Business, Legal & Accounting Glossary
n. the inability of one’s spouse to have normal marital relations, which is a euphemism for sexual intercourse. Such loss arises as a claim for damages when a spouse has been injured and cannot participate in sexual relations for a period of time or permanently due to the injury, or suffers from mental distress, due to a defendant’s wrongdoing, which interferes with usual sexual activity. Thus, the uninjured spouse can join in the injured mate’s lawsuit on a claim of loss of consortium, the value of which is speculative, but can be awarded if the jury (or judge sitting as trier of fact) is sufficiently impressed by the deprivation.
Loss of consortium in legal proceedings most often refers to decreased or limited sexual activity between spouses as the result of a personal injury.
But, loss of consortium also refers to diminished care, companionship and/or affection as well regardless of whether or not sexual activity has decreased.
Loss of consortium may be claimed in either negligence or intentional tort cases.
Usually, loss of consortium will refer to legally married couples, though there has been a push in recent years to include same-sex couples and couples that are not married but have been in a committed relationship for a long time. It should be noted that when a loss of consortium is claimed in court, the couple’s sex life is fair game to attorneys for the opposing side, which may give many couples pause when going forward with a loss of consortium claim.
Loss of consortium can also occur if one spouse is not able to perform regular duties around the house such as parental guidance of children or losing out on activities such as camaraderie with children, siblings or other extended family members.
The spouse of the injured party may also bring forward a lawsuit for loss of consortium even though they were not directly injured. Sometimes this will lead to a quicker settlement since the defendant may be worried about a larger judgment when two trials are threatened.
Other times, the loss of consortium claim is a hard sell to juries who feel that missing out on certain aspects of life or making adjustments and compromises are just a standard part of living. In these cases, the loss of consortium claim must show extreme circumstances in order to gain a favourable verdict. Life-changing injuries and permanent disabilities generally garner more empathy from judges and jurors when a loss of consortium is claimed.
In many personal injury claims, the husband or wife may recover damages for loss of consortium if their spouse is seriously injured or killed. Loss of consortium is the loss of love, affection, emotional support, sexual relations, services such as child care and household duties and companionship which the surviving spouse has lost due to the negligence of the third party. Damages paid for a personal injury claim may calculate a payment for this loss.
Although “loss of consortium” may sound like it only compensates for the decreased or limited sexual activity between spouses. Damages for loss of consortium seek to compensate the non-injured spouse for the loss of the previously existing spousal functions. Calculating loss of consortium can be complicated because it does not involve a precise monetary loss or objective cash value. Consider also, a valid marriage is a prerequisite for a claim for loss of consortium, and the amount awarded is left to the discretion of the judge or jury.
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This glossary post was last updated: 28th April, 2020 | 1 Views.