Claims for Loss of Consortium & Servitium

Where someone is seriously injured due to someone else’s fault, such as a motor vehicle accident or work accident, they could be entitled to significant compensation.  Likewise, a person’s spouse (or other family member) or employer may also be entitled to compensation, in certain circumstances.

A family member may be entitled to make a claim for loss of consortium, which refers to the loss or deprivation of the benefits of a family relationship due to injuries caused by another person’s negligence.

Similarly, an employer may be entitled to make a claim for loss of servitium, which refers to the employee/employer relationship where there is a loss of services due to injuries caused to their worker by another person’s negligence.

Claims Today

These claims are different to a dependency claim or a claim for care and assistance, which fall under the regular personal injury claim brought by an injured person or their dependents.

Although they arise from the same incident, negligence or injury, they are treated as separate claims.

It should be noted that these claims have become more uncommon and almost forgotten in today’s environment. This may be due to the significant restriction by legislation and the conservative approach by the Courts in assessing damages.

Loss of Consortium

As mentioned above, a family member or spouse may be able to claim for the following:

1. Loss of Services, such as domestic work, child rearing and other household services; and
2. Loss of Comfort and Society.

This claim must be an actual loss over time, or deprivation of some material loss which is capable of estimation in money.

Comfort & Society

Loss of comfort and society can only be claimed where it brings about a “material and temporal” loss, as opposed to “spiritual or emotional” loss.

Emotional consequences such as grief, diminished happiness or a loss of love that might taint a marital relationship after injury are not to be considered.

For example, a spouse/parent is seriously injured, and can no longer take the kids to school, play with them, attend their school events, nurture or raise them. The family, therefore, faces an uncertain number of years without their closest companion. The spouse and children have, in most meanings of the term, lost their parent, even if their body is not yet dead. They have lost their society and companionship.

Alternatively, compensation may be awarded where an injury causes a decrease in quantity or quality of sexual intercourse.

Similarly, damages have been awarded where a couple’s social life has been dramatically impacted, and where the injured spouse finds that they must retire to bed very early so as to reduce the time enjoyed with their partner.

Loss of Services

As to the loss of services component, only the value of the loss of services which the injured person previously provided to the spouse may be recovered in a loss of consortium action.

These are usually daily domestic jobs provided by the parent/spouse, such as cooking, cleaning, providing travel, yard work, gardening, etc. The value of these services can be estimated at market value.

Duplication of Damages

Courts will be particularly cautious to avoid the risk of awarding damages for the same services both in the personal injury claim as well as the loss of consortium claim.

A claim for care and assistance relates to the need of the injured person for services to be provided to them, whereas in a loss of consortium action, the spouse makes a claim to the value of the loss of services which were previously provided to them by the injured person.

It has been noted that a Court will be careful not to duplicate the compensation for these services however, a claim for care and assistance must also not “water down” a spouse’s right to compensation.

Loss of Servitium

A claim for loss of servitium lies in the employee/employer relationship. However, that is not to say that an employment contact is a required element of the action. Rather, it is sufficient if the employer has a reasonable expectation that the employee will perform the services.

A loss of servitium claim can extend to directors, managing directors and other employees who effectively control the employer.

The courts have expressed reluctance to extend the cause of action to independent contractors or subcontractors because of the different relationship compared to that of employment.

Death of Spouse/Employee

It should be noted that a claim for consortium or servitium cannot be made where the negligence results in the death of a spouse/employee.

Where a person is killed due to someone else’s negligence, their spouse/family would instead commence a dependency claim.

Likewise, where a relationship ends after the negligence or where there is some suggestion that the relationship was to end soon after, a loss of consortium claim will be limited to the period between the date of the accident and the date or likely date of separation.

Statutory Restrictions

In Queensland, a spouse/employer’s ability to pursue a claim for loss of consortium or servitium is subject to significant statutory restriction.

In claims where either the Civil Liability Act 2003 or the Workers Compensation and Rehabilitation Act 2003 apply, Courts are prevented from awarding damages for loss of consortium or loss of servitium unless general damages (pain and suffering) exceed the minimum amount under regulation.

This will depend on when the negligence occurred and the severity of the injuries.

How We Can Help

The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of Compensation Law.

If you are dissatisfied with your current representation, our experts can also offer a second opinion.

If you, or someone you know has been injured in a motor vehicle accident, at work, or due to someone else’s fault, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed.