C. Gender
Under the restitutio principle, women are disadvantaged because of gendered assumptions about an individual's lifestyle. The court's assessment of earning capacity highlights the different treatment of individuals based on gender. This distinction is unfair as it promotes gender inequality, which is an undesirable impact of restitutio. Under tort law, women are likely to recover less than similarly injured men. The individualised assessment of damages is controversial due to the assumption that women are more likely to withdraw from paid employment after marriage or having children, reducing their earning capacity.
The damages assessment based on individual's gender identity is guided by the objective of restitutio, which lead
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to a disproportionate compensation. For instance, women's future earning capacity is inappropriately lowered because of the assumption that women will withdraw from their career to have a family. In Wynn, the reduction rate for contingencies was increased from 5% to 28% by the Court of Appeal, in order to take into account the female plaintiff's possibility of maternity leave and reduced participation in the workforce. This reduction would not have been applied to a male plaintiff. Although the deduction for the vicissitudes of life was re-adjusted to 12.5% by the High Court, gender based assumptions remain in the operation of restitutio. The requirement to reflect loss of earning capacity with potential withdrawal from employment is more likely to affect women than men, caused by women's child-bearing ability. According to the restitutio principle, it is unjust to award people with more than what they would have otherwise earned. Therefore, the operation of restitutio reinforces gender disparity in damages for future earning capacity, which is a fundamental flaw of the principle. III. The Unachievable The restitutio principle is unattainable because of the unpredictability of the future and the incommensurability of intangible losses.
As required by Malec v JC Hutton, a plaintiff's overall loss is modified according to hypothetical evaluations. However, this adjustment of compensation is at best a matter of impression, since calculation of future earning capacity will never be exact. Furthermore, the monetising of intangible injuries has commodified pain and suffering, which is an undesirable aspect of restitutio. In terms of non-economic damages, the restitutio principle has the ability to recognise the exclusive harm suffered by Indigenous plaintiffs, done by qualifying the loss of cultural participation as compensable. This form of recovery would not have existed without restitutio. For instance in Napaluma and Dixon, the plaintiffs were awarded damages for 'loss of cultural fulfilment' due to their personal injuries. Despite the acknowledgment of cultural standing, the restitutio principle has commodified people's unique experience by monetary substitution. Therefore, the application of restitutio is limited because the idea to fully restore an injured plaintiff to the same position compensation is ultimately …show more content…
unachievable. IV. Legislative restrictions on damages In light of the Ipp Panel's Report, several statutes were amended across Australia that have tampered the restitutio principle. This is done by restricting the damages available for future earning and non-economic loss. In Victoria, caps have been introduced on future economic loss (maximum 3 times the average weekly earnings) and non-pecuniary damages (statutory maximum of $577 050) . The aim of the Report's recommendations were to address the rise of insurance premiums, due to the unpredictable application of the law of negligence and high amounts of damages in personal injuries cases. Despite the imposed restrictions, these changes have failed to take into account the discriminatory effects of restitutio. This is because the legislation prevents the court's ability to award excessive damages but not the variation of damages based on the personalised valuation of individuals. For example, in Meli v Ceva, the court extensively considered the plaintiff's lifestyle prior to the accident when assessing damages. This signifies that despite the legislative changes, the restitutio principle is still applied by the courts in recent times to determine compensations. Although the court can no longer award excessive damages, the individualised assessment of an injured person was not affected by the legislative reform. V. Conclusion The restitutio principle should not be the legitimate approach for damages assessment.
The differential valuations of an individual's losses based on social identity such as socio-economic status, race and gender have been discussed to convey the discriminatory effects of restitutio. In the operation of restitutio, systemic inequalities are routinely reinforced through the objective repositioning the injured person to his or her original position prior to the injury. Consequently, people are valued on a case by case basis resulting in an unfair deduction of damages awarded. Additionally, the principle's operation is flawed due to its inability to predict the future, as well as the difficulty of quantifying damages for pain and suffering. Despite the benefit perceived in the qualification of loss of cultural fulfilment, the damages awarded cannot fully restore the plaintiff back to their same position. Lastly, the legislative changes have failed to address the fundamental flaw of restitutio in integrum, that is the unequal distribution of compensation and treatment of personal
injuries.
As the issue is examined from the view of social justice, it appears that women are still not at the equal level that Mills proposed in this bill in Parliament. While women are entitled to the basic human rights of employment, land and business ownership and voting, there remains an inequality in expectations for an adult female. These expectations are garnered from long-standing traditional views held by a large portion of society that will take many years to eradicate.
The criminal justice system is dynamic and has changed rapidly since the works of Cesare Beccaria and Cesare Lombroso during Enlightenment Period and this reflects in the issue of intersectionality with the changing approaches taken towards concepts of gender, race and class. Sexual assault will be a predominate study used throughout the essay to examine the different approaches and issues between traditional and non-traditional justices. This essay will first establish where are these intersectionalities found in terms of sexual assault cases and the challenges victims face in the legal process with traditional approaches then followed by a comparison to the transition towards non-traditional alternative justice system has responded with a deeper insight into restorative justices and its effects on resolving these challenges. The role of alternative justice and the key challenges in disproportionate crimes are also important aspects of intersectionality in Australia as they aim to resolve challenges women and the mentally disabled encounter during processing through court in the criminal justice system.
In order to counter a potential lawsuit of adverse impact the employer has to provide a legitimate reason for not hiring more women and, specifically, a nondiscriminatory reason (Hagen, 173).
Eliminating gender bias in the court system is something that needs to be taken care of quickly. With gender bias being an issue in the court system, equality and fairness is being questioned. People are not being treated the same way because of the attitudes the judges put on and give to the defendants and lawyers. Judges should not be able to pass with these approaches
Rather they are the ways of recognizing and getting recognized as certain sorts of whos doing certain sorts of whats” (156). This discourse consists of authors (whos) writing about their opinions, ideas, beliefs and revisions to the issue of gender inequality (whats). The borders are not necessarily defined nor fluid, instead they are somewhat steady in the middle; there is a range for authors to have similar or competing concepts centered on the issue. The community is bound by the concept that gender inequality is a prominent issue within the legal profession and is the cause for many obstacles directed towards women in the profession, all the articles mainly focus on this topic and rarely stray except to acknowledge the views of
For a long time traditional liberal legal theory has struggled to win gender equality through the courts, but has not made the necessary gains. This theory advises women to change their relationship to the male power structure, and offers two ways in which women can do this to attain equity: the “sameness” approach and the “difference” approach. The first approach, “sameness,” suggests that women should stress male-female similarities. Traditional theory justifies this approach by saying, “to the extent that women are no different from men they deserve what (men) have” (33). Traditional theory advises women who feel different to from men use the second approach, and stress t...
The structure of injustice that was most present throughout these readings was that of institutional sexism. Institutional sexism is discrimination based on gender. However, institutional sexism does not have to be solely based on the discrimination of females, but it can also be the discrimination
Although, some may argue that women are still not getting equal opportunity in the workplace as men and that women are not getting equal pay for equal value of their work, the laws and the policy in place are changing this reality. The way that laws and policies are changing this reality is by promoting gender equality in relation to employment within the labour market to ensure that there have been the same improvements economically, socially and politically in the workforce that have been made in North American law (International Labour Office, 2010, p. xii).
With a claim-making framework, repetition, testability, and logical open discourse is accessible. Having a civil rights perspective and utilizing sociological principles are needed for a good claim, and a good one can be quite defensible. A critical eye is essential in the process of claim-making. There are three elements of making claims. The elements are justice, evidence, and process. The elements and their relationship to each other are complex. Furthermore, there are three types of justice
Appearance, however it doesn’t determine moral, psychological, and social manner. To sum it up feminist legal theory purses to deliver how the law played a role in women’s previous lower ranked status and focuses on changing women’s previous status by a revising of the law and taking alternate approaches towards sex and gender. Last but not least Professor Nicola Lacey’s “general principle” supports what the purpose of feminist legal theory is. Professor Nicola Lacey talks about gendered assumptions present in the general principle, in other word saying that the laws are very extensive and results in undetailed analysis of the difference between men and women (Susan Brophy, 2014, Lecture 8A). This theory gives us to think if women and man has total equality in our society.
An additional distinctive character, is if we revise our civil policies so that children may prosper, it will greatly improve the economic status of women. “Enhancing and enforcing child support awards eases the lives of the children of divorce but also bolsters the standard living of ex-wives; mandating parental leave improves life circumstances of infants but also protects the earning power of women and reduces wage gap..” (Hewitt 282).
Since the beginning of time, women have had to protest and fight for equal rights. In society, women have been put on the back burner. Due to the different standards, men and women have had to uphold. These standards are seen in homes, workplaces, schools and all throughout society. By definition, gender bias is an unequal treatment of employment opportunity , and expectations due to attitudes based on the sex of the employee. The idea of discrimination is the unjustification or prejudicial treatment on different categories of people; especially on the grounds of race, age, or sex. In regards to undermine women: according to the article, “Gender Bias or Motherhood Disadvantage? Judgments of Blue Collar Mothers and Fathers in the Workplace”
...d women’s biological purpose has provided men a source of comparative advantage in work. It is, therefore, natural for most companies to think that women cannot be as capable as men in terms of assuming strenuous or challenging positions because women, by default, become less participative and more vulnerable when they start to have family and children. Apparently, this situation has led to various gender discriminations in the labor market.
Discrimination for women in the workforce in the 1900’s were fewer than 25% of those who participated in the labor market. But in today’s time the percent has risen to around 75% and is still growing. As many women were affected in the workforce by prejudice. One in four women go though discrimination during the workforce process at least once during her life. Unlike men women are more likely to accept a lower income job because they have a house to clean, and also a husband and family to take care of. A fact is known that all women will make less over their lifetime then men will. More women are encouraged to follow the stereotypical career path such as nursing and teaching then doing construction work or even being a truck
Equal pay for men and women for the equal work is a vital subject of great concern to society in general and employees in particular, a disproportion in wage payment leads to unrest and discontent. Though labour welfare enactments have provided various protections, safeguards and benefits to working women in our country. There was an growing need to give more protection to female workers who are discriminated as regards employment and wages. The wages of women have traditionally had a tendency to lag behind those of men except in few cases. Moreover, the net earnings of the women have traditionally tended to lag behind those of men except in few cases.