Replicating and Perpetuating Inequalities in Personal Injury Claims Through Female-Specific Contingencies
McGill Law Journal, Vol. 49, No. 309, 2004
Posted: 22 Sep 2011
Date Written: 2004
The author challenges the application of the principle of restitutio in integrum in awarding tort damages to individuals from historically marginalized groups, as it often results in undercompensation and unfairness between claimants who sustain similar injuries in similar circumstances. The current system works to the detriment of claimants from disadvantaged groups as they are awarded depressed damages by the courts, thereby sanctioning and reinforcing their marginalization in society.
The author examines the extent to which issues of substantive equality are factored into the assessment of damages for female plaintiffs and identifies the current methods used for assessing the future income potential of young female claimants, as well as the factors that influence the adoption of a particular approach and its underlying assumptions. By focusing on the assessment of damages for the impaired earning capacity of women, the author explains how the current system replicates and perpetuates societal inequities experienced by women and other marginalized groups by reinforcing injustices inherent to their "original" position.
Rather than reinforcing and perpetuating inequalities, our compensation system should aspire to eliminate, or at least mitigate, their effects. Modem tort law should strive for substantive, rather than formal equality at every stage of the analysis. The author advocates a principled substantive justice approach to compensation, which is consistent with human rights law and the Canadian Charter of Rights and Freedoms, and which avoids differential valuation of loss of human potential based on arbitrary and discriminatory factors as well as stereotypical assumptions about marginalized groups.
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