Feminist Perspectives on Tort Law

249 Pages·2012·1.315 MB·English

by  Janice Richardson and Erika Rackley

Feminist Perspectives
on Tort Law
Feminist Perspectives on Tort Lawoffers a distinctly feminist approach to key topics in
tort law. Ten original essays written by feminist legal scholars from the UK, US,
Canada and Australia encompass a range of ways of thinking about women, tort
law and feminism. The collection provides a fresh and original analysis of issues of
long-standing concern to feminists as well as nascent areas of concern. These
include conceptions of harm, constructions of reasonableness, the duty of care, the
public/private divide, sexual wrongdoing, privacy and environmental law.
Written with both scholars and students in mind,Feminist Perspectives on Tort Law
is an important and timely addition to key debates in tort law.
Janice Richardson is a Senior Lecturer in the Faculty of Law, University of
Monash. She is author of: Selves, Persons, Individuals: Philosophical Perspectives on Women
and Legal Obligations(Aldershot: Ashgate, 2004) and The Classic Social Contractarians:
Critical Perspectives from Contemporary Feminist Philosophy and Law(Aldershot: Ashgate,
2009) and is co-editor, with Ralph Sandland, of Feminist Perspectives on Law and Theory
(London: Routledge-Cavendish, 2000).
Erika Rackley is a Senior Lecturer in the Law School, Durham University,
UK. She is author of Women, Judging and the Judiciary: From Difference to Diversity
(London: Routledge, 2012), co-author, with Kirsty Horsey, of Tort Law(Oxford:
Oxford University Press, 2nd edn, 2011) and co-editor, with Rosemary Hunter
and Clare McGlynn, of Feminist Judgments: From Theory to Practice (Oxford: Hart,
2010).

Feminist Perspectives
on Tort Law
Edited by
Janice Richardson
and Erika Rackley
First published 2012
by Routledge
2Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
AGlassHouse Book
Routledge is an imprint of the Taylor & Francis Group, an informa business
©2012 Janice Richardson and Erika Rackley
The right of Janice Richardson and Erika Rackley to be identified as authors
of the editorial material, and of the authors for their individual chapters, has
been asserted by them in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
utilised in any form or by any electronic, mechanical, or other means, now
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any information storage or retrieval system, without permission in writing
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Trademark notice:Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing in Publication Data
Acatalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
Feminist perspectives on tort law / edited by Janice Richardson and
Erika Rackley.
p. cm.
Includes index.
“Simultaneously published in the USA and Canada.”
1. Torts—England. 2. Women—Legal status, laws, etc.—England.
3. Torts—Wales. 4. Women—Legal status, laws, etc.—Wales. 5. Torts.
6. Feminist jurisprudence. I. Richardson, Janice, 1961– II. Rackley, Erika.
KD1949.F46 2012
346.4203—dc23 2011040914
ISBN 978–0–415–61920–2 (hbk)
ISBN 978–0–203–12282–2 (ebk)
Typeset in Baskerville
by Keystroke, Station Road, Codsall, Wolverhampton
Contents
Notes on Contributors vii
Foreword iv
JOANNE CONAGHAN
1. Introduction 1
JANICE RICHARDSON AND ERIKA RACKLEY
2. Duty of Care and Ethic of Care:Irreconcilable Difference? 14
JENNY STEELE
3. Endgame:On Negligence and Reparation for Harm 36
NICKY PRIAULX
4. Pollution and the BodyBoundary:Exploring Scale,Gender
and Remedy 55
DAYNA NADINE SCOTT
5. Trust in the Police? Police Negligence,Invisible Immunity
and Disadvantaged Claimants 80
KIRSTY HORSEY
6. Knowledge and Power:Drug Products Liability Actions
and Women’s Health 105
PATRICIA PEPPIN
7. The Standardof Care in Medical Negligence – Still
Reasonably Troublesome? 126
JOSÉ MIOLA
vi Contents
8. If I Cannot Have Her Everybody Can:Sexual Disclosure
and Privacy Law 145
JANICE RICHARDSON
9. Tort Claims for Rape:More Trials,Fewer Tribulations? 163
NIKKI GODDEN
10. Sexual Wrongdoing:Do the Remedies Reflect the Wrong? 179
ELIZABETH ADJIN-TETTEY
11. Damaging Stereotypes:the Return of ‘Hoovering as a Hobby’ 205
REG GRAYCAR
Index 227
Notes on Contributors
Elizabeth Adjin-Tettey is a Professor in the Faculty of Law, University of
Victoria, Canada. She is co-author, with Jamie Cassels, of Remedies: The Law of
Damages (Toronto: Irwin Law, 2nd edn, 2008) and has written widely on the
marginalising effects of traditional tort principles, including the implications of
the defence of constructive consent for marginalised women in claims of sexual
battery.
Nikki Godden is a PhD candidate and part-time tutor in the Law School,
Durham University, UK. Her thesis considers the limitations of the criminal
justice system’s response to rape and explores alternative or additional legal
routes to justice for rape victims, such as through claims in tort and restorative
justice.
Reg Graycar is a Professor in the Law School at the University of Sydney,
Australia. She has written widely on tort law, feminism and equality. She is co-
author, with Jenny Morgan, of The Hidden Gender of Law(Sydney: The Federation
Press, 2nd edn, 2002). She is a member of a number of international advisory
boards including for Social Science Research Network, Women, Gender and
the Law, and Centre for Feminist Legal Studies, University of British Columbia.
She is also a member of the editorial boards of the Australian Feminist Law Journal,
the Adelaide Law Review, Griffith Law Review, the Media and Arts Law Review and
Australian Feminist Studies.
Kirsty Horseyis a Lecturer in the Law School, University of Kent, UK. She is
co-author, with Erika Rackley, of Tort Law (Oxford: Oxford University Press,
2nd edn, 2011) and on the editorial board of Feminist Legal Studies.
José Miola is a Senior Lecturer in the Law School, Leicester University, UK. He
is author of Medical Ethics and Medical Law: A Symbiotic Relationship (Oxford: Hart
Publishing, 2007) and is on the editorial board of Clinical Ethics and the Medical
Law Review.
Patricia Peppin is a Professor in the Faculty of Law, Queen’s University, Canada
(cross appointed to medicine). She has written widely on tort law, health care
viii Contributors
and feminism and contributed an essay on tort to the first Feminist Perspectives
collection (‘A Feminist Challenge to Tort Law’, in A. Bottomley (ed) Feminist
Perspectives on the Foundational Subjects of Law (London: Cavendish Publishing,
1996)).
Nicky Priaulxis a Senior Lecturer in the Law School, Cardiff University, UK.
She is author of The Harm Paradox: Tort Law and the Unwanted Child in an Era of
Choice (Abingdon: Routledge-Cavendish, 2007) and co-editor, with Anthony
Wrigley, of Ethics, Law and Society Volume V (Aldershot: Ashgate Publishing,
2012).
Erika Rackleyis a Senior Lecturer in the Law School, Durham University, UK
and co-convenor of the research group Gender and Law at Durham (GLAD).
She is co-author, with Kirsty Horsey, of Tort Law(Oxford: Oxford University
Press, 2nd edn, 2011) and co-editor, with Rosemary Hunter and Clare
McGlynn, of Feminist Judgments: From Theory to Practice(Oxford: Hart, 2010).
Janice Richardsonis a Senior Lecturer in the Law School at Monash University,
Australia. She is author of: Selves, Persons, Individuals: Philosophical Perspectives on
Women and Legal Obligations (Aldershot: Ashgate, 2004) and The Classic Social
Contractarians: Critical Perspectives from Contemporary Feminist Philosophy and Law
(Aldershot: Ashgate, 2009) and co-editor, with Ralph Sandland, of Feminist
Perspectives on Law and Theory(London: Routledge-Cavendish, 2000). She has
published extensively in journals, including: Angelaki, Feminist Legal Studies,Law
and Critique,Ratio Juris,Economy and Society,BJPIR,Minds and Machines and Women’s
Philosophy Review.
Dayna Nadine Scottis an Associate Professor in Osgoode Hall Law School and
the Faculty of Environmental Studies, York University. She has written widely
onenvironmental risk and regulation, with a focus on legal remedies available
for pollution-related harms. She is Director of the National Network on
Environments and Women’s Health.
Jenny Steeleis a Professor in the Law School, University of York, UK. She has
written widely on tort law and in particular on the relationship between law and
risk. She is author of Risks and Legal Theory(Oxford: Hart Publishing, 2004) and
Tort Law: Text, Cases and Materials (Oxford: Oxford University Press, 2nd edn,
2010) and co-editor, with T.T. Arvind, of Tort Law and the Legislature: Common
Law, Statute, and the Dynamics of Legal Change (Oxford: Hart Publishing, forth-
coming). She is a contributing editor of Clerk and Lindsell on Torts (Sweet &
Maxwell, 20th edn, 2010).
Foreword
The law of tort is at the heart of a normative regime within which the obligations
of individuals towards one another are socially and legally prescribed. It is no
wonder then that it holds such fascination for feminist legal scholars. On the one
hand, a historical repository of gendered legal norms which situated women almost
exclusively in terms of their formal relation to men; on the other hand, a potential
tool for redressing the kinds of ‘gendered’ harms which law has traditionally
overlooked. This schizophrenic tendency is a theme which pervades the rich vein
of feminist tort scholarship, coming from around the world but emanating in
particular from common law jurisdictions such as Canada, Australia, the US and
the UK. Over the last few decades feminists have been at the vanguard of boundary
challenges to tort liability, particularly in relation to claims deriving from sexual,
physical, technological or environmental harm. In this context, tort law has proved
fertile ground for the feminist legal imagination, in which new remedies have been
fashioned out of old and new meanings forged around existing concepts and
doctrinal traditions. At the same time, feminists exhibit ambivalence about taking
the logic and tenor of tort law to its limits. This is partly because it is has proven
so difficult to unpick the gendered values and assumptions or dislodge the nor-
mative privileging which underpin key categories and concepts in tort (for example,
categories of damage or conceptualisations of the duty of care); but it is also because
the focus of tort on individual responsibility in the context of injury and harm sits
somewhat at odds with more progressive articulations of social or collective
responsibility for misfortune. The more feminists are drawn into language and logic
of tort, the further they are removed from envisioning ways of responding to life’s
vicissitudes which are not premised on calling individuals to account. And while
the latter may be a desirable, indeed a therapeutic, step to take, it does not neces-
sarily get to the root of the problem, which may well be more readily ascribed to
structural and/or societal factors. Moreover, such feminist engagements may be
said to be overly dependent upon the articulation of injured subjectivities, pro-
ducing a politics of injury which is, at one and the same time, both empowering
and disabling.
While it is clear that tort law demands careful navigation, this has not deterred
feminists from extensive exploration and engagement in the field. One of the