McKinley v Minister for Defence

The plaintiff’s husband suffered serious injuries in an explosion, one of which impaired his ability to have sex. In the plaintiff’s claim against her husband’s employer, the Minister for Defence, she claimed compensation for loss of consortium at common law. In the past, this action was available only to a husband. The question asked by the plaintiff was whether this was inconsistent with the Constitution, and in particular its guarantee of equality and implied guarantee of spousal equality. The Supreme Court unanimously agreed that restricting a claim of loss of consortium to husbands only was inconsistent with the Constitution, but disagreed on how to respond to the inconsistency. A majority took the view that the defect should be remedied in a positive manner, by extending the action to wives, while the minority thought that the solution was to abolish the action of loss of consortium entirely. Thus, the majority of the Supreme Court held that the effect of the principle of equality of spouses was to extend the benefit of the common law rule to the wife.