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Orr, Graeme --- "Damages for Loss of Cultural Fulfilment in Indigenous Community Life" [1997] IndigLawB 90; (1997) 4(6) Indigenous Law Bulletin 17

Damages for Loss of Cultural Fulfilment in Indigenous Community Life

by Graeme Orr

It has been fifteen years since Napaluma v Baker,[1] the first reported case in which Australian courts openly incorporated assessment of indigenous cultural realities into the quantification of damages in civil claims. In that case, Zelling J in the South Australian Supreme Court accepted the principle that loss of cultural standing and fulfilment ought to be considered in an assessment of the general damages for loss of amenities and enjoyment of life of an indigenous plaintiff who had suffered negligent physical injuries.

Whilst recognising that compensation is but one aspect of any appropriate societal and legal response to the wrongful harm and treatment of indigenous peoples and their cultures,[2] cultural factors and losses are central issues in any common law or even statutory process of individualised compensation for members of the stolen generations and their families. Indeed, the Bringing them Home report[3] listed loss of cultural rights and fulfilment as one of ten potentially relevant heads of damage. It is timely, therefore, to examine the case law which has developed in the last fifteen years.

Of course, stolen generations litigation may generate a considerable number of successful claims, provided the pitfalls and hurdles of liability can be surmounted.[4] Such claims would not be based on the relatively narrow factual ground of future deprivation of cultural standing or fulfilment because of personal injury. They would involve the more fundamental argument that forced removal and dislocation completely denied the natural development of indigenous cultural attachment and identity, in the past and into the future. Further, the cultural harms to the parents and communities deprived of their young are in a different class to the loss of cultural fulfilment of the individuals who directly suffered the deprivation. It is this latter class who have formed the plaintiffs in most of the cases that are summarised below.

The cases

Napaluma v Baker[5] (negligence)

The plaintiff, a 22 year old Pitjantjatjara man, suffered head injuries in a car accident. While his recovery was generally good, he became permanently afflicted with mental slowness and lost the co-ordination ability to perform fine movements: for instance, it became difficult for him to throw a spear or participate in sport. Most significantly, his ability to grow into community roles was curtailed, as he could not be entrusted with secret knowledge, nor learn it adequately to pass it on. He would not be able to play a consultative or leadership role in the community as he grew older. He would be left out of some ceremonies, and reduced to a minor passive role in others.

Zelling J was obviously hampered by a lack of anthropological evidence to translate or fully explain the plaintiff's predicament. He was 'conscious that I look at the problem with European eyes and not with the eyes of those within the community' (at 194-195). Inspired in part by an analogous case from Papua New Guinea,[6] Zelling J distinguished 'loss of position in the aboriginal community' (at 194) from loss of amenities such as loss of enjoyment of sport or hobbies. He awarded $10,000 under this new head of damage, as part of a general award of $35,000 for pain and suffering and loss of amenities.

Dixon v Davies[7] (negligence)

The plaintiff, a boy of five growing up in an indigenous community, was negligently struck by a car. His injuries, especially his head injuries, were severe: he was unconscious for some time and could not walk for over a year. These left permanent physical problems including limping and muscle wasting, although no mental impairment was proven. O'Leary J in the Northern Territory Supreme Court received detailed anthropological evidence that the plaintiff, because of his disabilities, would be 'extremely unlikely' (at 34) to achieve full adult status gained by participation in ceremonies, such as initiation. His physical inability to manage such rituals would deprive him of the cultural knowledge imparted during them, and he would, in a sense, always remain a juvenile - a 'wiyai' - and be diminished in the community's eyes because of this deprivation.

O'Leary J felt this case more serious than Napaluma because it involved a plaintiff who would never be able to undergo the crucial initiation into adulthood. tie awarded $20,000 for loss of cultural fulfilment, out of a general award of $45,000 for pain and suffering and loss of amenities.

Weston v Woodroffe[8] (negligence)

The plaintiff was a 26 year old Aborigine, born and bred on a cattle station at Beswick, who was severely injured when a passenger in a drunken escapade in a stolen car at Katherine. He lost a leg below the knee. He had been an active hunter, athlete, and a fine dancer who had performed overseas. Whilst he could still participate in ceremonies and dance by producing music, he could not take a physically active part in them. According to the evidence of a clan member, the loss of his 'bone' and spilling of his blood brought shame on himself and others. His chances of marrying within traditional lore was greatly diminished. While the trial judge in the Northern Territory Supreme Court, Muirhead ACJ, was unable to accept that his injuries made him a social outcast, he recognised that his participation in indigenous life was greatly reduced, laconically observing that the plaintiff's 'environment is far from ideal for a man with one leg only' (at 45). A sum of $45,000 in total for general damages for pain and suffering and loss of amenities was awarded.

Mulladad v Palmer[9] (negligence)

The plaintiff was an initiated Eastern Aranda man. He had acted as a gardener for his community, prior to being a passenger in a car accident. He spent four months in hospital, but made a good recovery. However, he suffered some residual limping. He claimed this caused an inability to participate fully in traditional ceremonies, including dances, and more frequently, in the gathering of logs for campfires.. He testified that this reduced his self-esteem and made him feel like an 'old man', and that he would be unable to marry.

The trial judge in the Northern Territory Supreme Court, Rice J, regarded this evidence as potentially relevant to a general assessment of loss of amenities. However the evidence, even if accepted, fell short of a 'loss of cultural standing', which he took to be the central principle established in Napaluma. This particular plaintiff was seen as overstating his losses. However the judge was willing to make 'some allowance' in a general award of $30,000 for pain and suffering and loss of amenities for the culturally specific activities in which the plaintiff was less able to take part.

Namala v NT[10] (negligence)

The plaintiff was a 23 year old Nanggikurrungu woman when she was hospitalised with her first child (a son). A caesarean delivery was botched, resulting in her having to undergo a hysterectomy. She thus suffered a loss of fertility. The plaintiff felt shame: her siblings had large families, which were valued in the community. She and her partner could not look forward to having a daughter, an important link to her full involvement in women's business. An anthropological witness verified that in a her community, loss of fertility and the ability to have a large family were especially significant to a woman for a variety of cultural, economic and even safety reasons.

Kearney J, the trial judge in the Northern Territory Supreme Court, was at pains to avoid separating the plaintiff's losses artificially. Her loss of amenities and enjoyment of life through her loss of fertility were interwoven with her loss of cultural involvement and fulfilment. A global award of $80,000 for general damages was made, with the comment that this was essentially for 'solace' and not intended as direct compensation in the sense of replacement of anything fungible.

Globalising damages in this way avoids fragmenting what is largely an holistic loss: the 'heartache' from the physical diminishment being inseparable from the cultural loss it causes. It does not, however, provide much guidance to future claimants seeking out-of-court settlements. An alternative is to identify a base level of general damages for pain and suffering, and general loss of physical amenities due to the injury itself, supplemented by an amount to account for social factors which aggravate the loss. This approach ensures that the law's treatment of cultural loss is open to scrutiny.

Milpurrurru v Indofurn Pty Ltd[11] (copyright)

The plaintiffs claimed copyright and Trade Practices Act 1974 (Cth) breaches involving eight traditional indigenous artworks. In assessing copyright damages, s115(2) of the Copyright Act 1968 (Cth) allows compensation for personal suffering, for example hurt occasioned by insulting behaviour in the act of reproduction, or the use to which material is put. The trial judge analogously noted that the general common law of negligence, as demonstrated in Napaluma, was able to take account of cultural difference and hence shape awards to make allowance for culturally specific harms consequent on injury. Here, the plaintiff artists would suffer shame and guilt towards their communities for the sacred knowledge that the defendants had misused. The trial judge accepted that such evidence could potentially increase damages for copyright breaches under s115(2).

However, on the facts, the breaches by several of defendants were so blatant as to warrant special damages for flagrant breach under s115(4), which requires reference to all the circumstances of the breach-including the potential for embarrassment, cultural ostracism, and even violence against the artists because of the defendants' misuse of images that had sacred cultural and religious value. The award of damages was thus inflated-similar to an award of aggravated or exemplary damages in tort - against the defendants who had made the most serious and deliberate breaches.

Being realistic: recognising cultural difference

To some eyes, it may seem odd that, for instance, the flagrancy of a breach of copyright is inflated by the potential for what would be seen as an extreme and even unacceptable community response if it occurred within a western environment. If an artist were to face ostracism and even violence because, through no fault of their own, some religious icon they created was misused by others, the western judicial response may be to criticise the community which did the ostracising.

However, this merely states the obvious. If cultural difference is to be respected, especially where the cultural difference is deep and significant, then it has to be reflected in civil cases, with the common law taking account of all the circumstances of a breach of rights in assessing the damages which are the actual consequence of a particular breach.

Indeed, throughout the administration of the common law of negligence, the actual impact of the injury or harm on the particular defendant has always been a paramount consideration. Such considerations do not subjectify the test for assessing damages, but do take into account reality. To do otherwise would cause the plaintiff to bear the loss, rather than the defendant. Whilst there might be limits to this (for example, a plaintiff who suffered an irrational or unfounded reaction, albeit a real one, to an injury), in practice these limits must adapt to the eggshell skull rule, which is clearly not defendant-friendly.

A western mind, attuned to feminist attacks on patriarchy, might feel some unease that the law is appearing, in cases such as Namala, to accept and reinforce practices which treat indigenous women as only having a cultural and communal identity and role based on their reproductive capacity. Such a criticism would be both simplistic and misdirected.

It would be simplistic because indigenous society, as revealed in the plaintiff's own and expert evidence in Namala, does not merely assign subordinate status to women. The plaintiff's inability to have a daughter left her bereft of the opportunity to fully engage in uniquely special women's business, something of fundamental and religious significance in the life of the community and the identity and development of the individual. The argument would also be misdirected since the civil law, by acknowledging the reality of cultural roles in assessing a particular plaintiff's damages, does not provide any incentive to perpetuate such practices. The law does not judge the actions of others, but their effects on the litigant concerned. It merely accepts such background as real and integral to a particular plaintiff's life and circumstances. To do otherwise would be to fail to abide by the fundamental principle of awarding damages: to attempt, as far as lump sum compensation can, to restore plaintiffs to the positions they would have been in had the negligent injuries not occurred.

These cases attempt to achieve a measure of sensitivity to cultural difference, by rendering comprehensible, within the law's factual understanding of loss, the special nature of indigenous life: its tight - knittedness, its emphasis on (extended) family and community life, its sacred knowledge and rituals, and its fundamental groundedness in the outdoors and physicality in everyday interactions with the land and the world.

Beyond money

To return to such basic principles raises broader questions and possibilities. Why does the law limit compensation to dollars?[12] If, as is developing through statutory reform in defamation law, and more controversially in governmental and institutional responses to the stolen generations inquiry, some restitutionary, therapeutic and compensatory purpose is served by requiring public apologies and explanations, might the same not have some role to play in negligence? If tortfeasors were made to apologise for, and if necessary, come clean with the details of their behaviour, that might generally help restore the balance envisaged by corrective justice principles, by mollifying a plaintiff's sense of grievance.

Such apologies may have especial use in cases such as Milpurrurru, where the plaintiff's community and friends are likely otherwise to judge the plaintiff in some way for the loss sustained. Such apologies may be received with particular openness by many indigenous communities, where attitudes such as shame and humility, and gestures and symbols, are culturally valued.


[1] (1982) 29 SASR 192..

[2] As highlighted by Matthew Storey in 'The Stolen Generations: More Than Just a Compo Case', Vol. 3, 86 Aboriginal Law Bulletin 4.

[3] Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Human Rights and Equal Opportunity Commission, Commonwealth of Australia, 1997, Recommendation 14.6.

[4] For an overview of some these hurdles, see Kruger, Bray v Commonwealth at page 26 of this issue. Limitations and other procedural hurdles aside, common law claims based simply on forced removal against government must circumvent the operational/policy distinction defence; such claims against private individuals and organisations will have to meet the Roe v Minister for Health rule ([1945] 2 QB 66) that negligence is not to be judged with the benefit of hindsight. For a more optimistic assessment of the prospects of plaintiffs who were forcibly removed, see Ron Merkel, 'Government Culpability For The Forced Removal of Aboriginal Children From Their Families', Vol. 2, 47 Aboriginal Law Bulletin 4.

[5] (1982) 29 SASR 192.

[6] Rescena v Mabri, Frost SPJ, Sup Ct PNG, 6 October 1972

[7]. (1982)17 NTR 31.

[8] (1985) 36 NTR 34.

[9] Unreported, Northern Territory, Supreme Court, Rice J, 5 May 1987.

[10] Unreported, Northern Territory, Supreme Court, Kearney J, 14 May 1996.

[11] [1994] FCA 975; (1994) 130 ALR 659; (1994) 54 FCR 240. The case is the subject of more detailed discussion by Terri Janke in 'The carpets case', Vol. 3, 72 Aboriginal Law Bulletin 36, and Margaret Martin in 'Milpurrurru: What's in a Painting? The Cultural Harm of Unauthorised Reproduction' [1995] SydLawRw 38; (1995) 17 Sydney Law Review 591.

[12] For further discussion of general principles behind the awarding of damages, see Tort Theory by Ken Cooper-Stephenson and Elaine Gibson, Captus Press Inc, Ontario, Canada, 1993.

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