Gender Bias in Personal Injury Law: Why We Still Need to Balance the Scales

By Megan Caines

Over the course of my career in personal injury law, I’ve had more conversations than I can count about whether a woman really intended to return to work after having children.

As a young feminist, I found those conversations infuriating.

A client could clearly state her plans, her ambitions, and her expectations for her career, and yet the assumption would still quietly sit there in the background: motherhood would inevitably bring those ambitions to an end.

Things have improved since then. But moments like that have always stayed with me because they reveal something larger about the way women’s lives are often understood within our legal system.

Which brings me to this year’s International Women’s Day theme: “Balance the Scales.”

According to the UN’s official statement, balancing the scales means “ensuring that every woman and girl - regardless of background or identity - is safe, heard, and free to shape their own lives.”

It’s a lovely thought, as International Women’s Day themes often are. (“March Forward”. “Count Her In”.)

But how can women truly shape their own lives when so many of their experiences are still minimised, misunderstood, or simply not believed?

In my corner of the world, personal injury law, I frequently see lingering systemic issues that reflect the broader inequalities we still grapple with as a society. Personal injury law itself isn’t inherently misogynistic, but like many legal frameworks, it often mirrors the values and assumptions already present in the world around it.

And those assumptions can shape how women’s injuries are recognised, understood, and compensated.

When medicine misunderstands women

Medical evidence sits at the centre of almost every injury claim. The law relies heavily on doctors to diagnose conditions, assess impairment, and explain the impact an injury has on someone’s life and their capacity for work.

But the medicine the law relies on doesn’t always do a particularly good job of understanding conditions that disproportionately affect women - chronic pain conditions, fibromyalgia, autoimmune disorders, and many psychological injuries.

We must remember that we are dealing with a medical system that, until the 1980s, continued to diagnose women with hysteria. Given the persistence of vague and stigmatised diagnoses, the question remains: have we really come that far?

When doctors are uncertain about these conditions, that uncertainty flows through the entire system. Lawyers rely on the medical evidence available to them, and judges rely on the same evidence when making decisions.

Even the tools we use to assess impairment reveal some of these gaps. The guides don’t meaningfully rate pain. Some deal with male sexual dysfunction in far greater detail than female sexual dysfunction. Others focus narrowly on functional limitations without really grappling with the broader ways an injury can reshape someone’s life.

Workers’ compensation schemes reflect similar assumptions. Historically, they were designed around acute physical injuries suffered in physically demanding, male-dominated industries. There has been far less recognition of injuries that develop gradually in “pink-collar” professions, or the cumulative impact of sustained psychological stress.

Recent legislative changes that restrict access to benefits for psychological injuries risk narrowing the system even further - and women are more likely to feel the impact of that shift.

The result is that many women’s injuries can be harder to recognise within the legal frameworks designed to compensate them.

The gender pay gap follows women into compensation

Compensation for economic loss is closely tied to income. Which means that as long as the gender pay gap exists and women are paid less, they will continue to be compensated less.

Thankfully, these days, there is a broader acceptance that most women do return to work after having children.

But new assumptions have replaced the old ones. We still see arguments that quietly treat motherhood as a barrier to career progression, or that limit expectations about how far a woman’s career might advance.

These conversations can be so steeped in outdated thinking that if you encountered them outside a courtroom, they would be cause for serious alarm (or at the very least an audible snort.)

Even when those assumptions aren’t explicitly voiced, the gender pay gap continues to shape outcomes. If a woman earns less than her male counterpart, the value of her lost earning capacity will also be lower.

There are also structural issues embedded in legislation. Under the ‘Transport Accident Act 1986’, parents (usually women) can have their earnings calculated in ways that don’t fully reflect their real earning capacity if they are injured while returning from parental leave.

Caregivers still don’t get the respect, or the outcomes, they deserve

Personal injury compensation is largely built around the idea of lost wages.

In other words, the law measures the value of work through income. But what about caregiving? The law still struggles here.

Much of the labour that keeps families and households functioning, like childcare, emotional labour, managing schedules, and carrying the mental load, is unpaid and therefore difficult to quantify in legal terms.

That work, still disproportionately carried by women, tends to sit quietly in the background of legal claims. It is rarely measured in the same way as paid employment.

In many ways, this simply reflects the broader values of the society in which the law operates.

The fear of not being believed

By the time many women reach out to a lawyer about a potential claim, they have often already had their symptoms dismissed or minimised.

For people living with conditions that don’t show up neatly on scans or objective tests, there is often a real fear of not being believed - or of being seen as exaggerating their condition.

When the system struggles to understand certain conditions, and when legal thresholds rely heavily on medical certainty, women can find themselves at risk of being under-compensated or overlooked entirely.

Where to from here?

Yes, things have improved over the course of my career. But they are still far from where they should be.

When discussing the discriminatory laws, policies, and practices that persist in our society, the UN website for International Women’s Day also says, “These barriers are not inevitable. They are built - and they can be dismantled.”

If we are serious about ‘Balancing the Scales’, which we absolutely should be, we must push for a system that sees, hears, and understands women.

For those of us working within personal injury law, that means paying attention to the ways women’s experiences show up in our cases and challenge assumptions that aim to shape their lives for them.