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Wilker, Tayu --- "Feminism In The Australian Torts System: A Continuation Of Classic Critiques" [2019] WAStuLawRw 1; (2019) 3 Western Australian Student Law Review 4


FEMINISM IN THE AUSTRALIAN TORTS SYSTEM: A CONTINUATION OF CLASSIC CRITIQUES

TAYU WILKER[*]

Feminism—Australian Torts Law—Mental Harm—Duty to Rescue

Australia’s torts system has come a long way since the days of the ‘reasonable man’. The recognition of the ‘reasonable person’ has symbolised shifts not only in form, but also in substance. However, despite progress towards equality, masculine biases that were ingrained at the torts system’s conception remain operative. The case of Koehler v Cerebos,[1] a recent High Court decision, demonstrates that pure mental harm claims are still not treated equally to those for physical harm. This article argues that there is scope to balance traditionally masculine values, such as autonomy, with a more relationship-orientated approach. It is argued that two ways to attain this balance are through first, the creation of a duty to rescue, and second, the equal treatment of pure mental harm claims and physical harm claims. These two suggestions are adopted from classic feminist critiques that remain relevant to the contemporary legal system.

I INTRODUCTION

Feminist critiques of tort law originate from varying schools of thought. Some critiques focus on the treatment of women within the torts system as it stands, believing equality should be evaluated within these confines.[2] In comparison, gynocentric feminists believe in creating equality by advocating the expansion of feminine values in the torts system, which is considered fundamentally prejudiced.[3] Both schools of thought acknowledge that gender equality in the torts system has progressed considerably over time.[4] Evidence of this is observable in the transformation of the infamous standard of the ‘reasonable man’ to that of the ‘reasonable person’.[5] But as feminist theorist Marilyn Frye stated, ‘the locus of sexism is primarily in the system and framework, not in the particular act’.[6]

Although the torts framework has been developed over decades, its foundations were cemented in a justice system that was run almost exclusively by men.[7] This article argues that the masculine biases that were ingrained at the torts system’s conception remain operative,[8] and as such, classic feminist critiques such as those considering pure mental harm claims and the standard of care[9] continue to be relevant.

II MENTAL HARM

Mental harm, previously termed ‘nervous shock’, was historically seen to be a consequence of emotional sensitivities that left a person incapable of reason.[10] Initially, mental harm suffered as a result of another’s negligence did not attract damages under tort law.[11] Mental harm was only compensable if it was consequential—that is, arising from a physical injury.[12]

An American study conducted in 1943 analysed 129 mental harm appeal cases.[13] Claims were divided into two categories: consequential mental harm and pure mental harm.[14] Women were more likely to claim in both of these categories. However, the most significant difference was in the category of pure mental harm. It was found that 72.9 per cent of cases in relation to pure mental harm were brought by women.[15] Although there have been studies to show that this gap has decreased substantially in modern times,[16] these figures demonstrate that mental harm is historically an issue predominantly related to women.

Further, at the time the relevant study was conducted, mental harm was subject to considerable criticism. The authors of the study regarded the suffering of pure mental harm as unreasonable in most circumstances, and suggested that it arose partially because women had little else to contemplate.[17] It was alleged that women, as ‘homemakers’, had the luxury to imagine these scenarios, while men had too many important tasks at work to indulge in these ponderings.[18]

Paradoxically, an appreciation of a woman’s role as a homemaker expanded the scope for allowable pure mental harm claims.[19] In the English case of Hambrook v Stokes (‘Hambrook’),[20] Bankes LJ expanded the ‘zone of danger’ rule.[21] In this case, Mr Hambrook successfully claimed damages for pure mental harm suffered by Mrs Hambrook after a lorry rolled down a hill near where her children were walking.[22] Although Mrs Hambrook did not witness an accident with her own eyes (in fact, a child of hers was never injured), it was held that she was close enough to the ‘zone of danger’ for the claim to be allowed.[23] Bankes LJ stated that it was ‘natural’ that a woman would experience mental harm if they witnessed their children in danger, or saw them injured.[24] While enabling progression of pure mental harm claims,[25] Hambrook also enforced the need for a woman to fit into to the male perspective in order for harms to be compensable. The claim for Mrs Hambrook’s mental harm was successful not because claims for mental harm were generally accepted, but rather because men accepted that it was a woman’s role to focus on the well-being of her children.[26]

In contemporary society, the progression of medical science has facilitated a greater understanding and acceptance of mental health and related issues.[27] This progression has encouraged courts to gradually increase the scope of claims for mental harm,[28] the most recent example being the High Court cases of Tame v New South Wales; Annetts v Australian Stations Pty Limited (‘Tame; Annetts’).[29] In Tame; Annetts, a majority of the Court expressly removed some stringent limitations previously imposed on pure mental harm claims, such as variations of the aforementioned ‘zone of danger’ rule, and other out-dated considerations such as the ‘sudden shock’ requirement.[30] Gummow and Kirby JJ stated that, within the ordinary limiting devices of negligence, there was no reason to impose separate limitations for psychiatric harm as opposed to physical harm.[31] However, it would be untrue to say that their Honour’s reasoning has been wholly adopted in practice, as discriminatory limitations are still placed on pure mental harm claims. These enduring discriminatory limitations are illustrated by the High Court case of Koehler v Cerebos (‘Koehler’),[32] discussed below, which followed Tame; Annetts.

III KOEHLER V CEREBOS

In Koehler, Ms Koehler was an employee of Cerebos.[33] She was made redundant and re-employed on a part-time basis.[34] After the formation of the new employment contract, Ms Koehler was provided with a list of duties she was expected to perform. Ms Koehler immediately voiced concerns about her workload.[35] Her supervisor told Ms Koehler to try the job out for one month, after which Ms Koehler could let the supervisor know if she wasn’t able to cope.[36] Ms Koehler’s concerns about her workload were affirmed after that month and she lodged numerous written and oral complaints.[37] Despite the initial assurances of her supervisor, there was no action taken on any of these complaints.[38] Ms Koehler’s health deteriorated and she was diagnosed with a psycho-physical disorder as well as a major depressive illness.[39] It was found that these illnesses could be attributed to her employment conditions.[40]

On these facts, it would seem that Ms Koehler would be successful in her claim for pure mental harm arising from her employer’s negligence in failing to provide a safe workplace. However, the High Court ruled that her employer could not reasonably foresee a psychiatric injury.[41] Even though there were persistent complaints about the impossibility of Ms Koehler’s excessive workload, it was considered that Ms Koehler never expressly mentioned that her health was being affected and there were no warning signs that she was suffering psychiatric harm, such as prolonged absences from work.[42]

Proving that psychiatric injury was foreseeable is therefore significantly more onerous when compared to the usual threshold question which asks whether a risk was ‘farfetched or fanciful’ in cases of physical harm.[43] McHugh J in Tame; Annetts noted that a positive answer to the question of reasonable foreseeability was a ‘near certainty’.[44] Contrary to this dicta, Koehler suggests that for mental harm to be foreseeable, at least in an employment situation, if not warned of initially to, it must first be voiced that it is being suffered to some degree, or the employer must recognise that mental harm is being suffered.[45] This is a discriminatory limitation placed only on pure mental harm claims.[46] It seems doubtful that if, for example, Ms Koehler had sustained a physical injury because her employer was giving her an unreasonable amount of heavy boxes to lift, it would be expected that Ms Koehler first suffer some degree of injury before harm could be foreseeable.[47]

The High Court gave Ms Koehler’s voluntary assumption of the duties in her contract much consideration, even though the specifics of her employment contract were not made known in her letter of engagement.[48] When Ms Koehler was made aware of what exactly was expected of her, she immediately noted the impossibility of the tasks.[49] Further, Ms Koehler’s supervisor’s promise of re-evaluation after one month was never fulfilled.[50] Maintaining there could be no breach of duty because Ms Koehler agreed to her workload, even though the contents remained undefined until she was actually already at work, sees an increased scope for the principle of voluntary assumption of risk in relation to pure mental harm.[51] This is not coherent with the strong duty of care usually imposed on employers in other areas of workplace safety because of the employees’ vulnerability in the relationship.[52] It shows the perpetuation of an antiquated masculine perception that ‘trauma to the mind is less damaging than lesions to the body’.[53] This discrimination is further increased by limitations imposed on pure mental harm claims by state civil liability legislation.[54]

While there is validity in the economic concerns about compensating workers for psychiatric harm arising from workplace stress, the complete denial of employer responsibility in Koehler is not aligned with medical research or feminist legal theories.[55] This is particularly harmful in areas that are already predominantly masculine in substance, as well as structure, such as the workplace.[56] Thus it can be seen that biases that were ingrained at the torts system’s conception perpetuate the distinction between mental harm and physical harm claims, albeit to a lesser degree.

IV A DUTY TO RESCUE

There are now many well-established categories of relationship where a duty of care has been imposed.[57] Often negligence cases turn on issues such as whether a relevant duty has been breached.[58] A breach is measured in terms of the standard of care owed and whether this standard was met.[59] The requisite standard of care, while having multiple elements outlined by the various states’ civil liability legislation, can broadly be defined as a level of prudence exercised by the ‘reasonable person’.[60] As aforementioned, the reasonable person has overtly masculine roots, stemming from the gendered term ‘reasonable man’.[61] It has been argued that the modern day reasonable person is equally able to accommodate gender prejudice and bias, changing in name, but not wholly changing in substance.[62]

As the standard of care is that of the reasonable person, which is still arguably slanted towards the male perspective,[63] it perpetuates the masculine understanding of the world. Gilligan noted that the male understanding has been found to be more logic-based and individual-orientated than female perspectives, which advocate relationship-orientated approaches.[64] While there is unquestionably a need for logic and autonomy in the legal system, feminists argue that a disproportionate focus on these values, in both statute and common law, has come at the expense of our ability to care for one another and appreciate the interconnectedness of our society.[65]

One suggestion to combat this is to change the meaning of the required ‘standard of care’. Currently, a reference to the standard of care connotes the level of caution or prudence required to avoid legal responsibility.[66] However the word ‘care’ could be tied to its literal meaning and instead imply a level of caring that is required; a standard of caring. There are barriers to this ‘standard of caring’, with few concrete suggestions by feminists on how to achieve this transformation.[67] It has been suggested that a duty to rescue could be an initial implementation that would encourage this shift, as it would require a level of caring for all those around us, not merely those with whom an individual has engaged in a legal relationship.[68]

Currently, no duty to rescue exists in Australia,[69] at least in ordinary circumstances.[70] This remains the case no matter how little effort the rescue requires, how vulnerable the victim is, and how dire the results of the non-rescue are.[71] A recent Australian example of this is illustrated by the circumstances surrounding the death of Mr Grant Jesser in 2010.[72] Mr Jesser, a Kalgoorlie resident, was attacked by an assailant and left injured and bleeding in a laneway.[73] Two passers saw him, but did nothing about his situation. They stole his wallet and left. It was found that if Mr Jesser had received assistance he would not have died.[74] Though it cannot be concluded that a duty to rescue would have changed the reaction of the men who passed by Mr Jesser, at the very least it would allow retributive justice for Mr Jesser.

The duty to rescue was discussed in the High Court decision of Stuart v Kirkland-Veenstra (‘Stuart’).[75] In Stuart, two police officers saw a man, Mr Veenstra, in a position to attempt to commit suicide. After discussions with him they determined he was no longer at risk. The police officers let Mr Veenstra go upon this determination, but unfortunately he later committed suicide. Although not the central issue, the joint judgment of Gummow, Hayne and Heydon JJ stated that the ‘individualistic’ approach to common law does not support a duty to rescue, noting that the civil law is an area that may be more suitable for ‘more socially impregnated’ actions.[76] It is worth noting the choice of the word ‘impregnated’, perhaps illustrating a subconscious connection between social issues, such as the duty to rescue, and women.

Stuart may raise concerns that a duty to rescue would impose liability on undeserving citizens, supporting the individualistic approach. However, there is a clear distinction between the case of Mr Jesser and Mr Veenstra. In Mr Jesser’s case, the passers-by wilfully chose not to render any assistance to Mr Jesser; whereas the police officers in Mr Veenstra’s case incorrectly determined that Mr Veenstra was no longer in danger. In many countries where a duty to rescue currently exists,[77] such as France, a non-rescue that is not wilful or occurs because a person does not have the ability to rescue without putting themselves or another in danger, will not lead to prosecution.[78] Following the French example, it can be seen that the individualistic argument for the no duty to rescue cases are not valid within the confines of a properly defined scope of such a duty; unless the non-rescue is wilful, and the non-rescuer has the physical capability to safely complete the rescue, there will be no liability.[79]

Allowing the impregnation of the system with more feminist duties could encourage the development of values which will help attain a standard of caring, rather than a standard of caution, for both men and women in our society. Imposing a duty to rescue will not by its own force cultivate a ‘standard of caring’, but it would be a step towards balancing the biases that were ingrained in the torts system at its masculine conception.

V CONCLUSION

Despite progress made by feminists in the past 150 years, masculine biases that were ingrained at the torts system’s conception remain operative. [80] The fight to see mental harm treated as truly equal to physical harm bears some resemblance to the battle for core feminist values to be treated as truly equal in a system that has been dominated by males since its genesis.[81] Koehler illustrates that this battle has not yet been won, as discrimination against mental harm claims continues.[82] Some suggested changes to the tort’s framework may seem radical, such as the implementation of a ‘standard of caring’.[83] However, these changes can be made incrementally through implementations such as a duty to rescue, encouraging a system that is more relationship-orientated.[84] Until the torts system provides for equal treatment of mental harm claims, and begins to focus on caring rather than caution, classic feminist critiques will remain relevant.

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[*] Tayu is a first year Juris Doctor student at The University of Western Australia.

[1] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44.

[2] See Gary T Schwartz, ‘Feminist Approaches to Tort Law’ (2001) 2 Theoretical Inquiries in Law 175.

[3] Rian Voet, Feminism and Citizenship (Sage Publications, 1998) 27.

[4] Schwartz, above n 2.

[5] Ibid 191–3.

[6] Marilyn Frye, The Politics of Reality (The Crossing Press, 1983) 19.

[7] In 1947, only two per cent of practicing lawyers in Australia were female, with this number increasing to 17 per cent in 1986. Sharyn Roach Anleu, Women in the Legal Profession: Theory and research (1991) Australian Institute of Criminology <http://www.aic.gov.au/media_library/publications/proceedings/16/anleu.pdf> .

[8] Prue Vines, Mehera San Roque and Emily Rumble, ‘Is “Nervous Shock” Still A Feminist Issue? The Duty of Care and Psychiatric Injury in Australia’ (2010) 18 Tort Law Review 9.

[9] Leslie Bender, ‘A Lawyer’s Primer on Feminist Theory and Tort’ (1988) 38(1) Journal of Legal Education 3, 30–2.

[10] Harold Luntz et al, Torts Cases and Commentary (LexisNexis Butterworths, 7th ed, 2013) 288.

[11] Danuta Mendelson, The New Law of Torts (Oxford University Press, 3rd ed, 2014) 584.

[12] Victorian Railway Commissioners v Coultas (1888) 13 App Cas 222.

[13] Hurbert W Smith and Harry C Solomon, ‘Traumatic Neuroses in Court’ (1943) 30 Virginia Law Review 87.

[14] Ibid.

[15] Ibid.

[16] Vines, Roque and Rumble, above n 8, 16.

[17] Smith and Solomon, above n 13, 112.

[18] Ibid.

[19] Elizabeth Handsley, ‘Mental Injury Occasioned by Harm to Another: A Feminist Critique’ (1996) 14 Law & Inequality: A Journal of Theory and Practice 391, 400–4.

[20] [1925] 1 KB 141.

[21] The ‘zone of danger’ rule enabled claims for pure mental harm suffered as a result of fear of injury to oneself when in close proximity to danger occurring.

[22] Hambrook v Stokes Bros [1925] 1 KB 141.

[23] Ibid.

[24] Ibid [4].

[25] Note the reasoning in Hambrook was not immediately applied in Australia, as harm suffered by the child needed to be seen to occur in Chester v Waverly Corporation [1939] HCA 25; (1939) 62 CLR 1.

[26] Joanne Conoghan, ‘Tort Law and Feminist Critique’ (2003) 56(1) Current Legal Problems 175, 189.

[27] Carolyn Sappideen, Prue Vines and Penelope Watson, Torts: Commentary and Materials (Thomson Reuters, 11th ed, 2012) 259–74.

[28] Ibid.

[29] [2002] HCA 35; (2002) 211 CLR 317.

[30] Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35; (2002) 211 CLR 317, 333 [17]–[18], 405 [258].

[31] Ibid 383 [196].

[32] [2005] HCA 15; (2005) 222 CLR 44.

[33] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44, 50 [8].

[34] Ibid.

[35] Ibid 51 [10].

[36] Ibid 45.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Ibid 44.

[42] Ibid 51 [10], 54 [24], 59 [41].

[43] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

[44] Tame v New South Wales ([2002] HCA 35; 2002) 211 CLR 317, 353 [99].

[45] Rima Hor, ‘Psychiatric Injury in the Workplace: The Implications of Koehler v Cerebos(2005) Sydney Law Review 557.

[46] Vines, Roque and Rumble, above n 8, 14.

[47] Ibid 30.

[48] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44, 50 [8].

[49] Ibid 55 [28].

[50] Ibid 50 [8].

[51] Hor, above n 45, 557.

[52] Julia Davis, Connecting with Tort Law (Oxford University Press, 2012) 360.

[53] T Weir, Casebook on Tort (Witherby and Company, 7th ed, 1988) 88.

[54] For example, in King v Philcox [2015] HCA 19; (2015) 255 CLR 304 despite duty, breach and causation being established, the text of s 53(1)(a) of the Civil Liability Act 1963 (SA) restricted a claim for mental harm as the respondent was not present when the accident occurred.

[55] Hor, above n 45, 561.

[56] See, eg, Workplace Gender Equality Agency, Gender Segregation in Australia’s Workforce (2016) <http://www.wgea.gov.au/sites/default/files/20160801_Industry_occupational_segregation_factsheet.pdf.> .

[57] Davis, above n 52, 359–63.

[58] Mendelson, above n 11, 360–1.

[59] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422.

[60] Bender, above n 9, 30.

[61] Ibid 25.

[62] John Gardner, ‘The Many Faces of the Reasonable Person’ (2015) 131 Law Quarterly Review 563, 573.

[63] Handsley, above n 19, 392.

[64] Carol Gilligan, In a Different Voice (Harvard University Press, 1982) 24–39.

[65] Handsley, above n 19, 393.

[66] Bender, above n 9, 29–31.

[67] Assaf Jacob ‘Feminist Approaches to Tort Law Revisited’ (2001) 2 Theoretical Inquiries in Law 211, 217.

[68] Ibid 225.

[69] The Northern Territory is an exception: see Criminal Code Act 1983 (NT) s 155.

[70] See the obiter of Gummow, Hayne and Heydon JJ in Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215, 251 [99]: ‘the common law of Australia has not recognised, and should not now recognise, such a general duty of care.’

[71] Sir James Fitzjames Stephens articulated the concept, stating ‘a number of people who stand round a shallow pool in which a child is drowning, and let it drown without taking the trouble to ascertain the depth of the water, are no doubt shameful cowards, but they can hardly be said to have killed the child’: see A History of the Criminal Law of England (Cambridge Library Collection, vol 2, 1883) 10. This applies in Australia: see Chief Justice Terrence Higgins ‘The Rescuer’s Duty of Care’ (Speech delivered at the Royal Life Saving Society Quinquennial Commonwealth Conference, United Kingdom, 26 September 2006).

[72] Western Australia, Parliamentary Debates, Legislative Assembly, 1 September 2011, 6644, John Kobelke.

[73] Ibid.

[74] Ibid.

[75] [2009] HCA 15; (2009) 237 CLR 215.

[76] Ibid 248 [88].

[77] Currently a duty to rescue exists in approximately 20 European countries, 10 states of the United States and the province of Quebec in Canada. See Western Australia, Parliamentary Debates, Legislative Assembly, 1 September 2011, 6644, John Kobelke.

[78] See, eg, art 223-6 of the Criminal Code of the French Republic: ‘anyone who wilfully fails to offer assistance to a person in danger which he could provide without risk to himself or to third parties, or by initiating rescue operations is guilty of an offence’.

[79] Ibid.

[80] Jane Larson ‘Imagine her Satisfaction: The Transformative Task of Feminist Tort Work’ (1993) 33 Washburn Law Journal 56.

[81] For example, Australia did not have a female High Court judge until the inclusion of the Honourable Mary Gaudron in 1987.

[82] Hor, above n 45.

[83] See, eg, Bender, above n 9, 30–2.

[84] Jacob, above n 67, 228–31.


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