Defining “disability” in serious injury litigation

May 20, 2024

Introduction

In catastrophic injury litigation, there is often no dispute about “disability”. However, for the category claimants who sustain life changing injuries but are able to return to work in some form, a key issue in the claim is likely to be whether they are “disabled” for the purposes of an Ogden calculation of future earning capacity.

Some claimants change their job and manage to earn similar amounts of money as they had pre-accident. Some claimants avoid certain movements or certain activities which cause pain and continue in their pre-injury role. Often claimants who keep their jobs will rely on having a supportive employer or helpful colleagues who ‘pick up the slack’ in order to keep the injured claimant in post.

Serious injury lawyers working for claimants will all have ‘stoic’ clients who have worked hard to ameliorate physical and financial consequences of their ongoing condition. They struggle on at work and manage without support or domestic assistance at home – determined to ‘get on with it’. They may personally object to being labelled as “disabled”.

“Disabled” is, of course, a very loaded term – and one which means different things in different contexts. For the purpose of a loss of earnings claim, we are focussed upon the “Ogden Definition of Disability”.

Ogden “disability”

Section B(d) of the Explanatory Notes to the Eighth Edition of the Ogden Tables describes the cumulative three-stage test for “disability”:

A person is classified as being disabled if all three of the following conditions in relation to ill-health or disability are met:

• The person has an illness or a disability which has or is expected to last for over a year or is a progressive illness; and
• The DDA 1995 definition is satisfied in that the impact of the disability has a substantial adverse effect on the person’s ability to carry out normal day-to-day activities; and
• The effects of impairment limit either the kind or the amount of paid work he/she can do.

The definition of “disability” in the Disability Discrimination Act 1995 (which underpins the Ogden definition) appears at s.1(1):

Subject to the provisions of Schedule 1, a person has a disability…if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

A quick pause here to remember that under the previous edition of the Ogden Tables, the legislative test for “disability” was imported from the Equality Act 2010 rather than the DDA. The EA test is less stringent than the DDA test and that lower bar for “disability” famously caused problems for the claimant in Billett v. Ministry of Defence [2015] EWCA Civ 773. The editors of the Explanatory Notes to the Eighth Edition observe (at para.69) that: “Mr Billett was disabled under the looser Equality Act 2010 definition but arguably he was not disabled under the tighter Ogden definition of disability because his impairment was not sufficiently limiting”. It is important, therefore, to ensure that a claimant’s evidence addressing the issue of “disability” refers to the DDA, not the EA. Although this is a legal test and not a ‘medical’ test, the views of the medical expert witnesses are clearly relevant – and even now I am seeing reports expressing a view about whether a claimant is disabled for the purpose of the EA.

What is “substantial”?

The Explanatory Notes to the Ogden Tables point out that “Both ‘normal’ and ‘substantial’ [in the DDA criteria] require interpretation” (paragraph 69). Paragraph 3.2 of the DDA Code of Practice defines ‘substantial’ as: “more than minor or trivial”. Further guidance issued by the Secretary of State for Work and Pensions states (at paragraph B1):

A substantial effect is one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people which have only ‘minor’ or ‘trivial’ effects.

The Explanatory Notes to the Ogden Tables go on to observe (at paragraph 69):

The meaning of the word ‘substantial’ has changed over time in both law and common understanding  such that the threshold whereby an activity-limitation qualifies as ‘substantial’ (and therefore amounts to a disability) was lower in 2019 than it was when the data were collected. This is reflected in a higher disability prevalence rate in the working-age population which was around 12% in 1998 and is around 19% in 2019, reflecting an increased reporting of qualifying activity-limiting impairments rather than an increase in the number or severity of such impairments.

In order to cross the ‘substantial’ threshold at the heart of the Odgen definition, a claimant’s evidence must focus on the ‘substance’ of their impairment. Exactly how does their injury impact on their day-to-day life and work? In what way to symptoms make things more difficult, or rule certain things out altogether? Would the claimant self-report these limitations as ‘trivial’?

What are “normal day-to-day activities”?

Under paragraph 4 of Schedule 1 to the DDA:

An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following: (a) mobility; (b) manual dexterity; (c) physical coordination; (d) continence; (e) ability to lift, carry or otherwise move everyday objects; (f) speech, hearing or eyesight; (g) memory or ability to concentrate, learn or understand; or (h) perception of the risk of physical danger.

As such, an impairment to at least one of these activities must be demonstrated. Guidance notes to the DDA expand upon each of these abilities by giving example impairments:

Mobility – for example, unable to travel short journeys as a passenger in a car, unable to walk other than at a slow pace or with jerky movements, difficulty in negotiating stairs, unable to use one or more forms of public transport, unable to go out of doors unaccompanied.

Manual dexterity – tor example, loss of functioning in one or both hands, inability to use a knife and fork at the same time, or difficulty in pressing buttons on a keyboard

Physical co-ordination – for example, the inability to feed or dress oneself; or to pour liquid from one vessel to another except with unusual slowness or concentration…etc.

However, these notes were never intended to provide an exhaustive list and are not, by themselves, determinative of whether someone is “disabled”. For example, there will be very many other impairments to mobility beyond those affecting walking speed, vehicular travel, use of stairs and independence outdoors. The Explanatory Notes to the Ogden Tables therefore urge caution in application of the examples from the guidance notes, observing (at paragraph 70) that the guidance notes were eventually dropped from the Equality Act 2010 and from the ONS’s subsequent Labour Force Surveys because they were considered “overly restrictive in the definition of disability.”

As such, the Explanatory Notes themselves prefer a more straightforward interpretation: Normal day-to-day activities are those which are carried out by most people on a daily basis and which include those carried out at work (paragraph 69).

A recent example: Barry v. Ministry of Defence

In Barry v. Ministry of Defence [2023] EWHC 459, the claimant pleaded a substantial Ogden claim for future earnings on the basis that he was “disabled” and the defendant argued for a (less valuable) broadbrush approach in the form of a lump sum Blamire award.

Mr. Barry was a former Royal Marine discharged from the military because of his noise-induced hearing loss (which occurred as a result of the defendant’s admitted breach of duty). His hearing loss meant that he would be unable to serve in any branch of the military or as a police officer or in the fire service [54].

The claimant had been earning about £40,000 per annum as a Marine (though with the expectation of improving his salary [139]). In civilian life, he found work as an HGV driver, still earning upwards of £40,000 per annum [49-50]. On that basis [64]:

The MoD contend that Mr Barry’s earnings since his medical discharge are broadly comparable with the earnings he might have expected to receive if he had not sustained any hearing loss. [Counsel for the MoD] submits that there should be no loss of earnings award beyond a sum in respect of handicap on the labour market.

Johnson J rejected that submission [144]:

The MoD dispute that Mr Barry’s hearing loss affects the kind of paid work that he can do now. I disagree. He cannot serve in the military (as his medical discharge demonstrates). It is common ground that he cannot be a police or fire officer. So, subject to satisfying the definition in the 1995 Act, he has a disability.

The trial judge went on to consider the Ogden Definition of Disability, the DDA and the relevant supporting materials. The judge noted that [145]:

It is important to focus on what the person cannot do, not on what they can do. Thus, account can be taken of day-to-day activities which the person avoids doing because of the impairment.

Here, the judge referred to paragraph B8 of the statutory guidance to the DDA:

Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty, rather than focussing on those things that a person can do.

The judge concluded by accepting the claimant’s evidence (supported by expert medical evidence) that his hearing loss did have a substantial adverse effect on his day-to-day activities [147].

The judgment in Barry is a solid reference point for lawyers preparing this sort of loss of earnings claim. It did not matter that Mr. Barry was earning about the same salary after his injury. It did not matter that he had (until just before the judgment) been in stable employment. It did not matter that there remained a wide range of activities that he could still engage in without significant impairment. The focus of the evidence (and the focus of the judge) was on what the claimant could not do anymore, rather than what he could still manage.

Barry is also a good example of the more nuanced approach to ‘less severe’ disabilities which is required since a blunt ‘split the difference’ method was rejected by the Court of Appeal in Billett.

A modest adjustment to the disabled contingency factor is all that authors of the Explanatory Notes would recommend (paragraph 91). Johnson J also noted that Prof. Victoria Wass (a co-author of the reduction factors) had recommended that judges should focus on the different “disabled” adjustment figures in Tables A-D (according to levels of educational attainment) rather than on the spectrum between the disabled and non-disabled figures.

As such, in determining which discount for contingencies other than mortality to apply in Barry, Johnson J decided that the claimant’s educational level was ‘2’ (noting that “Educational attainment is used in this context as a proxy for ‘human capital/skill level’”). However, in calculating Mr. Barry’s ‘but for’ earnings he adjusted the disability reduction factor to that at level ‘3’ to reflect that the claimant’s disability was ameliorated by hearing aids and that he had been able to maintain employment throughout the period since his discharge from the Marines [161].

Conclusion

I recently represented a claimant at trial who had sustained a very bad lower limb injury which had caused him to change jobs and continued to impact his daily life – he could not squat or kneel and had problems using stairs. In his new role he was earning slightly more than he had been when he was injured, and so the defendant (like the Ministry of Defence in Barry) argued that he was not disabled because his pre and post-injury lives were ‘remarkably similar’. The trial judge accepted the claimant’s case that he was “disabled” under the Ogden test, after carefully applying each of the criteria discussed above.

That determination of “disability” made a difference of hundreds of thousands of pounds to the claimant’s compensation (a “disabled” Ogden calculation vs. a ‘broadbrush’ Blamire award) and demonstrates the importance of proper preparation of lay and expert evidence on “disability”. A clear understanding of the test to be applied is essential. As is consideration of how the relevant criteria apply to the claimant in question – even if that claimant is still in work and would not like to think of themselves as disabled. I would encourage any claimant lawyer preparing a case such as this to go back to the DDA Code of Practice and Guidance Notes and ensure that the evidence in the case directly addresses the criteria, thresholds and examples which all feed into the Ogden Definition of Disability.