If you’re a young woman, your face is worth between 48-67% more than that of a young man.
That’s the gist of the Judicial College’s Guidelines for the Assessment of General Damages in Personal Injury Cases, 12th Edition (2013) – one of the canonical texts used by lawyers.
For ‘Very Severe Scarring’ ‘in relatively young women (typically teens to early 30s), where the cosmetic effect is very disfiguring and the psychological reaction severe’, the suggested range of damages for pain, suffering and loss of amenity (what lawyers call ‘general damages’) is £39,160 – £78,650. The corresponding figures for males (‘especially in males under 30’) are £24,090 – £53,075.
The editors of the Guidelines are embarrassed by the discrepancy. They point out that it arises from ‘cases that stretch back into the mists of time’, but that 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.’ The embarrassment is appropriate. Gender in itself should not be relevant. The Guidelines list the relevant factors: they include ‘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’.
Should the Guidelines declare that, as a matter of policy, the law should refuse to distinguish between facial scarring in males and in females? That, one might think, is an appropriate way for the law to declare its gender-blindness: it might help to nudge society (which the law leads, as well as reflects) in the right direction. But that would be wrong: the fact is that, whether we like it or not, facial scarring matters more to women. We should do our best to change the attitudes that make this the case, but it is the case, and in compensating claimants, judges should not pretend that we live in a liberal utopia in which people are not judged (by themselves and others) on the basis of the shape or colour of their face. Similarly, when assessing damages for loss of earnings, the law should not pretend that the legislation which prohibits discrimination on grounds of disability actually works.
‘Come in’, said the Well Known Educational Psychologist. We did. ‘Please sit down’, she said, and we did. She didn’t waste time, and quite right too. We wanted to know.
‘Tom and I have had a very interesting afternoon.’ That sounded bad.
‘He’s a very able child indeed’. That sounded worse, because it came with the emphatic pause that always indicates a big ‘but’.
In the pause I wondered why we’d done this. Why we’d taken a little boy out of the woods and out of his playground to have someone fumble inside his head with blunt tools: indices, probes, inventories, and assumptions about normality.
‘He’s quite dramatically dyslexic, I’m afraid.’ My wife shared her fear. There was a lot of it sloshing around. ‘But his IQ is so high that he’ll be able to use lots of coping strategies. And he’s still very young: there’s lots that can be done.’ And she told us what it was. Regulations could be invoked, tribunals could be convened, cards could be flashed, phonemes could be chanted. He could be imprinted like other children. It would just take longer. It would be hard work, for Tom and for us, but there was every reason to be hopeful of a ‘good result’.
And what the hell did that mean? I asked myself. I was too polite to ask her. I didn’t want a result. I wanted my son. Continue reading