Photo/Illutration Satsumi Ide, mother of Ayuka, who was killed in a traffic accident in 2018, holds her daughter’s portrait during a news conference in Osaka on Feb. 27 after the Osaka District Court ruling. (Asahi Shimbun file photo)

A recent court ruling has raised the question of whether Japanese society is ruled by the fixed idea that people with disabilities cannot earn as much as their peers without disabilities.

The decision should serve as an impetus for renewed efforts to build a society without such discrimination.

An 11-year-old girl who was born with hearing difficulties was killed in a traffic accident five years ago. Her parents filed a lawsuit seeking compensation.

The focus was on how to estimate “lost earnings,” or the amount of money the girl was expected to earn during her lifetime.

The lost earnings for workers can be estimated by calculating their expected income for the rest of their life.

But young people who have yet to reach working age have unlimited potential. It is impossible to predict what kind of life they will lead.

The question is how to estimate compensation for the death of those young people.

On average, workers with hearing disabilities earn about 30 percent less than the average income of all workers, according to recent statistics from the Ministry of Health, Labor and Welfare.

The Osaka District Court ruling on the compensation for the 11-year-old girl’s death was partly based on those figures. But it also took into account the fact that she had general academic abilities and a certain level of communication abilities.

The ruling also noted such factors as the increasing ratio of people with hearing disabilities who enroll in universities, growing employment opportunities for people with disabilities and forecasts for accelerating advancements in technology.

It estimated the girl’s lost earnings to be 85 percent of the average income of all workers.

But her parents expressed disappointment.

The ruling said there is no denying that hearing impairment could restrict the person’s working abilities.

The parents posed a fundamental question: Is it not the recognition that people with disabilities generally earn 30 percent less than the average income itself discriminatory?

Let us return to a 2001 court ruling about the disparity in estimated lost earnings for male and female victims.

At that time, the average wage of female workers was about two-thirds of that of male workers. It was common to estimate lost earnings for a female victim based on the average wage of female workers only.

However, the Tokyo District Court adopted the average wage of all workers in a case about compensation for the death of an 11-year-old girl who was killed in an accident.

The ruling said the conventional method has “an aspect of gender-based discrimination that ignores people’s diverse potentials of development.”

It was an example of a judicial decision that represented a step forward based on ongoing changes in society.

Japan has enacted a series of legislation for people with disabilities since it signed the Convention on the Rights of Persons with Disabilities in 2007.

The Basic Law for Persons with Disabilities defines them as those “who are in a state of facing substantial limitations in their continuous daily life or social life because of a disability or a social barrier.”

Current statistics about people with disabilities reflect society’s past failure to remove “social barriers” sufficiently.

Is it reasonable to use such statistics as basic assumptions for judicial decisions?

If there is a gap between a conventional framework for judicial decisions and the social ideals laid out by the law, it is the obligation of judges and other legal experts to work to create better norms.

There are a number of challenges other than how to estimate lost earnings for people with disabilities.

It is the responsibility for society as a whole, not just the court, to set guiding principles for tackling those challenges. This is also a question that each member of society should think about.

--The Asahi Shimbun, March 3

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