	Home \| Databases \| WorldLII \| Search \| Feedback Precedent (Australian Lawyers Alliance)

Home | Databases | WorldLII | Search | Feedback

Precedent (Australian Lawyers Alliance)

You are here: AustLII >> Databases >> Precedent (Australian Lawyers Alliance) >> 2019 >> [2019] PrecedentAULA 23

Barrett, Jillian --- "Damages for loss of consortium and servitium" [2019] PrecedentAULA 23; (2019) 151 Precedent 34

DAMAGES FOR LOSS OF CONSORTIUM AND SERVITIUM

By Jillian Barrett

Despite the dubious historical basis of the claim, the action for loss of consortium and servitium (LCS) provides a valuable avenue of recourse for plaintiffs. While damages are usually modest, LCS claims serve the important purpose of acknowledging the suffering of the uninjured spouse.

THE COMMON LAW ACTION

The common law action per quod consortium amisit allowed a husband to sue tortfeasors directly for diminution in the quality of his wife’s companionship (consortium) and services (servitium) caused by her negligent injury. Unlike Griffiths v Kerkemeyer damages, or dependency claims, the husband’s action for LCS is entirely independent of any action bought by the wife. It is not, for example, affected by contributory negligence on the part of the wife.^[1]

In fact, the action for LCS originally lay in trespass rather than negligence. It was premised on the belief that husbands had a proprietary interest in their wives sufficient to found such an action in trespass – an injured wife was damaged property. In Wright v Cedzich, Isaacs J drew from Shakespeare’s The Taming of the Shrew to explain the attitude underpinning the action, writing:^[2]

‘Petruchio stated that argument so admirably as to leave nothing to be desired when he said:

“I will be master of what is mine own.

She is my goods, my chattels; she is my house,

My household stuff, my field, my barn,

My horse, my ox, my ass, my any thing;

And here she stands, touch her whoever dare;

I'll bring mine action on the proudest he

That stops my way in Padua.”’

Despite Issacs J’s strong dissent, the majority in Wright held that there was no corresponding action for LCS by wives for the negligent injury of their husbands. Their Honours held that the right of a husband to the consortium of his wife ‘is entirely different in character from the right of the wife in the consortium of her husband, the right of the husband being capable of being estimated in money while the right of the wife is no more than a right to the comfort of her husband’s society and attention’.^[3] This view was confirmed as recently as 1952.^[4]

LAW REFORM

As a consequence, the common law action for LCS has been widely criticised as ‘antique’, ‘discriminatory’ and ‘anachronistic’.^[5] It is the writer’s view that these descriptions of LCS claims, under the common law (which allows a claim for a husband), are correct. LCS claims have been abolished or ‘radically limited’ in most Australian jurisdictions.^[6]

In New South Wales, the Australian Capital Territory, Western Australia and Tasmania, the action has been expressly abolished by legislation.^[7] In Victoria and the Northern Territory, there has been no express abolition of LCS claims, but legislation purporting to establish exclusive codes for damages has been interpreted to exclude the action.^[8]

Queensland and South Australia are the only jurisdictions to have retained modified versions of the action. In both jurisdictions, the action has been extended so that it is available to any ‘spouse’ of the injured person – allowing women, same-sex and de facto partners to bring claims.^[9] In Queensland, the action for LCS is available only if the injured person has died or general damages are assessed in excess of the prescribed amount (approximately equivalent to an Injury Scale Value (ISV) of 22).^[10]

In South Australia, there is no general threshold ISV, although if the injury is sustained in a motor vehicle accident, the injured person must be assessed with an ISV of 10 or above.^[11] The retention of, and expansion to include other relationships, in LCS claims is a benefit of the legislation in Queensland and South Australia.

An ISV is a scale running from 0 to 100 that is used to assess a person’s general damages. A person is assigned a numerical value for the injury depending on its severity. The range is where an injury is not severe enough to justify any award of general damages (ISV 0) to an injury of the gravest conceivable kind (ISV 100).

QUANTIFYING CONSORTIUM

Consortium is the ‘comfort and companionship’ provided by one spouse to another.^[12] In other words, it:

‘...involves a sharing of two lives, a sharing of the joys and sorrows of each party, of their successes and disappointments. In its fullest sense it implies a companionship between each of them, entertainment of mutual friends, sexual intercourse – all those elements which, when combined, justify the old common law dictum that a man and his wife are one person.’^[13]

Consortium so characterised is notoriously difficult to quantify. It is clear that diminution in the quality or frequency of sexual intercourse is compensable.^[14] Damages have also been awarded when:

• the spouse’s injuries prevent the couple from engaging in outings with family and friends;^[15]

• the injured spouse becomes prone to emotional outbursts and needs to be frequently pacified;^[16] and

• the injured spouse now goes to bed shortly after the children, whereas the couple previously spent time together in the evenings.^[17]

Importantly, the focus of the claim is on the material consequences of the impairment of the injured person’s consortium, rather than the emotional consequences for their spouse. Thus, compensation ‘cannot include damages for grief, nor for loss of love itself; but can include damages for the loss of those everyday actions which are the product of such love in a marriage... by which a person comforts or renders life agreeable to a spouse in a multitude of ways, some tiny, some important.’^[18] The distinctions drawn are often slight. For example, loss of ‘that companionship and assistance that goes with a happy marriage’ is compensable,^[19] but ‘diminished happiness or lessened spiritual enjoyment of his home life’ is not.^[20]

QUANTIFYING SERVITIUM

Loss of servitium is more readily quantifiable, but requires a detailed understanding of the legislation governing what the injured person and their spouse can and cannot claim respectively. There is no ‘double-dipping’. Essentially, in quantifying loss of servitium, lawyers must:

(a) assess the reasonable costs of replacing the injured spouse’s services to the matrimonial household;and then

(b) subtract whatever has been claimed by the injured spouse for care and assistance to avoid overlap.^[21]

The services that can be claimed include services such as cooking, working in a family business and providing childcare.^[22]

The critical difference between the claims of the injured person and the spouse is that the injured person claims damages for services provided to them because of their injuries, whereas the spouse claims damages for the loss of services formerly provided by the injured person. The distinction is perhaps best illustrated by an example. Take an injured wife who previously spent four hours per week gardening, but is now unable to garden at all. If her husband now spends one hour per week gardening and no one else is taking up the slack, she can claim Griffiths v Kerkemeyer damages for just one hour of gardening per week. The husband, on the other hand, can claim loss of his wife’s gardening services for the full four hours per week. When the overlap with his wife’s claim is subtracted, the husband is entitled to damages for three hours of gardening per week.

In most jurisdictions, damages are available for loss of the injured person’s capacity to provide gratuitous domestic services.^[23] These provisions have the advantage of allowing damages to be assessed based on a person’s pre-injury life expectancy, whereas damages for loss of servitium are assessed according to the person’s new life expectancy.^[24]

Despite this, LCS claims may still provide a better remedy in some circumstances. First, there is no requirement in LCS claims that the service provided be reasonably necessary; only that it was previously provided by the injured person.^[25] Second, it is not necessary that LCS claimants satisfy the six hours per week for six months requirement (although, at least in Queensland, where an ISV threshold of 22 applies, they usually will).^[26]

It should be noted that, although actions for LCS have been abolished in the Australian Capital Territory, s100 of the Civil Law (Wrongs) Act 2002 allows damages to be claimed for loss of the injured person’s capacity to provide domestic services that they ‘might reasonably have been expected to perform’ for their household but for their injury, and does not impose any minimum time requirements. These provisions are much wider than the legislation in other jurisdictions, and likely encompass most circumstances in which a claim for loss of servitium could otherwise have been made.

Finally, for claims under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and like legislation, which do not allow compensation for care and assistance gratuitously provided,^[27] LCS claims provide a valuable avenue by which the injured worker’s spouse can recover the value of their gratuitous services directly.

QUANTUM – SOME EXAMPLES FROM THE CASES

Damages for LCS claims are usually only very modest, ranging from $2,000 to $60,000, but often totalling $10,000 or $20,000.

In Harrington v Queensland Corrective Services Commission,^[28] a 37-year-old trade instructor at the Townsville Correctional Centre was severely disabled and suffered a brain injury causing organic personality change, after he was assaulted by prisoners in an escape attempt. He had previously shared responsibility for cooking and childcare with his wife, and also carried out gardening, house and car repairs. The court awarded his wife $30,000 in damages for loss of consortium, as well as an allowance of $40 per week (totalling $29,000) for loss of servitium. In setting this allowance, the court took into account the fact that the injured person had already claimed the cost of a live-in carer, who would likely assist with some household tasks. The total award of $59,000 is one of the largest reported for LCS.

By contrast, in Henley v State of Queensland,^[29] where the injured person remained capable of providing general emotional support and companionship to his spouse, and retained a reduced capacity to engage in sexual activity, damages of just $3,500 were awarded for loss of consortium. The award of $4,000 for loss of consortium was likewise tokenistic only in Lebon v Lake Placid Resort Pty Ltd.^[30] In that case, a 25-year-old woman was rendered tetraplegic after colliding with another person on a waterslide. Importantly, damages were only awarded for loss of consortium during the seven-year period between the date of the wife’s accident and the couple’s separation. Due to issues of double recovery, no damages for loss of servitium were awarded in either case.

In Davis v Bound,^[31] damages of $12,000 were awarded for loss of consortium and servitium to compensate the husband of a mother who sustained a psychiatric injury after the respondent brutally murdered her son. Damages of $12,000 were also awarded to the wife of a man who sustained a fractured spine and an 8 per cent permanent impairment of sexual function when he slipped on stairs at a resort and fractured his spine in Corkery v Kingfisher Bay Resort.^[32]

CONCLUSION

Although awards for LCS tend to be only modest, bringing an LCS claim offers two distinct benefits. First, at least in Queensland, it signals to insurers that lawyers strongly believe that their clients’ injuries justify a high ISV. Second, it serves the important purpose of acknowledging that the uninjured spouse has also suffered due to their partner’s accident and allowing the uninjured spouse to be heard. Given that a LCS claim requires little extra work for lawyers, it is good practice in Queensland and South Australia to pursue LCS actions whenever it appears likely that the injured person’s damages will exceed the ISV thresholds.

The writer would like to acknowledge Priam Rangiah, Paralegal at Maurice Blackburn, for her assistance in the preparation of this article.

Jillian Barrett is a Principal Lawyer in the Personal Injuries Law Division at Maurice Blackburn Lawyers. She is an Accredited Specialist in Personal Injury Law. PHONE (07) 3809 7417 EMAIL JBarrett@mauriceblackburn.com.au.

^[1] Curran v Young [1965] HCA 14; (1965) 112 CLR 99, 100.

^[2] [1930] HCA 4; (1930) 43 CLR 493, 510.

^[3] Wright v Cedzich [1930] HCA 4; (1930) 43 CLR 493, 500.

^[4] Best v Samuel Fox [1952] AC 716.

^[5] Burnicle v Cutelli [1982] 2 NSWLR 26, 31 (per Glass JA); The Law Reform Commission, Loss of Consortium; Compensation for Loss of Capacity to do Housework, Report No. 32 (1986) 6.

^[6] CSR v Eddy [2005] HCA 64; (2005) 226 CLR 1, 23 [44].

^[7] Law Reform (Marital Consortium) Act 1984 (NSW), s3; Common Law (Miscellaneous Actions) Act 1986 (Tas), s3; Law Reform (Miscellaneous Provisions) Act 1941 (WA), s3; Civil Law (Wrongs) Act 2002 (ACT), s218; Administration of Justice Act 1982 (UK), s2.

^[8] Doughty v Martino Developments Pty Ltd [2010] VSCA 121; (2010) 27 VR 499, 508 [20]; see, for example, Transport Accident Act 1986 (Vic), s93(1); Motor Accidents (Compensation) Act (NT), s5.

^[9] Law Reform (Husband and Wife) Act Amendment Act 1989 (Qld), s5 (now incorporated into Law Reform Act 1995 (Qld), s13); Civil Liability Act 1936 (SA), s65(1).

^[10] Civil Liability Act 2003 (Qld), s58(1); Workers Compensation and Rehabilitation Act 2003 (Qld), s306M(1).

^[11] Civil Liability Act 1936 (SA), s65(2).

^[12] Talbot v Lusby [1995] QSC 143 (per Fryberg J).

^[13] Crabtree v Crabtree (No. 2) [1964] ALR 820.

^[14] Talbot v Lusby [1995] QSC 143.

^[15] Ibid.

^[16] Toohey v Hollier [1955] HCA 3; (1955) 92 CLR 618, 622.

^[17] McMillan v Pritchard [1997] QDC 269.

^[18] Talbot v Lusby [1995] QSC 143.

^[19] Markellos v Wakefield (1974) 7 SASR 436, 437.

^[20] Toohey v Hollier [1955] HCA 3; (1955) 92 CLR 618, 622.

^[21] Johnson v Nationwide Field Catering Pty Ltd (1986) 2 Qd R 494, 495.