Campbell, Jane --- "Gratuitous care is a feminist issue" [2018] PrecedentAULA 3; (2018) 144 Precedent 4

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GRATUITOUS CARE IS A FEMINIST ISSUE

By Jane Campbell

If your child or partner was seriously injured, would you give up work to provide care?

Whether you are a man or a woman may govern your response. If you are a woman, you may not have a choice. Society expects women, rather than men, to provide care and many more women than men perform this role.

But does society understand the massive difference between providing normal familial care and the relentless exhaustion of caring for a loved one with serious and permanent disabilities?

Who should bear the financial burden of you providing this gruelling level of care? You, your family, the wrongdoer (if there is one), or the taxpayer?

Griffiths v Kerkemeyer^[1] provides a mechanism for compensation to include the value of care provided gratuitously by family members to injured people. However, this important head of damages has been seen as an easy target for state governments seeking to cut costs.

The National Disability Insurance Scheme (NDIS) and state-based schemes such as the NSW Lifetime Care and Support Scheme specifically do not allow family members to be paid for providing care other than in exceptional circumstances. This policy is purported to support women, by allowing mothers and wives to engage paid carers and to pursue their own employment opportunities. However, the practical reality is that, due to a chronic shortage of quality carers and the general preference of individuals for family care over that provided by a third party, women continue to bridge the resulting gap with unpaid care.^[2]

Our taxes and insurance premiums are therefore being kept down by the care work provided by an army of unpaid women in homes around the country. The cost of care is falling disproportionately on women.

This article considers the gendered impact of the repeated attempts to reduce access to damages for gratuitous care. It considers the extent to which past and present laws and policies support or exploit women who care for their injured or disabled family members. This exploration highlights the importance of having diversity in decision-making, both on the bench and in government, so that the experience of and impact on all groups in society are reflected in judicial decisions and policy.

PRIVATE PAIN

Every week I meet women providing unpaid care for their children or spouses who have been injured and have received compensation. They sometimes reflect on their situation and how it unfolded – the accident, the hospital, how they dropped everything, and how the weeks of care turned into months, and then years.

Care work is indeed unrelenting, and many relationships don't survive the pressure. In addition to the physical and financial challenges, there are ongoing battles with bureaucracy, and the need to cope with both a permanent lack of privacy and a complete loss of freedom.

Most women in this position did not consciously decide to give up work; it j was an inevitable consequence of their circumstances. They realise that, as a result, they often have no superannuation or, in fact, any personal financial security at all.

Many would like to go back to work, but it’s just not practically possible. Funds available from a compensation payment or NDIS package can help; but appropriate and reliable care is often simply unavailable. This reality is not reflected in existing government policies.

WOMEN’S WORK

Around the world, caring is usually considered women’s work. It is expected that women will look after children, the elderly, the sick and disabled.

In 2016, Melinda Gates stated, ‘Girls today will spend hundreds of thousands more hours than boys doing unpaid work simply because society assumes it's their responsibility.’^[3]

In Australia, there has historically been only limited government investment in the paid care sector. Women have filled the void and provide many hours of unpaid care.^[4]

In March 2017, PwC published a report entitled Understanding the Unpaid Economy. It noted that, in Australia, women are significantly over-represented in the unpaid economy, accounting for almost three-quarters of all unpaid work.^[5] In total, women perform 76 per cent of childcare, 67 per cent of domestic work, and 69 per cent of the care of adults.^[6]

Mothers across all socio-economic groups are more likely to take time away from paid employment to perform unpaid childcare and/or care for elderly parents. Regardless of the household situation, the societal norm is that women are more likely to undertake domestic or caring tasks.

Work roles and patterns in Australia are therefore still predominantly shaped and influenced by gender: women’s participation in the paid workforce is more than 10 per cent lower than men’s; women are under-represented in traditionally male-dominated occupations and industries; and mothers spend more time caring for children and doing housework than fathers.^[7]

Men are still concentrated in traditionally ’blue-collar’ industries like mining, construction and manufacturing, and women in traditional ’caring’ industries. The concentration of women in particular industries is leading to poor gender equality outcomes.^[8] The gender pay gap persists, and women are currently retiring with only around half as much superannuation as men.^[9]

Women’s increasing participation in the paid workforce is likely to affect their ability and willingness to contribute the estimated 20 billion hours of unpaid care a year that we currently rely on.^[10]

1977 GRIFFITHS v KERKEMEYER

The 1960s and 1970s was a time of significant social change in Australia. The Family Law Act passed in 1975 enabling no-fault divorce. More women were working and seeking equal rights and equal pay.

Perhaps it is not surprising, then, that in 1977 the High Court of Australia decided that, in calculating damages for personal injury, it was no longer good enough to ignore the care so often provided by women free of charge to injured people.

In Griffiths v Kerkemeyer, the High Court made it clear for the first time that damages could be recovered for the costs of care, even where the care was, at the time of the judgment, being provided ‘gratuitously’; usually, though not always, by a member of the plaintiff's family.

The case brought into focus the issue of what family members ought to be expected to do, and whether defendants could assume that family members would continue to provide gratuitous care, thereby reducing the compensation payable to those whose injury they had caused.

The decision was a great step forward, recognising the onerous unpaid work undertaken by family members. Stephen J stated that care at home ‘necessarily entails devoted care on someone else’s part, often a wife or woman relative who may have to abandon her ordinary employment to nurse the plaintiff and who will in any event find the task a demanding one’.^[11]

The case gave accident victims able to claim damages for their loss (and their carers) a real choice as to how to secure the necessary care, at least in theory. Paid care became a viable option.

BACKWARDS AND FORWARDS IN THE 1980s

During the 1980s more women entered the workforce, challenging assumptions about women and their role in providing care in the home.

However, unease about the notion of funding care for plaintiffs at commercial rates was evident from the beginning. Within months of Griffiths v Kerkemeyer, state courts (especially, though not exclusively, the NSW Court of Appeal) began imposing limitations on recovery under this head of damages.^[12] This trend of limiting damages, particularly during the 1980s, was adopted by several state legislatures.^[13]

Yet, while damages for gratuitous care were being limited, welfare payments were being formally extended to carers.

In a sign of the times, the spouse carer's pension was introduced in 1983. It was payable to a man caring for his severely handicapped or invalid wife who required constant care and attention in the matrimonial home, but not to a woman caring for her husband.^[14]

In 1985, this gender discrepancy disappeared when the spouse carer’s pension was subsumed by the carer's pension, which provided income support to a person with limited means who was providing constant and long-term care to a severely disabled spouse or near relative in receipt of an age or invalid pension.^[15]

Carer payments were an overdue but important acknowledgement of the need to provide financial support to carers.^[16]

1992 VAN GERVAN v FENTON

In 1992, the High Court revisited the issue of gratuitous care.^[17] Its decision was analysed in an excellent article by Reg Graycar, from the University of Sydney Law School, entitled ‘Love’s Labour’s Cost: The High Court Decision in Van Gervan v Fenton’.^[18]

In this article, Graycar outlined the facts of the case as follows:

• The plaintiff was injured in a motor vehicle accident in 1984, when he was aged 59, after which he became totally unemployable.

• Due to his severe depression, held to have been substantially caused by the accident, he required constant care and attention.

• Medical evidence given at trial indicated that he had become totally dependent on his wife and ‘would be devastated by being removed from her care’.

• The doctor considered the plaintiff's condition incurable and indicated that he would need annual hospitalisation for reassessment and monitoring of medication as well as respite for his wife.

The main issue in dispute was the assessment of the relevant Griffiths v Kerkemeyer damages. The trial judge had calculated these by reference to the income forgone by Mrs Van Gervan when she reduced her paid work outside the home so as to care for her husband on a full-time basis, and the Full Court in Tasmania had affirmed that approach.

The High Court allowed the appeal. The majority rejected the view that the appropriate quantum of damages for the cost of care was the amount of wages forgone by Mrs Van Gervan in leaving her job to look after her husband.

Graycar noted:

• As the Court acknowledged, a critical factor in maintaining the relationship between the carer and the plaintiff accident victim may be the availability of outside help: to assume that a person in an intimate relationship will continue to provide services free of charge and indefinitely ignores not only the contingency that something will happen to the care provider, but also the very real possibility that this might precipitate the end of the relationship.

• Some members of the Court were able to move beyond the notion that a wife’s role is that of, as Gaudron J put it, an ‘indentured domestic servant’,^[19] to serve her husband, in sickness (or injury) as in health. It may not be a coincidence that such an observation was made by the first woman to serve on the High Court.

• Nonetheless, Deane and Dawson JJ’s dissenting opinion (and, to a lesser extent, Brennan J) still resorted to traditional notions of marital relationships in making their decisions about such a basic legal issue as personal injury damages assessment.

• Invoking terms such as the ‘ordinary give and take of marriage’,^[20] or the ‘ordinary incidents of a particular continuing relationship’^[21] provide little if any assistance in determining how an accident has created a need for care and attention which must be provided by someone.

• An assumption that a plaintiff with a wife already has a carer, who will be presumed to sacrifice her paid work, her social freedom and her general amenity to meet the post-accident needs of her spouse, when used to deny or limit compensation for the costs of care, reinforces a view of marriage that is simply no longer acceptable (if indeed it ever was).

Graycar considered the broad issue of whether assumptions about gender may affect damages where the accident victim needs considerable amounts of care, given that most of the carers of accident victims are women.

In looking at the minority dissenting judgment of Deane and Dawson JJ, she queried whether their desire to limit the damages for gratuitous care lay in ‘outmoded stereotypes of women and their work’,^[22] or their more general concern about there being an over-generous approach by the courts which might conflict with the interests of the community as a whole.

She argued that reinforcing inaccurate and archaic views of marriage, ‘in an empirical context where women’s double burden of work has not changed’, was hardly an appropriate way to deal with a policy concern about the cost to the community of personal injury damages.^[23]

In Graycar’s view, the majority decision clearly told the courts below that the singling out of Griffiths v Kerkemeyer damages for reduction, alone of all the heads of economic loss, because they are seen as dispensable, being only for ‘women's work’, was a misapplication of the 1977 High Court's decision in Griffiths v Kerkemeyer.

In fact, the majority of the Court in Van Gervan had clearly recognised the onerous nature of the work involved in caring for an accident victim, whether in a person's own home or elsewhere, and had restored some dignity to this important work which, were it not for the army of carers in homes around the country, would also otherwise have to be borne by the community.

Her commentary and analysis are as relevant now as they were in the 1990s.

LEGISLATIVE RESPONSES TO GRATUITOUS CARE/TORT LAW REFORM

Courts’ recognition of gratuitous care claims resulted in much-needed recognition of the impacts of injuries on the injured person’s family. However, over the decades, governments around Australia have sought to reduce the financial impact of this head of damage, without appreciating that these reforms themselves would have an impact on carers, again predominantly affecting women.

Around the turn of the century, there was increasing concern about insurance premiums, and high compensation levels being awarded by the courts. There was also increasing evidence of disabled Australians living in poverty.

Governments sought to respond to these concerns by limiting the circumstances and amounts of compensation that could be awarded, and introducing no-fault care schemes. The aim was to ensure that insurance premiums would remain affordable by reducing compensation amounts, and to enable paid care to be available to more disabled Australians.

The Lifetime Care and Support Scheme in NSW, and the NDIS at the federal level, exemplify this policy approach. These schemes will almost never provide payments to family members to care for their loved ones. They are predicated on the belief that family relationships are better supported if care is provided by an external provider, freeing up family members to go out and work, pay taxes and contribute to their own superannuation funds.^[24]

However, there was no rigorous analysis done on the merits of this approach generally, let alone how the reforms would impact on women and men differently. Perhaps the lack of workforce planning to accommodate the NDIS can partly be explained on the basis that governments knew that if suitable paid care was not available, then women would quietly continue to shoulder the burden of caring for their injured loved ones?

Governments rely on women to sacrifice their own needs, freedoms and financial security to provide the care required. The system would collapse if women stopped providing gratuitous care.

SO WHERE ARE WE NOW?

The situation for women who wish to care for their injured family member today is, for most, better than it ever has been. Enabling government-paid commercial care for those who need it is a good thing. The NDIS and schemes such as the NSW Lifetime Care and Support Scheme provide much-needed respite for some carers.

But for too many women, nothing has changed. The challenge of obtaining suitable commercial care is too great. The various bureaucratic, language, cultural and other hurdles are too high to overcome, so they carry on.

Unfortunately, despite being fully aware of the problems of ’thin markets’ for commercial care, governments are not prepared to be flexible and consider the merits of allowing family members to be paid to provide care in appropriate circumstances.

CONCLUSION

Looking at the issue of gratuitous care through a gendered lens exposes the difficulties for women who bridge the gap and provide this care. Catastrophic injuries are not only catastrophic for those who are injured. The broader long-term impact is most often borne by women who perform essential caring functions for their children, partners and parents. Big policy changes such as the introduction of the NDIS and NIIS have failed to recognise or address the complex social issues regarding women and care work. This means that women carers are unfairly bearing the real cost of injury and disability in our community.

Women need a voice in policy and law-making. Where would we be if Griffith v Kerkemeyer had not been heard by the first woman in our High Court? She recognised the injustice of women being viewed by the law as ‘indentured servants’.

Cutting damages for gratuitous care might seem like an easy target for governments seeking to curtail damages costs. Not paying family to provide care even when it makes best sense to do so will save the NDIS money. However, the reality is that these costs have simply been shifted on to those who provide the necessary care: women who do not have the capacity to absorb them, and instead suffer significant financial detriment as a result.

Governments would do better if they focused on how to encourage the contributions currently made by voluntary unpaid carers and by encouraging people to enter the caring profession. A flexible approach that more accurately reflects the reality faced by injured people and their carers would be a much more effective means of distributing the costs of injury across the community.

The author wishes to thank Mark Blumer for raising this topic as one deserving attention, and particularly drawing attention to the relevance of Reg Graycar’s article on gratuitous care in the context of NDIS and NIIS policies which do not support family being paid to provide care.

Jane Campbell is a lawyer and financial adviser who specialises in providing independent financial advice to plaintiffs. WEBSITE www.aeran.com.

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^[1] [1977] HCA 45; (1977) 139 CLR 161.

^[2] Families have access to the NDIS even if they have received compensation. However, gratuitous care is only recognised in the cases of those who are awarded Griffith v Kerkemeyer compensation (and many carers care for people who don’t get compensation).

^[3] B and M Gates, Annual Letter, 22 February 2016, <https://www.gatesnotes.com/2016-Annual-Letter?WT.mc_id=02_22_2016_20_AL2016_MED-media_&WT.tsrc=MEDmedia>.

^[4] S A Hoenig and A R E Page, (2012), Counting on Care Work in Australia, Report prepared by AECgroup Limited for economic Security4Women, Australia <https://www.security4women.org.au/wp-content/uploads/eS4W-Counting-on-Care-Work-in-Australia-Final-Report.pdf>.

^[5] PriceWaterhouseCoopers (PwC), Understanding the unpaid economy (March 2017), <https://www.pwc.com.au/australia-in-transition/publications/understanding-the-unpaid-economy-mar17.pdf>.

^[6] Ibid.

^[7] NSW Government Family and Community Services, Women NSW, Women & Work <https://www.women.nsw.gov.au/women_and_work>.

^[8] BEC/WGEA, Gender Equity Insights 2017: Inside Australia’s Gender Pay Gap, www.wgea.gov.au

^[9] D Hetherington & W Smith, Note So Super, For Women: Superannuation and Women’s Retirement Outcomes, Per Capita and Australian Services Union, July 2017.

^[10] See above note 4.

^[11] [1977] HCA 45; 139 CLR 161 at 170-1.

^[12] R Graycar, ‘Women’s work: who cares?’, Sydney Law Review 14, 1992, 86, 95 considers judicial glosses in Johnson v Kelemic (1979) FLC 90-657, Kovac v Kovac [1982] 1 NSWLR 656, Maiward v Doyle [1983] WAR 210, Carrick v Commonwealth [1983] 2 Qd R 365, Bettoncelli v Bettoncelli (1988) 135 LSJS 211 and Veselinovic v Thorley [1988] 1 Qd R 191 (decided in 1984 but not reported until 1988).

^[13] H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, LexisNexis Butterworths, 2002, notes at [4.6.5] that Tasmania denied Griffiths v Kerkemeyer damages in their entirety in Common Law (Miscellaneous Actions) Act 1986 (Tas) s5. All other states have enacted legislation to place limits on damages for gratuitous services rendered to victims: Motor Accidents Act 1988 (NSW) s72, Motor Accident Insurance Act 1994 (Qld) s55D, Wrongs Act 1936 (SA) s35A(1)(g)(ii), Transport Accidents Act 1986 (Vic) s93(10), etc.

^[14] Social Security Legislation Amendment Act 1983 (No. 69 of 1983), <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/1011/SSPayments1#_Toc286050325>.

^[15] Department of Social Security, ‘History of pensions and other benefits in Australia’ in Australian Bureau of Statistics Year Book (1988) at 1301.1, <http://www.abs.gov.au/ausstats/abs@.nsf/94713ad445ff1425ca25682000192af2/8e72c4526a94aaedca2569de00296978!OpenDocument> .

^[16] As at June 2016, 69.3 per cent of carer payment recipients are women: P Whiteford, ‘Social Security and welfare spending in Australia: Assessing long-term trends’ (Policy Brief 1/2017, Tax and Transfer Policy Institute, ANU, July 2017), Table 1 at <https://taxpolicy.crawford.anu.edu.au/sites/default/files/publication/taxstudies_crawford_anu_edu_au/2017-07/combined_pdf_whiteford_trends_in_soc_sec_spending_2017.pdf> (Source: DSS Payment Demographic data, <https://data.gov.au/dataset/dss-payment-demographic-data>).

^[17] Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327.

^[18] R Graycar, ‘Love’s Labour’s Cost: The High Court Decision in Van Gervan v Fenton’, Torts Law Journal, Vol. 1, 1993, 122-36 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1243002>.

^[19] Ibid, [14].

^[20] Ibid, [4].

^[21] Ibid.

^[22] Ibid, 136.

^[23] R Graycar, ‘Women’s work: who cares?’ Sydney Law Review, 14, 1992, 86 in which she references a report by M Bittman, ‘Juggling time: How Australian families use time’ issued by the Office of the Status of Women looking at the distribution of unpaid work in Australian households. She states that it ‘confirms that many women carry out what is in effect a double burden: they simply have two jobs, one paid and one unpaid’.

^[24] Productivity Commission, National Disability Insurance Scheme (NDIS) Costs (19 October 2017), 348 <https://www.pc.gov.au/inquiries/completed/ndis-costs/report>.