The Law of Tort - Case Study Example

THE LAW OF TORT "The approach of English law towards duty of care has been inconsistent, illogical and unfair on the claimant." The Law of Tort is supposedly used to remedy damage inflicted where redress is not available in penal law. In cases of physical damage, law and jurisprudence have come up with rules that have made it relatively easier for claimants to seek redress, although it might be argued that recent decisions1 have actually raised the ante and made it more difficult for claims based on physical injury to prosper. Despite the developments and evolutions in tort law, however, there still are patches of gray areas - hazy and uncertain terrains, indeed - where much is subject to the vagaries of belief systems and paradigms. This paper's thesis is that one such gray area is the field of tort law in relation to duty of care in the aspect of non-physical injuries, particularly in the aspect of gender discrimination. The author is of the belief that it is when one looks at the cases involving gender orientation discrimination that one sees best how English law is inconsistent, illogical and unfair on the claimant. The cases examined will demonstrate not only legal contortionism at play, but language contortionism as well. After all, as stated by Andrew Altman in the article Legal Realism, Critical Studies and Dworkin, (1986) the law is infused with irresolvably opposed principles and ideals, and this legal indeterminacy, as it is called, compels the judge to make a choice that is not dictated by law. Once-sacrosanct legal precepts are being dismantled, stare decisis as a doctrine is being reexamined, and the infallibility of the courts as repository of truth and justice is being questioned. The law is no longer a fabric of clearly-defined spectrums, but is rather a patchwork quilt of various shades of gray. Taking this view is important in that it stimulates self-interrogation. It does away with the all-too-convenient givens of a legal system - that there is but one set of "correct" rules and that legal decisions are but logical outcomes of tested principles that are empirically-replicable. It aspires to expose the ideological content of the law obscured by layers upon layers of social conditioning by demonstrating how the large areas of legal indeterminacy provide fertile ground for the cooptation of the legal system to reinforce existing power arrangements. This brings us to our discussion on tort cases involving gender discrimination. Conaghan (1996) states: From a social perspective, feminists have argued that women suffer particular harms and injuries as women: their experience of pain and injury is indistinguishable, to a large extent, from the experience of men. This claim has at least two dimensions. On the one hand, pregnancy and childbirth, menstrual and/or ovulation pains are obvious examples of gender specific "harms". Men do not/cannot experience these traumas directly. On the other hand, the concept of gendered harm can also embrace those harms, which, although not exclusive to women in any biological sense, are risks which women are more likely to incur than men - the risk or rape, incest, sexual harassment, spousal abuse, or, more contentiously, the risk of harmful medical intervention. By and large, there is no dearth of legislation prohibiting discriminatory practices against women. However, in practice, jurisprudence has made it difficult for women to raise tort-related claims. Certainly, there are cases that are cut-and-dried; for instance, when it is patently obvious that there is discrimination on the basis of gender. However, in this day and age, it is less likely to find a case wherein the discrimination is so obvious that it unquestionably amounts to an illegal act. One would be hard put to find an employer who would dare violate the stringent regulations against workplace-related discrimination, instance. There is a greater likelihood that the discrimination would be insidious, perhaps having to do with a careless statement loosely made that betrays the speaker's biases and prejudice, clearly hurtful and demeaning, but difficult to pin down by using a specific law. In "hard" cases with novel facts, the role of the judge becomes infinitely more difficult. The boundaries are ever-shifting; and internally, the judge will be trying not only to apply the law, but to subject the text or speech in question to her own subjective inquiry in order to determine the intent of the message-bearer and what the material was trying to say. Social and political values inevitably come to the fore. These meanings are merely "assigned meanings" born of the collective experiences of people in a community and this system of interpretation is never static. If tort based on gender discrimination is difficult for women, it is even more so for homosexuals, a class of individuals waging a struggle for acceptance historically fraught with difficulty, oppression and pain. Certainly, significant inroads have been made with regard to protecting their rights. In other jurisdictions, the legal principle has been laid down that "protection from discrimination on the basis of gender" extends to "protection from discrimination on the basis of gender identity." This has led to the creation of the "gender non-conformance" legal theory -a theory that essentially states that "discrimination because one fails to act in the way expected of a man or woman is forbidden". In another case applying the same theory, a bank was held liable for refusing credit to a cross-dressing applicant, and the Court held that the laws protecting human rights and prohibiting discrimination prevail over private regulations and company policies. However, it would seem that in English law, legal gymnastics is resorted to to deny the "duty of care" when the claimant is a homosexual alleging discrimination based on gender orientation. A good example of this is the "heterosexual comparator" argument. In the language of Robert Wintemute (1977): If a man complains that he has been treated differently because he has a male partner, the usual response is that there is no direct sex discrimination because a woman who has a female partner would be treated in the same way. This comparison avoids a finding of direct sex discrimination by changing not only the sex of the man, but also the sex of his partner. Yet for a valid sex discrimination analysis, the comparison must change only the sex of the complaining individual, and must hold all other circumstances constant. Otherwise, a change in some other circumstance (such as the complaining individual's qualifications, their choice of job or the sex of their partner) could hide the sex discrimination. Two cases are important to note in relation to this, the decisions in which are troublesome and appear to reveal the unwillingness of the legal system to rethink its traditional paradigms, particularly in regard the issue of gender. The case of Lisa Grant -v- South-West Trains Ltd [Case C-249/96], decided by the European Court of Justice, makes a good study. Lisa Grant was employed by SWT whose employees were entitled to travel concessions. "Privilege tickets" were granted for one legal spouse of an employee and also to "one common law opposite sex spouse (emphasis provided)... subject to a statutory declaration being made that a meaningful relationship has existed for a period of two years or more..." That travel concession was an aspect of pay within the meaning of Article 119 of the Treaty. The important question raised in this case was whether that provision conferring the benefit on an employee who lived with a person of the opposite sex constituted discrimination based directly on the sex of the worker. In answering the question in the negative, the court held in this wise: That condition, the effect of which is that the worker must live in a stable relationship with a person of the opposite sex in order to benefit from the travel concessions, is, like the other alternative conditions prescribed in the undertaking's regulations applied regardless of the sex of the worker concerned. Thus travel concessions are refused to a male worker if he is living with a person of the same sex, just as they are to a female worker if she is living with a person of the same sex. Since the condition imposed by the undertaking's regulations applies in the same way to female and male workers, it cannot be regarded as constituting discrimination directly based on sex. By the simple expedient of pointing out that a man living in with another man would be refused too, the court justified the act of refusing travel privileges to a woman living in with another woman. This is clearly illogical. What the court did was it assumed the regulation to be valid - that is, the clause referring to "one common-law opposite sex spouse - and merely focused on its implementation. Since, the regulation would have been implemented in the same manner against a man with a common law same sex spouse, then there can be no finding of discrimination and there is no tort. Had it looked at the clause and analyzed it carefully, then it would have realized that the clause itself was discriminatory. There is clearly a violation of equal protection. The regulation did not give a distinction between same sex spouses and opposite sex spouses, nor tell us why it is necessary to make distinctions in the first place when granting travel privileges. It should have been the first point for the court to dispose of. It chose not to. In the same year as the Lisa Grant case is the case of P -v- S & Cornwall County Council [1996] ECR 1-2143, where the Court ruled in the same tenor. It found that the provisions of the directive prohibiting discrimination between men and women were simply the expression of the principle of equality which argued in favor of applying it to discrimination based on the workers' gender assignment. Hence, while a transsexual may rightfully invoke it, having switched gender assignment, a homosexual still biologically male, may not. To quote the Court: "...the scope of that article (Article 119) ...is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context. It follows from the considerations set out above that Community Law as it stands at present does not cover discrimination based on sexual orientation". Comes now the case of Smith v Gardner Merchant Ltd [1998] EWCA Civ 1207 (14 July 1998). The appellant, a homosexual man was hired as a barman at a Theatre, where a co-worker constantly taunted him and made personal remarks about his being gay, going to the extent of saying that gay people carry "all sorts of diseases and should all be placed in one island." The co-worker fabricated stories about the conduct of appellant to management, and as it was her version that management believed, appellant was found to be guilty of gross misconduct. In the decision, this categorical statement could be found: The Industrial Tribunal and the Appeal Tribunal were, therefore, correct to conclude that there is a difference between discrimination on the ground of sex and discrimination on the ground of sexual orientation and that a person's sexual orientation is not an aspect of his or her sex. The court went on to state that: The error lies in the conclusion, which was virtually a conclusion of cadit quaestio , when, as I now see it, the right question had not been addressed. The right question framed in terms of Section 1(1)(a) is whether the applicant, a man , had been less favourably treated than his employers treated or would have treated a woman . By focusing on the applicant's homosexuality, the drift of the argument pushes one almost ineluctably - as I myself was carried along - to ask the wrong question: was he discriminated against because he was a man (sex) or because he was a homosexual (sexual orientation) In concentrating on that, one falls into the error that one does not make the comparison which the statute requires namely between his position as a man , and the comparative position of a woman . The fault in the argument is that it precludes consideration of a vital question, namely whether or not discrimination against him based upon his homosexuality may not also be discrimination against him as a man. What is obvious in the line of cases cited is that there is a resistance to the idea of homosexuality and accommodating it as a concept in the discussion of gender discourse as it impacts on law and breach of duty. The idea that gender does not embrace gender identity may seem repulsive to gay rights advocates, and indeed, it is. For homosexuals who have struggled and continue to struggle for acceptance in a predominantly heterosexual society with heterosexual norms, such idea is yet another indicator of how the hegemony of gender has managed to permeate the legal system, and how the legal system has allowed itself to be co-opted to preserve antiquated paradigms and belief systems, when it fact, it should enervate the journey towards the creation of a culture of diversity and pluralism. Conservatives maintain that the law is a bulwark, and as such it needs to protect the status quo. Indeed, the need to keep the law moored in a stable scientific framework cannot be discounted. The more scientific it is, the more empirical, the less likely will it be subjected to the vagaries of politics and the moral predispositions of our human arbiters and judges. The element of replicability will safeguard it against fluctuations of power. That said, however, given the changing complexion of conflicts and players that has led to the creation of many new areas of dispute and controversy, given the increase of social sectors and the resultant widening of the competition of divergent interests, the law has no choice but to reposition itself. The many gaps in the law that have failed to take into account these newly-emergent and marginalized interests demand that the legal system view itself as a mechanism to address iniquity and to take on a more responsive - and responsible - social function. REFERENCES Altman, A. Critical Legal Studies: A Liberal Critique. Princeton University Press. 1986. Conaghan, J. Gendered Harms and the Law of Tort: Remedying (Sexual) Harassment. Oxford Journal of Legal Studies, Vol. 16, No. 3 (Autumn, 1996) , pp. 407-431 Wintemute, R. "Recognising New Kinds of Direct Sex Discrimination: Transsexualism, Sexual Orientation and Dress Codes" [1977] 60 Modern Law Review 334. Streeter, T.. Some Thoughts on Free Speech, Language and the Rule of Law. 1995. (from Robert Jensen and David S. Allen (eds.), Freeing the First Amendment: Critical Perspectives on Freedom of Expression, New York University Press, 1995, pp. 31-53.) Read More