Loss of Consortium (Tort)

Forsberg v. Naidoo, 2011 ABQB 252 (CanLII)

[24] The final category of damages is a claim for loss of consortium. Shirley has her own claim against the Defendant for the “society and comfort” provided by her spouse, Wayne. This right of recovery is established by statute: Tort‑feasors Act, R.S.A. 2000, c. T‑5, s. 2.1:

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.

[25] Unsurprisingly, Shirley reports and I accept that her relationship with Wayne has been affected by his injuries. She says their lives have been completely changed; I have no doubt that is true. That has affected their social and sexual life. While Shirley and Wayne clearly have maintained a strong relationship, their roles are now very different.

[26] The Defendant argues that a loss of consortium claim may overlap with damages awarded to Shirley to compensate for her caregiving activities. I disagree. The two categories of damage are distinct, in that the caregiving reflects a commitment of time and effort by a partner. That time and effort could otherwise have been used for that partner’s own benefit or by the couple together.

[27] 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.

[28] 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, affirmed 2001 ABCA 97, 281 A.R. 143 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.

[29] There the loss of consortium award was $37,588.00. However, in Madge v. Meyer the emotional relationship between the spouses underwent severe deterioration (para. 254). The Court in that case describes how the wife was “... faced with a situation where she must live with and care and support a man who is, from the standpoint of personality, emotion, and intellect, not the man she married.” (para. 254). The Defendant argues for an award of $20,000.00 and I acknowledge that is a closer estimate of what is appropriate to award in this case. In the final analysis, I confirm my award of $25,000.00.