Court of Appeal asked to define ‘disability’

Posted: 22nd June 2012

A promising young artist whose hopes of a career in the film industry were dashed when a saw severed her index finger is appealing against a judge's ruling that she is ‘not disabled’.
Katie Ward, who was on a work experience placement with an architect’s firm when a circular saw sliced off her finger, is at the centre of a test case in which three judges are being asked to define what is meant by ‘disability’.
Her left index finger, which was severed during her second day of work experience, was re-attached by surgeons. However, she says that her chances of a career in the highly competitive field of model making for film and theatre have been thwarted as a result.
The talented 28-year-old, of Royal Leamington Spa, was awarded about £80,000 damages at Coventry County Court in April last year.
However, her lawyers are now arguing before the Court of Appeal (Civil Division) that the award was nowhere near enough to compensate her for the serious impact on her future earnings. They argue that she should have received nearly £280,000.
Miss Ward graduated with a first class honours degree in model making from Bournemouth Arts Institute in July 2006 and her ambition was to pursue a career making sets and props for film and theatre.
However, during her work experience placement, her left index finger was cut off by an unguarded circular saw while she was cutting wood - without supervision - for a model.
Although surgeons managed to re-attach her finger, she was left with reduced function in her left hand and her lawyers argue that the finger is ‘more hindrance than help’.
She also continues to suffer pain in her left hand and post-traumatic stress disorder, which has affected her ability to work with machinery.
As a result of the accident, she had to take an administrative job at a college instead of pursuing her chosen career path.
During the hearing at the county court, Miss Ward told Judge Anthony Cleary she was “embarrassed” by modelling work she had done since the accident.
However, at the County Court, Judge Anthony Cleary said that he could see “little difference” in quality between her current and earlier work and that he could not detect that she had lost any of her "artistic flair or skill".
The judge added: "I do not for one moment trivialise the injury, nor its consequences, but it is plain to me from what I have observed that the index finger is an inconvenience rather than a disability."
Judge Cleary concluded: "From the evidence which has been put before me, I am unable to find that this young woman, either as a matter of fact or law, fulfils the criteria of a disabled person."
Challenging the judge's decision at the Court of Appeal, Miss Ward’s lawyers argued that he was wrong to conclude that she was ‘not disabled’ – a finding that greatly reduced her award for loss of future earnings.
Her barrister, Theodore Huckle QC, said: "The judge appears to have wrongly concluded that, because the claimant can and does still do things, including with her injured hand, and because she can continue to do things in part by avoiding use of that hand, then she is not to be regarded as 'disabled' for these purposes."
He also said that the judge should have found that her on-going phobia of machinery is a further disability and that, had he found she was disabled, her loss of future earnings would have been calculated differently.
Rohan Pershad QC, for the respondents, argued that Judge Cleary reached the correct decision on the evidence before him and that the level of damages he awarded was appropriate.
Lord Justice Aikens, Lord Justice Kitchin and Sir Richard Buxton have reserved judgment on the case until an unspecified later date.