‘Loss of consortium’ is a common law head of damages that allows a husband to claim compensation for loss of certain marital rights/services, in circumstances where his wife has suffered injury resulting from the wrongful act of another. It is available in select states and territories, with Queensland and South Australia having expanded the action, permitting wives to bring an equivalent statutory claim.
The rights/services in question are said to include:
- Performance of domestic duties;
- Management of household affairs; and
- Support, assistance and companionship.
The action for loss of consortium has been abolished in New South Wales, Tasmania, Western Australia and the Australian Capital Territory. Only a husband can bring a claim in the Northern Territory and Victoria. In most jurisdictions, a consortium action is unavailable or limited where injury was caused by a road or industrial accident.
An example of a consortium action is the case of Elliott v Anor v Andrew [2009] SADC 31. In relation to the third category of consortium listed above, the District Court noted:
[364] So far as the component of consortium is concerned Mrs Elliott must be compensated for matters such as the cessation of the sexual relationship and the detriment to companionship. The evidence establishes a significant deterioration in what was once a loving relationship.
Mrs Elliott sought compensation for the inability to have a sexual relationship with her husband for the remainder of their marriage, her increased load in relation to care of children, and loss of her husband’s assistance when travelling. She was ultimately awarded $100,000 for both past and future loss of consortium.
Our firm currently has clients pursuing wrongful birth claims in South Australia, where, as explained, loss of consortium remains compensable.
