Replicating and Perpetuating Inequalities in Personal Injury Claims Through Female-Specific Contingencies
Date
2004
Authors
Adjin-Tettey, Elizabeth
Journal Title
Journal ISSN
Volume Title
Publisher
McGill Law Journal
Abstract
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.
Description
This is a post-print version of this paper, published in the McGill Law Journal, (2004) 49 pp. 309-348.
Keywords
Citation
Elizabeth Adjin-Tettey, “Replicating and Perpetuating Inequalities in Personal Injury Claims Through Female-Specific Contingencies” (2004) 49 McGill Law Journal 309-348.