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Click on each title below to read more about the cases under each section.

Chester v Waverley Corporation [1939] HCA 25 (6 June 1939)

Chester v Waverley Corporation [1939] HCA 25 (6 June 1939)

High Court of Australia: Evatt J
Keywords: damages; psychiatric injury

Summary

The mother of a child who drowned due to negligence on the part of the defendant local council was unsuccessful in claiming damages for psychiatric injury.  While the court in the British decision of Hambrook v Stokes Brothers [1925] 1 KB 141 awarded damages for severe nervous shock suffered by a mother who feared for her child’s life, the High Court rejected the award of such damages in this case.

Feminist judgment

Evatt J’s dissenting judgment drew on the principle in Hambrook v Stokes Brothers:

“But it is necessary to deal at once with an argument which seems to have been accepted by the Full Court.  It may be put as follows: A few people—‘susceptible and emotional mothers’ let us say—would have suffered nervous shock and injury after undergoing an experience similar to that of Mrs Chester.  This fact a reasonable person would or might have foreseen.  But only persons in such exceptional category would have suffered.  Therefore the defendant’s secondary duty existed only towards those who did not belong to the exceptional category, ie, only towards the ‘ordinary normal human being.’  The non sequitur is easily discernable.  So far as the argument rests upon the contention that no other parents would have suffered shock and illness from the ordeal undergone by Mrs Chester, I think this is a mere assertion and is contradicted by all human experience.  I think that only ‘the most indurate heart’ could have gone through the experience without serious physical consequences.”

- Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd ed, 2002) 174-178.

Sharman v Evans [1977] HCA 8 (25 February 1977)

Sharman v Evans [1977] HCA 8 (25 February 1977)

High Court of Australia: Murphy J
Keywords: negligence; damages; loss of earning capacity; prospects of remarriage

Summary

The female plaintiff became a paraplegic due to injuries sustained from a motor vehicle accident caused by the defendant’s negligence.  Damages and compensation were awarded for her economic loss, pain and suffering.  The defendant appealed to the High Court arguing that the damages awarded were excessive.  The High Court upheld the appeal and considered to what extent damages should be awarded to compensate for the plaintiff’s loss of capacity to engage in unpaid work.

Feminist judgment

“In disagreeing with the majority, Justice Murphy commented upon the notion that was built on this proposition: namely, that a (female) plaintiff’s prospects of marriage were relevant to the calculation of damages.  The level of damages should be calculated on the basis that because women marry, compensation paid to an injured woman for loss of future earning capacity should be cut down accordingly.  […] [F]or Justice Murphy, the expression ‘loss of earning capacity’ as used in the cases ‘does not precisely describe this element of loss in its modern application’.  Rather, what should be measured for loss of earning capacity ‘is the impairment or destruction of the capacity to engage in work that is economically valuable, whether it would be paid for in money or not’.  All women have an economic capacity which they exert, whether paid or unpaid, inside and outside the home.”

- Jocelynne Scutt, The Incredible Woman: Power and Sexual Politics ,Vol 2 (Artemis Publishing, 1997) 95-97

Van Gervan v Fenton [1992] HCA 54 (28 October 1992)

Van Gervan v Fenton [1992] HCA 54 (28 October 1992)

High Court of Australia: Gaudron J
Keywords: negligence; damages; personal injuries; gratuitous services provided to victim

Summary

This case considered whether the measure of damages to a person who provides gratuitous services to a victim of negligent activity should be calculated as the loss of wages to that person in providing the services or as the market value of the services.  The appellant was involved in a motor vehicle accident caused by the respondent and suffered severe injuries.  As a result, he required constant care, which was provided chiefly by his wife, who discontinued her employment in order to attend to her husband’s needs.  The case came before the High Court on appeal.  The High Court reversed the trial judge’s decision and held that the measure of damages in respect of gratuitous services is the market value of those services.

Feminist judgment

The majority of the High Court found that compensation should be awarded to cover costs of care at a market rate. Gaudron J agreed with this result, however her judgment includes a number of feminist features, including providing a fuller account of the facts to contextualise the issues, referencing feminist literature, ‘asking the woman question’ (i.e. how the relevant principles impact on women), and challenging gender-biased assumptions in the respondent’s argument. For example:

“There are only two bases on which it can be argued that some reduction should be made by reason that Mrs Van Gervan provided domestic services before her husband became ill. The first is that, to the extent of the services previously provided, there was a pre-existing need and, thus, no need resulted from the accident. That assumes that the services were provided because they were needed and not as part of the give-and-take usually involved in domestic arrangements. There is no justification for an assumption of that kind, involving, as it does, incompetence and selfishness of a very high order. The second basis on which the argument can be put is that the accident would have given rise to a need for the services of a wife, but to the extent that Mr Van Gervan already had the services of a wife, no need actually resulted. At best, that equates a wife to an indentured domestic servant - which she is certainly not. The argument must fail.”

Dahl v Purnell (1992) 15 Queensland Lawyer Reports 31

Dahl v Purnell (1992) 15 Queensland Lawyer Reports 31

Queensland District Court: Pratt DCJ
Keywords:  medical negligence; wrongful conception; damages for upkeep of child

Summary

Damages were awarded for the upkeep of a child born due to wrongful conception after a failed vasectomy.

Feminist judgment

English legal authority held that damages were not available in this situation. However Pratt DCJ declined to follow this authority:

“I feel that in Queensland in 1992, where family planning is officially encouraged, where vasectomy expenses may be claimed on Medicare, and where, although abortion on demand is still illegal, anyone interested is aware that an abortion can be had on demand, at worst, after an hour or two’s ride in a motor car or aeroplane to a neighbouring Australian state, the approach of Jupp J in Udale…is positively anachronistic.  […] [W]hatever the assumptions may have been from time immemorial as to the blessing of children, despite the view from time to time that the world is a vale of tears, the reality for modern Queenslanders is that their children will have to be educated well into their 20s if they are to take a comfortable place in the society of the 21st century. […] [E]very baby, however lovely, has a belly to be filled and a body to be clothed. … The law relating to damages is concerned with reparation in money terms, and this is what is needed for the maintenance of a baby.”

- Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd ed, 2002) 186.

CES v Superclinics [1995] NSWSC 103 (27 October 1995)

CES v Superclinics [1995] NSWSC 103 (27 October 1995)

NSW Court of Appeal: Kirby P
Keywords: negligence; abortion; damages

Summary

CES brought a claim in negligence against doctors who failed to identify that she was pregnant until it was too late for her to obtain an abortion.  The Court of Appeal reversed the trial judge’s finding that the plaintiff was not entitled to damages as her claim rested upon the loss of an opportunity to commit an illegal act.

Feminist judgment

Kirby P (as he then was) “clarified the circumstances in which abortion was not unlawful.  He found that the relevant economic and social grounds for assessing the danger to a woman’s health included an assessment, not just of her situation at the time of seeking the termination, but also of the effect the birth of a child would have on the woman.”

-Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd ed, 2002) 202.

Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53 (21 December 1995)

Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53 (21 December 1995)

High Court of Australia: Dawson, Toohey, Gaudron and Gummow JJ
Keywords: personal injury; damages; future economic loss

Summary

The case concerned assessment of damages for future economic loss. The plaintiff was an ambitious career woman aged 30. The NSWCA reduced her damages due to the cost of child care and domestic help which they presumed she would need for her entire working life, and also discounted the damages for the prospect that the appellant ‘would at some stage choose or be forced to accept a less demanding job, because she “would be unable or unwilling to remain in her job which placed such heavy demands on her time, energy and health and the love and patience of her husband”. They also disregarded the prospect of her achieving further promotion.

Feminist judgment

Dawson, Toohey, Gaudron and Gummow JJ in a joint judgment rejected the Court of Appeal’s reasoning as wrong in principle and having no evidential basis.

Row v Willtrac Pty Ltd (Unreported, 6 December 1999)

Row v Willtrac Pty Ltd (Unreported, 6 December 1999)

Queensland Supreme Court: Atkinson J
Keywords: negligence; wrongful death; damages; prospects of remarriage

Summary

The plaintiff’s husband was employed by the defendant as a mechanic and was killed when a truck he was repairing fell from its jacked position.  The method by which Mr Row had jacked the truck was not considered to be safe practice, although it was apparently a standard approach taken by the defendant’s employees due (in part) to a lack of alternative and safer equipment being provided by Willtrac.  Atkinson J found that there was a foreseeable and significant risk to Mr Row due to his method of work.  The employer failed to establish, maintain and enforce a safe work environment, did not have a sufficiently stringent audit process for work safety in place and did not educate its employees in the safe use of equipment. 

Feminist judgment

Atkinson J found that while damages should be discounted due to the potential for the deceased’s death to have occurred under different circumstances or premature dissolution of the plaintiff’s marriage, the plaintiff’s prospects of remarrying should not affect the portion to be received by her children in respect of their loss of support.  Atkinson J was critical about the way a woman’s remarriage prospects were calculated in wrongful death cases. Historically judges had found that the better the prospects of remarriage the more compensation should be reduced. This decision led to a reference to the Queensland Law Reform Commission and a change to the law.

Melchior v Cattanach [2001] QCA 246 (26 June 2001)

Melchior v Cattanach [2001] QCA 246 (26 June 2001)

Queensland Court of Appeal: McMurdo P and Davies JA
Keywords: medical negligence; wrongful conception; damages for upkeep of child

Summary

Mrs Melchior was not warned by doctors that there was a possibility of pregnancy occurring after a sterilisation procedure.  Mrs Melchior became pregnant and sued for negligence.  The Queensland Court of Appeal awarded damages for upkeep of the child. 

Feminist judgment

“McMurdo P and Davies JA both strongly rejected offsetting the financial costs against the benefits of having a child.  Davies JA stated that weighing the likely prospective good and bad qualities of a child is ‘morally offensive, while McMurdo P noted that it was ‘not measuring like with like’.”

- Regina Graycar and Jenny Morgan, The Hidden Gender of Law (Federation Press, 2nd ed, 2002) 191.

In the course of her judgment McMurdo P stated:

“Whilst recognising that only the crustiest of curmudgeons is not warmed by the miracle of new life, I am far from persuaded that the blessing of parenthood should prohibit or even limit a claim for the modest reasonable costs of rearing to majority the baby conceived as a result of medical negligence following a failed sterilisation performed for socio-economic reasons. … The benefit argument appeals to some for religious or moral reasons.  It has its origins in a past society where children, especially males, were regarded as an economic asset; the larger the family the more likely that enough children would survive to care for the parents in poverty, old age or illness” (at [49]).

The decision was upheld by a majority of the High Court on appeal. Kylie Burns adds a feminist judgment in the High Court in the book of Australian Feminist Judgments.

De Sales v Ingrilli [2002] HCA 52 (14 November 2002)

De Sales v Ingrilli [2002] HCA 52 (14 November 2002)

High Court of Australia: Kirby J
Keywords: damages; wrongful death; prospects of remarriage

Summary

The case concerned damages for wrongful death and whether they should be discounted to take into account the plaintiff’s prospects of remarriage.

Feminist judgment

Gaudron, Gummow and Hayne JJ in a joint judgment using orthodox legal reasoning, held that this issue should simply form part of the vicissitudes of life that courts take into account in assessing damages – it should not be treated as an additional factor, nor as a factor enlarging the normal vicissitudes. Kirby J in a separate judgment agreed, but his judgment tackles the changed social context and inappropriateness and invidiousness of assessing prospects of remarriage more directly.

Waterways Authority v Fitzgibbon [2005] HCA 57 (5 October 2005)

Waterways Authority v Fitzgibbon [2005] HCA 57 (5 October 2005)

High Court of Australia: Kirby and Heydon JJ
Keywords: negligence; contributory negligence

Summary

The 20-year-old respondent attended a social function at a Yacht Club and, in the course of playful activity with a number of other young people, he fell from the jetty into the water, and was severely injured as a result.  The facts pertaining to how the respondent entered the water were in dispute.  There was no handrail on the jetty. At trial, the Court found that the respondent had jumped into the water.  The NSWCA upheld his appeal and ordered a retrial.  The Waterways Authority appealed to the High Court, which had to consider whether the NSWCA had erred in ordering a retrial.

Feminist judgment

In their joint judgment, Kirby and Heydon JJ lament the injury to the plaintiff and the economic and personal costs he had suffered and would suffer with respect to the Court’s decision to order a new trial.  The judgment reveals a deep appreciation of the enormous toll, not only of the injury, but also of the costs of the litigation to the plaintiff.  The concern of the judgment as to the hurt inflicted by the appeal process upon an individual reveals a prioritization of the ‘personal’ and the ‘person’ over the legal/policy/commercial elements of legal action. 

Giller v Procopets [2008] VSCA 236 (10 December 2008)

Giller v Procopets [2008] VSCA 236 (10 December 2008)

Victorian Court of Appeal: Neave JA
Keywords: breach of confidence; right to privacy; emotional distress; domestic violence; damages

Summary

The plaintiff and defendant were in a de facto relationship and lived with their twin sons and the plaintiff’s daughter from a previous relationship.   Mr Procopets assaulted Ms Giller on five occasions, causing her to become fearful.  The couple separated but continued having a sexual relationship.  The defendant filmed these sexual interactions on a hidden camera of which Ms Giller was unaware for a period of time.  The plaintiff had sex with Mr Procopets a number of times after learning of the camera.  The relationship began to deteriorate and the defendant threatened to show the sex tapes to the plaintiff’s family, friends and employer.  The defendant proceeded to attempt to distribute the tapes.  The plaintiff initiated proceedings claiming damages for assault, the intentional infliction of emotional distress, breach of confidence and invasion of privacy.  The trial judge took a dim view of the credibility of both parties and dismissed most of the plaintiff’s claims other than awarding limited damages for assaults.    .  

Feminist judgment

Neave JA upheld the plaintiff’s claims for breach of confidence and invasion of privacy and substantially increased her damages award, including the award of aggravated damages for breach of confidence. She also emphasised the seriousness of the defendant’s assaults and their effects on the plaintiff, including pain, shock, emotional distress and fear as well as physical injuries.