A woman was involved in a road accident in 2011. She suffered complete blindness, serious pelvic injuries, and a permanent colostomy — a life-altering set of disabilities. She continued working, in a highly accommodated role specifically adjusted to her disability. The MACT assessed her compensation — but reduced her functional disability calculation on the ground that she still had a job. The Supreme Court reversed this and enhanced her compensation significantly.
What the Court Held
The assessment of functional disability in motor accident compensation must focus on the victim's ability to earn in the open, competitive labour market — not on the fact that the person continues to hold a job in a highly accommodated workplace that has been specifically adapted to their disability.
The Court stated: "The calculation of functional disability depends on assessing the victim's earning capacity in the open, competitive market, rather than on retention in a specific, highly accommodated role."
What is Functional Disability?
In motor accident compensation, disability is assessed in two ways:
- Medical disability: the physical/medical extent of the impairment — assessed by a doctor
- Functional disability: the extent to which the disability affects the person's ability to earn — assessed by the court based on the nature of their work and the disability
For skilled workers, professionals, and those doing work that requires specific physical abilities, functional disability is often higher than medical disability. A pianist who loses two fingers has 10% medical disability but 100% functional disability for their profession. The Supreme Court's focus on open market earning capacity is crucial here.
The fact that an accident victim continues to be employed — whether in the same job or a modified role — does not automatically reduce their functional disability for compensation purposes. What matters is whether they can compete in the open labour market with their disability. If their current employment is an accommodation that would not be available in the competitive market, that accommodation cannot reduce their compensation.
Practical Guidance for Accident Victims
If you were injured in a road accident and continue working in an accommodated role — do not allow this to be used to reduce your compensation claim. Get medical and vocational experts to assess your functional disability in the open labour market — not just in your current accommodated role.
Heads of compensation that may have been missed by lower tribunals: loss of earning capacity, loss of future earnings, attendant charges, medical treatment costs, loss of consortium (for family), pain and suffering, and conventional heads. Challenge tribunal orders that leave out any legitimate head.
File your MACT claim promptly — within 6 months of the accident. Delay can lead to evidence being lost and witnesses becoming unavailable. Legal aid is available for MACT claims if you cannot afford a lawyer.
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