HOWARD AND COMPANY (AFRICA) LTD v BEHRENS (1972) Z.R. 171 (H.C.)

Facts

The plaintiff’s wife was injured due to a collision with the defendant at a junction. The plaintiff sued the defendant for damages occasioned by loss of consortium and also money spent by the plaintiff on his wife. He brought this action basing his argument on the negligence of the defendant. Now section 3 (a) of the Law Reform (Limitation of Actions) Act provided a time-bar of three years to any causes of action in damages for negligence, nuisance or breach of duty. Furthermore, according to the Act, the aforementioned causes of action were to be brought in respect of personal injuries suffered. Mr. White (the plaintiff’s counsel) submitted that the defendant owed a duty of care and was in breach of that duty to both the wife and the plaintiff (for loss of consortium).

Issue

Whether the defendant owed a duty of care in negligence to the plaintiff in loss of consortium

Held

 The court held that loss of consortium is a distinct and separate tort in its own right. The implication of this, therefore, is that it has no dependence on the tort of negligence. In the same vein, the tort of negligence requires a duty of care owed and also breach of that duty among other things. In this case, Silungwe J agreed with the defendant counsel’s reasoning that the duty of care in this circumstance was owed to all road users in general and not to the plaintiff husband. It is therefore true that a husband’s right of action for loss of consortium is separate and distinct from his wife’s action arising out of any tortious act done to her by another person. Loss of consortium, as a tort in its own right, can be brought about by, for example, trespass to the person of his wife, such as assault or false imprisonment. Hence, the appeal was dismissed.

Commentary

In this case there was a preliminary issue on a point of law on whether or not the plaintiff’s right of action was time-barred in correspondence to section 3 (a) of the Law Reform (Limitation of Actions) Act.  Silungwe J took the view that the plaintiff husband’s loss of his wife’s consortium was not an action ‘for damages for negligence, nuisance or breach of duty’ as envisaged in the Act and thus was not time-barred.

Another factor worth mentioning is that even if a duty of care under negligence was extended to the plaintiff husband, it had to be shown that the same was brought in respect to personal injuries (which wasn’t the case here. See also Venter v Venter & Joubert on consortial loss.

(This case is tabbed under Family Law although I should admit that it has strong Tort Law overtones).

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