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Discrimination compounds the pain in personal injury and clinical negligence claims

Discrimination compounds the pain in personal injury and clinical negligence claims

In this article, Sarah Fraser Butlin and Catriona Stirling consider discriminatory practices within the calculation of damages for personal injury and clinical negligence.

Personal injury and clinical negligence lawyers do not tend to think about equality and diversity issues in their cases all that often. However there are several areas that are crying out for intervention to stop discrimination and the harm it causes people at these already difficult times in their lives. We highlight three areas where we think that the law is getting it wrong and is discriminating unlawfully.

Calculation of damages: scarring cases

There is sex discrimination in the valuation of damages for scarring in personal injury and clinical negligence claims. When damages are calculated for an injury, the judge will consider the Judicial College Guidelines, which set out brackets for the appropriate level of compensation for pain, suffering and loss of amenity (i.e. loss of physical or mental capacity). When one considers the Guidelines for scarring in Chapter 9, a note is included as follows:

“Second, in cases where there is a cosmetic element the courts have hitherto drawn a distinction between the awards of damages to males and females, the latter attracting the higher awards. That distinction, arising from cases that stretch back into the mists of time, has been reflected in succeeding editions of these Guidelines. It is nonetheless open to serious doubt that gender itself can be a proper or indeed lawful factor in determining the level of general damages. That is not to say that factors which inform the appropriate level of general damages for scarring may not arise more commonly, or with more general potency, in the case of one gender rather than another. Older cases in particular may need to be viewed with a degree of caution. The Guideline has retained the ‘female’ and ‘male’ sections because that is the historical approach. We await a judicial decision synthesising the two.”

In the Facial Disfigurement section (chapter 9B), certain factors are identified in determining the damages to be awarded:

 

“In this class of case a number of common factors fall to be considered:

  • the nature of the underlying injury which has resulted in facial disfigurement;
  • the nature and extent of treatment;
  • the nature and extent of the residual scarring or disfigurement;
  • the age of the claimant;
  • the subjective impact of the disfigurement upon the claimant and the extent to which it adversely affects the claimant’s social, domestic and work lives;
  • the psychological impact upon the claimant, which in severe cases may be very substantial.”

The awards are then split between male and female claimants, with female claimants being awarded a greater sum than male claimants.

As the writers of the Guidelines identify, there is a real issue in the valuation of scarring claims. There is clear sex discrimination. It is very difficult to see how this can be justified without falling back on stereotypical arguments as to the importance of one’s appearance as a woman, as compared to as a man. This is certainly something that ought to be challenged and the two sets of awards urgently need to be combined.

Bereavement awards in Fatal Accident claims

A second area of concern in equality terms relates to the bereavement award in Fatal Accident claims. Currently the operation of the award discriminates as to who is entitled to claim it on the basis of marital/partnership status and age.

When a claim under the Fatal Accidents Act 1976 is successful then a bereavement award may be claimed. This seeks to recognise something of the pain and grief of losing a loved one. Much is made of the very limited sums involved (currently just £12,980). However, there is a real equality concern because of the limited number of people who may claim such an award. While the rest of a fatal accidents claim is concerned with the “loss of dependency” on the deceased by a fairly wide variety of people, the only people who may claim a bereavement award are those who fall within s1A(2) Fatal Accidents Act 1976:

“A claim for damages for bereavement shall only be for the benefit—

(a) of the wife or husband or civil partner of the deceased; and

(b) where the deceased was a minor who was never married or a civil partner—

(i) of his parents, if he was legitimate; and

(ii) of his mother, if he was illegitimate.”

This clearly restricts those who can claim substantially. The requirement that someone must be the wife, husband or civil partner of the deceased discriminates because of someone’s marital status. It is in stark contrast to the provisions that set out who can be a dependent: these include anyone who:

“(i) was living with the deceased in the same household immediately before the date of the death; and

(ii) had been living with the deceased in the same household for at least two years before that date; and

(iii) was living during the whole of that period as the husband or wife or civil partner of the deceased;” (s1(3))

There is further discrimination because of marital status, in relation to minors who die: where they are illegitimate, only their mothers can claim, irrespective of the closeness of the relationship with their father. Moreover, the restriction on awards to the parents or mother of a minor raises age discrimination issues: the award is expressly limited because of the deceased’s age. In policy terms, why is it more grievous to lose a child aged 17 years and 51 weeks than it is to lose a child aged 18 years and 1 week?

The High Court recently considered whether s1A of the Fatal Accidents Act 1976 was incompatible with Articles 8 and 14 of the European Convention of Human Rights and, if so, whether it could be read down to include co-habitees who had been living together for over two years prior to the date of death: Smith v Lancashire NHS Trust and Others [2016] EWHC 2208. Edis J rejected the claim holding that there was no direct and immediate link between the measures sought and the Claimant’s right to respect for private or family life. There was no conflict with an important aspect of her personal identity and the link to family life was not sufficiently strong because the family life with the deceased was at an end. Importantly, if there was a breach of Article 8 by virtue of the present terms of s1A then, if there had never been any provision such as s1A in the Act, then there would be a positive obligation on the UK to enact such legislation, and that (understandably!) had not been argued for. Consequently, when considering Article 14 (the right not to be discriminated against) Edis J noted that the claim also fell outside of the “ambit” of Article 8 such that Article 14 (a so-called “piggy back” right) was not engaged.

Despite this, he noted that there was a “degree of incoherence” in the Secretary of State’s position in relation to the categories of people who could recover a bereavement award (not least because 2+ year cohabitees can recover under the Criminal Injuries Compensation Scheme). He noted that the current law is in need of reform.

As currently enacted, the law provides for a bereavement award which is both extremely small in financial terms, and discriminatory as to who is entitled to claim it.

Loss of Earnings Claims

Sex discrimination occurs in two ways in the calculation of damages for future loss of earnings in a personal injury or clinical negligence claim. In these cases it is common for a multiplier/multiplicand approach to be taken. This means that the annual loss of earnings (the ‘multiplicand’) is multiplied by a ‘multiplier’ which reflects the period of time over which earnings are being lost, with a discount to recognise the fact that money received as compensation will be received sooner than it otherwise would have been.

A further discount is applied to reflect the risk that an injured person may have spent time out of the labour market in the future in any event, even if not injured, for example due to early retirement or redundancy, and would therefore not have lost any earnings over that period.

The first type of discrimination occurs because, traditionally, a higher discount for the risk of being out of the labour market in any event has been applied to women of childbearing age in order to take account of the chance that, but for the claimant’s injuries, she would have taken time off to bring up and raise children.

It is inappropriate and discriminatory against females to apply such a discount to all women of childbearing age, given the high proportion of women who return to work after childbirth, the proportion of women who do not have children, and the substantial moves in recent years towards a shared, more equal form of parenting where there are two parents, through measures such as shared parental leave.

The second type occurs arises through further discrimination in relation to the multiplicand. Earnings statistics for men and women are compiled through the Annual Survey of Hours and Earnings and published by the Office for National Statistics. These statistics tend to reflect lower earnings for women. This leads to defendants arguing that in personal injury claims, women’s earnings should be calculated using a lower multiplicand.

This is discriminatory. The courts should apply either the average loss of earnings figure for men and women or the higher earnings of men, instead of applying the average loss of earnings figure for women. If it does not do so, it fails to recognise the advances that have been made in women’s earnings over time and the fact that women are entitled to equal pay for work of the same or equal value as that done by men, with discrimination in pay rates outlawed by equality legislation.

Summary

The discriminatory effects of many of these issues are widely recognised. However, this recognition has unfortunately not yet led to any legislative change.

Cloisters specialises in discrimination law as well as clinical negligence and personal injury. Please call the clerks on 0207 827 4000 to learn more about our practice areas and how we can help your clients.

October 2016

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