Family Law

Do males get more compensation money than females in Australia?

Various features of our compensation system give appearance of favoring males.   I recognise that such statement has high sensitivity and it likely wasn’t the intention of our law-makers to create any bias yet through exploration of several features (which are described in this Article) there is scope for potential improvement under the aim of making the system gender neutral.

Type of Injury

Let us firstly explore the way that compensation is payable in reflection of injury.   By the nature of the design of our compensation scheme, different types of injuries attract a higher payout.  Each of the State Governments in Australia have introduced legislation (different yet similar in effect) that imposes a prescription on the method for prosecution of compensation claims (meaning, the mandatory steps to be taken prior to entrancing the case into the Court system), and also (most important for this analysis) prescribed limitation on the amount payable for “pain and suffering”, as 1 important element (of several elements) considered in the calculation of the pay-out price.  The prescription is defined by injuries being individually categorized (such as lower limb injury, separate to damage to eye, and separate again to psychiatric injury etc.) and within each category there is then a prescribed range reflecting the level of severity (meaning, a higher level through to a lower level measurable by reference to the extent of permanent impairment created by the particular injury).

Such prescription method creates potential inequality.

Here is a real-life example encountered by one of my  clients, as a sample to illustrate the difficulty with the prescription method.   She was a young, single woman seriously injured when run over by a bus when on short holiday visit to Cairns.   As a pedestrian she was blameless in the accident.   The CTP insurer of the bus was obligated to pay financial compensation to her.   An important component of the assessment of the compensation payout was “pain and suffering”.   My client had been left with disfiguring scarring to her leg as a result of a horrible degloving injury.    Basically, the skin of her leg has been torn back completely when she was trapped under the wheel of the bus.   Very naturally, the permanent scarring was of huge worry for this client as both a young person and a female.    Can you image her distraught when trying to think about her future including going on date with prospective husband/partner or anxiety about going to the beach or swimming pool (which she had enjoyed regularly before the accident) due to worry about her physical appearance.

Those genuine concerns for this female client were never capable of being appropriately recognized because of the prescription regulation.   The calculation of the amount for her “pain and suffering” was simply regulated under the scheme by reference solely to the level of permanent impairment, defined by medical rating based on the extent of the scarring, and excluding her personal feelings.   Whilst she was entitled to an amount of money (meaning, she was not entirely disregarded) the amount defined by the prescribed regulation was incredibly modest, and in no way reflected the deep personal impact created by permanent scarring to her leg.

As with any form of injury, the person afflicted with severe scarring from an accident will be entitled to compensation for the pain and suffering, as well as the pecuniary expenses that go with reasonable attempts to mitigate the effects of the disfigurement, such as via the taking of plastic surgery.

Injuries Particular to Women

The next consideration is that we can easily think of many types of injuries which are particular to women, such as injury suffered during child labor and birth.    Plus, there is a similar thought about injuries which although they arise with men are more commonly experienced by women.   An example is injuries from sexual assault and domestic violence in which the statistics clearly indicate that women are much higher afflicted than men.

Interestingly, Judges have taken different approaches.   For example, Justice Kirby in the New South Wales Court of Appeal deplored remarks by Trial Judges to the effect that cosmetic injuries might be more harmful to women than men.   In the view of Justice Kirby, he considered that such views were the type of evils sought to be eradicated by anti-discrimination legislation.   Other Judges agreed that to the extent that they accepted that the extent of the individual claimant’s suffering must be assessed (whether female or male) and that generalisations and stereotypes should not be applied.   Is it possible however that in Australian society the public reaction to the same scarring to a female as compared to a male is different?   And, if such discriminatory attitudes exist in our society, should that factor be a relevant consideration in the assessment of compensation?

Women Impacted in Role as Carers

Within this general theme, another feature within the compensation system that has a potential bias is in situation where an injured person is being cared for at home typically by spouse or family member.   That scenario includes of course situations in which men perform the role of carer (and often admirably perform) yet statistics support the status of women providing the majority of unpaid caring work.    According to the Australian Bureau of Statistics, in the order of 68% of primary carers of people with disability are women.

Historically,  our Courts have recognized the value of the support provided to injured person, typically by their spouse or other family member, notwithstanding that such support is provided without charge.    In 1977 it was the landmark case in the High Court of Australia in Griffiths v Kerkemeyer that affirmed that entitlement for the injured person’s payout to include money for the component of the care provided by family and friends, even though the care was provided gratuitously (meaning without charge).    From that case, the value of the care support was recognised, whereas previously it was only professional care services (which were paid at a cost by the injured person) that were recoverable as part of the compensation payout.

The position has been changed dramatically as a result of the State Government legislation.   The same government law that regulates the entitlement to “general damages” has imposed an artificial restriction on recovery for gratuitous care.   The restriction is created through the legislation defining a ceiling in which it is only care provided for a minimum of 6 hours per week for 6 months which is compensable.    The result is that any care provided at a lower level has nil compensation entitlement.   What a poor sense of justice when (as an example) a wife reduces her work to part time only in order to support her injured husband at home, yet that support amounts to 5 hours per week, rather than the artificial 6 hours ceiling) meaning that the wife’s very kind help is entirely disregarded.

It might be described that the effect is to devalue the “free” care by female family members.

Rights Law

Women’s rights, in Australia, are covered in various legal frameworks and supported via government initiatives, including promotions toward gender equality.  The Sex Discrimination Act made in 1984 is a key platform of federal government-made law that prohibits discrimination based on several factors including outlawing discrimination based on sex.

End Remark

Fun fact to finish:  In 1902, Australian became the first country in the world to grant women the right to vote and stand for election.