Janice Richardson and Erika Rackley

A feminist perspective does more than merely offer a different viewpoint. It provides a critique of a status quo that purports to be gender neutral but in fact takes the male body and lifestyle as the norm to the detriment of women. For example, the way in which women in our culture, at this time, resolve disputes has only recently been analysed as anything other than an immature approach of the attitude taken by men. This is not to say that there is anything natural about such differences. We change as society changes and the optimistic view of feminism, which in many ways has been borne out, is that it is possible (though by no means inevitable) for societies to become more just. In this sense, feminists are more optimistic than the US judges who, as Reg Graycar notes in this collection, assess loss of future earnings claims by women (who have been negligently injured by another) based upon average female earnings rather than the (higher) average earnings. In doing so, they make a statement that they envisage a future in which women will continue to be discriminated against in the workplace, earning lower salaries than men. Feminist perspectives, in contrast, open up the possibility of a different future.

When applied to tort law, the law of civil wrongs which gives the individual the right to sue to protect her/his rights, feminist perspectives have the power to challenge the neutrality of existing arrangements that treat the harms that men suffer as more worthy of protection, for example. The relationship between tort law and feminism is long-standing (see, for example, Conaghan 2003; Chamallas and Kerber 1990; Bender 1988 though compare Schwartz 2001). Some claims for justice for women simply involve a claim for fairer treatment within the existing system. They bring with them the hope that legal rules will not be changed to the claimant’s detriment simply because she is a woman, such as the reference to a different type of justice (distributive not calculative) in the UK wrongful birth cases (McFarlane v Tayside Health Board [2000]). Other claims for justice involve altering the system in different ways. Not all of these changes represent a zero sum game in which men lose if women gain. On the contrary, many contributors to this book raise concerns about, for example, the regulation of drug companies (Peppin) and issues of professional negligence, particularly involving the police and the medical profession (Horsey and Miola), which impact on (vulnerable) men as well as women. Nevertheless, whilst fulfilling the aims of redistribution and deterrence in tort law is of benefit to both men and women, these are rightly feminist concerns because, as the contributors illustrate, women suffer disproportionately from negligence in such areas. In particular, the view of men as neutral representatives of humanity is starkly problematic in the area of drug research where there is a knowledge deficit because of insufficient testing of drugs on women’s bodies.

As well as assessing the aims of tort law and whether they are being fulfilled, the chapters in this book open up debates about how different aspects of the law of tort are conceptualised. For example, when the tort system focuses only upon individual harm, the possibility of social harm to a community (such as that which occurs when a company has negligently polluted their land thereby disrupting the sex ratio) is occluded (Scott). Similarly, the way in which damages for loss of the ability to do housework (awarded when a woman is negligently injured) was initially a feudal right paid to her husband and then characterised as a non-economic loss (akin to losing the ability to play golf) belittles the economic worth of housework (Graycar). The courts’ role in expressing and shaping the values of society is relevant here because the meaning of tort judgments affects more than the individual claimant. When women’s traditional role as carers is not valued, or is sentimentalised in a way that minimises the cost of care to the carer, or when a survivor of rape is given paltry damages, the courts make a public statement about the worth of women. This ‘worth’ is not their ‘price’ but the respect that should be accorded to them. When this is denied, the courts are helping to shape a society in a way that is to women’s detriment as well as that of the individual claimant.

Whilst some chapters focus upon sexual harm and areas of law that are clearly of direct concern to women (see, for example, Godden and Adjin-Tettey), there are others that examine legal concepts such as duty of care in negligence and the general calculation of damages that do not initially appear to be gendered. To highlight the injustices in these areas involves exploring beneath the surface of tort law. Some problems discussed are old and the contributors ask ‘where we are now?’ after years of feminist critique – typically with mixed results. Other areas are new, arising as a result of new technology, for example, that can allow men to produce ‘revenge porn’ (sexual material taken during the relationship, sometimes surreptitiously, depicting a former lover that is publicised, usually on the internet (Richardson)). In the tradition of feminist critique, the contributors both reveal injustices to women in the way that tort law operates in UK, Australia, Canada and US and suggest solutions to this constantly developing area of law.

The chapters

In ‘Duty of Care and Ethic of Care: Irreconcilable Difference?’ Jenny Steele focuses on the question of how the courts decide whether a duty of care is owed, by the defendant, in negligence cases, a question that initially appears to be both abstract and gender neutral. She first considers Carol Gilligan’s influential work in moral psychology, which Steele employs to examine legal rather than moral assumptions. Gilligan’s empirical studies show that boys and girls (in the US in 1982) employed different approaches to justice. Steele is clear that these studies do not demonstrate an essential, fixed sexual difference that is attributable to ‘human nature’ but nevertheless finds the empirical results useful for the questions that they raise about law in our culture. In the study, boys are found to employ rules to settle any arguments that arise in a game, whereas girls would rather abandon the game than risk damaging their relationships. Gilligan famously describes this as an illustration of boys being governed by an ‘ethic of justice’ and girls employing ‘an ethic of care’. Gilligan has shown that, in a move familiar to feminists, the male position was viewed as the norm within moral psychology. Girls and women were an afterthought, initially subsumed within a universal category of humanity, of which men were viewed as the best instantiation, seeing themselves as both ‘male’ and also ‘gender neutral’. To the extent that women were perceived at all, they were simply viewed as not measuring up to male norms.

Steele applies Gilligan’s conceptions of two different types of justice to law. She asks whether the ‘legal sense’ of justice, associated with the boys’ (historically contingent) ‘ethic of right’ is any more definitive of what is involved in law than it was in moral development: does the ethic of right represent only one interpretation of the legal process? In other words, could the practice of law be viewed in broader terms? Armed with this question, she then turns to tort law and, in particular, the legal concept of duty of care, to highlight its individualism, its historical and possible future development. She analyses the rhetorical aspect of law, in particular highlighting the repeated judicial assertion that there are ‘no touchstones’, to guide the decision as to whether a duty of care exists in a particular case. Steele points out that this is unsurprising, given that the idea of a touchstone was that it should provide a way of distinguishing true from false gold. Given that judicial decisions regarding duty of care are taken pragmatically, there is no true or false gold to be found.

In the next chapter, ‘Endgame: On Negligence and Reparation for Harm’, Nicky Priaulx considers how harms that women suffer are marginalised by the way in which legal categories are drawn, in particular, the ‘heads of damage’ needed to prove a claim in negligence. For example, in the UK, in cases involving the reproductive torts, such as wrongful birth cases (in which a negligent sterilisation or advice result in an initially unwanted pregnancy), damages have been limited according to arguments that are at odds with the usual principles of tort law. Perhaps even more troubling are the (dissenting) arguments against the idea that women should be awarded damages for pain and suffering as a result of the birth at all because birth is ‘natural’ (see, for example, Lord Millett in McFarlane v Tayside Health Board [2000]). Priaulx argues that the distinction drawn between the categories of ‘physical damage’ and ‘psycho-social damage’ is difficult to maintain. It is predicated upon a mind/body split, which does not reflect human experience of harm. Someone with a personal injury will also experience psycho-social disruption and vice versa. In addition, there are a growing number of cases that challenge such a boundary directly, such as wrongful birth cases and the case of negligent destruction of the sperm preserved from a dead spouse. She detects a move towards a broader conception of harm ‘that is more capable of accommodating critical aspects of our humanity’. These claims can include a hybrid approach of harm that is both physical and psycho-social.

This initial analysis prompts Priaulx to examine the extent to which tort law overall can ever prove just or whether a more radical change in the law is required. She points out that, whilst it may be fairer to extend damages in tort to avoid incoherent distinctions, this will only reach a small number of beneficiaries. In addition, an award of damages addresses the harm in a limited way by an award of money. She turns to the recent (controversial) empirical claims in ‘hedonic’ studies (ie studies of happiness) that we react to good or bad events in the short term but then return to a previous level of happiness. Such claims raise the argument that, in practice, people adapt to their disabilities, which do not therefore inherently limit their enjoyment of life – potentially suggesting support for those who wish to limit compensation, if it is to be based upon the fictional attempt to restore the status quo or solace. A further concern, derived from this research is that the legal process itself reinforces the idea of disability as tragedy. She then considers the question of whether compensation for injuries should be based upon their overall effects. An alternative to the legal fiction that the aim of tort compensation is to restore the claimant to her/his earlier position would be to consider the damages as a public statement that puts right a social wrong; that recognises the rights and moral worth of the claimant – an issue is raised in Elizabeth Adjin-Tettey’s chapter on harm in relation to sexual wrongdoing, discussed below.

In ‘Pollution and the Body Boundary: Exploring Scale, Gender and Remedy’ Dayna Nadine Scott considers whether tort law can provide a remedy for the effects of ‘endocrine disruption’, caused by negligently produced pollution. Endocrine disruption occurs when particular types of synthetic chemical (which are similar in physical structure to sex hormones) trigger different biological processes in the bodies of humans (and animals) who are exposed to them. She focuses upon the plight of the Aamjiwnaang First Nation, a Canadian aboriginal community, where chronic chemical pollution has resulted in it having the lowest boy to girl birth ratio in the world. This raises a number of questions. Obviously, the scientific claim must be proved (something which, as Peppin discusses in the context of product liability, is often no mean feat). However, assuming that there is clear evidence, Scott shows that such a claim raises difficulties for the common law, or indeed any law, that compensates only for individual harm. It is not possible for an individual woman to demonstrate that she would have given birth to a boy but for the chemical pollution, despite the fact that the number of boys born is far fewer than prior to the pollution. Further, the birth of a girl does not constitute harm to her mother, as an individual, despite the views of misogynists. Scott’s analysis goes beyond the usual questions of causation in negligence. She points out that the harm alters depending upon the scale employed to analyse it. It could be characterised as a harm to the community because the disruption in the sex balance threatens the possible collective future of the community as a body, as it results in young women leaving the community to find a partner, for example. As such it is a social fact (Durkheim 2002). Feminists would not want to subsume their individual rights to the community, of course, as in the dreams of communitarians, but should this wrong by the polluters go without any recompense in the civil courts?