REPORT STATUTE LAW REVISION COMMITTEE ACTIONS IN TORT BETWEEN HUSBAND AND WIFE

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1 VICTORIA REPORT FROM THE STATUTE LAW REVISION COMMITTEE UPON ACTIONS IN TORT BETWEEN HUSBAND AND WIFE TOGETHER WITH MINUTES OF EVIDENCE AND AN APPENDIX Ordered by the Legislative Assembly to be printed, 1st December, 1965 D.-No /66.-PRICE 10 cents By Authority: A. C. BROOKS, GOVERNMENT PRINTER, MELBOURNE.

2 EXTRACTED FROM THE MINUTES OF THE PROCEEDINGS OF THE LEGISLATIVE COUNCIL. WEDNESDAY, 15TH SEPTEMBER, STATUTE LAW REVISION COMMITTEE.-The Honorable G. L. Chandler, moved, by leave, That the Honorables M. A. Clarke, R. W. May, G. J. Nicol, G. W. Thorn, J. M. Tripovich and J. M. Walton be members of the Statute Law Revision Committee and that the said Committee have power to send for persons, papers and records. Question-put and resolved in the affirmative. EXTRACTED FROM THE VOTES AND PROCEEDINGS OF THE LEGISLATIVE ASSEMBLY. TUESDAY, 14TH SEPTEMBER, STATUTE LAW REVISION COMMITTEE.-Motion made, by leave, and question-that Mr. Borthwick, Mr. Cochrane, Mr. Dunstan, Dr. Jenkins, Mr. Whiting and Mr. Wilkes be members of the Statute Law Revision Committee ; and that the Committee have power to send for persons, papers and records (Mr. Rylah)-put and agreed to.

3 REPORT THE STATUTE LAW REVISION COMMITTEE, appointed pursuant to the provlslods of The Constitution Act Amendment Act 1958, has the honor to report as follows :- 1. By letter dated 2nd September, 1965, the Honorable the Attorney-General requested the Committee to inquire whether a husband and wife should be able to sue the other in tort and recover damages as if the marriage relationship did not exist. In particular, concern was expressed at the situation which currently exists whereby a spouse who is injured in a motor car accident due to the sole negligence of the other, cannot sue to recover damages. 2. Appended* to this Report are the Minutes of Evidence of the following witnesses who appeared before the Committee :- Mr. J. T. Inkster.. Mr. G. R. Fuller.. Mr. G. G. O'Brien Mr. X. Connor, Q.C. Mr. E. L. Lane Mr. E. P. Niven Professor D. P. Derham and Mr. B. L. Murray, Q.C. Insurance Commissioner, State Accident Insurance Office ; Representing the Law Institute of Victoria ; Assistant Parliamentary Draftsman ; Representing the Victorian Bar Council ; Assistant Principal, Legal Officer, Crown Solicitor's Office ; Deputy General Manager, New South Wales Government Insurance Office ; Dean of the Faculty of Law, Monash University ; Solicitor General. Also appended* is a Report of the Chief Justice's Law Reform Committee. 3. During the course of this Inquiry the Committee visited New South Wales where valuable evidence was tendered on behalf of the New South Wales Government Insurance Office. 4. The present state of the law in Victoria is that a husband and wife can sue each other for the protection of their personal property, but the actions they are able to bring against each other are limited to this extent by section 160 of the Marriage Act 1958, which provides- " (1) No husband or wife shall be entitled to sue the other for a tort except as in this section provided. (2) A husband or wife shall have against the other the same civil remedies and redress by way of criminal proceedings for the protection and security of his or her property as if they were both unmarried. (3) In any proceeding under this section- (a) it shall be sufficient to allege that the property is the property of the husband or wife (as the case may be) ; (b) the husband or wife shall be competent to give evidence against the other notwithstanding any statute or rule of law to the contrary. (4) No criminal proceeding shall be taken by any husband or wife against the other by virtue of this Part while they are living together as to or concerning any property claimed by him or her, nor while they are living apart as to or concerning any act done while they were living together concerning property claimed by him or her unless such property has been wrongfully taken by the husband or wife when leaving or deserting or about to leave or desert the other." 5. When applied to motor car third-party insurance claims this section prevents a spouse who may be injured due to the sole negligence of the other from recovering damages. However, where two cars collide and a woman who is a passenger is injured due to the joint negligence of her spouse and the driver of the other vehicle, the injured spouse may recover damages by suing the driver of the other vehicle, who in turn recovers contributions for damages from the partly negligent spouse's insurer by joining him in the action under the provisions of section 24 (1) (d) of the Wrongs Act * Minutes of Evidence and Appendix not printed.

4 4 6. A wife can benefit indin~ctly from her husband's insurance where two cars collide and partial negligence can be proven against the driver of the other vehicle. The Committee was concerned that only in accidents where no negligent third party was involved is the injured spouse unable to recover damages to compensate for permanent injuries and medical expenses. The most common type of accident that occurs where a spouse cannot claim is when a car crashes into a post or skids and turns over due to some circumstance other than a collision with another vehicle. 7. Careful consideration was given to whether granting husband and wife the right to sue each other to recover damages under motor car third-party insurance could in any way weaken marriage relationships or cause ill feeling. Apart from one exception, all witnesses who tendered evidence during this Inquiry were satisfied that there would be no undesirable repercussions if the proposed amendment was adopted, as the whole family would eventually stand to benefit indirectly from any compensation received from insurance. 8. Any dangers of collusion due to the close personal relationship of the parties would be no greater than those existing where claims can at present be made under the contributory negligence provisions of the Wrongs Act, and the Committee considers that the courts will, as in the past, exercise due discretion in determining claims involving suspicious circumstances. 9. Concern was expressed by insurance representatives that any extension to the category of cases under which compensation can at present be claimed, without a corresponding increase in premiums, would result in a substantial increase in the deficit currently shown on the conduct of third-party insurance business. Evidence tendered by the New South Wales Government Insurance Office suggested that the cost to the insurer of providing the extended cover would be approximately 3 38 shillings per premium in the city and 2 27 shillings per premium in the country. Claims of this nature would not be very numerous and should constitute only a small proportion of total payments. 10. In the opinion of the Committee any increase in costs to the insurer to finance the proposed extension of third-party insurance should not be a major factor in determining its adoption, as if necessary, premiums could be increased to cover additional claims. 11. The Committee considered the following two legislative provisions which are at present operating in South Australia and New South Wales, respectively, both of which enable a spouse to recover damages to compensate for injuries sustained due to the negligent driving of the other. (A) South Australia. Motor Vehicles Act 1959, section 118 (1).-Provides that a spouse may recover damages by suing the spouse's insurer. (B) New South Wales. Law Reform (Married Persons) Act No. 17, Provides that spouses may sue each other to recover damages. 12. Of these two alternatives the Committee considered that the New South Wales provision would be the more satisfactory, as it would merely provide an extension of the scope under which claims can be made at present. The adoption of similar provisions to those existing in South Australia were not considered favourably as two categories of claims would be created whereby normal third-party claims would be made by the injured person claiming on the negligent party, while an injured spouse would claim direct on the other spouse's insurance company. 13. It is unreasonable that the driver's mother or daughter should be able to recover damages in respect of his negligent driving while the wife is placed at a disadvantage merely because of the marriage relationship. The Committee therefore recommends that legislation should be enacted to enable spouses to sue each other to recover damages under motor car third-party insurance. 14. The mere adoption of the recommendations incorporated in paragraph 13 would not enable spouses who are joint owners of a motor car to claim under third-party insurance contracts due to the provisions of section 46 (2) (b) of the Motor Car Act 1958, which provides- " such contract does not indemnify the owner or the driver of the motor car to which the contract of insurance relates against any liability which may be incurred in respect of the death of or bodily injury to the driver or the owner of such motor car ; ". 15. This limitation does not apply in New South Wales where the Act provides that both the owner and driver must be insured. A policy is taken out that covers the owner, regardless of whether he is driving or a passenger, and any other person who may be driving or travelling in the vehicle is also indemnified.

5 5 16. The Committee considers that joint ownership should not preclude spouses from recovering damages and recommend that the Motor Car Act be amended to allow husband and wife to recover damages if either is injured while travelling as a passenger in a car registered jointly in their names. 17. The Committee also heard evidence on the broader question of whether spouses should be granted the same general right of action in tort as unmarried parties. Early in this Inquiry considerable concern was expressed by some members of the Committee that if spouses were granted unrestricted right to sue each other and to recover damages from sources other than insurance, considerable bitterness and matrimonial unrest could result. 18. However, evidence tendered during the Inquiry does not support this contention and it is considered that the protection offered to a spouse against slanderous or physical injury would more than outweigh any danger of breaking up a marriage which would probably already be on an unstable basis. At present spouses can sue each other for a tort committed before marriage and no apparent ill-effects have been experienced. 19. It appears ironical that an unmarried couple living together should be in a better position in relation to protecting their property and person than a married couple. The fact that the wife's right of action is at present limited to the protection of her personal property means that in no circumstance can she sue her husband for injury inflicted on her. The injustice of this can be well illustrated by the case of Tinkley v Tinkley (1909) T.L.R. 264, when a wife who was living apart from her husband was denied any redress even though she was arrested and lost her employment as a result of a false accusation of theft. 20. This question was also considered by the English Law Reform Committee in 1960 (Command Paper No. 1268) and the views of those who opposed the granting of complete freedom of action in tort, together with their reasoning, is clearly set out in the 9th paragraph- " 9. We think that to allow complete freedom of action in tort would be undesirable as a matter of general social policy. The strains which are liable to be set up and the troubles which are liable to arise when two people are living together in the constant close proximity of marriage produce a situation that should not be regarded merely from a narrow legal point of view. If either spouse were able without let or hindrance to bring an action in tort against the other in respect of injuries of a personal nature, it might easily lead to harmful results. Litigation in respect of petty acts of negligence in the domestic sphere would certainly not be conducive to the continuance of the marriage and would, we think, do nothing but harm." To ensure that the time of the court would not be unreasonably wasted by having to settle petty domestic grievances, the English Committee recommended as a safeguard that the court should be vested with discretionary authority to stay any proceedings which did not appear to be in the best interests of the parties concerned. Paragraph 10 of the Report states- " 10. For this reason we have given careful consideration to a proposal that, where husband and wife are cohabiting, neither should be able to bring an action in tort against the other without the leave of the court. We have come to the conclusion that there is no need to go as far as this. We think it is most unlikely that, however strained their relations may be, either spouse would bring an action for damages against the other unless there was some possibility of the damages being recovered from some source outside the family. Although in exceptional cases a husband or wife might wish to start proceedings, we think that a sufficient safeguard against unseemly litigation can be provided by giving the court power to stay the action. A solution on these lines would recognise that the theory underlying the common law rule as to the inability of either spouse to sue the other for a tort committed during marriage had finally disappeared and that the law was concerned only to ensure that some check was placed on litigation which could not serve any useful purpose." 22. The recommendations made by the Committee were subsequently adopted by the Government and given legislative effect by the English Law Reform (Married Persons) Act This Committee does not agree with the English Committee's recommendation that the court should be vested with discretionary authority to stay proceedings between husband and wife which appear trivial, or to serve no useful purpose. Under this procedure, an application to have proceedings stayed would be heard first and if the stay was refused, the case would have to be heard again to determine the extent of the claim. At present spouses may sue each other in respect of trivial personal possessions. However, the Committee is satisfied that this right is not being abused nor does it appear to have resulted in a spate of petty claims. Granting husband and wife the right to sue generally in tort merely broadens the present provision. As it has apparently not been necessary to grant the court power to stay proceedings that can at present be conducted, it does not appear necessary or logical that a provision for a stay should be applied to any extended field of action.

6 6 24. The Chief Justice's Law Reform Committee also considered the question of actions between spouses. This Committee agrees that spouses should be granted unrestricted right of action in tort and that a discretionary provision for proceedings to be stayed would only result in additional work for the court and increased expense for the litigants. 25. It is therefore recommended that legislation be enacted to remove any incapacity for either spouse to sue the other in tort. Committee Room, 30th November, B7 Authority: A. C. BIIOOK8, Government Printer, Melbourne.