When parties are involved in a collision and are seeking compensation, they are often too shy to mention the impact the collision has had on their marriage. A term that parties involved in a claim for damages should become familiar with is loss of consortium. Loss of consortium refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. It can also be known as “loss of affection” or “loss of companionship”.
This head of damage is located in the Tort-Feasors Act, RSA 2000, c T-5. Specifically, section 2.1 states:
2.1(1) When a person has, either intentionally or by neglect of some duty existing independently of contract, inflicted physical harm on a married person and thereby deprived the spouse of that married person of the society and comfort of that married person, the person who inflicted the physical harm is liable in an action for damages by the spouse or in respect of the deprivation.
(2) The right of a spouse to bring the action referred to in subsection (1) is in addition to, and independent of, any right of action that the married person has, or any action that the spouse in the name of the married person has, for injury inflicted on the married person.
Depending on the severity of the loss, the amount one may receive in an award will vary. For example, in the matter of Mahe v. Boulianne (2010 CarswellAlta 161) the Plaintiff husband, a 41-year-old electrician, was injured as a result of a fall from a ladder. He suffered multiple spinal fractures, fractured ribs, and a torn shoulder blade muscle. The Plaintiff spent two months in hospital. His injuries left him unable to work as an electrician and had substantial effects on his emotional and mental state. He suffered from depression, and his relationship with his wife and children had been impaired. The Plaintiff’s wife, aged 43, had a good relationship with her husband prior to the fall. After the fall there was a substantial change in their relationship. They had a normal sexual relationship prior to the accident. However, after the accident, their sexual relationship was significantly reduced. The Plaintiff continued to care for each other and enjoyed each other’s company, and their marriage appeared to remain strong. The trial judge awarded the Plaintiff wife $20,000 for loss of consortium. It is to be noted that our Court of Appeal (Slatter J.A., Watson J.A., and Martin J.A. concurring) found some reviewable errors, but dismissed the Defendant’s appeal of liability. However, the relative fault of the parties was re-apportioned 60% to the plaintiff and 40% to the defendant.