In Osaka court, parents seek full damages over death of hearing impaired daughter

From Jiji Press via The Japan Times

November 17 2022

OSAKA – In ongoing hearings for a damages lawsuit after a girl with impaired hearing was killed in a traffic accident in 2018, estimating lost wages have become a key point of contention.

At Osaka District Court, the family of the deceased girl, Ayuka Ide, who was 11 years old at the time of the accident, have pressed for her to be treated equally to people without disabilities.

The court proceedings will come to an end as soon as this month, with a ruling expected to be handed down in 2023.

In the February 2018 accident, which occurred in the city of Osaka, an excavator plowed into pedestrians — mostly children on their way home — near a prefectural school that supports aurally challenged people, killing Ide and injuring four others.

In a criminal trial, the district court found the driver guilty of dangerous driving resulting in death and injury, attributing the crash to an epileptic seizure he experienced and concluded that he had concealed his pre-existing epilepsy condition in order to drive the vehicle.

In 2020, the girl’s family filed a suit against the driver and the construction company that employed him, seeking damages of about ¥60 million.

The plaintiffs demanded that the estimated lost wages of the victim be calculated based on average wages for men and women, the same formula used for people with no disabilities. The defendants, however, argued that the lost wages should be 60% of the average wage, after initially proposing 40% of the average wage of women — who still often earn less than men in Japan.

Estimated lost earnings for a person who dies or is severely disabled due to traffic accidents or other reasons are considered to be the future pay the individual would have earned had he or she not encountered such a fate. They are among the criteria used to calculate damages.

For children not yet in the workforce, lost earnings are determined on the basis of the age at which they could have started working, using data such as the average wage for all workers. For people with disabilities, lost earnings are often lower than those for people with no disabilities. In some cases, lost earnings for severely disabled people have been rated as zero.

In the Osaka case, the defendants argued that people with hearing impairments tend to face difficulty landing full-time regular jobs and find it more difficult to receive promotions and pay raises compared to people without disabilities.

Meanwhile, the girl’s family said the working environment for those with hearing impairments is improving due in part to the development of voice recognition technology, amid calls for disabled people to be considered more reasonably in social life.

A teacher at the special-needs school the girl had attended appeared in the court as a witness, and rejected claims that there is a direct relationship between anticipated future earnings and auditory capacity. “Hearing ability and academic skills do not correspond to each other,” they said.

Regarding the developing levels of technology, judges at the court provided the plaintiffs with opportunities to explain UD Talk, an app that instantly converts speech into text, and the closed caption feature of Teams, a chat app used by businesses.

The legal team for the victim’s family includes a number of lawyers with visual or hearing impairments, who are using technologies to take part in the court proceedings.

“The defendants’ claim amounts to human rights discrimination,” said the girl’s father, Tsutomu Ide. “I want a fair judgment.”

The lawyers’ team includes Makoto Ogoda, who is blind. “As far as I know, there is no judicial precedent (in Japan) that has determined the lost wages of children with disabilities to be the same as those of children free from disabilities. This is an important case that can make history,” he said.

Tsukasa Yonamine, a professor at Kobe College who specializes in welfare for people with disabilities, said, “How much a person with a disability can earn depends on the individual’s characteristics and relationship with society. The court hearing should not result in a verdict affirming society’s handling (of disabled people), which is inadequate.”

Yonamine added that people’s “contribution” to society, including those with disabilities, should not be simplified to paid work alone.