Mr Harris brought a claim of negligence against Mr Grigg Ms Harris brought a claim for loss of consortium, servitium and wages against Mr Grigg

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Issue/s [Hint: there are three points the plaintiff raised, which you can turn into issues] 

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Did the district court judge make an error of law in refusing to throw out the action? CAN A WIFE SUE FOR LOSS OF CONSORTIUM GIVEN CHANGES IN SOCIAL FACTORS CAN A WIFE SUE FOR LOSS OF SERVITIUM WITHOUT LOSS OF CONSORTIUM CAN A WIFE SUE FOR LOSS OF WAGES IN THESE CIRCUMSTANCE  Given the council for Ms Harris argued that changing law in circumstances suggesting a wife now has a claim for consortium, that the claim by loss of servitium is not necessarily excluded in the way loss of consortium o Currently a wife can't claim loss of consortium but that should be changed  Appropriate to raise a claim on behalf of the wife independent of the claims for loss of consortium and servitium, for loss of wages PHRASE THE ISSUES AS A QUESTION SINCE THE ANSWERS WILL BE GIVEN BY THE JUDGEMENT Decision and Reasoning for the first two issues. [This will take you to halfway down p 517. By all means, read the remainder – but you might find it conceptually harder, at least until you’ve completed your study of LLB102.]  Mr Grigg wanted the claim to be struck out against Ms Harris but the judge denied this claim  

District court said they were not going to throw the claim out It is an error of law because the judge didn't follow the common law, but in an activist reading from a judge that is trying to allow It to reflect society more accurately it is simply a mechanism for allowing the common law to change

Decision: 

According to the court of appeal the judge did make an error of law - and therefore on the review, the appeal must be allowed - the judge should have struck it out  

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Discloses no reasonable course of action The appellant was awarded costs of this appeal, the application to the distrcit court and to the action

Argument by Ms Harris that social conditions have changed, he acknowledges those changes and the FLA incorporates those changes - they are bound by the previous cases sited and by the strict interpretation - the wife is unable to sue for loss of consortium and loss of servitude Can't sue for two types of damages under 1 legal action??????

Exercise 7.4 – Law reform (done in class)

Read the second-last paragraph of the judgment (bottom of p 522, beginning “In conclusion…”). Now examine and compare two pieces of legislation:

a. Law Reform (Marital Consortium) Act 1984 (NSW) - what was the effect of this act? S3 Abolition of action for loss or deprivation of consortium b. Now visit the Queensland Legislation website, and find the ‘as passed’ Law Reform (Husband and Wife) Act Amendment Act 1989 (Qld) (no. 81 of 1989) - what was the effect of this act? Extended the right to sue to a wife c. What do these acts tell you about the relationship between common law and statute as sources of law? The government has the supreme power to change the law - courts have the power to shape the law but not as drastically as the government. Statute law can by used to amend the common law if the perception is that the common law principles are not moving with the times - its an anomaly d. The current version of the law in Queensland is now found in the Law Reform Act 1995 (Qld). Find this act and determine the current position for loss of consortium claims. In doing this, you might also wish to consult Acts Interpretation Act 1954 (Qld), Sch 1. S4 application of this act Gender neutral wording Changed to include defacto and civil partners...