The legal injury narrative : personal injury litigation and melodrama

258 Pages·2014·12.77 MB·English

The Legal Injury Narrative:
Personal Injury Litigation
and Melodrama
By
Samantha J Hardy
LLB (Hons), LLM
Solicitor of the Supreme Court of Queensland
Submitted in fulfilment of the requirements for the
Degree of Doctor of Philosophy
University of Tasmania
Faculty of Law
9 September 2005
Statements
This thesis contains no material which has been accepted for a degree or diploma
by the University or any other institution, except by way of background
information and duly acknowledged in the thesis, and to the best of the
candidate's knowledge and belief no material previously published or written by
another person except where due acknowledgment is made in the text of the
thesis.
Parts of this thesis were published as an article and a book chapter during my
candidature. These publications are listed in Appendix 6.
This thesis may be made available for loan and limited copying in accordance
with the Copyright Act 1968 (Cth) or equivalent legislation in other jurisdictions.
Samantha J Har
(
9 September 2005
This thesis states the law as at 1 September 2005
ABSTRACT
This thesis attempts to explain why personal injury plaintiffs tend to have poorer
health outcomes than non-litigants with similar injuries. It examines the role that
injured plaintiffs have to play in the litigation. The thesis develops the concept of
the "legal injury narrative" and argues that plaintiffs are required to tell their
individual stories in accordance with this master narrative in order to be
successful in their claims. The legal injury narrative is analysed through the
genre of melodrama. This reveals that the role injured plaintiffs are required to
play in the narrative is a passive, mute and dependent one, and this has negative
ramifications for their health outcomes. Examining the legal injury narrative in
this way also reveals some concerning consequences for society as a whole,
particularly the way in which society responds to suffering and how normative
assumptions in the law can perpetuate existings power hierarchies and gender
stereotypes. Mediation is considered as a possible alternative to litigation. It
seems particularly useful as a way of supporting injured people and enabling
them to tell their stories according to a tragic genre, which it is argued is more
conducive to improved health outcomes. In particular it is argued that
mediation, as a future directed procedure, is preferable to the legal injury
narrative's current focus on past events and restoring the status quo.
Acknowledgements
This thesis would not have been written without support and encouragement from
many people.
I would like to thank both Jerome Bruner and Neal Feigenson for providing me
with the original inspiration for this topic and for taking an interest in my work.
Neal, in particular, was incredibly generous with his time and enouragement
along the way.
My supervisors, Dirk Meure and Margaret Otlowski, were a pleasure to work
with. Discussing legal philosophy over a glass of wine from Dirk's vineyard
made supervision meetings something to look forward to. Dirk, thank you for
your support for even my wildest ideas and your patience in explaining to me the
most basic principles of legal theory. Margaret, thank you for your incredibly
thorough feedback and unfailingly cheerful nature.
Thank you also to Elle Leane and Anna Johnston for thoughtfully answering my
many questions about anything vaguely relating to literature, theatre, or grammar,
and for finding time in your busy lives to read over various drafts of parts of this
thesis for me.
My colleagues and friends in the Law School have also been supportive in many
ways, especially Lisa Butler (who knows more about EndNote and Word than I
thought was possible) and Jenny Mora (who kindly waved her magic wand
whenever I needed a shower of sparkly spangles).
A very special thank you to my parents, who always knew that I would finish this
thesis one day, and who taught me the value of hard work and perserverance.
Finally, much love and thanks to Anna for being there until the end, believing in
me, and telling me to "just get on with it" when I most needed to hear it.
Samantha J H dy
9 September 2005
Table of Contents
Introduction 9
Chapter 1 Background 16
Introduction 16
1.1 Storytelling in the Law and Legal Narratives 17
1.2 Studying Legal Narratives 19
1.2.1 Narrative as the Product of Inquiry 20
1.2.1 Narrative as the Object of Inquiry 20
1.2.2 Narrative as the Method of Inquiry 21
1.2.3 Studying the Legal Injury Narrative 22
1.3 Law, Literature, Genre 22
1.4 Law, Melodrama and Tragedy 26
1.4.1 Feigenson's 'Legal Blame' 26
1.4.2 Meyer's 'Making the Narrative Move' 29
1.4.3 Galligan's 'The Tragedy in Torts' 31
1.5 Conclusion 31
Chapter 2 Melodrama 33
Introduction 33
2.1 Melodrama Defined 33
2.1.1 Moral Polarization 34
2.1.2 Overwrought Emotion and Pathos 34
2.1.3 Nonclassical Narrative Mechanics 35
2.1.4 Sensationalism 37
2.2 Pixerecoures Melodramas 38
2.2.1 Coelina, ou l'enfant du mystere 38
2.2.2 Le chien de Montargis, ou La foret de Bondy 39
2.2.3 Les ruines de Babylone, ou Jafar et Zaida 39
2.2.4 La fille de l'exile, ou huit mois en deux heures 39
2.2.5 Rosa, ou L'hermitage du Torrent 40
2.2.6 Les mines de Pologne 40
2.2.7 L'homme a trois visages, ou Le proscrit 40
2.2.8 La femme a deux mans 41
2.2.9 Charles le Tememaire, ou le siege de Nancy 41
2.3 Melodrama's Roles and Characters 41
2.3.1 Villain 43
2.3.2 Heroine 45
2.3.3 Father Figure / Judge 47
2.3.4 Hero 49
2.3.5 Other Characters 50
2.4 The Mute Role 51
2.5 The Text of Muteness 52
2.5.1 The Mute Tableau 53
2.5.2 Mute Gesture 53
2.5.3 Muteness and Suffering 55
2.6 Melodramatic Suffering 56
2.7 Melodrama as Moral Instruction 58
2.8 Melodrama and Tragedy 61
2.9 Conclusion 63
Chapter 3 The Legal Injury Narrative 65
Introduction 65
3.1 How is the Legal Injury Narrative Melodramatic? 65
3.1.1 Moral Polarization 66
3.1.2 Overwrought Emotion and Pathos 69
3.1.3 Nonclassical Narrative Mechanics 71
3.1.4 Sensationalism 72
3.2 Roles and Characters 73
3.3 The Text of Muteness 77
3.3.1 The Mute Tableau 77
3.3.2 Mute Gesture 78
3.4 The Legal Injury Narrative as Moral Instruction 82
3.5 Conclusion 85
Chapter 4 Melodramatic Blame 86
Introduction 86
4.1 Individualised Blame 86
4.1.1 Why is Blaming Individualised? 87
4.1.2 Simplification of Events 89
4.1.3 Identify Blameworthy Individual at the Start 91
4.1.4 Proximate Link With Protagonist 91
4.1.5 Consequences of Individualised Blame 92
4.2 Moralised Blame 96
4.2.1 Types of Legal Blame for Personal Injury 96
4.2.2 The Fault Principle 97
4.2.3 Blame and Moral Condemnation in the Legal Injury Narrative 100
4.3 Conclusion 105
Chapter 5 The Defendant Role 107
Introduction 107
5.1 Attributes of Defendant Role 108
5.2 Failing to Comply with the Defendant Role 111
5.2.1 Passive Defendant 111
5.2.2 The Virtuous Defendant 113
5.3 Character and Role Fit 114
5.3.1 People with Intellectual Incapacities 115
5.3.2 Children 116
5.3.3 Women 118
5.4 Consequences of Fitting Role 121
5.5 Conclusion 123
Chapter 6 The Plaintiff Role 124
Introduction 124
6.1 Attributes of Plaintiff Role 124
6.1.1 Passivity in Relation to Causation of the Injury 125
6.1.2 Passivity in Response to Suffering 129
6.1.3 Passivity in Relation to Resolution 130
6.1.4 Mute Role 132
6.2 Failure to Comply with the Plaintiff Role 134
6.2.1 Unusually Active Heroines in Melodrama 135
6.2.2 Where the Plaintiff is Too Active - Causation 137
6.2.3 Where the Plaintiff is Too Active - Suffering 139
6.3 Overdoing the Role - the Paradox of Passivity 141
6.4 Character and Role Fit 146
6.5 Consequences of Fitting the Role 149
6.6 Conclusion 155
Chapter 7 Recognition of Virtue 157
Introduction 157
7.1 Melodrama and Virtue 158
7.2 Virtue and the Legal Injury Narrative 159
7.3 Attributes of Virtue 161
7.3.1 Male Virtue and Social Roles 161
7.3.2 Female Virtue and Social Roles 165
7.3.3 Immigrant Virtue and Social Roles 173
7.4 Virtue and Suffering 175
7.4.1 Undeserved Harm 180
7.4.2 Assumed Harms 185
7.4.3 Unrecognised Harms 186
7.5 Conclusion 192
Chapter 8 The Judge, Proof, and Reward 193
Introduction 193
8.1 Role of the Judge 194
8.2 Documents 197
8.3 Authority Figures 197
8.4 Proof of Suffering 200
8.5 Reward 205
8.5.1 Reward in Melodrama 205
8.5.2 Reward in the Legal Injury Narrative 206
8.6 Conclusion 207
Chapter 9 Implications and Conclusions 208
Introduction 208
9.1 Effect on Plaintiffs 209
9.2 Effect on Women and Immigrants 211
9.3 Effect on Society 212
9.3.1 Masculine Power 213
9.3.2 Causes Of and Responses To Suffering 214
9.3.3 Diversity and Complexity 215
9.3.4 Stereotypes and Discrimination 215
9.4 Alternatives 216
9.5 Melodrama or Tragedy? 216
9.6 Mediation as Tragedy 219
9.7 Further Enquiry 220
9.8 Conclusion 221
Appendix 1: Stark Contrast Between Pre- and Post- Injury State 223
Appendix 2: Improvements Followed by Negative 225
Appendix 3: Doctor Restating Plaintiff's Reports of Pain 230
Appendix 4: Doctor Describes Likely Pain 232
Appendix 5: Civil Liability Law Reforms 233
Appendix 6 : Candidate's Publications Relevant to Thesis 239
List of Cases and Statutes 240
References 245
Introduction
Introduction
The effect of litigation on injured peoples' recovery has been the subject of
debate for many years. In 1961 Henry Miller proposed that litigation was the
principal cause of posttraumatic symptoms, largely due to litigants' motivation
for compensation.' Other studies have shown that litigants will not always
improve subsequent to receiving compensation. 2 A 1996 meta-analysis of 18
studies of the effect of litigation on the healing process for traumatic brain injury
patients to some extent supported Miller's findings, suggesting that if litigation
was no longer present, almost a quarter of patients would report fewer
symptoms. 3 A later study of 97 traumatic brain injury patients also found that
those who had contacted a lawyer in order to proceed with litigation reported
greater anxiety, more overall psychological distress and poorer outcomes than
the non-litigant group, although they reported equal levels of physical
symptoms. 4 This study suggested that litigation is 'associated with a degree of
symptom amplification, at least on subjective measures of psychological distress
and social dysfunction' even at the outset of the litigation process.5
In 2001 the Australasian Faculty of Occupational Medicine and the Health Policy
Unit of the Royal Australasian College of Physicians released a report entitled
Compensable Injuries and Health Outcomes. 6 The report concluded that there
was 'good evidence to suggest that people who are injured and claim
compensation for that injury have poorer health outcomes than people who suffer
similar injuries but are not involved in the compensation process.' 7 However, the
1 H Miller, 'Accident Neurosis' [1961] British Medical Journal 919.
2 H Merskey and J M Woodforde, 'Psychiatric Sequelae of Minor Head Injury' (1972) 95 Brain
521-8; R Kelly and B N Smith, `Posttraumatic Syndrome: Another Myth Discredited' (1981) 74
Journal Royal Society Medicine 275-7.
3 L M Binder and M L Rohling, 'Money Matters: A Meta-Analytic Review of the Effects of
Financial Incentives on Recovery After Closed-Head Injury' (1996) 153 American Journal
Psychiatry 7-10.
4
A Feinstein et al, 'The Effects of Litigation on Symptom Expression: A Prospective Study
Following Mild Traumatic Brain Injury' (2001) 41(2) Medicine Science Law 116.
5 Ibid 120.
6
Australasian Faculty of Occupational Medicine and Health Policy Unit The Royal Australasian
College of Physicians, 'Compensable Injuries and Health Outcomes' (The Royal Australasian
College of Physicians, 2001).
7 Ibid 2.
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Introduction
report also notes that there is very little research to establish why this is so.
Some of the suggested, but untested, factors include:
• The adversarial system of managing compensation cases, which
encourages both parties to take up fixed opposing positions and creates a
climate where getting a result in the court case becomes the goal of both
parties, rather than fully rehabilitating the injured person.
• The sense of powerlessness engendered by being caught up in 'the
system'; having no control (except by dropping the claim) over when or
how there will be a resolution, no control over decisions made about the
claim, no control over number and content of medical examinations, etc.
• The type of compensation offered; systems with no or limited
compensation for pain and suffering may produce better outcomes. 8
In 2005 an Australian study of 135 whiplash patients again found a consistently
negative association between the intervention of lawyers and improved health
outcomes.9
These studies provide the starting point for my exploration of the relationship
between personal injury litigation and litigants' health outcomes. However, this
exploration is not based on an analysis of tort law, an examination of civil
procedure, or an assessment of the rules of evidence. I do not profess to include
a comprehensive review of the legal concepts within the law relating to personal
injury or the relationships between them. My work may best be described as one
falling within Julius Stone's classification of sociological (or functional)
jurisprudence. 10 I study the interaction between law and society, by observing,
interpreting and generalising about the effect of personal injury litigation on
injured people and society. My work is a kind of jurisprudence, defined by Stone
as 'the lawyer's examination of the precepts, ideals and techniques of the law in
8 Ibid 4.
9 RI Gun et al, Risk Factors for Prolonged Disability after Whiplash Injury: A Prospective Study'
(2005) 30 Spine 386. See also 0 L Osti et al, 'Potential Risk Factors for Prolonged Recovery
Following Whiplash Injury' (2004) 14 European Spine Journal 90; J D Cassidy et al, "Effect of
Eliminating Compensation for Pain and Suffering on the Outcome of Insurance Claims for
Whiplash Injury" (2000) New England Journal Medicine 342: 1179-86.
I° J Stone, The Province and Function of Law: Law as Logic, Justice and Social Control - a Study
in Jurisprudence (1946) 30.
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