INTRODUCTION
Tort law – or, more particularly, personal injury law – is a context-rich area of legal study. The ‘everydayness’ of tort cases makes them a particularly abun-dant field for cross-cultural perspectives.1 Patricia Peppin argues that the examination of negligence ‘requires analysis of the relatedness of people, or of people and institutions, and requires the imaginative process of placing oneself in various real and hypothetical positions’.2 She goes on to say that for this reason negligence law, in contrast to the intentional torts, has a greater potential to respond to the cultural pluralism of the late 20th century.3The fact that, as yet, this potential has hardly been realised, probably has to do with another important fact about tort law. That is, its concern with richly diverse, relational scenarios is constrained by a framework of culturally specific, ‘objective’, indi-vidualistic approaches. The ‘reasonable man’ is perhaps the most notorious of these, but notions of reasonable foreseeability, of time, space and causality, of injury and damage, all need to be interrogated. To help with this we follow Peppin and suggest asking the following questions of negligence law:
● Does negligence law take account of the social reality of subordinate groups’ place in society?
● Does it handle constructively, or merely reflect, the unequal nature of society?
LEARNING ACTIVITY
With the exception of criminal law, students probably come to personal injury law with more preconceptions and half-baked knowledge than to any of their law subjects. This is due, no doubt, to the high profile that per-sonal injury litigation enjoys in the media, especially the attention given to novel negligence actions or to increasingly large damages awards.
Similarly, when television focuses on litigation, it is usually personal injury litigation, because the high drama and tragedy of the plaintiff’s situation tends to make a good story. Confronted with a personal injury problem, then, students, armed with a certain media savvy, are probably all too eager to ‘think like a lawyer’ – or, at least, to think like their idea of a lawyer. A lit-tle knowledge here can be a dangerous thing; the challenge is to get students to view personal injury not as a ‘torts’ problem, but as a complex human relationships problem, involving complicating factors of ethnicity, gender, language, professional power and social policy. A useful teaching strategy is to get them to consider a problem straight away, in their first class, before they even begin to embark on any discussion as to the possible meanings and scope of tort law or before they are introduced to the doctrinal concepts of the law of torts. The following hypothetical is one example of achieving this. The focus questions deliberately use the language of obligation, responsibility and expectation rather than ‘liability’, ‘duty’, ‘foreseeability’
and so on. In this way students are encouraged to tap their social and moral intuitions in trying to conceive of means of resolution and possible redress in a tricky, pluralist, multi-perspective scenario. Also, cultural issues are there ‘up front’ and do not need to be introduced as a discrete topic later in the course, as a ‘complicating factor’ grafted on to the body of tort doctrine.
Students and/or teachers can preserve their answers and return to them near the end of their course to see how their outlook may have been shaped by the intervening months of legal study (with the inevitable question aris-ing: are their answers after a year of studying tort law any better than their relatively untrained answers?)
In January 1996, Rima, 16 years of age, injured her back during a women’s football match, organised by Daberin City Council as part of its access policy encouraging women’s sports. Rima thinks her injury was due to the fact that the council, in seeking to involve as many 16 to 18-year olds as it could in its program, mismatched her, in terms of size and age, with the players selected to play alongside and against her.
Rima went to the nearest public hospital for treatment and was attended by Dr Gareth Saxton. Dr Saxton found it difficult to understand Rima, a recent migrant, because of their relative levels of language proficiency. He was unable to get an interpreter or spend much time with her as recent staff cuts at the hospital meant he was very busy, but he did say to her, ‘if you’re really in as much pain as you say you are, I think the best course of action might be spinal surgery’.
Rima initially refused surgical treatment because interventionist forms of treatment offended her cultural and religious beliefs. She wanted to be treated with some form of natural healing, but had difficulty communicating these concerns and desires to Dr
Saxton, who got increasingly impatient with her attempts to do so. Dr Saxton indicated that after six years at medical school he found it difficult to take natural healing approaches seriously – referring to them as ‘hillbilly cures’ – and thought that if Rima ‘was scared’ of surgery, he could prescribe drug therapy. Rima reluctantly agreed to having the drug therapy.
Within a month Rima’s condition had deteriorated. Despite her misgivings, she finally underwent surgery. Soon after she suffered partial paralysis from the waist down.
Write down what you think Rima’s objectives might be given her situation:
Now write down three or four ways these objectives could be met:
From these, choose what you think is the best way for Rima to proceed:
Think about your reasons for choosing the course of action that you did. What do these reasons say about you views concerning the respective expectations and responsibilities of Rima, the Council and Dr Saxton?
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.