Students can be asked to write answers to the above questions before the first class and bring them to class, prepared to discuss them, or they could be given the opportunity to write down answers in class as a client interview simulation, working in pairs with one student as Rima and one as a lawyer.
This hypothetical can easily be revisited at various times during a tort course, as students are illuminated by their study of medical negligence, the liability of statutory authorities, the ‘policy decisions’ v ‘operational deci-sions’ debate, and so on. It can also serve as the factual base for participatory pleadings, client interview, pre-trial negotiations or advocacy exercises. As a ‘law reform’ exercise, students could be asked to make representations to a committee examining the reform of personal injury law. Students could variously represent the viewpoints of Rima, Dr Saxton and the Council.
The sum of these critiques, and of wider critiques of the ‘reasonable man’
standard in the areas of self-defence, provocation, sexual harassment and rape,8 is that ‘despite the ostensible neutrality and objectivity in their phraseology, these traditional approaches [of reasonableness] may unfairly import the biases of the dominant gender, race, sexual orientation, or culture ...’.9
How might the law deal with this issue of cultural bias in the context of per-sonal injury law? We want to approach this issue a little obliquely, through consideration of the ‘reasonable plaintiff’, as we see the case law in this area as more suggestive of possible new approaches. In particular, we want to consider the principles surrounding the mitigation of damages. That is, in personal injuries actions the plaintiff is under an obligation to do what is reasonable to mitigate or minimise the loss suffered as a result of the defendant’s tort.10 Although often described as a ‘duty’ to mitigate, the effect of the principle is that if the plaintiff’s inaction or action subsequent to an injurious event is classified as unreasonable in the circumstances, recovery of damages will be limited to that part of the loss that would have been suffered if mitigating action had been undertaken.11For example, the injured person may have been able to undergo some medical treatment which would have enabled her to return to work and thus reduce her loss of income. The issue, importantly, still turns on concepts of reasonableness.
Denning LJ in Marcroft v Scruttons Ltd12seemed to suggest that the reason-ableness of refusing treatment should be measured against a chauvinistic ‘stiff upper lip’ standard of moral courage. In that case the plaintiff had refused to follow psychiatrists’ recommendation that he undergo shock treatment for anx-iety neurosis and depression resulting from an injury. Denning LJ commented:
Viewing the matter objectively, he was quite unreasonable in refusing to fol-low their advice; but viewing the matter subjectively, the man’s attitude was quite understandable. He was an uneducated, ignorant man who did not realise that a mental hospital nowadays is very different from what it was 30 or 40 years ago; and, moreover, owing to his anxiety neurosis, he was not in a fit state to make reasonable decisions. The difficult question in this case is whether we are to admit this subjective condition of his as a reason for refusing medical treatment. I think not. We should do great harm if we allowed him to go on
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8 There is an ever-increasing literature in these fields: see, eg, Taylor, L, ‘Provoked Reason in Men and Women: Heat of Passion Manslaughter and Imperfect Self-Defense’ (1986) 33 UCLA Law Review1679; Yeo, S, ‘Ethnicity and the Objective Test in Provocation’ (1987) 16 Melbourne University Law Review 67; Mison, R, ‘Homophobia in Manslaughter: The Homosexual Advance As Insufficient Provocation’ (1992) 80 California Law Review133;
Sanger, C, ‘The Reasonable Woman and the Ordinary Man’ (1992) 65 Southern California Law Review1411 (on sexual harassment); Estrich, S, ‘Rape’ (1986) 95 Yale Law Journal 1087.
9 Pomeroy, J, ‘Reason, Religion, and Avoidable Consequences: When Faith and the Duty to Mitigate Collide’ (1992) 67 New York University Law Review1111, 1148.
10 Trindade, F and Cane, P, The Law of Torts in Australia, 2nd edn, 1993, p 486, Melbourne: Oxford.
11 Balkin, RP and Davis, JLR, The Law of Torts, 2nd edn, 1996, p 783, Sydney: Butterworths.
12 [1954] 1 Lloyd’s Rep 395.
receiving compensation for the rest of his life because of his refusal to accept medical treatment. Persons who suffer from an anxiety state have more chance of recovery if they are treated as responsible human beings and are expected to behave reasonably, rather than as weaklings who can give way to their weakness and expect to get paid for it (at 401).
This echoes earlier English views, such as Viscount Simon’s inSteele v Robert George Co Ltd13that if a workman refuses ‘to submit to an operation from defect of moral courage’ he is not entitled to compensation as he ‘should do what a man of ordinary manly character would undergo for his own good’.
Recent cases in Victoria, however, represent a noticeable improvement on Denning LJ’s formulation. In particular, courts have been willing to consider the role of ethnicity and culture in the equation.
Glavonjic v Foster[1979] VR 536.
The plaintiff, injured in a motor car accident, refused to accept advice to undergo surgery and as a result suffered greater loss through longer absence from work. However, according to Gobbo J, at 540, the reasonableness of the plaintiff’s refusal was to be judged according to whether ‘a reasonable man [sic] in the circumstances as they existed for the plaintiff’ would have refused treatment. Some of the factors to be taken into account were anxiety states related to the injuries; whether the plaintiff was able to understand the choice before him; prior experience of treatment. ‘The final matters that may be legit-imate to take into account were the plaintiff’s relatively poor education, his unfamiliarity with institutions different from those of his own country, his very limited command of English ...’ (at 539).
Gobbo J’s reasoning was affirmed by the Full Court of the Victorian Supreme Court in Karabotsos v Plastex Industries14where the appellant was Greek by birth and could neither read nor write English and gave evidence through an inter-preter. Medical advice recommending an operation on an injured wrist was given to him in English. The reasonableness of his refusal to undergo the oper-ation depended, according to Kaye J, on what the doctor told him, ‘matters personal to the appellant’, and his ability to understand what was said to him.
Kaye J concluded: ‘In my opinion, a reasonable man approaching middle age and without any trade qualification, suffering from a fractured wrist which, after six months, continued to be painful and prevented him from earning his livelihood and who had little understanding of the English language, would have refused the advice concerning an arthrodesis of his wrist given in the terms used by Mr Davie’ (at 687).
Gobbo J’s judgment to some extent represents an important assault on objective standards or ‘reasonableness’ and allows for the introduction of issues of ethnicity and cultural background. The further question is how precisely
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13 [1942] AC 497.
14 [1981] VR 675.
questions of race or ethnicity are being incorporated: what paradigm of ethnicity is being proposed?
The objective approach favoured by Denning LJ is characterised by Jeremy Pomeroy as portraying the reasonable person ‘as a rational agent stripped of all individualised characteristics or as the essence of humankind, devoid of all cul-tural or historical specificity’.15 The trouble with this formulation is that it perceives of culture or ethnicity as an ‘add-on’ or a deviation from the norm that the courts may make allowance for. What needs to be stressed instead is that the idea of ‘normal manly character’ is itself a cultural ideal. That is, there is already an opposing, culturally specific stereotype operating in these cases:
the stiff upper lip of the English bourgeoisie.
The issue of competing stereotypes was confronted head on in a quite remarkable exchange between Kirby P (as he then was) and Meagher JA in Videski v Australian Iron and Steel.16In that case, the appellant was challenging the adequacy of an award by a judge of the Compensation Court of NSW. The judge had made her decision on the basis of medical reports and the impression the appellant had made on her during the hearing. Videski had testified that he had been in debilitating pain for 12 months yet the trial judge said she had ‘dif-ficulty accepting [him] as a witness of credit’ after observing his demeanour in the witness box. It was this reliance on the appellant’s demeanour over and above the medical reports that Kirby P thought problematic:
In our tradition, at least until now, understatement, a stiff upper lip and uncomplaining heroism in the bearing of the pains and misfortunes of life are conventionally regarded with admiration. Judges of our tradition may be tempted to think the better of those stalwart characters who underestimate their complaints. Who can deny that this occurs? Everyone involved in trials knows of the phenomenon. It is these people who tend to excite – even uncon-sciously – our respect, sympathy and support. There is, on the other hand, a tendency to feel impatience with those who are believed to exaggerate their symptoms or to make the most of them in the courtroom.
In our multicultural society it is imperative that judicial officers would avoid expecting from people of different cultural traditions the same emotional imperatives that have, until now, tended to influence Australian values. For all I know, the behaviour in court of this worker, which seems to have struck her Honour as ‘exaggerated’ or ‘distorted’, would be perfectly normal for a claimant with back pain appearing in a Macedonian courtroom.
Meagher JA, by contrast, found Kirby P’s comments ‘an elaborate, and distinctly xenophobic, rodomontade’:
His Honour says that Mr Videski only exaggerated because he was a Macedonian, all Macedonians are untrustworthy exaggerators, in this respect
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15 Pomeroy, above n 9, 1117.
16 Unreported, Supreme Court of NSW, 17 June 1993.
they do not resemble Anglo -Saxons, and judges ought to be re-educated unless they appreciate these truths. One cannot permit such sentiments to be uttered without protest.
Alexander the Great was a Macedonian, and Arrian’s life of him emphasised his honesty and taciturnity. There was no evidence before the court that his epogoni have changed. We cannot assume that they have ... It would be unfortunate if his Honour were permitted to utter, with the apparent approval of his brethren, sentiments so markedly at variance with the United Nations’ Optional Protocol on Human Rights, not to mention Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.
We hardly know what to say in response to this,17except that Meagher JA seems to have misread Kirby P’s refusal to impose an Anglo-Saxon stereotype as the offensive imposition of an alternative Macedonian stereotype. Yet Kirby P’s judgment is so hedged with ‘For all I know’ and ‘Perhaps’ that it clearly rep-resents a refusal to draw on any cultural stereotype:
Perhaps in Macedonia the brave understatement of one’s own case would be regarded as a bizarre psychological manipulation of the contra-suggestible kind which one would only expect from foreigners. This is speculation. I only mention it to emphasise that we, the Australian judges of today, must be on our guard against the imposition of behavioural stereotypes ...
Human conduct is infinitely variable. But it is certainly influenced by cultural norms. What is in issue here is not the honesty of people of Macedonian origin ... It is the awareness on the part of Australian judges that people from differ-ent cultures may not immediately succumb to the heroic norms of our culture when they come into our courtrooms ... I shall allow his Honour’s comments to pass taking compensatory comfort from the new found interest of Meagher JA in the international instruments of human rights and their application to Australian domestic law.
Kirby P’s view is valuable precisely in acknowledging that the reasonable man standard itself embodies culturally specific standards.18
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17 We do, however, know what Meagher JA would say about us. In an earlier incarnation he addressed the Seventh Commonwealth Law Conference and railed against legal academics who ‘scribble and prattle relentlessly about such non-subjects as criminology, bail, poverty, consumerism, computers and racism. These may be dismissed from calculation: they possess neither practical skills nor legal learning. They are failed sociologists’: cited in Chesterman, M and Weisbrot, D, ‘Legal Scholarship in Australia’ (1987) 50 Modern Law Review709, 716.
18 We assume Lord Bramwell’s comment on the hypothetical reasonable man as being ‘attrib-uted with the agility of an acrobat and the foresight of a Hebrew prophet’ (cited in Luntz, H and Hambly, D, Torts: Cases and Commentary, 4th edn, 1995, p 219, Sydney: Butterworths) was not intended to raise the issue of ethnicity as a relevant characteristic.
LEARNING ACTIVITY
Students can return to the hypothetical involving Rima and consider the fol-lowing question:
Presuming Rima is wanting to pursue a claim in tort against Daberin Council and Dr Saxton, do you think her chances of achieving compensation are affected by her initial refusal to undergo surgical treatment?
Why or why not?
The debate over the reasonableness of mitigation is predicated on negligence law’s preoccupation with ‘fault’. Put simply, ‘negligence embodies the principle that where harm to someone is caused through the fault of another party that party will be liable to compensate for the injury caused’.19One answer to the question of what counts as fault and how it is to be recognised is that fault involves ‘unreasonable’ behaviour, which is why discussions of reasonableness loom so large in tort law.20Yet it is worthwhile going one step back and asking whether fault is an appropriate basis on which to build a system of personal injury compensation. In particular, in the next section we want to examine how the emphasis on individualised notions of fault and responsibility determines who gets compensated and for what sort of injury.
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19 Conaghan and Mansell, above n 1, 6.
20 Ibid, 6.