When considering gender inequality and the law, very few immediately think of personal injury claims however many practitioners have notices differences in the amount of compensation being awarded to men and women who fall victim to an accident.
To those who are not familiar with the way in which personal injury cases are valued, here is a brief overview. In the majority of cases, medical evidence is obtained from an appropriate medical expert who will provide a prognosis of the injuries and comment on the impact the accident has had on the injured person’s life. The solicitor dealing with the case will then use that report to form the basis of their valuation. The injury itself falls under a head of claim known as solatium. The amount awarded for solatium will depend on the type of injury sustained and how long the injured party took to recover. In order to value solatium, the solicitor will draw comparisons between the case they are dealing with and other cases which have already gone through the court system. They can also make use of guidelines which provides brackets of compensation for various types of injuries. The solicitor will, of course, also consider the impact the accident has had on their client’s life when formulating their valuation as this is not a black and white process.
Difficulties can, however, arise when attempting to value certain types of injuries. For example, the guide used by solicitors makes a distinction by gender in relation to facial scarring. When dealing with facial scarring, older issues of the guidelines would offer different brackets based on whether the injured party was male or female. Such distinctions have now been removed from guidance however reference is still made to gender and the impact scarring may have on a person:
Case law, on the other hand, continues to consider the gender of the injured party, with courts more likely to award a higher amount of compensation to a younger woman compared to her male counterpart.
The guidelines also draw distinction between genders when dealing with injuries to reproductive organs. The guidelines separate the nature and extent of injuries by gender however the categories do not provide for an easy comparison. For example, a woman of child bearing age who becomes infertile and goes on to develop severe depression and anxiety as a result will be awarded more than a man in similar circumstances. However, if that woman is to already have a child, the guidelines indicate that a male could be awarded more.
While the guidelines in question are in place to offer guidance to practitioners, insurers will often seek to place a heavy reliance on the figures set down and will show a degree of unwillingness to negotiate out with the pre-set parameters. This is concerning when gender is still being used as a factor in determining the value of an injury. For example, a young man may be just as distressed by facial scarring as a young woman yet the guidelines set the suffering of the two apart in an unjust manner.
An injured person can also claim for any help and assistance they have required around the house and with personal care from their immediate family. This head of claim is known as services. The medical report will, again, assist in advising how long the injured party was unable to contribute to household tasks, such as cooking or cleaning. Gender stereotypes can play a big part in the awards given for this head of claim with pre-conceived ideas of household roles being used to make assumptions about assistance required. The result of this assumption based approach can result in less compensation being awarded based on the gender of the injured party.
The other main head of claim is usually wage loss. Where an injured person is off work as a result of an accident, they are entitled to make a claim for any wages they have lost during this period. In cases of very serious injury, a claim is also made for future loss of earnings – this is where gender inequality can, once again, have a significant impact on the amount of compensation being received.
When calculating future loss of earnings, those carrying out the calculation will look at the number of ‘working’ years a person has left and will seek to use that as the period of time the loss of earnings claim is made for. However a discount is then required to be applied to take into consideration life expectancy and other variable factors. When calculating loss of earnings for women of child bearing age, insurers and defenders can seek to rely on the likelihood of the woman taking a career break to have children and to seek to significantly reduce the amount claimed in future loss of earnings on the basis the woman may not have returned to work at all after having children. Such assumptions are not placed on men and they do not accurately reflect the society we now live with many women returning to work following their maternity leave, or deciding not to have children at all.
When valuing an injured person’s losses, whether they are male or female, the solicitor dealing with the case needs to be aware of the differences sought to be applied by insurers and defenders. A personal approach needs to be applied to the valuation of case and all involved need to look beyond guidelines and gender based stereotypes to ensure an injured persons gender does not impact on the compensation they are being awarded.
Blog by Eilish Lindsay, Dundee Solicitor