Gender gap and personal injury compensation. Reverse engineering against judicial opacity

HUGO ACCIARRI; DELBIANCO, FERNANDO; MUÑOZ DEL TORO, GONZALO

InDret

Universitat Pompeu Fabra

Lugar: Barcelona; Año: 2023

1698-739X

Damages for personal injuries is a field prone to gender biases. Empirical exploration of the issue, however, is far from being simple, especially in Civil Law countries, given a pervasive lack of transparency and explicitness on the details of reasoning and treatment of numerical values. Accounting for that feature, our research sketches a canon of analysis that goes beyond the words. To deal with risks of cherry picking and inaccurate sample design, our database encompasses all the decisions made during the span time selected (more than 20,000) by an Appellate Court. Scrapers designed ad hoc have been instrumental to that aim. In our case study, the well-known earnings gap, usually assumed a cause of other, second order gaps, ought not to be mirrored in magnitude by pecuniary damages, because the “shadow price” of non-remunerated activities must be computed together with earnings lost, what should counterbalance the latter derivative gap. Nonpecuniary damages, in turn, must be independent of earnings, being theoretically free from that effect. Nonetheless, we found differences with statistical significance in any of them, in favor of men. Some reverse engineering in search of the primary source of the gap leads to find a systematic bias in percentages of disability against women, even in cases where the predictable result should be the opposite. In more general terms, the said obscurity on the treatment of numerical values, usually covered by rhetoric, renders difficult any honest scrutiny of systematic biases on the matter without the assistance of high technology and some sophistication, and shields decisions to criticism. Accordingly, it helps perpetuate gaps whenever existed.