Wednesday, 4 July 2012

Pain: all in the mind?



The Supreme Court’s recent judgment in Fairclough Homes Ltd v Summers has been described as “disappointing” to insurers. See, for example, this article from Insurance Insight. The ruling in the Summers case is being billed as a blow to the insurance industry’s fight against insurance fraud.

But before the usual suspects clamber aboard the bandwagon and start lamenting Britain’s ‘compensation culture’, it’s worth taking a look at the facts of the case and generating debate about a key facet of personal injury law: the nature of pain.

Mr Summers suffered an injury at work in May 2003. It was a serious injury, described in the Supreme Court’s summary as being “serious fractures which required at least two operations”. Summers sued, and submitted a schedule of loss. It claimed damages of £838,616 including a claim for loss of earnings up to October 2008.

However, between October 2007 and September 2008 the Appellant subjected Summers to undercover surveillance. The result was to reveal that he was exaggerating the effect of his injuries and his incapacity for work.

Ultimately, the court held that Summers was entitled to compensation for loss of earnings for the period from the date of the accident to 30 June 2007. The judge also awarded general damages of £18,500 and damages for additional care and assistance. The total award was £88,716.76.

Fairclough Homes’ insurer (Zurich) appealed, contending that the entire claim should be struck out because it was “substantially fraudulent”. Ultimately, the matter came before the Supreme Court in April, and judgment was handed down at the end of June. The Supreme Court allowed Summers to hold onto the £88,716.76, albeit that it concluded that it did have jurisdiction to strike out the claim as an abuse of process.

This issue, as a matter of law, was delicate, given the authority of the Court of Appeal case Ul-Haq v Shah. This case established that there is an invariable rule that a person cannot be deprived of a judgment for damages to which he is otherwise entitled on the ground that he is guilty of an abuse of process. The principles in Ul-Haq were restated by the Court of Appeal in Widlake v BAA. However, the Supreme Court found that the Civil Procedure Rules countervailed this, albeit that “as a matter of principle the court should only exercise this power [to strike out as an abuse of process] in very exceptional circumstances”.

Those circumstances were evidently not met in Fairclough v Summers, but the case raises an important tangential issue, namely: how do we measure pain? I make no comment on the facts of Summers, but I have encountered many cases over the years in which the claimant’s perception of pain differs widely from that which objective analysis might conclude to be reasonable.

The point, when it comes to assessing compensation for pain and suffering, is that a range of factors need to be considered. There is the question of physical trauma and its extent, which the medical profession describes as ‘biomedicial’ or ‘biophysical’ factors. Then there are psychological factors. These may include a person’s character, past experience, mood, attitude to life and beliefs.

Then there is what is known as ‘pain behaviour’. This is what a person does in response to pain. Some people take themselves to a doctor if they twist an ankle; others ignore it and soldier on. Pain behaviour is also a product of psychological and environmental conditioning.

There are so many complex variables when it comes to pain and trauma that it is impossible to adopt a ‘one size fits all’ remedy. What is crucial is that the courts and insurers understand that a claimant may appear to exaggerate symptoms, when compared to someone else who suffered the same injury, but that the exaggeration may be wholly honest. In other words, it is the individual claimant’s response to the accident that matters.

In the Summers case there was clearly an element of malingering and dishonest exaggeration. But rather than lamenting the Supreme Court’s ruling as injurious to the insurance industry, we should instead take the opportunity to debate how best to ensure that each victim is compensated for pain – remembering that one person’s stiff upper lip is another’s trip to hospital.