Loss of consortium
Encyclopedia
Loss of consortium
is a term used in the law
of torts that refers to the deprivation of the benefits of a family
relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law. For example in Baker v Bolton, (1808) 1 Camp 493, a man was permitted to recover for his loss of consortium while his wife languished after a carriage accident. However, once she died from her injuries, his right to recover for lost consortium ended. After the enactment of the Lord Campbell's Act (9 and 10 Vic. c. 93) the English common law continued to prohibit recovery for loss of consortium resulting from the death of a victim. The availability of loss of consortium differs drastically among common law
jurisdiction
s and does not exist at all in several of them. Damages for loss of consortium are considered separately from, and are not to be confused with compensatory damages
.
The action was originally paired in a Latin expression: "per quod servitium et consortium amisit", translated as "in consequence of which he lost her society and services". The relationship between husband and wife has, historically, been considered worthy of legal protection. The interest being protected under consortium, is that which the head of the household (father or husband) had in the physical integrity of his wife, children, or servants. The undertone of this action is that the husband had an unreciprocated proprietary interest in his wife. The deprivations identified include the economic contributions of the injured spouse to the household, care and affection, and sex
. The action originated in the 18th century and was once available to a father against a man who was courting his daughter outside of marriage, on the grounds that the father had lost the consortium of his daughter's household services because she was spending time with her beau.
Loss of consortium has been brought into the law as a cause of action
by civil code
s, for example, in Maine
or into the common law by action of justices. Other jurisdictions view loss of consortium as an element of damages, not as an independent cause of action; in which case the claim must be brought under another tort. As an example, in suits brought under Washington State's wrongful death statute, loss of consortium is an element of damages . While some jurisdictions only recognize spousal consortium (usually considered as sex) others recognize parental consortium (love and affection) as well allowing children to recover for the death or disability of a parent and vice versa.
The common law rule of consortium has been amended or abolished by statute in many jurisdictions. Actions for loss of consortium have been abolished in England and Wales, Northern Ireland, New South Wales, Tasmania, Western Australia, the Australian Capital Territory and New Zealand, by the Administration of Justice Act 1982 (UK) s 2, the Law Reform (Marital Consortium) Act 1984 (NSW) s 3, the Common law (Miscellaneous Actions) Act 1986 (Tas) s 3, the Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 3, the Civil Law (Wrongs) Act 2002 (ACT) s 218 and the Accident Compensation Act 1972 (NZ) s 5(2) respectively.
Where this action is available, however, damages may be claimed under three broad heads of damage: incurred medical costs, or those yet to be incurred by the plaintiff, the loss of the injured spouse's services, and loss of society (within certain parameters).
This action, in its common law form, has been labelled by High Court justice, Murphy J, as an "archaic view" of interpersonal relationships, due to the proprietary and misogynist undertones. In his judgment in Sharman v Evans (1977) 138 CLR 563, Murphy notes that "Actions for loss of services correctly treat this [the loss of a woman's capacity to make usual contributions as wife and mother in a household] as economic injury, but as a loss to the husband on the archaic view of the husband as master or owner of his wife".
Consortium
A consortium is an association of two or more individuals, companies, organizations or governments with the objective of participating in a common activity or pooling their resources for achieving a common goal....
is a term used in the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of torts that refers to the deprivation of the benefits of a family
Family
In human context, a family is a group of people affiliated by consanguinity, affinity, or co-residence. In most societies it is the principal institution for the socialization of children...
relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law. For example in Baker v Bolton, (1808) 1 Camp 493, a man was permitted to recover for his loss of consortium while his wife languished after a carriage accident. However, once she died from her injuries, his right to recover for lost consortium ended. After the enactment of the Lord Campbell's Act (9 and 10 Vic. c. 93) the English common law continued to prohibit recovery for loss of consortium resulting from the death of a victim. The availability of loss of consortium differs drastically among common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s and does not exist at all in several of them. Damages for loss of consortium are considered separately from, and are not to be confused with compensatory damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
.
The action was originally paired in a Latin expression: "per quod servitium et consortium amisit", translated as "in consequence of which he lost her society and services". The relationship between husband and wife has, historically, been considered worthy of legal protection. The interest being protected under consortium, is that which the head of the household (father or husband) had in the physical integrity of his wife, children, or servants. The undertone of this action is that the husband had an unreciprocated proprietary interest in his wife. The deprivations identified include the economic contributions of the injured spouse to the household, care and affection, and sex
Human sexuality
Human sexuality is the awareness of gender differences, and the capacity to have erotic experiences and responses. Human sexuality can also be described as the way someone is sexually attracted to another person whether it is to opposite sexes , to the same sex , to either sexes , or not being...
. The action originated in the 18th century and was once available to a father against a man who was courting his daughter outside of marriage, on the grounds that the father had lost the consortium of his daughter's household services because she was spending time with her beau.
Loss of consortium has been brought into the law as a cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
by civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
s, for example, in Maine
Maine
Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...
or into the common law by action of justices. Other jurisdictions view loss of consortium as an element of damages, not as an independent cause of action; in which case the claim must be brought under another tort. As an example, in suits brought under Washington State's wrongful death statute, loss of consortium is an element of damages . While some jurisdictions only recognize spousal consortium (usually considered as sex) others recognize parental consortium (love and affection) as well allowing children to recover for the death or disability of a parent and vice versa.
Australian common law
In Baker v. Bolton (1808) 1 Camp 493, Lord Ellenborough made the much disputed, and unsupported, statement that an action for loss of consortium will not lie when the act, omission, or negligence in question results in the wife's death. Similarly, consortium will not lie where the husband and wife's marital bond has been severed by divorce (Parker v Dzundza [1979] Qd R 55).The common law rule of consortium has been amended or abolished by statute in many jurisdictions. Actions for loss of consortium have been abolished in England and Wales, Northern Ireland, New South Wales, Tasmania, Western Australia, the Australian Capital Territory and New Zealand, by the Administration of Justice Act 1982 (UK) s 2, the Law Reform (Marital Consortium) Act 1984 (NSW) s 3, the Common law (Miscellaneous Actions) Act 1986 (Tas) s 3, the Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 3, the Civil Law (Wrongs) Act 2002 (ACT) s 218 and the Accident Compensation Act 1972 (NZ) s 5(2) respectively.
Where this action is available, however, damages may be claimed under three broad heads of damage: incurred medical costs, or those yet to be incurred by the plaintiff, the loss of the injured spouse's services, and loss of society (within certain parameters).
This action, in its common law form, has been labelled by High Court justice, Murphy J, as an "archaic view" of interpersonal relationships, due to the proprietary and misogynist undertones. In his judgment in Sharman v Evans (1977) 138 CLR 563, Murphy notes that "Actions for loss of services correctly treat this [the loss of a woman's capacity to make usual contributions as wife and mother in a household] as economic injury, but as a loss to the husband on the archaic view of the husband as master or owner of his wife".