Hanley: Negligence risk for lawyers
Personal injury lawyers need guidance on transgender claimant compensation following this year’s Supreme Court ruling to avoid possible negligence claims, it was argued this week.
Stuart Hanley, director of legal practice at Wakefield-based Minster Law, said the male and female Ogden tables – the actuarial tools used to calculate future financial losses in serious injury cases – could result in compensation differences of up to six-figure for a claimant, depending on which approach their solicitor took.
“There is no current guidance on which Ogden table to use for trans claimants. While many cases will depend on very individual circumstances, there is a need for clarity here, and expert evidence may be needed in individual cases,” he said.
While the Supreme Court’s ruling – that sex under the Equality Act means ‘biological’ sex – was never intended to create inequality in personal injury compensation, “that’s precisely the risk we now face”, Mr Hanley went on.
“We’re facing a situation where two identical transgender claimants could receive vastly different compensation purely based on their solicitor’s interpretation of which Ogden table to apply.”
He explained that the factors underlying the life expectancy differences set out in the table did not align straightforwardly with birth sex for transgender individuals.
Life expectancy variations could stem from “complex interactions of biological factors” – such as hormonal influences and cardiovascular differences – behavioural patterns and social circumstances that may change through gender transition. For example, men have higher rates of risky behaviours like smoking and drinking, and lower rates of healthcare seeking.
To add to the complexity, some studies have concluded that trans individuals have a higher mortality rate.
“The assumption that biological sex alone determines relevant life expectancy factors is overly simplistic,” Mr Hanley said.
“A transgender woman may be taking Oestrogen and living in ways that distance her from traditionally male behavioural risks, while transgender individuals as a group may face unique mortality factors not captured in standard actuarial tables.
“The legal profession needs to move beyond assumptions and develop evidence-based approaches that ensure accurate compensation while maintaining actuarial integrity.”
He called for professional bodies like the Law Society and the Association of Personal Injury Lawyers to produce co-ordinated guidance, and for the government and the Ogden working party to recognise the issue.
Without it, similar cases would continue to yield inconsistent outcomes, potentially exposing law firms to negligence claims “while creating ethical dilemmas around securing client compensation versus respecting gender identity and privacy”.
Mr Hanley continued: “Courts may currently rely on legal sex recorded on official documents when selecting multipliers, but this remains a developing and potentially sensitive area.
“We need clear guidance on evidential standards for Ogden table selection and documentation requirements for case files.”
In the meantime, claimant solicitors were under a regulatory duty to consider their client’s attributes, needs and circumstances.
“Most law firms don’t routinely record gender at birth information, and you may only become aware of the situation when, for example, you receive a client’s medical records,” Mr Hanley said.
“Firms should consider providing proactive training and guidance to colleagues to ensure they handle these matters with sensitivity, and also appreciate that whatever an individual lawyer’s view may be, they are not allowed to let their personal views affect their professional relationships and the way they provide legal services.
He added that the profession was adapting in other respects, with the Official Injury Claim portal next month offering a ‘N/A’ option in the mandatory title field for claimants – at Minster Law’s suggestion, he said – while the Civil Procedure Rule Committee was replacing gender-specific pronouns with neutral ones, removing mandatory honorifics and allowing non-gendered party names.