Injured People

My injury has affected my sex life, can I claim compensation?

When someone sustains an injury in an accident, it has the potential to affect many aspects of that person’s life style both in the short and long term, with the potential to blight that person’s sex life, writes Adelaide injury lawyer Mal Byrne.

Nothing kills the mood (so to speak) more than physical pain and/or depression secondary to pain or loss of self esteem from the effects of a serious injury.  The law recognises that injuries have the capacity to affect the physical side of a romantic relationship both in the short and long term, although unfortunately, the compensation available is limited.

In claims other than WorkCover, the head of damage that covers the effects of an injury on a person’s sex life with their partner is called “loss of consortium”.  The claim is not a claim by the injured party.  It is a claim by the spouse of the injured party for the loss of that injured party’s companionship including the physical side of companionship.  As it is a claim by the spouse, the spouse’s name will appear on Court papers as the second injured party making that claim.

The applicable law in South Australia is Section 65 of the Civil Liability Act 1936.  This section says that a spouse or domestic partner may claim for the loss or impairment of consortium where that person’s spouse or domestic partner has been injured by a wrongful act, negligence or default.  Married spouses can claim, but also de facto spouses (domestic partners) provided that the de facto relationship has been continuous for a period of three years immediately preceding the accident, or if a child has been born of the relationship (whether or not the child is still living at that date).  Domestic partners include same sex partners.

The concept of loss of consortium is a 19th century idea that dates back prior to the days of gender equality where the husband claimed for the loss of companionship of his wife and for the loss of her domestic services.  The evolution of societal attitudes towards matrimonial and de facto relationships means now that the claim for loss of companionship is given greater significance than loss of services, and of course wives can now claim for the loss of their husband’s services.

Unfortunately, awards tend to be small even in circumstances where an injured person may be paralysed and unable to have sexual intercourse. The largest award that I have come across is $50,000 is the 1987 case of Andrewartha. In most cases, awards are limited to between $500 and $3,000.  To obtain an award above this amount, the injured party will need to produce medical evidence that proves how the injury has affected their sexual relationship with their partner.  Hence, if you are seeing your treating doctor or specialist or attending an independent medical assessment organised either by your lawyer or the insurer, you should raise the issue of your sexual relationship with the doctor so that the effects are recorded.  Not all doctors will ask. Some are embarrassed to ask.  The effect on the sexual relationship with your partner does not have to be permanent for you to claim.  Even if your sexual relationship with your partner returns to normal after a certain period when your injury improves, you can still make a small claim for that period where it was affected.  Clearly, if the effects are permanent, the claim will be greater.

Loss of consortium is not just a claim for loss of sexual companionship.  It is a claim for overall companionship.  The law also recognises that the effects of injuries can place strains on domestic relationship outside of the effects on the physical relationship.  Sometimes, the strain of a long term injury on each party and his or her partner may be so severe that it can contribute to or cause the relationship breakdown.  Where that occurs, the award for damages will be greater.  However, if a couple separates, the affected spouse will have to resolve their claim separately to the injured party and will not be able to be represented by the same lawyer.

Unfortunately, spousal pain and suffering such as distress, sorrow and the mental, emotional and spiritual losses that the spouse suffers due to either witnessing or caring for the injured party is not compensable.

The situation is worse for people injured at work.  When you suffer a work injury, your compensation is limited to wages and medical expenses including care costs and travel.  The only other entitlement is a lump sum entitlement under Section 43 of the Workers Rehabilitation and Compensation Act 1996.  The payment is for permanent impairment.  Injured workers can only claim money for permanent impairment if they have suffered a 5% whole person impairment as assessed by a suitably accredited doctor.  There is no claim available for spouses of injured workers for the effects of the loss of companionship of the injured worker.  The only situation where an injured worker can claim for the effect on their sexual function would be if there is direct damage to the urinary and reproductive system due to the work injury.  In the case of a male, the guidelines allow payments for damage to the testicles or epididymal and spermatic cord disease.  In the case of a female, the damage must be to the fallopian tubes and/or ovary.  Infertility is taken into account, although the age of the worker will also be relevant in that case.

Loss of sexual function related to spinal injury can only be assessed as impairment under the guidelines whether there is other objective evidence of spinal cord, cauda equina or bilateral nerve root dysfunction.  In the absence of that particular damage to the spine, there is no additional impairment rating system for loss of sexual function.  Hence, loss of sexual function that is secondary to general pain and/or depression arising from a physical injury is not compensable unless there is damage to particular reproductive organs and/or severe spinal cord damage.

If you are injured outside of work and making a claim and you and your partner enjoyed an active sex life prior to the injury, don’t be shy about talking about the effects with your lawyer.  While claims for loss of consortium are small, every penny counts.  It’s better to be frank and claim your full entitlement than to miss out due to embarrassment.

Author: Mal Byrne

TGB is South Australia’s largest injury law firm. For a free interview about your injury in Adelaide or Perth, contact Mal on (08) 8250 6668.