Replicating and perpetuating inequalities in personal injury claims through female-specific contingencies.

• Author: Adjin-Tettey, Elizabeth
• Position: Canada

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. Modern tort law should strive for substantive, rather than format 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 Charier 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.

L'auteur remet en cause l'application du principe du restitutio in integrum dans le cas des groupes historiquement desavantages. D'apres l'auteur, il existe souvent des injustices et des differences de compensation entre des demandeurs presentant des dommages semblables subis dans des circonstances semblables. Le systeme actuel tend a sous-compenser les demandeurs desavantages, ce qui sanctionne en cour et accentue la marginalisation dont ils soufflent deja.

L'auteur examine dans quelle mesure des questions d'egalite substantielle sont incluses dans l'evaluation des dommages-interets de demandeurs femmins. Elle identifie les methodes utilisees a ce jour pour evaluer les revenus futurs potentiels de jeunes demanderesses, de meme que les facteurs affectant le choix d'une methode d'evaluation particuliere et les suppesitions qui sous-tendent ce choix. En se concentrant sur l'evaluation des dommages-interets resultant d'une capacite salanale diminuee chez les femmes, l'auteur soutient qu'en renforcant les injustices inlierentes a leur >, le systeme traditionnel repete et perpetue des inegalites sociales qui desavantagent les femmes et d'autres groupes marginalises.

Selon l'auteur, plutot que de repeter et perpetuer des miquites, notre systeme compensatoire devrait en eliminer les effets, ou du moins les attenuer. Le droit des torts devrait aspirer a l'egalite substantielle plutet qu'a l'egalite formelle a chaque etape de son analyse. L'auteur propose une approche de la compensation fondee sur des principes de justice substantielle, conforme aux droits de la personne et a la Charte canadienne des droits et libertes, et qui evite des differences d'appreciation de pertes de potentiel humam foodees sur des facteurs arbitraires et discriminatoires et des suppositions sur les groupes marginalises qui relevent du stereotype.

Introduction 311 I. Substantive Equality in Valuation of Impaired Earning Potential for Female Claimants: Rejecting Restitutio in Integrum 313 II. Current Trends in the Quantification of Damages for Impaired Working Capacity 316 A. Female-Specific Actuarial Tables 317 B. Blended or Gender-Neutral Earning Statistics 318 C. Male Earning Tables 322 III. Implications of Female-Specific Contingency Deductions for Other Marginalized Groups 333 IV. Is Tort Law Solely About Corrective Justice? 341 Conclusion 347 Introduction

In this article, I focus primarily on the assessment of damages for impaired earning capacity of women and draw conclusions on how the current regime affects other historically marginalized groups. I challenge the justice of the principle of restitutio in integrum as it relates to plaintiffs from equality-seeking groups, which often results in undercompensation and unfairness among claimants who sustain similar injuries in similar circumstances. Under the traditional approach the value of a person's loss is assessed by reference to what they would have earned in the labour market, but for their injuries. What is troubling about this process are the bases that courts have traditionally relied on as a measure of success in the market, such as gender, race, and family background. The system works to the detriment of claimants from historically marginalized groups by awarding them depressed damages and by subsidizing plaintiffs with seemingly more favourable characteristics. By so doing, the courts sanction and reinforce the marginalization of underprivileged groups in society. They also project such marginalization into the future. These difficulties are exacerbated when a claimant lacks educational and/or employment history at the time of injury that could serve as a benchmark for predicting her future income potential, which is typical of young plaintiffs.

The traditional view is that tort damages are based on corrective justice. Emphasis is placed on the plaintiff's actual loss due to the defendant's tortious conduct. The plaintiff must only be restored to her status quo ante. In assessing lost earning potential courts routinely take account of "realities" that a plaintiff would have experienced in her working life had she not been injured. Inequalities in earnings that the plaintiff would have experienced due, for example, to her gender, race, ethnicity, physical and mental abilities, or sexual orientation must therefore be reflected in the damages awarded. To do otherwise would arguably run contrary to the goal of tort damages by making the plaintiff better off because of the defendant's wrongdoing. Factors such as financial need or desire for substantive equality (1) in light of the plaintiff's disadvantaged status in society are thus not relevant considerations in the assessment of damages.

In support of the traditional approach, it has been argued that quantification of damages for personal injury is not an appropriate forum for redressing social injustices because, among other reasons, it is contrary to the restitutio in integrum principle that informs tort damages. As well, departures from the traditional position would produce unjust results for defendants, and also as between claimants. Traditionalists have also questioned why individual defendants have to bear the cost of redressing societal problems that are not only pervasive but predate the defendant's encounter with the plaintiff. This line of reasoning underlies practices such as reliance on female earning statistics to predict the income potential of female claimants and discounting awards for female-specific contingencies to reflect the "reality" of women's lives. Ostensibly, the dominant position is intended to ensure fairness, predictability, and uniformity in compensation for impaired working capacity.

I argue that the traditional method of damage quantification is detrimental to the interests of disadvantaged groups because it achieves only formal equality while revictimizing marginalized groups. It also replicates and perpetuates societal inequities experienced by marginalized groups, including bias in the market, by reinforcing injustices inherent to their so-called original position through depressed awards to the benefit of tortfeasors or, more accurately their insurers. Yet social and economic disadvantage is not invoked to argue that equality-seeking groups should pay less for goods and services generally or lower damages awards when they are tortfeasors. Social reformers have denounced the revictimization of disadvantaged groups in the assessment of damages, mostly in relation to female claimants and, to some extent, racial minorities. (2) Also, there does appear to be some optimism about judicial reform to eliminate discriminatory practices in the assessment of damages in personal injury claims. (3)

The objectives of this article are to: (1) examine the extent to which issues of substantive equality are factored into the assessment of damages for female plaintiffs, (2) identify current methods for assessing future income potential for young female claimants and, (3) identify both the factors that influence the choice of a particular approach and the assumptions underlying that choice. Although there have been some positive developments in the quantification of damages for lost productivity for young female claimants and female plaintiffs generally, this has largely been in line with statistical predictions about women's labour force participation. I also explore the implications of these developments for women's equality and their effect on other equality-seeking groups. I point to some internal inconsistencies in the statistical predictions framework that continue to disadvantage female claimants in the assessment of damages. Although courts recognize the changing role of women in the labour market due mostly to educational attainment, they sometimes ignore other developments in society that also enhance women's participation in paid employment. Similarly, courts have not given sufficient attention to the possibility of plaintiffs from disadvantaged groups achieving higher socio-economic status than their predecessors. As well, using statistical predictions in the quantification of damages focuses on formal equality because of their reliance on the current organization of society without...