Damaged Awards: The Vicissitudes of Life as a Woman

Abstract:     
This article engages with the ways in which the assessment of damages for personal injuries reflects deeply gendered assumptions about women's and men's roles. It arose out of a decision of the NSW Court of Appeal (which later went to the High Court of Australia) in NSW Insurance Ministerial Corporation v Wynn. The Court of Appeal had substantially reduced a trial judge's damages award for a woman executive whose injury had impaired her earning capacity, by taking into account gendered assumptions about her lack of attachment to the paid labour market. In particular, the court had discounted the award heavily for 'vicissitudes' of life which included that she may not want to continue working once she had children; that promotion for her would involve too great a sacrifice for her husband. The author suggested that the High Court needed to address the marginalisation of women's paid work that emerged from a reading of case law in this area.

Number of Pages in PDF File: 10

Keywords: tort law, personal injury, gender bias, judicial decision making, damages, women's work, loss of earning capacity

JEL Classification: J16, J30, J70, K10, K30

Accepted Paper Series