Often Forgotten Heads Of Damages – Part 1: Loss Of Consortium And Servitiem

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NOTE TO PUBLIC: This is NOT meant to provide legal advice or a substitute for legal advice.  That should be sought directly from a competent lawyer in our office.  The information contained herein is just that: information.  At Assiff Law Office, our goal is to obtain maximum compensation while helping our clients get the best treatment possible for their injuries. We leave no stone unturned and do our very best in every case to obtain maximum and full compensation for our clients.  This brief paper will discuss some of the less obvious and often forgotten head of damages that can be pursued in certain cases.  This paper is not meant to be “legal advice”.  Kindly consult one of our lawyers for that.

Introduction

Personal injury and negligence law follows a rather simple maxim: “The plaintiff is entitled to be put back in the position he or she had been in, had the collision not occurred.” Unfortunately, this is not always strictly adhered to.  Often, lawyers not practicing regularly or exclusively in the area personal injury litigation, fail to consider or even argue for heads of damages that are not always obvious or, more frequently, not always applicable in every case.  When they are applicable, they are often not on the radar but certainly should be pursued.  If applicable to their case, the injured plaintiff must make it known to his or her lawyer at the outset that they may have sustained one of these losses such that they can be properly represented and the damage can be effectively pursued and proven at trial.  Nothing epitomizes this notion more than 2 head of damages: Loss of consortium and accelerated depreciation or “diminished value” of a plaintiff’s vehicle following a collision.  While the latter is not a true “injury” and the former applies to the spouse of a married person, they are certainly important factors in overall compensation in many cases. 

Part 1: Loss Of Consortium And Servitiem

This head of damages was formerly available under s. 43 of the  Domestic Relations Act It is now found in the Tort-feasors Act, R.S.A. 2000, c. T-5, s. 2.1 [en. 2003, c. F-4.5, s. 125(1)]:

2.1 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.

2.1(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.

It has been judicially considered several times in Alberta and by the Supreme Court of Canada:

In O’Hara v. Belanger (1989), 69 Alta. L.R. (2d) 158(Alta. Q.B.) the court ruled that there is no award for loss of consortium in fatal accident cases except for the period between the injury and death of spouse.  In other words, the time when the injured spouse was or is indeed alive.  There is, therefore no “future”  loss of consortium that is compensable.

Woelk v. Halvorson (1980), [1980] 2 S.C.R. 430 (S.C.C.) a decision of the highest court in the land held that a wife is NOT required to prove complete deprivation of comfort and society.  This makes it clear that the loss is available by simply proving partial deprivation.  There, the court awarded $10,000 for this head of damages.  The same award was given in Lee v. Leeming (1985), 58 A.R. 204 (Alta. Q.B.); additional reasons at (1985), 61 A.R. 18 (Alta. Q.B.) (husband suffering mental disability; award of $10,000 to wife).  The sums would be around $23,000 today, adjusting for inflation.

Labonte v. Sowers (1994), 24 Alta. L.R. (3d) 53 (Alta. Q.B.)  In this case, the plaintiff suffered brain injury and his wife was awarded $8,000 for loss of consortium.  In 2019, that would be around $14,000 when adjusting for inflation.   

This head of damages, while OUTSIDE of the Minor Injury Regulation is important, even though the damages are generally not enormous, but it is by no means an automatic “right” to recover if claimed.  For example, in Joyce v. Canadian Pacific Hotels Corp. (1994), 26 Alta. L.R. (3d) 72 (Alta. Q.B.)  the court refused to award anything because ,without evidence of frequency of spousal relations prior to the plaintiff’s accident or impact of the subject accident on the spousal relationship, society or comfort, the spouse is NOT entitled to recover. 

At the other end of the spectrum, there are cases where courts have awarded rather large sums for this head of damages.  My favorites are the following Madge v. Meyer (1999), 1999 CarswellAlta 1244(Alta. Q.B.) where the court awarded $30,000. Today, that is round $47,000!

Often, accidents result in an outright marital breakdown.  Such was the case in Lapointe v. Keefe Estate (1986), 72 A.R. 1 (Alta. Q.B.) The court awarded $15,000 for loss of consortium; $34,000 today. 

Sometimes, the actual severity of the injury has little correlation to the amount the spouse is awarded for the loss.  Consider the following cases:

Mitchell v. U-Haul Co. of Canada (1986), 47 Alta. L.R. (2d) 193 (Alta. Q.B.) (wife rendered quadriplegic; husband awarded $7,500 for loss of consortium); Forlano v. Lane (1981), 65 A.R. 156 (Alta. C.A.); varying (1979), 19 A.R. 58 (Alta. Q.B.) (damages for loss of consortium reduced to $2,000); but see Smith v. Armstrong (1991), 1 Alta. L.R. (3d) 13(Alta. Q.B.) (bilateral shoulder dislocation and other injuries to wife forcing husband to care for her for one year; wife becoming moody and depressed after accident; sexual relations decreasing in frequency after accident; court awarding husband $3,000 for loss of consortium).  Of course, these numbers adjusted for inflation are indeed higher today, but still modest sums.

Conclusion

Clients should not be shy to mention the impact on their marriage following a serious collision.  Lawyers should inquire and if the evidence is there, the spouse can be named in the statement of claim, even though that spouse was not injured by a motor vehicle or actually in the accident or injury-event.  This head of damages is even more important potentially today due to changes in our Insurance legislation.  The loss is exempt from the minor “cap”. It is not a “sprain, strian, whiplash, psychological or jaw disorder” that is currently subject to the scrutiny of the MIR.

The experienced lawyers at Assiff Law Office can help you or your spouse pursue loss of consortium claims and have been successful in doing so numerous times over the years.  Call us now at 587-524-300 for a free consultation.

Read the second part of this article, dedicated to Diminished Value and Accelerated Depreciation claims.

Norm Assiff

Norm Assiff

Norm was awarded the Alberta Civil Trial Lawyers Association (ACTLA) President's Award for 2012--awarded to a member of the Alberta bar who has distinguished himself or herself by his or her contribution to the profession or the community, the advancement of the law or their service to ACTLA. He has appeared at all levels of court in Alberta (Provincial Court, Queen's Bench and the Alberta Court of Appeal) as well as the Supreme Court of British Columbia and the Federal Court of Appeal.

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The information presented on this post is not legal advice. We encourage you to perform further research on the topics described here, and if you have any questions or would like to speak to one of our personal injury lawyers, please do not hesitate to contact us.

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