Judging gender in tort thresholds

ABSTRACT

Compensation system design and judgments in individual cases reflect the painful losses law recognises, and those it discounts or ignores. Thirty years ago, Reg Graycar’s pioneering research highlighted the gendered nature of injury damages assessment, including the differential treatment of women’s work. Since that time, the tort threshold – a less visible but increasingly significant technology of injury assessment – has become entrenched in Australian injury law. Tort thresholds set a required level of injury or loss that must be demonstrated before an injured person can seek damages. They require judges to determine whether a claimant’s injury is sufficiently serious to merit legal recognition. Through content analysis of judges’ threshold decisions in the Victorian transport accident compensation system, this article explores the treatment of injury impacts on plaintiffs’ paid work and unpaid domestic and care work. It illustrates that the gendered assumptions of tort and damages law continue to influence the categories of injury impacts that are valued by law.

KEYWORDS:

• Socio-legal studies
• tort law
• gender
• injury compensation

Disclosure statement

No potential conflict of interest was reported by the author.

ORCiD

Genevieve M. Grant http://orcid.org/0000-0001-7071-6707

Notes

1 These approaches include the use of such measures as schedules and tariffs: see Studdert et al (2011), pp 67–82.

2 Horan (2005), p 123; Horan (2006), p 29; Luntz (2002), pp 220–222.

3 Evaluations of injury compensable under common law occur most frequently in settlements negotiated outside of court. Such negotiations occur beyond the reach of the public eye, and also represent ‘bargaining in the shadow of the law’, with judicial decisions having a bearing on the outcomes of negotiations and the decisions taken by parties in relation to the pursuit of claims and conduct of proceedings (see Mnookin and Kornhauser (1979) and Gross and Syverud (1991)).

4 See, for example, Civil Liability Act 2002 (NSW) s 16(1). See also Mendelson (2010), pp 58–64.

5 Public Service Board v Osmond (1986) 159 CLR 656, pp 666–667. See also Kirby (2007), p 3 and Spigelman (2006), pp 154–155.

6 Graycar (2002), pp 2–3.

7 Hyde (1997), p 28.

8 Graycar (1995), p 269.

9 Graycar suggests that ‘we can learn something from the ‘stories judges tell’ if we think about the epistemological content of each of them. What are the judges doing? What are they telling us about the things they know about the world?’ (Graycar (1995), p 271). See also Edmond (2004), p 146.

10 Graycar (1985); Graycar (1992); Graycar (1997); Graycar (2002); Graycar (2012).

11 See, for example, Graycar (2002).

12 See, for example, Conaghan (2003); Chamallas and Wriggins (2010); Richardson and Rackley (2012); Priaulx (2012); Hardy (2007); Vines, San Roque and Rumble (2010).

13 Haden Engineering v McKinnon (2010) 31 VR 1 at 3.

14 The technology construct is drawn from governmentality scholarship. Rose and Miller identify ‘governmental technologies’ as ‘the complex of mundane programmes, calculations, techniques, apparatuses, documents and procedures through which authorities seek to embody and give effect to governmental ambitions' (Rose and Miller (1992), p 175). Tort thresholds are a technology of injury compensation (building upon Baker and Simon's conception of insurance technologies (2002, pp 7–8).

15 A threshold, which eliminates claims below the threshold level, can be distinguished from a deductible, which has the effect of rendering the deductible amount of the total damages not payable in all cases (Panel of Eminent Persons (2002), p 188 n 10).

16 Panel of Eminent Persons (2002), pp 192–193.

17 Referring to the ‘elements of value judgment, fact and degree upon which reasonable minds might differ’ that are the basis of judicial decision-making in this field, President Winneke described a serious injury decision in the Victorian transport accident compensation scheme as ‘akin to an assessment for damages for non-economic loss in a personal injury action; decisions which do not readily admit of voluminous reasons' (Nichols v Robinson [2001] VSCA 11 (11 February 2001) at [16]; see also Mobilio v Balliotis [1998] 3 VR 833 at 835, 852–853).

18 The limited pool of examples includes Mendelson (2008); Field (2008), pp 69–70; King (2012); Taliadoros (2015).

19 Taliadoros (2015), p 263.

20 Graycar (2012), p 206; Chamallas (1998); Conaghan (2003).

21 For a comprehensive review of the case law on the case law on the serious injury under the Transport Accident Act 1986 (Vic), see Taliadoros (2015).

22 Transport Accident Act 1986 (Vic) s 93(3) and the related provisions regarding the impairment assessment process in ss 46A–46B, discussed in Vuckovic v TAC [2009] VSC 497 (9 November 2009); American Medical Association (2004) (‘AMA Guides'). Note that the AMA Guides are supplemented by locally developed guidelines with respect to the assessment of psychiatric injury: see Transport Accident Act 1986 (Vic) s 46A(6) and Epstein, Mendelson and Strauss (2005).

23 Transport Accident Act 1986 (Vic) s 93(3)(c).

24 Transport Accident Act 1986 (Vic) s 93(17).

25 Transport Accident Act 1986 (Vic) s 93(3)(d). Common law damages claims under the Act are subject to a minimum threshold of $51,800 and maximums of $518,300 for non-pecuniary loss and $1,166,240 for pecuniary loss (as from 1 July 2015) (Transport Accident Act 1986 (Vic) s 93(7) and Transport Accident Commission, ‘Transport Accident Act Indexation of Benefits' http://www.tac.vic.gov.au/clients/treatment-and-support-services/what-tac-pays-for/indexation-of-benefits-schedule, 22 May 2015.

26 Patton (2002), p 453.

27 Hall and Wright (2008), p 64.

28 Hall and Wright (2008), p 97.

29 This timeframe was dictated by the availability of records of the Court's daily listings, which were used to identify unpublished decisions.

30 Australasian Legal Information Institute, County Court of Victoria database, http://www.austlii.edu.au/au/cases/vic/VCC/.

31 See Patton (2002), p 230, suggesting that ‘[t]he logic and power of purposeful sampling lie in selecting information-rich cases for study in depth. Information-rich cases are those from which one can learn a great deal about issues of central importance to the purpose of the inquiry, thus the term purposeful sampling’. (emphasis in original)

32 All of the sample decisions relate to body function impairments, scarring or mental or behavioural disorders (Transport Accident Act 1986 (Vic) s 93(17)(a)–(c)).

33 Forman and Damschroder (2008), p 48. Forman and Damschroder note that content analysts frequently employ a combination of deductive and inductive coding approaches: ‘[t]his means using a priori deductive codes as a way to “get into” the data and an inductive approach to identify new codes and to refine or even eliminate a priori codes’. Here, the deductive element of the coding (used to ‘get into’ the data) was based on the categories of injury impacts suggested by President Maxwell in Haden Engineering v McKinnon (2010) 31 VR 1 at 4–6.

34 Forman and Damschroder (2008), p 46. See also Hsieh and Shannon (2005), p 1281 and Pope, Ziebland and Mays (2000), p 114.

35 Graycar (2012), pp 205–206. Graycar also describes a third category of disadvantage, relating to the costs of caring for the injured plaintiff; the degree of injury sustained by the plaintiffs in the study cases was not sufficiently serious for this third category to be relevant to the analysis.

36 Humphries v Poljak [1992] 2 VR 129 at 140.

37 But note KK1.M where the lack of difference between pre- and post-accident earnings was specifically dismissed as being determinative of the seriousness of an injury.

38 See also the discussion in AA1.F of the irrelevance of social security payments received by the plaintiff that came close to her pre-accident level of earnings. Her lost capacity to earn was regarded as being important, rather than the amount of the difference in earnings.

39 See Luntz (2002), pp 124–132.

40 See Cowan and Hitchings (2007), pp 374–375 (on the construction of the ‘worthy occupier’ in housing possession disputes, ‘in tune with neo-liberal concerns broadly coalescing around governing understandings of responsibility’ and in the context of prevailing concerns about welfare fraud).

41 Note that TAC claimants are entitled to compensation for their medical and like expenses, including the reasonable costs of home help and domestic assistance connected with their transport accident related incapacity (Transport Accident Act 1986 (Vic) s 60).

42 The judge in this case did go on to make a finding that the claimant's injury was serious for the purposes of the legislative threshold.

43 [1992] 2 VR 129 at 140 (emphasis added).

44 Ninkovic v Pajvancek [1991] 2 VR 427 at 429 (emphasis added). This formulation was cited with approval in Humphries v Poljak in the following terms: ‘So far as it goes we consider it to be a helpful test to apply; although necessarily it begs the question in as much as the measure or scale of the seriousness of the impairment (or loss) must remain a matter of emphasis or classification in each case. No definitive or mechanistic formula can, of course, be provided for the solution of the problem in every case’. Humphries v Poljak [1992] 2 VR 129 at 134.

45 See Dodoro v Knighting (2004) 10 VR 277 at 288–289 and 295 (noting that though serious injury proceedings are interlocutory, the reality is that a refusal of leave by the County Court produces a practical finality for the claimant's putative common law damages claim).

46 Nichols v Robinson [2001] VSCA 11 (11 February 2001) at [14].

47 In practice, very few common law transport accident compensation claims progress to judicial determination.

48 Compare with PF.3, where the judge notes that ‘[o]n the basis solely of her pain and suffering consequences, I am of the view that the plaintiff has a serious injury impairment. Further, she has sustained an impairment of her earning capacity which can if it is necessary be taken into account in determining whether she has sustained a serious injury impairment’. (P3.F) However, the judge then goes on to document in some detail the nature of the impairment of the plaintiff's earning capacity, which had previously been exercised in the setting of a family business and was not readily measurable in terms of past earnings.

49 Graycar (2012), p 210.

50 The labour force participation rate of women in Australia aged 15–64 rose from 62 per cent in 1992 to 71 per cent in 2014 (AIHW 2015, p 42). The ABS reports that the gap between men's and women's participation in the labour force ‘widens with the arrival of children and then reduces as children enter school’, with mothers of children aged 6–14 years working on average 4 hours more per week than those with children aged 0–5 years (ABS 2014).

51 Graycar (2012), pp 209–215; Graycar (1997).

52 Armytage (2015).

53 Mack and Roach Anleu (2012), pp 313–314.

54 Hunter (2015); Douglas, Bartlett, Luker and Hunter (2013).

55 In 1998 Graycar cautioned against the reductionism of this explanation, noting that she was ‘not confident that simply by adding women to the bench and stirring we will automatically change the male-centredness of law and legal reasoning’ (p 10).

56 Graycar (2012).

57 Chamallas and Wriggins (2010), pp 171–172, 174.

58 Finley (1996), p 851.

59 Conaghan (2003), p 189.

60 See Graycar (1985); Graycar (1992).

61 In 2000 the Australian Bureau of Statistics estimated the value of unpaid work (91 per cent of it unpaid domestic work) at $261 billion, 48 per cent of Australia's gross domestic product (ABS (2000), pp 4–5).

62 ABS (2006).

63 Graycar and Morgan (2004).

64 Graycar (1997); Graycar (2012).

65 Compare with Brooks (2005) (on the Canadian approach to quantifying impairment of domestic work capacity).

66 Conaghan (2003), p 198.

67 Conaghan (2003), p 198.

68 Abrams (1999), p 805.

69 See Williams (2011, p 562), noting that ‘the process of adapting to disability often changes ideals, goals, and preferences that were central to the victim's construction of herself’. Williams further suggests that an injured plaintiff is harmed ‘because their personal identity does not emerge from the injury fully intact. The harm stemming from this alteration can be expressed in terms of connectedness, ‘narrativity,’ or constraints on autonomy: victims are harmed because they are not fully connected to the person that adapts to the injury, they cannot tell a coherent narrative that preserves the unity of their lives, or because disabilities constrain their ability to choose and maintain a set of ideals, goals and preferences’. (p 578)

70 Baxter and Hewitt (2013), pp 49–50.

71 Chamallas and Wriggins refer to race and gender-based earnings tables for the calculation of lost future earnings as a low-visibility method of computation that perpetuates racial and gender hierarchies (2010, p 5).

72 Chamallas and Wriggins (2010), p 156.

73 Finley (1996), p 852; Chamallas and Wriggins (2010), p 190; Graycar (1998), p 257.

74 Sunstein (1996), pp 2025–2026.

75 Chamallas and Wriggins (2010), p 190.

76 Chamallas and Wriggins (2010), p 156.

77 Graycar (1998), p 257.

78 See, for example, Vines (2002).

79 See, for example, Stewart and Stuhmcke (2014), pp 185–188.

80 See, for example, VCEC (2014) (a review of the ‘significant injury’ threshold for non-economic loss claims in the Wrongs Act 1958 (Vic), which addressed a range of inequities between different types of injury, but not different groups of injured persons).

81 A similar debate occurs with respect to the use of guideline decisions in the context of the dominant intuitive synthesis approach to criminal sentencing decision-making in Australia (see Freiberg and Krasnostein (2011). See also Taliadoros (2015), p 264.

82 Haden Engineering v McKinnon (2010) 31 VR 1.

83 Haden Engineering v McKinnon (2010) 31 VR 1 at 11.

84 Taliadoros (2015), p 260.

85 See generally Guthrie, Rachlinski and Wistrich (2007).

86 Edmond (2004), p 146.