Academic journal article University of New Brunswick Law Journal

Cultural Thin Skulls

Academic journal article University of New Brunswick Law Journal

Cultural Thin Skulls

Article excerpt

1. INTRODUCTION

I take as my text a number of recent court decisions in tort actions, about thirty of them. What characterizes the judgments I examine here is that in them claimants have argued (generally, though not invariably, with success) that something in their culture, their religion or both entitles them to either a finding of liability where liability would not be justified in the absence of that cultural or religious make-up, or, more commonly, greater damages than they would be entitled to in the absence of their specific cultural background.

I am not considering claims for loss of culture. In loss-of-culture cases, plaintiffs complain that what they have been deprived of is the language, skills, attitudes, and stories of their ancestors. These plaintiffs have most commonly been First Nations people, but loss-of-culture allegations have not been limited to these groups. (1) Such arguments have been advanced both in the courts (2) and also in the public reparations scheme for government compensation in respect of mistreatment at residential schools. Claimants in those suits maintain that that they do not have a culture or, rather, they lack the intellectual and cultural inheritance they should rightfully have. They may assert that the theft of their cultural legacy from them is a stand-alone cause of action. More plausibly, they aver that their loss of their cultural birthright and its traditional narratives should be counted as a harm, and perhaps even as a distinct head of damages, in the context of some traditional ground of civil liability--for instance, negligence, battery or breach of fiduciary duty.

Whether there should be a civil action for loss of culture is a challenging question, but not my concern here. My focus is rather on claims, almost always asserted in the context of negligence actions, which are brought either because of personal injury to the plaintiff or the killing of a person with respect to whom the plaintiff is statutorily entitled to bring a wrongful death suit. In these actions, the plaintiffs argue that something in their cultural constitution--which is framed as a culture different from that of the Canadian mainstream--renders their loss more acute, more painful, or otherwise deserving of more compensation than would be awarded if someone not of that culture had been the victim of the tort. This might be because their cultural or religious background causes them to experience a loss as particularly grievous. Alternatively, it might be because the cultural predisposition of the community in which they move or the individuals with whom they must interact has the effect of intensifying the effects of their loss.

A handful of examples may assist. A plaintiff suffers facial disfigurement and cognitive disability arising from an automobile accident and argues for a larger-than-usual amount in compensation for those injuries. He bases this claim for augmented recovery on the fact that he is a member of Vancouver's Korean community and his assertion that within that group both facial scarring and mental disability are regarded as especially shameful)

A woman of Somali heritage is rendered infertile due to a physician's negligence. Although she has previously given birth to four children, she asks for larger-than-normal damages for her infertility based on her assertion that in the Somali-Canadian community in which she moves women are especially valued for their reproductive capacity. (4)

A woman has her long hair shorn as a result of an accident. This is done without her husband's permission, which is apparently forbidden in Islam, or at least in the Indian-Fijian-Islamic community into which the plaintiff had been born and had married her husband before emigrating. Her husband reacts with hostility to her unauthorized (by him) haircutting and abuses and abandons her. Her suit against the person responsible for her physical injury includes a claim for damages for the disintegration of her marriage. …

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