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Loss of consortium

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 is not a historical tort under English common law but arrived via statute as Lord Campbell's act (9 and 10 Vie. c. 93). Without a common basis its application differs drastically among other common law jurisdictions and does not exist at all in several. It is often cause for compensatory damages to be awarded.

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 codes, 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. The state of Washington, for example, only allows loss of consortium as an element of damages under suits brought under its wrongful death statute. 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 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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