Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.
Damages for loss of consortium are codified in the Alberta Tortfeasors Act. These damages are claimed by the uninjured spouse for the damage resulting to the marital relationship from the injuries suffered by the injured spouse. The claiming spouse must be a co-plaintiff in the injured spouse’s lawsuit.
Loss of consortium claims compensate for loss of sexual activity as well as loss of society and comfort of the uninjured spouse.
The amount of damages awarded in Alberta for a loss of consortium claim will depend on how severely the injured plaintiff’s injuries affected the marriage. Damages for loss of consortium range from approximately $3,000 to $37,588. The upper range of the damages scale appears to be reserved for situations where there has been a near total breakdown of the marriage; in one case, the roles of the parties were described as having deteriorated to being akin to that of caregiver and care receiver. On the other end of the spectrum, the $3,000 damage award for loss of consortium was given to a wife who was deprived of the care and companionship of her husband for a period of only three months. The average amount of damages awarded for loss of consortium is approximately $17,000.
Loss of consortium is codified under s. 2.1 of the Alberta Tortfeasors Act, R.S.A. 2000, c. T-5:
Loss of consortium through injury
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.
The most recent case in Alberta dealing with loss of consortium is Muir v. Macdonald, 2017 ABQB 440, 2017 CarswellAlta 1243. After a vasectomy, the plaintiff had a number of difficulties and eventually developed chronic pain that had a significant impact on his lifestyle and career. The plaintiff brought an action for medical negligence as a result of the complications. Kenny J found that the defendant was not liable, but provisionally undertook a damage assessment. One of the plaintiff’s claims was for loss of consortium; he testified that he was unable to have any sexual relations with his wife following the vasectomy. Kenny J cited several recent loss of consortium claims:
In Chae v. Min, 2001 ABQB 1107 (Alta. Q.B.), the Plaintiff’s wife was awarded $30,000 for loss of consortium. The evidence established that Mr. and Mrs. Chae no longer enjoyed a conjugal relationship and the relationship was limited to that of care giver and care receiver.
In Mahe v. Boulianne, 2008 ABQB 680 (Alta. Q.B.), the Court awarded $20,000 for loss of consortium. The trial judge found that the wife had suffered the loss of a close relationship that she previously experienced with her husband and they had little sexual relationships.
The Defendants relied on Sutherland v. Encana Corp., 2014 ABQB 182 (Alta. Q.B.). The judge did not find that there was a substantial interference in the sexual relations aspect of their marriage. The Court awarded $7500 (paras. 172-174).
In the result, Kenny J held that the amount of damages for loss of consortium was $20,000.
In Forsberg v. Naidoo, 2011 ABQB 252, 516 AR 201 the plaintiff went to the emergency room of his community hospital with meningitis symptoms. The plaintiff was diagnosed with N. meningitidis infection and a septic infection. The defendant physician did not immediately order antibiotic treatment, and the patient was not transferred to the intensive care hospital until three hours after his arrival. His legs, right arm below the elbow, and part of his left hand had to be amputated because of gangrene. The plaintiff could no longer work on his dairy farm and sold the herd. The plaintiff and his wife brought an action against the physician for negligent treatment of his infection; the wife claimed loss of consortium. Thomas J held that the physician’s negligence was the cause of some of the plaintiff’s injuries. The wife claimed (and based on the evidence, Thomas J agreed) that her relationship with the plaintiff had been affected by his injuries. The defendant argued that a loss of consortium claim would overlap with damages awarded to the wife to compensate for her caregiving activities. Thomas J held:
Loss of consortium compensates for a difference in a shared life. In the case of Wayne and Shirley that is not so much a change in their affection and caring, that clearly remains unchanged, but instead a limitation in the ways these two people may share their lives. Shirley says their intimacies are different, which no doubt they are. Many things a retired couple can share together, such as travel and recreational activities, are restricted. The Defendant’s negligence has reduced the ways they together can explore the remainder of their shared lives.
That is worth something, a fact recognized by the Alberta Legislature, and although that kind of difference is very difficult to value, I find that an award of $25,000.00 is appropriate in these circumstances. The Plaintiffs suggest that Madge v. Meyer, 1999 ABQB 1017, 256 A.R. 201 (Alta. Q.B.), affirmed 2001 ABCA 97, 281 A.R. 143 (Alta. C.A.) provides a good basis for comparison, and that case is relevant, particularly given that the post-injury role of one spouse had changed to be the caregiver for the other (paras. 544-545).
In the Madge case, the loss of consortium award was $37,588; in that case, the emotional relationship between the parties underwent severe deterioration. In this case, Thomas J awarded $25,000 for the wife’s loss of consortium claim.
In Sutherland v. Encana Corp., 2014 ABQB 182, 2014 CarswellAlta 511, additional reasons in 2014 ABQB 601, 597 AR 230 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 driver 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 also caused post-concussion symptoms, symptoms of post-traumatic stress disorder, depression, and post-traumatic seizure disorder. The driver and her spouse brought an action for damages, including a $27,500 claim for loss of consortium by the spouse. The spouse gave evidence that prior to the accident, he and the plaintiff had a normal sex life, but after the accident they were not as intimate as they used to be. The spouse blamed it on the wife’s depression, fatigue, and back pain. Other than the lack of sexual relations, the spouse gave little evidence as to how the relationship had suffered. The loss of consortium claim was based on s. 2.1(1) of the Tortfeasors Act. Michalyshyn J held:
The claim hinges on evidence that by reason of Teresa’s collision-related injuries Tom has been deprived of her ‘society and comfort’. There is often evidence of interference with sexual relations, but also may include evidence of other tort-related conflict in the marriage that causes the claimant harm or distress (para. 653).
Michalyshyn J found that there was some evidence as to the accident causing stress and increased responsibilities, but it was not compelling. He canvassed the Alberta authorities dealing with loss of consortium claims:
I was referred to Chae v. Min, 2001 ABQB 1107 (Alta. Q.B.) wherein Veit J. assessed $30,000 in damages for loss of consortium once finding the parties’ relationship was limited to that of care-receiver and care-giver. There is nothing remotely similar in the evidence before me.
Likewise I was referred to Forsberg v. Naidoo, 2011 ABQB 252 (Alta. Q.B.), with $25,000 awarded in damages for loss of consortium, but again it is distinguishable as another instance of a spouse becoming a caregiver, not remotely similar to the case before me.
I was referred to Vespa v. Dynes, 2002 ABQB 25 (Alta. Q.B.), a case in which it was found that for all practical purposes at trial the parties’ marital breakdown was complete, with damages of $20,000 awarded for loss of consortium. Again however there was no such evidence before me.
Finally, I was referred to Rogers v. Grypma, 2001 ABQB 958 (Alta. Q.B.), wherein the loss of consortium of $15,000 was characterized as follows:
The loss … is significant. [The claimant] has lost much of her companionship in social outings; his plans to travel with his wife during retirement years are gone, and he has been forced to give up much of his own personal time to be with and care for his wife. He is no longer able to have enjoyable and unimpaired sex with his wife. His marriage as he knew it, is gone (paras. 660-663).
Michalyshyn J held that nothing in the current case approached these facts; however, he held that giving the spouse every benefit of the doubt, the spouse was entitled to damages for loss of consortium in the amount of $7,500.
In Kitching v. Devlin, 2016 ABQB 212, 2016 CarswellAlta 689 the plaintiff was involved in a two-vehicle accident and hired a lawyer to pursue legal action. The claim was settled during judicial dispute resolution for $350,000, but the plaintiff alleged that the lawyer negligently handled his claim by making an uninformed decision to accept an improvident settlement and failing to obtain necessary information to properly advise him. In the personal injury suit, the plaintiff’s wife had a loss of consortium claim; the defendant offered to settle for $5,000 under this head of damage. The amount claimed by the plaintiff for loss of consortium was $40,000; the settled amount of this claim was $7,500.
In Best v. Hoskins, 2006 ABQB 58, 390 AR 1 the plaintiff was diagnosed with pre-malignant changes in her uterus. The defendant physician advised the plaintiff to have an abdominal hysterectomy. The physician performed the procedure with the assistance of another doctor who closed the incision. The plaintiff developed pain and discoloration around the incision; a third doctor performed surgery to correct the problem and discovered that one of the doctors had perforated her bowel while closing the incision. The bowel needed to be repaired and a large amount of dead tissue was removed resulting from a necrotizing fasciitis infection. The plaintiff underwent numerous procedures to address the damage caused by the infection; she brought an action for damages for medical negligence. Verville J held that the doctors had met their standard of care and dismissed the action. The plaintiff’s husband was also a party to the action; he brought a claim for loss of consortium in the amount of $20,000. The parties said that the wife could no longer go horseback riding, camping, and dancing with her husband; sexual relations had been suspended for several years, but had resumed. Verville J held:
I am satisfied that there has been some loss of the society and comfort. I find that an award of $6,500.00 is reasonable in these circumstances (para. 123).
In Lawson v. Le, 2008 ABQB 275, 452 AR 106 the plaintiff was in a car accident; he claimed $70,000 for post-traumatic stress syndrome. Veit J held that the claim was not made out, although the plaintiff was awarded some damages for his injuries. The plaintiff’s wife claimed loss of consortium; the evidence established that for a period of no more than three months after the accident, she was deprived of the companionship, comfort, and assistance that her husband would normally have provided her. She was awarded $3,000.