Restitutio Case Study

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C. Gender

Under the restitutio principle, women are disadvantaged because of gendered assumptions about an individual's lifestyle. The court's assessment of earning capacity highlights the different treatment of individuals based on gender. This distinction is unfair as it promotes gender inequality, which is an undesirable impact of restitutio. Under tort law, women are likely to recover less than similarly injured men. The individualised assessment of damages is controversial due to the assumption that women are more likely to withdraw from paid employment after marriage or having children, reducing their earning capacity.
The damages assessment based on individual's gender identity is guided by the objective of restitutio, which lead …show more content…

As required by Malec v JC Hutton, a plaintiff's overall loss is modified according to hypothetical evaluations. However, this adjustment of compensation is at best a matter of impression, since calculation of future earning capacity will never be exact. Furthermore, the monetising of intangible injuries has commodified pain and suffering, which is an undesirable aspect of restitutio. In terms of non-economic damages, the restitutio principle has the ability to recognise the exclusive harm suffered by Indigenous plaintiffs, done by qualifying the loss of cultural participation as compensable. This form of recovery would not have existed without restitutio. For instance in Napaluma and Dixon, the plaintiffs were awarded damages for 'loss of cultural fulfilment' due to their personal injuries. Despite the acknowledgment of cultural standing, the restitutio principle has commodified people's unique experience by monetary substitution. Therefore, the application of restitutio is limited because the idea to fully restore an injured plaintiff to the same position compensation is ultimately …show more content…

The differential valuations of an individual's losses based on social identity such as socio-economic status, race and gender have been discussed to convey the discriminatory effects of restitutio. In the operation of restitutio, systemic inequalities are routinely reinforced through the objective repositioning the injured person to his or her original position prior to the injury. Consequently, people are valued on a case by case basis resulting in an unfair deduction of damages awarded. Additionally, the principle's operation is flawed due to its inability to predict the future, as well as the difficulty of quantifying damages for pain and suffering. Despite the benefit perceived in the qualification of loss of cultural fulfilment, the damages awarded cannot fully restore the plaintiff back to their same position. Lastly, the legislative changes have failed to address the fundamental flaw of restitutio in integrum, that is the unequal distribution of compensation and treatment of personal

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