Loss of consortium
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Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a spousal relationship due to injuries caused by a tortfeasor. The relationship between husband and wife has, historically, been considered worthy of legal protection. The action originated in the 18th century and was once available to a father against a man whom 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. Tort law is concerned with protecting various interests. 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 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 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. It is often cause for compensatory damages to be awarded.
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 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 od 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 mysogenistic undertones. In his judgement 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".
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