26th August 2016
Marcus Grant (instructed by Phillip Cohen of Brian Barr Solicitors) appeared for the Claimant.
In November 2011 the Claimant fell and sustained a soft tissue ‘whiplash’ injury to his cervical spine when he stepped onto a moving belt and lost his balance. Liability was compromised 85% in his favour. On his case he continued to experience neck pain that became more intrusive 9 weeks after the accident after playing some cricket. He continued working in heavy manual work in a hot work environment, suppressing the pain with painkillers. 11 months post accident the neck pain provoked referred symptoms down his left arm. MRI scans revealed some age related degenerative changes and two bulging cervical discs, neither sufficient to warrant neurosurgery. He continued to work through the pain, spending a lot on chiropractic treatment and some pain relieving injections. The pain disturbed his deep REM sleep patterns. At about the second anniversary of the accident he developed more widespread pain with associated fatigue, headaches and cognitive impairment, diagnosed by his treating and medico-legal rheumatologists as Fibromyalgia. He struggled on at work until the third anniversary of the accident and then was physically unable to continue working. He was made redundant at the age of 50 when the coal mine in which he worked (the last operating coal mine in Yorkshire) was closed down. He struggled to find sustainable employment thereafter.
The Defendant challenged the Claimant’s assertion that there was a continuum of pain after the accident. It noted the absence of documented neck pain before he played cricket 9 weeks post-accident. It contended that the neck pain was probably constitutional in origin attributable to age related degenerative changes and the postural and physical demands of his manual career. Further it contended that the alleged nexus between the neck pain-induced sleep disturbance and the emergence of the widespread pain symptoms was speculative and unsupported by medical literature. The diagnosis of Fibromyalgia was rejected by the Defendant who considered the cluster of subjective symptoms, if genuine, was probably psychologically mediated, preferring a diagnosis of Somatic Symptom Disorder for which the prognosis with appropriate CBT would be optimistic.
The £200,000 gross of 15% contributory negligence recovered by way of damages was the product of a negotiation between the Parties, weighing up the credibility, vulnerability and causation risks on the facts of the case.