TIME TO REFORM THE REFORMS? LOSS OF CONSORTIUM ACTIONS IN SOUTH AUSTRALIA AND QUEENSLAND

Contemporary actions for loss of consortium — an action historically brought by a husband against a tortfeasor to recover damages for tortious wrongs committed against his wife — are doctrinally inconsistent with contemporary tort law, and inherently gendered in principle and application. Loss of consortium claims were an early target for reform as part of the feminist legal project. Australian jurisdictions have approached this reformation in two ways — either by abolishing the action or expanding a plaintiff’s right to standing and access to this claim. All Australian jurisdictions except for South Australia and Queensland abolished the actions (abolitionist jurisdictions). Conversely, statutory reform in South Australia and Queensland pursued formal gender equality by expanding access to spouses of both genders (expansionist jurisdictions). In this article, we review consortium’s history and reform, finding that in pursuing formal gender equality, the expansionist jurisdictions have failed to address the substantive gender inequality at the heart of consortium actions. Instead, they broadened and further entrenched disempower-ment of vulnerable primary plaintiffs in ways that are inconsistent with best practice under international and domestic human rights law. We propose that these reforms should be revisited with a view to abolition. Damages for harms should instead be directed towards primary plaintiffs, consistent with other developments in tort law.