May 9 2018

Compensation for loss of consortium. When an accident injures your partner and kills your sex life, can you be compensated?

What is a loss of consortium and can I be compensated?

“Loss of consortium,” is a claim made for damages suffered by a spouse or family member of the person who has been injured or killed as a result of an accident. The amount of your damage award will vary according to the severity of the loss of society and comfort of your spouse. In cases where your relationship has been reduced to that of caregiver/care receiver, you might anticipate damages for “loss of consortium” ranging up to $40,000 and beyond. If the loss of your companionship with your spouse is of limited impact, or limited duration, damages for loss of consortium will be much lower, perhaps only ranging from $7,500 and above.

Damages for loss of consortium are provided for in the Tortfeasors Act in Alberta. One thing to note is that loss of sexual activity is not the only thing that can be compensated. A loss of the “society and comfort,” of your spouse is also compensable. For example, if your spouse can no longer be the companion to you that he or she once was, traveling with you, participating in your usual recreational activities, and sharing your customary enjoyments, this can fall within the “loss of consortium” head of damages. The court will also look at whether, in addition to interference with sexual relations, there is increased stress and friction in the relationship. For example, it is not uncommon for victims of a traumatic brain injury (TBI) to suffer personality changes that include irritability and angry outbursts.

A partner who carries the emotional burden of caring for their injured spouse has a significant loss of freedom, is this taken into account in calculating damages?

An example of damages for loss of consortium awarded at the high end of the range is the 1999 Alberta case of Madge v. Myer (with additional reasons, and upheld on appeal, with additional reasons). The plaintiff husband was injured in a serious motor vehicle accident and suffered a brain injury. As a result of his injuries, the husband required supervision by his wife and made her life very difficult by virtue of his insecurity and “clinginess.” He was no longer able to give his wife the comfort and emotional support that one would expect. He also suffered from severe anger and had temper tantrums, which he took out on his wife. Although they could have sexual relations, it was not as frequent as pre-accident. The wife suffered the continual emotional burden of daily caring for her husband and a significant loss of her freedom. She had to live with, and care for, a man who was not the man she married. Although they could attend some social occasions together, they would never have a romantic life nor do any significant traveling together in the future. Mrs. Madge was awarded $30,000 for loss of consortium, (approximately $42,570 in 2018 dollars).

When an accident interferes with sexual relations, but the interference is of limited impact or duration, can you still claim loss of consortium?

On the other end of the spectrum are cases where the interference in sexual relations and loss of society and comfort are of limited impact or duration. This is illustrated by the 2014 Alberta case of Sutherland v. Encana Corp. The plaintiff driver was stopped on the highway intending to turn left when she was struck from behind by the defendant driver, who had been going approximately 100 km/h. The defendant admitted liability for the accident. The plaintiff sustained a mild traumatic brain injury and physical injuries to her neck and low back, head, tongue, and jaw. The collision caused post-concussion symptoms, post-traumatic stress disorder (PTSD) and depression. The plaintiff driver and her spouse brought an action for damages, in which the husband claimed $27,500 for loss of consortium. The husband gave evidence that before the accident he and his wife had enjoyed a normal sex life, but after the accident, they were not as intimate as they used to be. He blamed it on the wife’s depression, fatigue and back pain. No other evidence was given as to the loss of society and comfort of his wife. The trial judge found that the evidence of interference with sexual relations was “vague and frankly trivial” and did not prove a substantial interference in that aspect of their marriage. There was some evidence as to increased stress and the fact that the husband had to take on more tasks owing to his wife’s illness, but it was not compelling. Further, there was no real evidence as to changes in the couple’s social life. Giving the husband “every benefit of the doubt,” the trial judge awarded damages for loss of consortium in the amount of $7,500, which in 2018 dollars is $7897.50.

Key takeaway: Damages for loss of consortium are available on a continuum

There is a continuum of damages assessable for loss of consortium, varying with the impact and duration of the interference with the sexual relations, society and comfort of your spouse. If you would like to explore whether you have a potential loss of consortium claim following an injury to your spouse, please CONTACT the experienced lawyers at CAM LLP for a free consultation.