Nightmare on St Aldgates (have we learnt nothing from Jackson?)

This is the case of a Litigant in Person (previously represented) making a personal injury claim against a large corporation that employed a ‘boutique law firm specialising exclusively in defendant occupational disease litigation’. Liability had been accepted and Counsel’s opening was that the matter at hand was purely causation.Claimant had sustained injury in late 2014 having been working doing a single process for a few months.

Symptoms were pain in the right shoulder, elbow and wrist as well as some tingling sensations in the arm. Initial Physiotherapy, starting three months after onset, lead to 80% recovery. The Claimant had already ceased working for the company at this point. Unfortunately once treatment stopped the symptoms rapidly returned, leading to five months further physiotherapy in 2014. Symptoms however continued, and became more intrusive over time. Claimant’s medical expert diagnosed Thoracic Outlet Syndrome (January 2018) and recommended specific exercises, anticipating a full recovery, as he sees in a large number of people with this condition. Recovery failed to materialize. MRI scan and Nerve conduction studies were normal. Options to do further investigations were hampered by financial pressure as a litigant in person.

The Claimant eventually found a specialist Thoracic Outlet Syndrome clinic who undertook ultrasound, showing a very narrow scalene triangle through which the nerves pass, and undertook a local block which provided relief of symptoms – the diagnosis had been verified. Claimant medical expert has 30 years experience in reporting on Orthopaedic Trauma cases, has an Occupational Health qualification and is also qualified as an expert witness. Defendant medical expert is a retired Orthopaedic Surgeon who had done a single day course on being an expert witness and had no experience of Occupational Medicine, as well as no relevant qualification. Pre trial the Defence had claimed not to know which of the two possible processes the claimant was undertaking, the lighter (their claim) or the heavier (the claimant’s position). They failed to provide the risk assessment for the process, declined to provide the weight of the component and provided the Court with a video of the lighter process – the wrong one. Original pleadings, when a claimant solicitor was involved, had erroneously stated that lighter process, but this had been corrected early on and overa year pre-trial (well before the video). Defence Counsel refused to accept this.

Claimant medical evidence was straightforward. The process was a job classified as medium work (classified by the weight, when it was obtained from other sources), was highly repetitive (one component every one minute and six seconds) and there was therefore a risk of injury from the weight and repetition of a number of different upper limb conditions. This was evidenced to the Court by an extract from the reference book. The timeline of symptoms was continuous to the present day (January 2020). Where there was certainty and where there was not was clearly pointed out to the Court in two hours of testimony.

By Mr R Scott-Watson

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