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Weightmans secure discontinuance in large loss employer’s liability claim

Sometimes the temptation can be to buy off risk at too high a price, rather than holding one’s nerve in an unmeritorious claim

Background

The claimant was employed as a cable jointer by the defendant, a regional power network operator. In December 2015, during the course of his employment, the claimant attended a main electricity substation supplying a city adjacent to a tidal river. At the time, a named winter storm, consisting of exceptionally heavy rainfall and storm force winds, had caused rising river levels. The claimant and his colleagues were tasked with attempting to prevent the substation from flooding in order to preserve the electricity supply to the city.

The claimant alleged that, as a result of his involvement in the operation, he was exposed to foreseeable risks of physical (falling, becoming stuck, etc.) and psychological (fear of drowning, electric shock, etc.) injury in breach of the defendant’s duty as an employer to devise and operate a safe system of work. It was the claimant’s case that his fears and concerns later caused him to develop PTSD and, later again, fibromyalgia. The defendant denied liability and specifically denied that there was any connection between the incident and the claimant’s fibromyalgia.

The medical position

Weightmans, acting for the defendant on the instruction of its employer’s liability insurers, mounted a robust defence to the breach of duty allegations and denied that legal causation was made out, but the central issue in the case was medical causation. It was common ground between the parties’ rheumatological experts (Dr Frank McKenna for the claimant and Dr Ashok Bhalla for the defendant) that the claimant developed fibromyalgia almost a year after the index incident. It was apparent from the medical records that the claimant had been a regular attender at his GP surgery prior to the index incident and had complained of an array of symptoms over a lengthy period. Dr Bhalla opined that these symptoms amounted to ‘fibromyalgianess’ or ‘trait fibromyalgia’, whilst the consultant psychiatrist instructed on behalf of the defendant, Dr Christopher Bass, preferred a diagnosis of ‘somatic symptom disorder’. The defendant’s Pain Management expert, Dr Neal Edwards, went further and said it was likely that there was a conscious element to the claimant’s reporting of symptoms. Fundamental dishonesty was later pleaded in the counter-schedule.

The claimant continued to work after the index incident, save for a one-week absence a month later, in respect of which he made no mention of his involvement at the substation or the alleged impact of this on his health. Significantly, the claimant continued to work the same high levels of overtime as he had before the index incident.

The claimant’s post-incident presentation was examined in great detail in the medical evidence. Notably, there was no attendance by the claimant at his GP surgery until five months after the index incident in May 2016. From then on, there was a steady uptick in GP attendances. The claimant presented with generalised symptoms but, crucially, made no mention of the index incident or its purported effects. It was not until the claimant was seen by a specialist rheumatologist in April 2017 that it was suggested the index incident might have caused the claimant to suffer with PTSD and, from that, fibromyalgia. In short, the conclusion from the defendant’s medical experts was that there was an insufficient nexus in time between the index incident and the development of symptoms of fibromyalgia/PTSD.

Dr McKenna accepted the gap between the incident and the fibromyalgia diagnosis was longer than was usually seen but took the view the claimant had to develop a psychiatric response in the first instance, from which the fibromyalgia flowed. The claimant’s psychiatric expert, Dr Jonathan Hellewell, relied on the claimant’s wife’s recollection of the claimant’s presentation, which was relayed during Dr Hellewell’s assessment and in her own witness statement, to build the nexus between the incident and the psychiatric response. However, the fact that the medical records painted a very different picture was the Achilles heel for the claimant.

Trial

The final schedule of loss, predicated as it was on a claim that the claimant would not work again in his previous capacity, amounted to almost £1.8 million. The views of the parties’ medical experts were polarised. There were no contributory negligence arguments. This was an ‘all or nothing’ case. Our instructing insurers and their customer were fully on board with the advice from leading counsel and Weightmans that this was a claim to defend to trial.

At trial in March 2021, before HHJ Sephton in the High Court (Manchester District Registry), the claimant’s case unravelled during unrelenting cross-examination on medical causation by the defendant’s leading counsel. The claimant was inconsistent in his explanations as to why he did not report the purported effects of working during the index incident, even though there was ample opportunity in frequent GP attendances and discussions with his employer. His evidence was, at times, not credible and ranged from a belief he was coping with psychological effects, to an assertion that he was not questioned sufficiently by treating clinicians about his psychological state and a contention that some of the recorded entries in the notes were the clinicians’ assumptions and not based on what the claimant had told them. The cross-examination (which for day one of the trial was in person despite being during lockdown, due to the fundamental dishonesty allegation) had not finished by the end of day one and was to continue remotely the following morning. However, it was clear that further cross-examination would only do more harm to the claimant’s case and he discontinued his claim at the end of the first day, in return for an agreement by the defendant not to pursue the fundamental dishonesty aspect of the claim.

Comments

Trial costs can be significant, particularly where there are a number of experts and leading counsel, and incurring them can be a daunting prospect. However, sometimes the temptation can be to buy off risk at too high a price, rather than holding one’s nerve in an unmeritorious claim. We asked ourselves what sort of case would be worth running, if this one was not. The combination of a strong factual case, careful analysis of medical records and a realistic assessment of risk, teamed with carefully selected experts and skilled counsel can result in significant savings. We were fortunate to have the support of both our insurance client and the insured who were fully on board with the strategy and with whom we worked as a team.

Catherine Kearney, Partner, and Gabrielle Hough, Principal Associate, represented the Defendant, instructing Peter Burns QC of Byrom Street Chambers.

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