and ain't i a woman: Too pretty for compensation
A West Australian widow, Teresa de Sales, whose husband drowned 12 years ago, has had the compensation originally awarded to her reduced by 20% on the grounds that she is young, healthy and attractive, so her chances of remarrying are high. This, said the court, decreases the trauma she will experience and accelerate the healing process.
De Sales claimed damages under WA's Fatal Accidents Act, which gives widows access to compensation for economic or material disadvantage caused by the death of their spouse.
In 2000, the WA District Court had lopped 5% off the original sum awarded to de Sales, but on appeal that cut was increased to 20% by the Full Court, citing "re-marriage contingency". It awarded de Sales around $600,000.
The Full Court decision was based on a precedent set by an 1863 ruling in England and Australian legal precedents in the 1930s.
Early last century, most women were financially dependent on their husbands and widows were expected to remarry to survive economically. In today's world, these assumptions are seen by most people as sexist, because women have fought hard for the right and possibility of choosing whether or not to be married.
De Sales, who is working full-time to support herself and her two children, pointed out to the court that many women choose not to remarry after the death of a spouse and that those who do are often employed, joint income-earners with their husbands.
In other compensation battles, emotional trauma and distress have been key factors in deciding how much compensation is awarded. However, the court did not assess the trauma and grief experienced by de Sales; it simply assessed the economic and material disadvantage that resulted from her husband's death.
According to Kevin Wong, de Sales' lawyer, England changed its law in 1971 to make remarriage prospects irrelevant in calculating compensation, but Australian judges still have the "distasteful" job of determining a woman's chances of remarrying.
This law, and its application in de Sales' case, reinforces the sexist notions that if a widow is "attractive" they are not only more likely to find a new marriage partner, but they have a duty to remarry. Perhaps this shouldn't surprise us — the law and this court ruling build on the persistently widespread notion that physical appearance is the all-important criterion of womanhood.
The High Court has granted de Sales special leave to appeal the Full Court finding in October. The April 12 West Australian reported: "In allowing the appeal, Justice Michael Kirby said that while the overall payment awarded to Mrs de Sales in December 2000 by WA's Full Court was pretty satisfactory, the principles shaping it were outdated. 'It might be that we owe it to the judges around the country dealing with these cases to have a look again at those principles'."
BY JESSICA SCOTT
From Green Left Weekly, June 19, 2002.
Visit the Green Left Weekly home page.