F v. M (Unrep) 24.02.2020
A then 27-year-old hotel manager sustained a whiplash injury in a road accident in which his vehicle was hit from the front imposing violent deceleration forces to his spine. He stretched out his left arm across his front seat passenger during the accident, which was not sufficient to activate his car’s airbags or prevent the car being driven c. 1 hour home.
Over the ensuing hours and days he developed acute neck pain with referred symptoms down the arm; x-ray, MRI and nerve conduction studies over the following weeks were all normal. The pain persisted and over the ensuing c. 5 + years he presented at intervals with symptoms of CRPS and lost much of the use of the arm.
It was his case that he sustained a mild stretching traction injury to the brachial plexus sufficient to generate chronic pain in a narrowly confined distribution, insufficient to leave any diagnostic footprint on scanning.
Subsequently he developed moderately severe clinical depression as a consequence of the enforced lifestyle changes. These included having to abandon his career and his aspirations to study for an MBA and thereafter continue his career in the US.
He had undergone all appropriate treatments for his condition and the prognosis for any significant recovery 5+ years later was gloomy.
The Defendant’s expert team was skeptical that there was any underlying organic pathology to explain the presentation, in large part because there was a two day delay in the documented report of any brachial plexus symptoms, which the Defendant averred would have been experienced immediately.
The Defendant disavowed the diagnosis of CRPS, attributing any physical manifestations associated with that diagnosis to disuse of the limb.
Having invested huge sums in surveillance evidence of the Claimant over 22 days across the course of three years in the UK, US and Greece, the Defendant advanced a differential diagnosis of Somatic Symptom Disorder to explain the Claimant’s presentation, averring that the litigation was a principal maintaining factor and that the prognosis post-litigation was optimistic. The Defendant also suggested an element of exaggeration, though was unsure whether it was conscious or unconscious.
The Defendant requested permission to rely on expert neurological evidence to supplement his shoulder expert.
The Claimant’s neurological expert was able to demonstrate that a delayed onset of brachial plexus symptoms in cases where there was a stretching of the brachial plexus was common, with the mean time of onset being 6 days post-trauma in a prospective controlled 2001 study of 121 patients. The Claimant’s neurological presentation past the 5th anniversary of the trauma fitted with the diagnosis provided by his medico-legal peripheral nerve surgeon.
The case settled through negotiation against that evidential matrix.