21 June 2017
The interface between pain and psychiatric conditions was recently considered by the Outer House of the Court of Session in Santhong Phensrisai v Anong Yutikan, [2017] CSOH 48.
In Santhong, the Pursuer sustained multiple orthopaedic injuries in a road traffic accident which occurred on 24 December 2012, including a sternal fracture, rib fractures and spinal fractures (at C6/7 and T6 and T7). His orthopaedic injuries were managed in hospital conservatively. He was discharged home just under three weeks after the accident.
Both parties secured expert reports from orthopaedic surgeons. The experts largely agreed on the injuries the Pursuer had sustained in the accident but the Pursuer’s expert, Margaret McQueen, was quite forthright that her clinical examination revealed evidence of abnormal illness behaviour. She mentioned the possibility that his psychological state may be influencing his perception of his symptoms and disabilities. The Defender’s expert, Arthur Espley, agreed and found some evidence of inappropriate behaviour upon examination. He felt the Pursuer’s stated level of pain was greater than ought to be expected for the injuries sustained.
Turning to the psychiatric injuries, the Pursuer’s expert, Dr Colin Rodger found him to have sustained a chronic adjustment disorder which was ongoing at a mild level at the time of assessment in May 2014. His view was that the Pursuer’s mental condition was amplifying his perception of pain and disability which was impeding his functioning and promoting ongoing psychological stress. He recommended a course of anti-depressants to treat the disorder.
Curiously, it was not until almost five months later that the pursuer consulted with his GP about Dr Rodger’s report and the fact that he recommended a course of anti-depressant medication. The GP did not find the Pursuer had any depressive illness and did not prescribe anti-depressant medication. His rationale was that the Pursuer was doing well. He was coping with the pain without analgesia. He was using meditation and had adjusted his sleeping posture so he could sleep pain free. His appetite and energy levels were good and his motivation was good.
The Court was ultimately satisfied that the physical injuries sustained by the Pursuer were as stated by the two orthopaedic experts, with the exception of the continuing left sided chest pain for which there was no organic cause. The Court was not convinced that Dr Rodger was correct in his diagnosis of a mild chronic adjustment disorder in light of the fact that the Pursuer’s clinical history and presentation to his GP were inconsistent with adjustment order or depressive illness. The Court held Dr Rodger was too pessimistic in his diagnosis. Solatium fell to be assessed by leaving out of account the continuing left sided chest pain and chronic adjustment disorder. It was assessed at £30,000 plus interest.
There was some discussion as to the future wage loss position as it was argued that the accident had delayed the Pursuer in securing his PhD qualification with a consequent delay in him securing full-time employment, most likely as a lecturer. No award was made under this head of claim given it was held to be entirely speculative as to what the Pursuer would have done after obtaining his PhD. The claimed loss of earnings by reason of any delay in securing this qualification (which the Court assessed to be a period of one year) had not been established. The Court’s view was that there had been no loss of earnings capacity.
The judgment in Santhong, although fact dependent, is a welcome result for Defenders in a case in which the sum concluded for was initially £250,000.
It illustrates that there must be more than a tenuous relationship between pain and psychological complaints for compensation to be awarded. Indeed, the case provides a useful reminder that there has to be a diagnosable psychological illness for it even to be considered as a factor which might be precipitating a ‘real’ pain.
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Joanne Farrell |