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Why the spouse or partner of an injured person may also have a potential claim for damages

It may be readily understood, that a person injured in an accident, due to the negligence of another party, is likely to have a right to claim damages against the negligent other party. What is less often understood, are the circumstances in which a spouse or partner of such an injured person may also have an independent right to claim damages against the negligent other party.

The impact on the loved ones of a person injured in an accident, can often be understated. They step up to the mark, by providing valuable emotional and frequently financial support to their injured spouse or partner. They may also themselves, suffer a psychiatric illness because of the accident and injury to their loved one.

The other day, I had the need to explain to such an effected spouse, the independent rights that my client had, in relation to a potential claim for damages. His spouse was badly injured in a motor vehicle accident, due to the negligence of another driver, and consequently, he suffered psychological trauma.

I explained that there are several avenues of compensation potentially available, in South Australia.

Firstly, under Section 53 the Civil Liability Act (SA), damages can be awarded for mental harm, if the injured person is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident. They do not need to be present at the scene of the accident. However, any person who may be present at the scene of the accident, may also have a claim for damages for mental harm. It is necessary in both situations, that the harm to the person so present at the scene, or related to the person killed, injured, or endangered in the accident, must have a recognised psychiatric illness.

Secondly, under Section 65 the Civil Liability Act (SA), damages can also be claimed against the negligent other party, by the spouse or domestic partner of a person injured in the accident, for loss or injury suffered by the spouse or domestic partner as a result of the loss or impairment of consortium. Over many years, the courts have considered the topic of loss of consortium. Consortium, appears to be a word of imprecise meaning, but encompasses such things as the comfort, society, companionship and assistance, with the loss or impairment of these, (due to the injury of the person injured in the accident), giving rise to a claim on behalf of the spouse or domestic partner. It also extends to impairment of intimate physical relationships, but is much broader than that. Traditionally, the courts have not awarded significant sums for loss of consortium, but it is clearly a factor considered by expert personal injury compensation lawyers.

Thirdly, under Section 66 the Civil Liability Act (SA), if two spouses or domestic partners, were jointly engaged in the conduct of business, and one of them suffers an injury, as a result of which his or her participation in the conduct of the business ceases or is impaired, the other spouse (or domestic partner) is entitled to recover from the negligent other party, the loss that he or she has suffered or continues to suffer, because the participation of his or her spouse or partner, in the conduct of the business, has ceased or been impaired. So, for example, if my wife and I were jointly engaged in the conduct of a law firm, with say my wife providing administrative support to the business, and she was injured due to the negligence of another party, meaning that she could not participate to the extent that she previously did in the business; I could claim damages against the negligent other party for the losses I have suffered because of the ceased or impaired participation in the business, by my wife. These losses may have arisen if I had to do less legal work, in order to take on more administrative support, previously provided by my wife; or had to pay someone else to take over that function.

What can be seen, from Section 53, is that damages for mental harm are not only confined to the spouse or domestic partner of the injured person, but extends also to parents and children of the injured person, or in fact anyone present at the scene of the accident, as long as a recognised psychiatric illness has been sustained by that person.

If you are injured, or are a loved one of someone injured, or need advice on your compensation entitlements, please contact an expert compensation lawyer here at LawCall for a no obligation initial free consultation.

Written by
Graeme Kirkham
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