When is the right time to question a medical decision?
The purpose of the law is to minimise inequalities, and create a single platform where we all stand together on the same level. This could include differences between gender, age, disabilities, race, religion and sexual orientation. However, though the theory is valid, in one area, we are still practicing discrimination as if it is the norm.
I hear you say this can’t be true as the ever powering Equality Act 2010 will put its cape on and save the day from the enemy “discrimination”. I agree, The Equality Act 2010 has every intention of doing so. Part 2, Chapter 1** of the act serves to protect those who differ in certain areas of life. A protected party under the act lists those characteristics which are protected against discrimination, and it has covered many, if not all, human aspects of life where difference can occur. They are:
With this in place, surely we are all on the same level and no better or worse than our neighbour? Surely the law therefore treats us all as equal? Well, when it comes to being injured and left with facial scarring, the Equality Act seems to have been forgotten.
Scarring is a terrible injury and can have physical as well as psychological effects. The permanent mark is a constant reminder of what happened and can bring up unwanted memories. Though they can be covered up and hidden from the world if they are on your body, the reality is facial scarring is permanent and always on display. It is very difficult for a person to move on from an injury when it has left its permanent stamp as a reminder of the hardship they have been through, and for the world to see.
So how does the law view this in terms of compensation? Chapter 9 of The JC guidelines (13th edition), Facial Scarring, has made it clear that when it comes to valuing this injury, there is a clear distinction between men and women. The distinction is women are entitled to more compensation than men.
For example, if we were to look at the most severe type of facial scarring, we can see a monumental difference in how the law separates men and women.
In this section, very severe scarring in a relatively young woman (typically teens to early 30s) where the cosmetic effect is very disfiguring and the psychological reaction is severe can have a value bracket of £40,480 to £81,400 (inclusive of 10% uplift). In contrast, very severe scarring to be found in males under 30, where there is permanent disfigurement even after plastic surgery and a considerable element of psychological reaction, has a value bracket of £24,890 to £55,000 (inclusive of the 10% uplift).***
Using the highest figures, there is a gap of £26,400. That is a percentage difference of 48%. That is a measureable amount the law puts between men and women, which is a significant contrast.
But why is the law more favourable of women in this particular area? It is arguably down to outdated law and guidelines which continue to divide men and women. However, if the law and guidelines governing us remain in the past, how can we move on? Can equality be achieved if the very rules of the land fail to acknowledge us as equals?
The JC guidelines have (shockingly) acknowledged this difference and have stated the following when calculating the value of this injury:
The assessment of general damages for facial injuries is an extremely difficult task, there being three elements which complicate the award.
First, while in most of the cases dealt with below the injuries described are skeletal, many of them will involve an element of disfigurement or at least some cosmetic effect.
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.
Third, in cases of disfigurement there may also be severe psychological reactions which put the total award at the top of the bracket, or above it altogether.
As explained, the divide has been kept because this has been the “historical approach”. Yes history is the textbook we learn from when studying for the future, but it also teaches us where we went wrong and how to learn from our mistakes. We should be looking forward, and updating the law with the ever changing society we live in. The true essence of the law in our society should promote equality, and though it has historically taught us many ways, it needs to reflect and adapt to the mentality of the society. The Equality Act should help us to ensure men and women with scars are treated equally.
Whether you are male or female, if you have been affected by facial scarring, we at Kingsley Napley challenge the law to ensure justice is upheld. We will fight against any injustice to ensure you are treated fairly and equally, and ultimately get the compensation you deserve.
For further information, please a member of the Clinical Negligence and Personal Injury team on 020 7814 1200 or by emailing us at email@example.com.
**Equality Act 2010- Part 2 Equality: Key Concepts; Chapter 1: Protected Parties
*** JC Guidelines- Chapter 9- Facial Scarring
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