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Does disability affect a personal injury claim?

Does disability affect a personal injury claim?

Personal Injury Solicitor, Alix Walker, defines "disability" within the Equality Act 2010 and how this may impact upon a claim for Personal Injury.

When a Claimant is classed as ‘disabled’ this may have an important effect on calculating any damages due to them.

Failure to properly recognise that a person is classed as ‘disabled’ within the definition of The Equality Act 2010 could mean that a Claimant is unfairly under compensated.

The Definition of Disabled

A person is classed as disabled if they satisfy the following criteria;

  1. They suffer from a substantial physical or mental impairment;
  2. which is long term; and
  3. has an adverse effect on their ability to carry out day-to-day tasks;

Physical or Mental Impairment

It is not necessary to show the cause of the impairment or for this to be as a result of an illness.

Impairments can be wide ranging, such as;

  • Sensory impairments such as hearing loss and blindness;
  • Orthopaedic injuries, resulting in a permanent limp or inability to use a hand

Substantial

It will be for the Court to consider whether an impairment is ‘substantial’. This will be satisfied if the impairment can be shown to be ‘more than minor or trivial’, for example if it takes longer to do daily tasks, such as getting dressed.

In the leading case of Billett v Ministry of Defence (2015), the Claimant who was in the army sustained a non-freezing cold injury to his feet. He successfully sued his employer for failing to supply suitable footwear, which exposed him to a permanent sensitivity to cold.  The Judge, on Appeal, confirmed that the focus should be on what the Claimant was unable to do, rather than what he could do.  He was restricted in carrying out many activities, such as gardening, DIY, rugby and swimming, especially when the weather was cold.  The Judge determined that this was more than ‘trivial’.

Long Term

An impairment will be considered long term if it has lasted, or is expected to last, for 12 months or more.

In some conditions an individual will suffer from a substantial impairment for only a short period of time. An example of this can be the adverse effects of rheumatoid arthritis, which may flare up for short periods. If the impairment can be shown to be likely to recur, then the condition will be considered to be continuing.

There is no requirement for this where an individual is diagnosed with a progressive condition such as cancer or HIV. These individuals will be regarded as disabled from the day on which they were diagnosed.

Normal Day to Day Tasks

Under the Act, normal day to day tasks should be given their ordinary meaning and therefore this includes the ability to get dressed, washed or make a cup of tea for example.

Normal day to day tasks should be assessed as those which are normal for everyone, not just the person with the impairment. This principle was applied in the case of Chief Constable of Lothian and Borders Police v Cumming (2009) where a special constable’s visual impairment prevented her from career progression.

Effect of Disability on a Claim

During the course of a claim, it will be necessary to obtain medical evidence in the relevant field of expertise, such as neurology for brain injuries, ophthalmology for eye injuries or orthopaedics for broken bones.

When reporting on a Claimant’s injuries, if relevant, the expert should confirm whether the Claimant satisfies the definition of disability within the Act. Where this is confirmed, the compensation a Claimant may receive can often be higher due to the substantial and long term effect on the Claimant’s life the injury has caused. 

In addition it may also help determine that the Claimant is disadvantaged on the job market, supporting any claim for future losses, especially loss of earnings, thus increasing the value of the claim overall.

If you have any queries regarding disabilities and personal injury claims, please contact Alix Walker on awa@burnetts.co.uk.

About the author

Alix Walker profile photo

Alix Walker

Alix is a Solicitor in the Medical Negligence and Serious Injury team.

Published: Tuesday 9th May 2017
Categorised: Legal Services in Newcastle, Penrith, Serious Injury, West Cumbria

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