No Pain, No Gain

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No Pain, No Gain

Published 18 agosto 2022

DAC Beachcroft Scotland have successfully defended a case in The Court of Session in which the pursuer sued their client’s insured, for £1 million. After an eight day Proof, damages were ultimately awarded at just over £5k with the pursuer failing to beat our Tender of £15,000. This Tender had been in place since February 2021. We will now seek to recover expenses from the date of that early Tender to the date of the Judgement, resulting in a significant saving for our client. This decision will provide a useful precedent for defender agents and their clients in cases involving somatoform disorder and chronic pain. The case only adds to the portfolio of successfully defended chronic pain cases by the UK wide DAC Beachcroft Chronic Pain team who are leading the way in this multifaceted area of law.

Annis Mackay, partner in DACB Scotland’s Glasgow office led the team to success in the case which demonstrates the importance of clear and consistent strategy, early decision making and strong expert evidence in cases of this nature. The Opinion in this case was delivered by Lord Turnbull on 27 July 2022 – 2022csoh50.pdf (scotcourts.gov.uk)

Accident circumstances

The pursuer was a 45 year old woman who, on 12th August 2017, stepped into a “manhole” from which she had managed to dislodge the lid whilst returning with her family from a barbecue at a neighbour’s house.

The pursuer described a rather terrifying accident in which both her legs went down into the manhole, and explained how she only managed to stop herself falling any further by putting her arms out to either side. She averred that at no point could her feet touch the bottom of the manhole.

However, one of the defender’s employees made a video of the manhole not long after the accident and it was obvious that, as it had a depth of just under two feet, the pursuer could not have fallen into it in the way she alleged.

The Lord Ordinary did not accept the pursuer’s account of the accident. He concluded that the pursuer was not a reliable witness Following on from this, he also considered her account of her “injuries” was not credible or reliable.

Aftermath of the accident

The pursuer did not sustain any serious injuries in the fall and after a few weeks she went back to full-time work and thereafter was in fact offered a promotion. Nonetheless ever since the accident the pursuer said that she had suffered from persistent pain in the right hand side of her body, specifically in her shoulder, arm and wrist. She was adamant that she had fractured her shoulder, which transpired not to be the case.

In addition the pursuer alleged that she had experienced pain in her right leg and back since the accident. The leg pain in particular had been persistent and become worse over time. She described herself as being in “unbearable pain”. There was a whole raft of other symptoms including not being able to walk, inability to enjoy hobbies such as cycling, limitations on her ability to drive and so on. She paid for a MRI scan which showed nothing out of the ordinary.

Surveillance had been carried out which showed the pursuer being able to carry out various activities of which she had told the experts she was not capable.

The pursuer’s alleged symptoms were unable to be squared with what was being objectively observed. Her extensive pre-medical history suggested very strongly that her problems appeared to be rooted in Somatic Symptom Disorder (SSD), a chronic pain condition.

Lord Turnbull considered the following questions in reaching this landmark judgement: -

1. The extent to which the pursuer has suffered persistent or constant ongoing pain in the areas of her shoulder, arm, wrist and leg.

Resolving this depended on the reliability of the pursuer’s evidence which he concluded could not be relied upon. Counsel for the pursuer attempted to argue that the pursuer was reliable and that people suffering from SSD and chronic pain often find it hard to give a coherent description of their history or symptoms. We argued that the pursuer ought not to be automatically accepted as a reliable witness and her evidence needed to be examined thoroughly.

We required to forensically analyse and take the Court thoroughly through the pursuer’s medical history as well as highlighting the fact that the pursuer had continued in her employment, without any associated absences, in a well-paid and responsible managerial position, requiring a two-hour drive each day on top of her working hours.

On this basis Lord Turnbull agreed that the evidence did not support the pursuer’s account of constant debilitating pain. The surveillance evidence only supported his view.

2. Whether any such exacerbation was caused by her accident.

The evidence from the parties’ experts was crucial in the context of this question. The pursuer’s agents chose to instruct Dr Stewart, Consultant Psychiatrist, and Dr Jonathan Bannister an expert in Pain Medicine and Analgesia, Conversely we chose to instruct the eminent Neuropsychiatrist Professor Alan Carson. In essence, the experts all agreed that the pursuer, despite her own account of matters, had a long history of somatoform disorder and symptomology. The key point was whether the accident had exacerbated her symptoms. Professor Carson was of the opinion that it had not made them worse and Lord Turnbull preferred his compelling evidence. In fact, his Lordship criticised Dr Stewart for his “untested acceptance” of what the pursuer told him. The pursuer’s pre-existing SSD had not been exacerbated and therefore the question fell away.

Damages

Solatium

The pursuer eventually contended for £40,000 based on a finding that she had suffered an exacerbation of her pre-existing SSD and was entitled to an award for psychiatric injury. As well as the evidence of Alan Carson, Lord Turnbull took on board what Mr Angus MacLean, the orthopaedic expert for the defender, said in his evidence about the nature of the actual injury suffered and awarded only £4,200 in part to compensate for the pursuer’s wrist injury.

Had he found for the pursuer, Lord Turnbull advised he would have found making an award to be very difficult but would have based it on (a) the pursuer’s symptoms being half as serious as those in Malvicini v Ealing Primary Care Trust [2014] EWHC 378 (QB) and (b) her pre-existing SSD being the cause of half the pursuer’s present symptoms. Damages of £40,000 were awarded for PSLA in Malvicini hence Lord Turnbull would have awarded £10,000 for solatium in this case. However, the sum awarded reflects the reality of the nature, extent and duration of the pursuer’s genuine injuries.

Loss of earnings

The pursuer alleged she would have been promoted and had lost the chance of higher earnings. This claim completely failed. On the same logic, the pension loss claim, being without merit, fell away. The bulk of her £1M claim comprised these heads.

Services

The Judge made a small award of £846 to family members under s8 of the Administration of Justice Act 1982. He rejected a claim for services to an injured person’s relative under s9 of that Act 1982 of £10,000 to compensate that the pursuer could not take her wheelchair bound mother out for visits on the basis that (a) the case on exacerbation had been rejected and (b) what injuries were caused by the accident ought to have resolved within a few weeks.

Conclusion

All the experts, but in particular, Professor Carson, stressed that the pursuer’s reliability as a witness was central to this case. In nuanced cases with a chronic pain condition like SSD at its source, there are only functional symptoms available for the experts to assess. Lord Turnbull made the point early on in his Opinion that the pursuer was not a reliable witness in respect of what happened to her in the accident and clearly had in his mind the possible effect this unreliability would have later on.

We took great pains to make sure we had obtained the entirety of the pursuer’s medical records, no small exercise when the number of specialists she saw and hospitals she attended is taken into account. Access to the full medical history is vital especially when there is a pre-existing condition at the heart of the case.

Clearly the case shows the importance of lodging a fighting tender early on to put the other side at risk but also it also explored the eternal problem of chronic pain and the unreliable pursuer, where a forensic approach to the medical evidence and pursuer’s past is imperative to a successful outcome.

The case pre-dated the introduction of QOCS in Scotland and so the defender’s costs will, from the date of the Tender, be met by the pursuer’s agents. Consequently, the outcome of this case is a stark reminder of how much the legal landscape in Scotland has changed, arguably to the detriment of defenders and their clients. It is difficult to envisage an argument of fraudulent misrepresentation being successfully advanced in a case where a pursuer apparently believes their own narrative. However, the DACB UK Chronic Pain wide team are working collaboratively on this issue, and in utilising innovative defences, we will continue to deliver strong savings and successful outcomes for our clients.

Authors

Annis Mackay

Annis Mackay

Glasgow

+44 (0)141 223 8560

Kate Oldroyd

Kate Oldroyd

Manchester

+44(0)161 934 3001

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