Women's Work: Who Cares
![handle is hein.journals/sydney14 and id is 94 raw text is: Before the High Court
Women's Work: Who Cares?
REGINA GRAYCAR*
Introduction
We know very little about what happens to accident victims who receive
damagesawards.I For many years, it has been recognised that the once-and-for-
all, lump sum method of assessment may amount to little more than a forensic
lottery.2 Perhaps its chief failing is that there are too many contingencies and
uncertainties about the future of which the courts must take account when
assessing damages.3 As well as a chance that the plaintiff will fall under the
metaphorical bus on her way out of the courtroom, there is also the possibility
that the plaintiff will live much longer than predicted, or that the value of money
will erode further than predicted.4 The costs of providing the victim with
necessary care might escalate, or the quantum of care required might increase.
Relationships with partners or other people close to the accident victim might
break down.
Occasionally we hear of instances which confirm some of these concerns.
Perhaps the best known case is that of Gillian Thurston, rendered a quadriplegic
at the age of 15 and awarded what was in 1965 a record amount of $139,000.5 In
1974, her mother wrote to the Woodhouse Inquiry stating that the total amount of
damages had been invested, but the full return was completely taken up with
medical and nursing expenses.6 By 1981, Ms Thurston's mother, at that time a
widow aged 62, had been forced to reduce the paid nursing services to six hours
per day five days per week, and herself cared for her daughter the remaining 138
hours per week.7 She had sold some of her capital assets to continue to pay the
nurses. In the reports of Gillian Thurston's trial (and the appeal), a number of
* Associate Professor of Law, University of New South Wales. I am indebted to Michael
Chesterman, James Crawford, Jenni Millbank, Jenny Morgan, Malcolm Rodgers, Elizabeth
Sheehy and Michael Tilbury for their various contributions to this paper.
1 For some statistics on accidents and sources of compensation for them, see NSW Law Reform
Commission Issues Paper, Accident Compensation, 1982. See also Cane, P, Atiyah's Accident
Compensation and the Law (4th edn, 1987) chs 1 and 8 and Harris, D, et al, Compensation and
Support for Illness and Injury (1984).
2 Ison, T, The Forensic Lottery (1967) and see Atiyah's six count indictment of the common law:
Cane, nl at 415-436.
3 For a discussion of problems in assessing hypothetical events in the future, see Malec v JC
Hutton Pty Ltd (1990) 169 CIR 638 at 642-3 (Deane, Gaudron and McHugh JJ).
4 See Todorovic v Waller (1981) 150 CLR 402.
5 Thurston v Todd [1965] NSWR 1158 (Asprey J); Thurston v Todd [1966! 1 NSWR 321 (CA).
The component for future nursing care was $80,000 (£40,000, calculated at £.55 per week for 30
years).
6 Report of the National Committee of Inquiry into Compensation and Rehabilitation in Australia
(the Woodhouse Inquiry) (1974) Volume 1, Appendix 6.
7 See Davis, J L R, Damages for Personal Injury and the Effect of Future Inflation (1982) 56
ALl 168 at 174.](ViewImageLocal?handle=hein.journals/sydney14&div=11&collection=&method=preview&ext=.png&size=3)
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Women's Work: Who Cares
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