LAMBERTUS is injured in a car accident. It is the other driver’s fault. Lambertus needs 24-hour care. He has psychiatric problems caused by the accident. His wife is a part-time nursing aide. She gives up her job to care for Lambertus full-time. It is expected this will go on for seven years when Lambertus will go to a state-run hospital for the rest of his days.
Lambertus seeks damages. What should he get _ the amount of wages his wife has lost for seven years or the full market value of full-time care for seven years? Or something in between?
The question was answered by the High Court last week. The question was loaded with policy and moral issues. What is the value of “”women’s work”? Why should Lambertus get money compensation for services his wife was providing anyway? Why should the other driver or his insurance company benefit just because their victim has a loyal wife willing to sacrifice herself for her husband? and so on. And then there is the possibility that the wife might stop the self-sacrifice for reasons unconnected with the accident or because the accident makes the husband unable to fulfil his part of the partnership by doing things for the wife. Lambertus might be left high and dry.
Of course, this is one of the many troubles with lump-sum payments. No-one can predict how long the injured person might live or whether his condition might improve or deteriorate. But judges are stuck with the lump-sum system. They have to establish principles that will make it as fair and predictable as possible.
The court split. Two judges, Deane and Dawson, said an insurance company, and therefore the whole community, was paying the damages. They thought, therefore, that it was no argument to say a “”wrongdoer” was getting a benefit because his victim had a service-providing wife. Lambertus was likely to continue in a stable marriage relationship and get those services anyway therefore he should not be compensated for what he had not lost. Justice Mary Gaudron took a different view. Lambertus should be compensated for the full commercial value of the services provided by his wife, she said. Not to do so would equate “”a wife to an indentured domestic servant”. Mason, Toohey and McHugh took a similar view as Justice Gaudron, though for slightly different reasons.
The real issue is not so much Lambertus’s damages. Rather it is the fact that judges are required from time to time to decide what can only be described as broad social issues. The differences in approach can only be explained by reference to differing social perspective, not differences of pure legal conclusion.
It is, if you like, judicial legislation. But judges have been doing it for centuries: they build up the law as new circumstances arise. It is ridiculous to pretend they are merely stating the law as already exists.
The judges are not groping down a tunnel turning on the lights as they go. That paints a too-restrictive picture. Rather they are digging the tunnel, installing the lights and turning them on. However, even with a tunnel-digging task, they cannot take the law wherever they like. They can only dig from a pre-existing tunnel. Unlike Parliament, they cannot decide to start a new tunnel anywhere they like. Thus they can only branch from the existing tunnel. Moreover, they cannot dig back upon themselves. Once dug, only Parliament can fill in the tunnel. There are exceptions to this, but as a general principle only the highest courts can fill in earlier tunnels and they only do so if they are manifestly dangerous.
In Lambertus’s case, for example, they could not overturn the whole system of third-party damages and the requirement to prove negligence in car-accident cases. Only Parliament can dig that tunnel.
None the less, the ambit within which the judges work leaves plenty of leeway. Lambertus’s damages claim and his loyal self-sacrificing wife provided the plot to illustrate the point that judges’ personal experience and philosophy can influence their legal reasoning. The only woman judge spoke out against wives as indentured domestic servants. The judge regarded as the court’s most conservative (Dawson) was on the side of saying Lambertus should not get compensated for services his wife was providing anyway. In the upshot, the result was unexceptional.
If it were exceptional, of course, the legislature could overturn it. Indeed, the ACT House of Assembly got in before the High Court on this issue because it did not have to wait for a case to arise. It legislated almost precisely along the lines the majority argued. As a legislature, the ACT House of Assembly could start digging where and when it liked.