Cultural thin skulls.

• Author: Black, Vaughan
• Position: Canada

1. INTRODUCTION

   I take as my text a number of recent court decisions in tort actions, about thirty of them. What characterizes the judgments I examine here is that in them claimants have argued (generally, though not invariably, with success) that something in their culture, their religion or both entitles them to either a finding of liability where liability would not be justified in the absence of that cultural or religious make-up, or, more commonly, greater damages than they would be entitled to in the absence of their specific cultural background.

   I am not considering claims for loss of culture. In loss-of-culture cases, plaintiffs complain that what they have been deprived of is the language, skills, attitudes, and stories of their ancestors. These plaintiffs have most commonly been First Nations people, but loss-of-culture allegations have not been limited to these groups. (1) Such arguments have been advanced both in the courts (2) and also in the public reparations scheme for government compensation in respect of mistreatment at residential schools. Claimants in those suits maintain that that they do not have a culture or, rather, they lack the intellectual and cultural inheritance they should rightfully have. They may assert that the theft of their cultural legacy from them is a stand-alone cause of action. More plausibly, they aver that their loss of their cultural birthright and its traditional narratives should be counted as a harm, and perhaps even as a distinct head of damages, in the context of some traditional ground of civil liability--for instance, negligence, battery or breach of fiduciary duty.

   Whether there should be a civil action for loss of culture is a challenging question, but not my concern here. My focus is rather on claims, almost always asserted in the context of negligence actions, which are brought either because of personal injury to the plaintiff or the killing of a person with respect to whom the plaintiff is statutorily entitled to bring a wrongful death suit. In these actions, the plaintiffs argue that something in their cultural constitution--which is framed as a culture different from that of the Canadian mainstream--renders their loss more acute, more painful, or otherwise deserving of more compensation than would be awarded if someone not of that culture had been the victim of the tort. This might be because their cultural or religious background causes them to experience a loss as particularly grievous. Alternatively, it might be because the cultural predisposition of the community in which they move or the individuals with whom they must interact has the effect of intensifying the effects of their loss.

   A handful of examples may assist. A plaintiff suffers facial disfigurement and cognitive disability arising from an automobile accident and argues for a larger-than-usual amount in compensation for those injuries. He bases this claim for augmented recovery on the fact that he is a member of Vancouver's Korean community and his assertion that within that group both facial scarring and mental disability are regarded as especially shameful)

   A woman of Somali heritage is rendered infertile due to a physician's negligence. Although she has previously given birth to four children, she asks for larger-than-normal damages for her infertility based on her assertion that in the Somali-Canadian community in which she moves women are especially valued for their reproductive capacity. (4)

   A woman has her long hair shorn as a result of an accident. This is done without her husband's permission, which is apparently forbidden in Islam, or at least in the Indian-Fijian-Islamic community into which the plaintiff had been born and had married her husband before emigrating. Her husband reacts with hostility to her unauthorized (by him) haircutting and abuses and abandons her. Her suit against the person responsible for her physical injury includes a claim for damages for the disintegration of her marriage. The court grants it, stating, "I see no reason why [the defendant] should not take [the plaintiff] in the family and cultural setting that she lived." (5)

   In a suit by a husband and wife in respect of an unauthorized autopsy of their child, the claim is made that the grieving parents should be awarded especially high damages due to their belief, characterized as both cultural and religious, (6) that the autopsy may have negatively affected the child's prospects for reincarnation. (7) The court notes as well that it was "relevant that the wrong was done to a couple whose vulnerability was heightened by their language and cultural isolation." (8)

   In wrongful death suits in respect of the killing of their child, parents advance a variety of culturally inflected arguments. The most common is that had their child not been killed he or she would have contributed financially to the parents in an amount greater than the norm because such contribution was normal, or at least expected, within their particular culture? Consider the following, from a judgment of the Court of Appeal for Ontario dealing with a claim by parents of Chinese descent in respect of the wrongful killing of their 14-year-old son:

   There was considerable evidence led at trial about the particular culture into which the deceased was born ... This evidence concerned, among other things, the important place occupied by a first-born son. It was expected from the outset that the deceased as the To's first-born son would excel scholastically and graduate from a university with a view to obtaining highly remunerative employment. It was also expected that he would be obedient and provide financial and social support for his parents and direct assistance to his sister, Mary. (10) A final example comes from a case that went to the Supreme Court of Canada. In Mustapha v. Culligan of Canada Ltd. (11) the plaintiff claimed that his Lebanese background explained and justified his otherwise inexplicable over-reaction to the sight of a fly in his drinking water. (12)

   These cases are all relatively recent and academic discussion of them is in its infancy. The 1981 first edition of Ken Cooper-Stephenson's well-known text, Personal Injury Damages in Canada, makes no mention of the phenomenon, since there were no reported judgments to raise the question, and Immanuel Goldsmith's popular looseleaf digest service on damages assessment in this country still declines to address it as a distinct issue. (13) There are, however, signs of change. The second edition of Cooper-Stephenson's text takes note of some of the early cases and offers some discussion of the issue, (14) and, more recently, Jeff Berryman has wrestled with many these cases at greater length. (15) The appearance of arguments of the sort outlined above raises intriguing tensions. Canadian judges have considerable experience wrestling with the slippery concept of culture in immigration cases and likewise in certain areas of family law, in particular child custody and child protection. But the emergence of culturally related arguments in personal injury and wrongful death actions is recent. Assigning a dollar value for compensation for death or significant bodily harm is delicate work at the best of times. Despite the assistance of appellate case law that attempts to render it a formulaic exercise, damages assessment in personal injury cases presents intractable difficulties, particularly in regard to future losses. Pointing out the complexity and contradictions of damages assessment for serious personal injury has long been a favoured practice of radical critics of tort law. But on this issue their voices have not been the only ones; even the Supreme Court of Canada has acknowledged the troublesome nature of this project. (16)

   Adding culture as a factor increases the complexity of the already difficult damages assessment process. Furthermore, it has the potential to politicize damages assessment by bringing it into explicit association with some other high-profile public policy debates. Multiculturalism has of late generated alarmist critiques in connection with its perceived support for a new tribalism and an associated threat to equality and democracy, (17) or at least to national and social cohesion. This has raised anxieties and has prompted a retreat from official governmental multiculturalism in some liberal states, Canada included. It may seem impertinent to suggest that the politically sheltered exercise of damages assessment can raise issues that associate it with the charged disputes around, for instance, authorizing the application of Sharia law in the arbitration of family disputes, allowing schoolboys to carry kirpans, or permitting women to vote while their faces are veiled by hijabs. Nevertheless, I suggest that culturally couched claims in personal injury suits have at least a resonance with other current issues of diversity politics. Lurking not far in the background are the familiar issues of the limits of minority accommodation, state condonation of illiberal practices (in particular practices that are blatantly patriarchal), and backlash against immigration levels.

   While I am unable to offer a comprehensive template for how these new claims should be assessed, I hope here to grapple with these cases a way that may shed some light on them and spark discussion. Before I do, however, I offer a number of preliminary observations that define the issue more tightly than I have done so far and also attempt to situate it in relation to other areas where the notion of culture becomes relevant to justice.

2. DELIMITING THE ISSUE

   First, I do not consider here the decisions in which religious beliefs or cultural tendencies are advanced as a justification for a failure to mitigate. The most obvious sort of case here would be one where a Jehovah's Witness refused, in the face of medical advice, to assent to a blood transfusion--that is, a transfusion needed to...