Page 3884 - Week 13 - Thursday, 17 October 1991
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imprisonment or injury. Loss of consortium never became a right of the wife because historically women were not seen to have a legal identity separate from their husbands and could not hold property or take legal action independently of their husbands.
Regrettably, as recently as 1955 the High Court, in the case of Toohey v. Hollier, affirmed the action which, in the absence of legislative change, has survived in the ACT until today. This law is repugnant because it is clearly discriminatory and demeaning of women and people in general. It is with some pleasure that I endorse the recommendation of the Community Law Reform Committee and ask members to help consign this outdated action to the history books.
The fourth aspect of this legislation is the loss of capacity to do housework. Historically, the courts and the law have taken a narrow and somewhat Dickensian view of matters which did not fit easily within the standard legal concepts of contract or property. If a loss was not written into a contract or had no explicit monetary value, then the law had great difficulty in seeing it as a loss at all.
The development of the law in relation to loss of capacity to do housework is one example of this. If, for example, a husband became a quadriplegic because of someone else's negligent actions and his wife and family devoted themselves full time to looking after him, the husband could not claim for the fact that he needed this help. He was barred from claiming compensation because it was provided voluntarily by his wife and family. There was no contract or payment in a monetary sense and therefore, the law said, no loss.
This harsh and illogical approach finally melted away in a series of court decisions in England in the 1960s and 1970s. In 1977 it was put to rest in Australia by a decision of the High Court in Griffiths v. Kerkemeyer. This case concerned a quadriplegic in need of full-time domestic and nursing care. In this landmark decision, the High Court swept aside the rule that a financial liability or contract for services was necessary in order to recover damages. Mr Kerkemeyer was able to claim compensation for his loss, even though he had not paid and did not intend to pay for the assistance, which instead would be provided free by his fiancee and family. This decision has been applied by the Federal Court and the ACT Supreme Court.
The Community Law Reform Committee recommended that the Assembly should give a statutory form to the principle in Griffiths v. Kerkemeyer to allow full compensation for loss of capacity to do housework. This Bill bolsters the law by affirming in clear and unequivocal language the right of people to adequate compensation for loss of capacity to do housework. The provisions of the Bill make clear that liability for the loss should not be affected by matters
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