Proof of “non-organic” pain now available

Technology moves on, and can now extend to question about whether a claimant’s pain is real or fake. There is a new scientific development involving brain imaging using functional magnetic resonance imaging (fMRI). There is a useful article on this by Paul Hobby in the May edition of Personal Injury Law Journal at page 23. fMRI can show that a report of chronic pain, which has no apparent organic cause ,nevertheless has a very real manifestation in a region of the brain, which we recognise as the emotional “appreciation” of pain. The eggshell skull principle might be argued more readily for pain sensitive individuals when it becomes clear that their unique condition stems from measurable physical changes in the brain.

However there is no evidence that this new technology has been used in court yet. Further information about the development may be obtained from Dr Irene Tracy of the Pain Research Unit at Oxford University.

So how do the courts deal with non-organic pain at present?

In a recent example, the claimant suffered a single, slight injury to her back in an accident at work when the wheels of a trolley she was pushing jarred. She complained of significant ongoing symptoms and was medically retired at the age of 44. An MRI scan showed a normal spine. The orthopaedic experts thought that she would have been fit to return to work three months after the accident. However, at trial they felt that for orthopaedic and “for other reasons” she was not fit to return to work. Neither felt that she was malingering. The jointly instructed psychiatrist thought that her pain was part of a previous pattern of behaviour which was established prior to the accident. He believed she had a general predisposition to exhibit all of this behaviour and this would have manifested itself regardless of the nature of her employment. He did not think she was malingering. She did not suffer from any psychiatric condition.

The judge found that this was an eggshell skull case and that there was no break in the continuum of the ongoing effects of minor trauma to a slightly vulnerable back and a very vulnerable personality, although the judge found that there was exaggeration "because that is how she is”.

The defendants argued in mitigation that she should have had pain management treatment which would have enabled her to return to work but the judge said that no one had suggested that the claimant was in any way to blame for not being able to benefit from recommended pain management treatment (the claimant had not undergone the treatment because of her failure to see beyond the clinics ability to remove the continuing pain, as opposed to helping her cope with it). The judge also commented that the defendants had never raised any practical suggestions or attempts at rehabilitation.

She was awarded loss of earnings from the date of the accident when she was 41 until she is 55. A total of £157,817.60, inclusive of general damages of £16,500. Additional interest on damages was awarded so that she received a total of £177,989.84.

(Coleman -v- Medway NHS Trust. Canterbury County Court 30 March 2005).

Health and Safety

Improvement Notices

Some employers, who receive Improvement Notices issued under the Health and Safety at Work Act 1974 Section 21, are puzzled because inadequate explanation is provided about what was wrong. In a recent case, the employers applied for judicial review and the court held that the recipients of Improvement Notices were entitled to know what was wrong and why that was the case. Notices should be clear and easy to understand. If they were confusing, they could make the notice invalid.

BT Fleet Limited -v- McKenna, Times Law Reports, 5 May 2005.