Jersey Unreported Judgments

Damages - quantum of the damages to which the Plaintiff is entitled.

[2022]JRC246

Royal Court

(Samedi)

8 November 2022

Before     :

Sir Timothy Le Cocq, Bailiff, and Jurats Crill and Le Heuzé

 

Advocate C. Hall for the Plaintiff.

Advocate D. A. Corbel for the Defendant.

judgment

the bailiff:

1.        On 23^rd January 2016, Stanislawa Piechota ("the Plaintiff") suffered a whiplash injury in a vehicle collision ("the accident") during the course of her employment with The Jersey Royal Company Limited ("the Defendant").  Both of the vehicles involved in the accident were driven by employees of the Defendant. 

2.        Liability has been accepted by the Defendant, and the matter before the Court is the quantum of the damages that the Plaintiff is entitled to as a result of the injuries she sustained. 

3.        In essence, the Plaintiff claims a substantial sum for pain, suffering and loss of amenity and for special damages on the basis that the injury has meant that the Plaintiff has been unable to work and has been in almost constant pain and discomfort. 

4.        The Defendant argues that the Plaintiff's injuries are exaggerated, they have no current orthopaedic explanation, and they are accordingly somatic.  The cause of much of the Plaintiff's somatic symptoms, so the Defendant argues, is not the accident, but is rather the Plaintiff's unrelated personal circumstances for which the Defendant is not responsible.  The accident alone, so the Defendant argues, would have caused much less severe consequences with all of the symptoms being of lesser duration and the Plaintiff's somatic pain is a result of other personal family circumstances. 

5.        In essence, the Defendant argues those personal circumstances are connected to the health of the Plaintiff's husband.  Mr Piechota was diagnosed in 2010 with Huntington's disease, which is a terminal illness giving rise to increased debility.  His condition had remained moderately stable and he was mobile around the house until his condition deteriorated over a period and he is now completely bed bound, requiring constant help.  This, so the Defendant argues, with the stress and worry that this produces is the cause of the Plaintiff's continued pain and debilitation.   

6.        In the course of the hearing before us, we heard evidence from the Plaintiff, her three children, two other employees of the Defendant who were in the vehicles at the time of the accident, and another employee who made certain observations about the Plaintiff's post accident behaviour.  We further received evidence, both by way of detailed reports and orally before the Court from orthopaedic and psychological experts for both the Plaintiff and the Defendant relating to the cause of the pain and debilitation she is currently manifesting.  We have also, of course, had the opportunity of observing the Plaintiff throughout whilst she was listening to the evidence and her demeanour whilst giving evidence. 

7.        It would neither be appropriate nor necessary to set out the evidence before us in full, and inevitably how the evidence is treated below will be, in many respects, a synopsis and a highlight of the points that seem to the Court to be most relevant.  However, all of the evidence has been taken into account and considered carefully, and the conclusions that we have drawn from the evidence presented before us have been drawn from that evidence as a whole. 

The Plaintiff

8.        The Plaintiff gave general background evidence concerning her family situation, including the fact that her husband had been diagnosed with Huntingdon's disease and had had to stop work.  He received disability benefit which was substantially less than the pay that he had been receiving whilst working. 

9.        In her witness statement, the Plaintiff describes her husband's diagnosis as a complete shock for the whole family.  He was diagnosed with Huntington's disease in 2010. 

10.      She describes that the family struggled financially when he lost his job and it was for that reason that she had to come to Jersey to earn.  She describes the accident and the immediate aftermath.  She describes the pain that she suffered as a result of the accident and in the months afterwards.  She explains that sometimes when she feels bad she stays in bed, but on a better day she gets up and gets dressed.  Sometimes she can make breakfast for herself but on other occasions she relies upon her children.  She talks about a much reduced lifestyle and, on a daily basis, says that she suffers constant pain which fluctuates in severity.  She takes painkillers every day.  She says this in her statement:

"I feel I should be providing for my family, and looking after them.  I feel very guilty that my children have to give up their lives to look after me and my husband, it should be the other way round."

11.      She had come to Jersey believing that she could earn good money (her elder son had been working here) and therefore she was not particularly concerned financially.  She loved working in the Island.  Although she had no professional qualifications to assist her work in Jersey, she had trained to be an industrial mechanic. 

12.      Before the accident she had known a number of people because there was a big Polish community in Jersey, and she had had a good social life.  After the accident, she had wanted to return to work.  She had wanted to earn money, otherwise her son would have been left paying everything for her.  When she lost her job, she had felt terrible.  She loved the Island and did not want to leave, so she told us, even if her husband had died, she would have come to Jersey to work. 

13.      She describes her symptoms as dizziness, memory loss, not concentrating or understanding simple sentences and at night she does not sleep.  She says that she has problems walking, pain in her whole spine, and her arms and her legs are stiff.  She prefers to lean forward when she sits down.  It is tiring for her to drive a car and her breathing is very shallow.  She also has pain in the lumbar parts of her spine. 

14.      In and about December of 2016 her daughter phoned her from Poland indicating that her husband had grown weaker and weaker, did not eat, and his involuntary movements had intensified.  She returned to Poland to see him.  He had lost a lot of weight.  Over the period that she visited she had come to terms with the fact that he might not live very long.  On 3^rd April her mother had passed away which had affected her. 

15.      In cross-examination, she indicated that she had not found it hard to leave Poland, she was happy to return to Jersey.  She confirmed that she had a very close relationship with her children, and that she can count on them. 

16.      As she was living on site on the farm when she was working in Jersey, when she lost her job, she lost her accommodation.  A flat had been rented for her at First Tower as her elder son had no space in his own flat. 

17.      Her elder son had been in Jersey for a year before she had moved there.  After the accident he did everything for her - cleaning, shopping and even helping her with the shower.  The Plaintiff says that she was in a great deal of pain. 

18.      Prior to the accident she had never had back problems. 

19.      She did not agree that her personal circumstances had contributed to her pain.  She had no financial concerns and she had come to terms with her husband's condition.  She did not agree, therefore, that her financial circumstances could have caused her condition.  In Poland, her daughter spends half an hour looking after her each day. 

20.      She had liked Jersey and would have hoped to stay until her retirement.  She would have intended to work until then doing lighter work. 

Mariola Iwona Piechota ("Mariola")

21.      We next heard from Mariola, the Plaintiff's daughter. 

22.      In her witness statement Mariola confirmed that as a result of her father's Huntington disease he was no longer able to work at all and this caused the family significant financial hardship.  As her mother could earn more money in Jersey than in Poland, the Plaintiff had gone to work for the Defendant in Jersey.  She spent about 10 months of the year in Jersey and spent her time off back home in Poland during the months of August and December.  As Mariola says in her statement:

"It was difficult for her mum to leave her sick husband at the time, but we were really struggling financially, so we didn't have a lot of choice."

23.      She described how her mother had been very strong during their father's illness and when in Poland she had helped cook and clean.  She 'managed everything so capably.  It felt like she was strong for all of us'.  She described a radical change in their mother after the accident saying that her mother barely does anything to help around the house and she cannot travel alone.

24.      She described how her mother had decided to go to Jersey to make money, because her father could no longer make as much money as they needed.  She was providing a great deal of care for her father at home. 

25.      She described how her father's state had deteriorated, he no longer walked, he had problems with his joints, he did not sleep properly, and she thought that he was largely stable.  He could not really do anything for himself, and he had been like that for about a year and a half.  He was getting gradually weaker in November and December of 2016.  She describes how her mother is in the home in Poland.  How she often moans with pain.  She makes sandwiches for herself, but her mother cannot help her care for her father. 

26.      The financial situation in the family is, however, good as herself and her brother have wages and her father still receives his disability allowance. 

27.      She sits with her mother and cheers her up, helps her to get changed.  Sometimes she could not put her bra on and needs help which Mariola provides.  She says that she helps her mother with something every day, including things like tying her shoes and getting her clothes on.  She sometimes has to persuade her to wash and change. 

28.      We note a contradiction between the evidence of Mariola and the Plaintiff in that Mariola says that her mother found it difficult to leave Poland.

Maciej Piechota ("Maciej")

29.      Maciej is the Plaintiff's son.  He confirmed that the Plaintiff enjoyed living in Jersey and, prior to the accident, she was earning in fact more than their father. 

30.      Maciej, in his statement, describes the immediate aftermath of the accident and its effect on his mother.  He speaks about the things that he does to look after her and the time he spends with her.  He describes how she became a completely different person since the accident.

31.      His witness statement finishes with the words:

"Mum's accident has changed things for all of us.  Before the accident, we were managing with us both working here and my brother and sister looking after dad.  Now things are very difficult financially, it's hard on my siblings now having to look after both mum and dad, it's more difficult for them as they are exposed to it all the time without any respite.  Neither of them are able to have relationships, because they are too busy caring for both parents."

32.      After the accident, she lived at First Tower because Maciej, who lives in Jersey, lived in a different location.  He paid for everything and had to pay two lots of rent.  He had had lots of plans which he had had to put on the "back foot" and his mother was aware that he did this. 

33.      Before the accident, she had been energetic and "a rock" but the accident had changed everything.  He had lost his mother's support.  She had loved working.  Now she has memory problems, she has closed herself and they struggle to communicate. 

34.      In cross-examination, he confirmed that there were many things he did for her and needed to do for her.  In the earlier days he had to help her into the bath because the pain was so severe.  For a number of months, he would visit and stay with her for some 90 minutes a day which then reduced to about an hour.  She did not need to talk as much and she seemed emotionally stronger. 

35.      His knowledge of English was not good enough to assist her at appointments, so he would drop her off and collect her.  She had improved and could cope with the journey to Poland. 

36.      He recalls that in 2016 his father had had mobility issues, but he could not recall what their mother had thought about that.  They had come to terms with their father's condition. 

37.      His mother had used to ride a bike, go walking, travel in the car - she is a different person now.  The accident has changed everything. 

38.      They were not in a difficult financial position now.  He was still working.  He still supports them. 

39.      His mother had arrived a couple of days ago for the trial and was staying at a hotel alone. 

Evidence of Paulina Walczak and Janusz Walczak

40.      We heard Paulina Walczak and Janusz Walczak who were in the vehicles involved in the accident.  They described the accident and the apparent effect on the Plaintiff.  Paulina Walczak described the Plaintiff as shivering and shaking and seeming really spaced out.  She could walk but no one seemed to make contact with her and she did not seem able to speak because she was, the witness thought, in shock. 

41.      This evidence was supported by that of Janusz Walczak who also pointed out that there was damage to the two vehicles involved.

Graeme Stokes

42.      We next heard from Mr Graeme Stokes who was an employee of the Defendant.  He has health and safety and HR responsibilities and had done so since 2011.  He gave evidence of a meeting that the Plaintiff attended, and in particular observed that when she was coming into the office to speak to him, her movements were restricted and controlled.  He watched her through the window leaving, however, and said that she moved much more fluidly and easily. 

43.      Mr Stokes, in his witness statement, says this:

"Prior to the Plaintiff's employment being terminated, the company went through a capability process with the Plaintiff.  I was involved in these meetings and I witnessed the Plaintiff entering and leaving the site office before and after each of these meetings.  There is one flight of stairs, consisting of approximately twenty-one steps, which you need to reach the office.  The position of the office is such that I was able to see the Plaintiff approaching the office and then when she left I could see her exiting the premises. 

There is approximately fifty to sixty metres to walk before you reach the stairs to access the office and my observations of the Plaintiff entering the office was of someone walking at a slow and deliberate pace.  This was in stark contrast to what I witnessed on each occasion when she left the premises.  By that, I am referring to her movements, the way she held herself and her pace was a lot quicker, there was no suggestion from her demeanour of her alleged symptoms hampering her ability to walk which was very different to her entrance."

44.      He also says:

"....Based on what I witnessed of the Plaintiff when she attended the capability meetings, it was unclear to me what her injuries were and the disabilities that her symptoms caused her which appeared to me, based on what I witnessed, to be inconsistent."

45.      He confirmed that she might possibly have worked until the age of 65 for them, but that was not the norm.  The nature of the work available did not really change, it was always going to be heavy, and they did not really have a lighter duty role for her. 

Karol Piechota ("Karol")

46.      The last lay witness we heard from was Karol, the Plaintiff's younger son. 

47.      In his witness statement, Karol describes his mother as an active person and the change that has occurred since the accident.  He says:

"It has been very difficult for us as a family since the accident, there is a lot of pressure on my sister and me as we now care for both of our parents on top of working.  We are struggling financially as we have to pay for everything for mum and dad now as neither of them can work."

48.      He confirmed that his mother had liked work, was always healthy and liked working in Jersey.  She was very positive about her job. 

49.      His mother's injury had had a big impact on the family.  In particular, he could not have a normal life as he looks after both parents.  In cross-examination, he confirmed that up until the end of 2020 his father was able to walk around and do things on his own.  Since then, he has been bedridden.  He confirmed that he and his sister did everything for their parents. 

50.      We observe that from the evidence of both Mariola and Karol, they appeared to have no idea and appeared to be unconcerned as to who was going to meet their mother from the airport and escort her whilst she was in Jersey for the purposes of this hearing.  It appears that Karol dropped her at the airport without helping her with her baggage, and none of the witnesses identified any particular arrangements made for this travel.  Her elder son, Maciej, found it difficult to assist the Court as to when the Plaintiff had arrived in Jersey for the trial, and although his mother had been in Jersey since 30^th March, he only visited her the day before the trial on 3^rd April for a few minutes.  Accordingly, as far as we are able to ascertain, the Plaintiff had been left to cope alone for some five nights and the better part of six days in a hotel room with little or no assistance. 

51.      The Plaintiff gave her evidence in a very quiet and controlled manner, although there was an outburst when the defence suggested that her condition was getting worse.  She replied to the effect that she knew it was getting worse and that "you're convincing me there was no accident, trying to convince me, I don't get it".  This, so we felt, was delivered in a forthright defiant and forceful manner, entirely at odds with the demeanour that she had presented with the Court previously and which she then reverted to after this incident.  It was submitted by the Plaintiff in closing that any such forcefulness was a natural and understandable reaction to the suggestion to the Plaintiff that she was exaggerating.  Nonetheless, it seems to us that this did reveal, to an extent, a different form of presentation, justified or not.

52.      Maciej in his evidence, as indicated above, stated that he would do things for her for 60 to 90 minutes a day.  This would mean, of course, that the Plaintiff was alone and would need to fend for herself for the remaining 22 - 23 hours in the day. It is difficult to understand this entirely against the picture that was presented by her children in Poland that, to a great extent, they have to do everything for her. 

53.      We do not immediately understand why the Plaintiff returned to Jersey following her return to Poland, as this left Maciej having to pay two sets of rent.  It is difficult to understand the Plaintiff's choice of actions when measured against the fact that her husband was in Poland and two of her children were there, effectively caring for him. 

Expert evidence

54.      The expert evidence comprised reports and live evidence given by the parties' experts on the orthopaedic and psychological aspects of the Plaintiff's case and claim. 

Orthopaedic evidence

Mr David Pring

55.      The Plaintiff's orthopaedic expert was Mr David Pring ("Mr Pring").

56.      Mr Pring provided us with two written reports, that of the 24 April 2017 and of 9 June 2020.  In his first report, he confirms that the Plaintiff suffered an acute neck sprain as a result of the accident which has caused her pain.  He noted that cervical spine radiographs prior to the accident were normal whilst also noting degenerative changes in her upper thoracic spine that pre-existed and were asymptomatic or in the lower range of symptoms if any.  He believes that on the balance of probabilities in the absence of the accident they would have remained asymptomatic, although they now contribute to her symptoms.  He expresses the view that the Plaintiff appears depressed and that this is severely impacting on her physical symptoms.  She requires psychological assessment and almost certainly treatment.  In terms of her ability to work, he says that her failure to work is appropriate, 'but is now largely due to psychological issues'. 

57.      In his second report, he expresses the opinion that the literature supports the contention that cervical symptoms following an injury if present at three months on the balance of probabilities will be permanent.  He also expresses the view that 'if her sole symptoms were orthopaedic with no functional overlay then I would expect her to continue permanently with symptoms that were mildly intrusive into her normal day to day activities'.  He goes on to say that 'Due to her psychological symptoms (low mood, fear avoidance, feeling of hopelessness etc) however they are severely intrusive'.  He says that with any regard to injury to the lumbar spine, he would expect resolution of the Plaintiff's accident related lumbar symptoms 'within approximately eighteen months from the time of the accident'.  He states, further, however, that due to her psychological symptoms, they have 'persisted and are severely intrusive into her daily activity'.

58.      He recommends the evidence of a pain specialist be obtained. 

59.      He had conducted a personal examination on 24^th April 2016 of the Plaintiff which lasted for approximately one hour and 17 minutes. 

Professor Robert Grimer

60.      The Defendant's orthopaedic expert was Professor Robert Grimer ("Professor Grimer").

61.      Professor Grimer prepared a written report on 9 April 2021.  During the course of his discussions with the Plaintiff, she had told him that her husband was fully mobile until about December 2016 when he took a turn for the worse and has needed increasing care ever since and is now bed bound. 

62.      He notes that he has not seen the x-rays that were available relating to the Plaintiff but that Mr Pring had.  He also notes that from her witness statement and those of others, the Plaintiff 'appears to have had pain avoidance and stopped doing virtually anything for herself including the housework or contemplating return to work.  She seems to have developed marked health anxiety judging by the numerous attendances at the doctors and to hospital and her demand for investigations all of which have shown the same thing with age related degenerative changes'.

63.      He noted that he would expect someone with age related degenerative changes suffering such an accident, that there would be caused 'moderate amounts of pain which would be expected to settle over the course of a few weeks or months'.

64.      He notes that by 11 February 2016, the Plaintiff seemed to be improving psychologically and only taking pain killers when she absolutely needed it and this suggested to Professor Grimer that things were starting to settle down.  However, by 16 February she had said things like she 'felt like a cripple' and that she 'might die' which the professor describes as an extremely abnormal response.

65.      In his written report, Professor Grimer states:

"By May 2016 it was considered that she had marked evidence of somatisation and I believe from that time on, it was virtually impossible to identify any true pathological pain and it is likely that her pain level and disability and high pain levels were due to her mental health state."

66.      In his report, the professor also states:

"16.27  The fact that the family finances were clearly quite precarious, the fact that her husband was unable to work and was apparently sick in bed being nursed by two of his children whilst his wife and oldest son were in Jersey is clearly an extremely unusual social circumstance and the fact that she had not been able to learn English despite being in Jersey for five years by this stage, suggests that she may have seen this accident as her 'meal ticket' to solve the family's financial problems.

16.28  Certainly, most people are aware that they can get compensation for whiplash injuries and this may well have affected her perception of the severity of the injuries she had sustained, and this may go some way to explaining her extremely abnormal reaction to this accident, particularly when none of the other individuals in the vehicle sustained any injury at all (according to the witness statements provided).

16.29  When she did eventually attend the back pain clinic in November 2016, it was noted that she had a number of yellow flags including the possibility of secondary gain (as alluded to above) and her psychosocial situation which is well known to be a potent cause of chronic back/neck pain, often replacing any pathological cause for pain."

67.      He concludes, at paragraph 16.39:

"16.39 I believe that her continuing pain is therefore not of an orthopaedic nature and whilst I would accept that some people who have whiplash injuries do complain of long term symptoms, almost always, in my extensive experience of seeing patients with this condition, people with prolonged pain either have severe degenerative changes which have been aggravated by the accident or there are psychological or psychosocial issues causing the problem.

16.40  There is no doubt that her reaction to this accident has been excessive and even her family, in their witness statements all state that they expected her to get better within a short time and this would indeed have been what would have been expected.  Her continuing symptoms therefore need explaining on the basis of her psychiatric state rather than her physical status."

Joint expert reports: Mr Pring and Professor Grimer

68.      The joint expert report of Professor Grimer and Mr Pring confirms, in essence:

(i)       That the high level of symptoms complained of by the Plaintiff cannot be explained solely on any orthopaedic model.

(ii)      Mr Pring is of the view that the Plaintiff's symptoms have been triggered by her physical accident related injuries.

(iii)     Professor Grimer is of the opinion that any residual orthopaedic symptoms after the first few weeks would likely have been of a minor nature and would not have prevented her from continuing normal activities.

(iv)      Mr Pring agrees that if there were no confounding psychological features but solely orthopaedic injuries, then the permanent accident related cervical symptoms would, on the balance of probabilities, have only been mildly intrusive into her activities of daily living.

(v)      Professor Grimer is of the opinion the soft tissue injury caused by the accident would have resolved within eighteen months.

(vi)      Mr Pring agrees, and in the presence of an orthopaedic injury he would have expected resolution of her related lumbar symptoms within approximately eighteen months.

(vii)     Mr Pring is of the opinion that with the absence of a psychological component, the Plaintiff would have mildly unobtrusive ongoing neck pain permanently. 

(viii)    Professor Grimer believes there is no orthopaedic explanation for any significant ongoing neck pain after eighteen months.

(ix)     As to other pain, both experts agree that the Plaintiff's multiple other aches and pains do not have an orthopaedic explanation.

(x)      There is disagreement as to whether there is an increased risk of developing degenerative changes.  Mr Pring believes that there is evidence to suggest a small increased risk, but Professor Grimer does not believe that anything is likely to be of clinical significance.  There is, however, a range of opinion about this.

(xi)     Both agree that from an orthopaedic point of view, the Plaintiff has no requirements for care or assistance.

69.      Professor Grimer differed from Mr Pring insofar as by reference to x-rays that he only had the opportunity of viewing for a short period during the lunch hour when he was giving evidence (he had not been shown them before although he had requested them) was able to say that the Plaintiff had a pronounced kyphus or curvature of the spine, which meant that her spine was that of a 60-65 year old, as opposed to her chronological age of 49 years old. In Professor Grimer's opinion, the Plaintiff would likely become symptomatic within two to three years, even had there been no accident.  This would have prevented her from continuing with her existing work picking potatoes.

70.      Professor Grimer accepted that it was possible to have long term pain but statistically that was unlikely.  In the Plaintiff's case, her injuries followed a classic response, and she reached a point that she was almost off medication.  It then, for some reason, became worse.  He observes that the Plaintiff first mentioned any lower back pain some 15 months after the accident when consulting with Mr Pring. 

71.      Both experts agreed that there was no orthopaedic explanation for the Plaintiff's symptoms, and that such an injury would have generally been expected to resolve itself within 18 months at the latest. 

72.      Professor Grimer was clear in his evidence that the injury suffered by the Plaintiff was a "barn door" classic low level whiplash.  The Professor had not been able to examine Mrs Piechota personally, and he noted that when she was giving evidence in Court, she had a significant curvature of the spine.  It was this that caused him to seek the x-rays once again and, on reviewing them, he gave the evidence of the curvature of the spine referred to above

73.      Both experts agreed however, that the high level symptoms could not be explained on an orthopaedic model, and indeed Mr Pring agreed that if purely orthopaedic he would, on a balance of probabilities, expect the injuries suffered to have been mildly intrusive.  Both agreed that if only orthopaedic, the matter would have been resolved within 18 months.  Mr Pring is of the view that the Plaintiff would have suffered therefore, mildly intrusive neck pain permanently, whilst Professor Grimer believes that there was no orthopaedic reason for significant pain after 18 months. 

74.      Both experts agree that the widespread pain reported by the Plaintiff does not have a solely orthopaedic answer and Professor Grimer goes further to say that it is not linked to the accident.  Both agree that psychological factors are impeding the Plaintiff's recovery and that absent those psychological factors, the symptoms would have been resolved within 18 months. 

75.      Professor Grimer expressed the view that the Plaintiff would have been able to return to light duties within two to three weeks, and within two to three months for manual labour.  Mr Pring stated that she could do so in "about three months or less" but clarified this was with a phased return to work with light duties within six months. 

76.      Care and assistance was not expected but for the psychological element. 

77.      Professor Grimer was unable to offer any prognosis as in his view there was no orthopaedic explanation for the multiplicity of symptoms.  Mr Pring deferred in his conclusions to psychiatric and pain management expert but notes that individuals who are off work with spinal issues for longer than two years, rarely returned to work. 

78.      In setting out the evidence that we have received in this way, we are conscious that we have not made detailed reference to the reports, nor indeed to the evidence given live before us. 

79.      It seems clear, however, that the orthopaedic experts agree that: 

(i)        There is no orthopaedic reason for the continuing symptoms;

(ii)       That looked at purely from an orthopaedic point of view, the Plaintiff would have been able to return to work within three to six months at the latest;

(iii)      There appears to be no evidence that the accident caused any aggravation to any pre-existing degenerative changes. 

80.      Further, we accept the evidence that the Plaintiff has a significant kyphus or curvature in the spine which, though it may have been symptom free before the accident, would have over a few years thereafter, begun to cause symptoms and made it more and more difficult for the Plaintiff to work as a potato picker.  From a purely orthopaedic point of view, she should have been able to go back to work within a few months, but in any event, no longer than 18 months. 

81.      Given what seems to us to flow from the orthopaedic evidence, we turn now to consider the psychological evidence and specifically somatised pain. 

Pain experts

Dr Agostinis

82.      Dr Alessio Agostinis gave evidence for the Plaintiff.  He is a clinical psychologist and an expert in pain.  Patients would normally come to him for assessment and he would allocate them to one or more professional clinicians. 

83.      Dr Agostinis provided two reports, one dated 3 February 2018 and one the 7 September 2019. 

84.      In the summary to his first report, he expressed the view that the Plaintiff:

"...has developed significant and persistent behavioural, cognitive and emotional reaction to her persistent pain including: fear of movement, interference with mood, perceived disability, impact on social and occupational activities, lack of enjoyment, pessimism, lack of confidence, psychological distress linked to the event, suicidal thoughts, difficulty with concentration, symptom related anxiety, pessimism about the future, sleep interference, regular nightmares and, therefore, clinically significant symptoms consistent with post-traumatic stress disorder."

85.      However, in an addendum to the confidential psychological report dated 21 May 2020, Dr Agostinis indicated that the Plaintiff responded well to psychological treatment in the short term, but her improvement declined after two months notwithstanding support from her family. 

86.      The Plaintiff presents with a maladaptive response to the injuries she suffered.  Some of the examples he gave was the fact that she understood what she needed to do, keep moving, go back to work, look after herself, but she catastrophises the pain believing all will go terribly wrong if she does these things.  She holds the mental view that experience of pain will cause her harm, and that fear itself produces the pain.  She misinterprets bodily symptoms, feeling that she must lie down or cannot work until she is pain free. 

87.      There was no evidence of pre-existing vulnerabilities, however, and Dr Agostinis held the view that the pain was connected to the injury she suffered as a result of the accident.  He had seen the Plaintiff on three different occasions, December 2017, in 2019 and May 2020.  She avoided activity and she was depressed.  There was no evidence, however, that these factors existed prior to the accident. 

88.      He was not sure of the effects of the family finances on her. 

89.      He had carried out psychometric testing which he thought was of assistance but had to be matched with clinical presentation.  He accepted the psychometrics conducted by Dr Carstairs, the Defendant's expert.  He had carried out his assessment through a questionnaire.  The Plaintiff was distressed and tired and too much stress creates interference with the test.  Dr Agostinis accepted that there was likely to be exaggeration although it was difficult to tell.  He had let the Plaintiff take the questions away with the Polish Consul in Jersey (who was assisting the Plaintiff in travel arrangements and interpreting for her) to fill in the answers which he accepted, we think, was unsatisfactory. We agree as the completing of the questions away from Dr Agostinis removed his ability to make clinical observations during that test.  He accepted that some of the high scores could have been accounted for by exaggeration, the Plaintiff's presentation was consistent throughout.  He indicated that he could not see how the situation with regard to the Plaintiff's husband, or the family situation, would link with the somatisation of the pain in the Plaintiff.  The husband's situation had not, as far as he was concerned, changed from before the accident.  There was no obvious escalation in the family situation when her manifestation of symptoms worsened. 

90.      He found the Plaintiff to be activity avoidant because her pain produced a fear avoidance model. 

Dr Kari Carstairs

91.      Dr Carstairs was the psychological expert for the Defendant. 

92.      She had been in practice as a psychotherapist for a considerable period and had carried out assessments for courts for some 29 years.  She had dealt with approximately 350 personal injuries and medical negligence cases.  She observed that there was no medical pain expert in the case and that was unusual and normally there was one advising the court. 

93.      Dr Carstairs provided us with one report on 4 May 2021.  She conducted extensive and industry standard psychological tests. 

94.      During one of her meetings with the Plaintiff, she observed that over a two hour period at some point:

"She became irritated at one point and this appeared to energise her; she sat up and her tone of voice became firm and loud as compared with her previous sad and distressed tone and her posture changed markedly, from her previous position where she was slumped forward, often rubbing her head, sighing heavily and keeping her eyes closed."

95.      The doctor confirms that at some point the Plaintiff had talked about having 'huge debts' which had been incurred in taking out a loan for home improvements.  This had necessitated her coming to Jersey to work.  She also describes of her interaction with her husband that the Plaintiff says:

"She herself is unable to do any physical work to care for her husband but she can sit and chat with him.  She said that she feels badly that she is unable to care for him 'when he needs it most'.  His condition deteriorated quite suddenly and it is 'heartbreaking'.  The children are struggling because she also needs help due to being in pain..."

96.      Dr Carstairs talks about the Plaintiff's tendency to somatise psychological issues and says at paragraphs 410 to 412 in her opinion:

"410.  I am of the opinion that her presentation is in large measure due to distress about her family circumstances which she translates into anxiety about her health due to her tendency to somatise psychological issues.

411.  I also consider that in addition to the process of somatisation, she is engaging in some degree of exaggeration in the context of the claim for compensation.  I note that the therapist who recommended 'constant psychological care' thought that the pain was 'very resistant to any type of therapy and it is likely that it will persist at all times'.  One has to question why this would be.  I find that her account of being completely disabled by pain is excessive as exemplified in her having obtained the maximum score on the Roland-Morris Disability Questionnaire on each occasion that this was administered by Dr Agostinis.  This is a measure of pain related disability and her rating this at the maximum possible level is consistent with exaggeration for the purpose of her compensation claim.

412.  In summary, I am of the opinion that her anxiety and depression are genuine but that they are in the main linked to her unfortunate family circumstances and that her persistent report of pain and pain related disability is the product of a combination of somatisation and exaggeration given that the original injury should, on medical grounds only, according to Mr Pring, have only had a mild impact on her day to day activities and it should have resolved within 18 months."

97.      She also expresses the following opinions:

"416.  Her on-going symptoms of anxiety and depression stem from a distressing family situation.  The persistent pain and disability that she reports and that has proved intractable are related to her need for financial support in the context of this family situation.  In the absence of this, she would likely have recovered from the shock and whiplash injury.

.....

419.  The litigation itself plays a role in her presentation and her response to treatment and I note that pain management treatment has been found to be less effective for patients who are still in litigation.  I therefore recommend that first, the claim should be settled, and then she should have the benefit of a multi-disciplinary in-patient pain management programme.  I would anticipate a two to four week stay in hospital with follow up in the community after discharge.

....

428.  If we set aside the other factors that I have identified, I am of the opinion that she would have recovered from the accident and returned to work within 18 months.

.....

437.  Mrs Piechota suffered a shock at the time of the accident and a whiplash injury from which she would have recovered but for an extremely fearful reaction, a tendency to exaggerate in the context of this litigation and the very difficult and distressing family situation.  Her psychological response to the family situation gets expressed mainly through physical symptoms.  Test data show that she is very preoccupied with numerous physical problems and she is vulnerable to developing physical symptoms in response to stress.  Depression is present but is overshadowed by somatisation and denial of emotional issues, with a strong focus on bodily pain rather than emotional distress."

98.      She explained that there were four sources of information that she relied upon for carrying out psychological assessment.  Firstly, there was the background documentation, secondly what the Plaintiff says, thirdly how they behave and fourthly the test data.  The therapist needed to assess the response style - was it open, guarded or exaggerated for example.  In personal injury cases, some 30% of claimants exaggerate to a certain extent.  She used a particular test which had been used by her many times in the past, and in this case, she used the standardisation version for the test done in Poland.  She described the Plaintiff's family situation as awful.

99.      She had taken a significant period to sit with the Plaintiff and see how she responded, and the way the Plaintiff dealt with the questions gave the impression that she was trying to get the answer right.  If not for her family situation, she believes the Plaintiff would have recovered, she thought that the pain in the body was an expression of problems at the Plaintiff's home, but again regretted the fact that there was no medical pain expert to assist the Court. 

100.   She described the Plaintiff as having a somatising style of personality and that over time, as the family situation deteriorates, she will show her reaction in that way. 

101.   Dr Carstairs also held the view that there was an element of exaggeration which was separate from the pain, and she was confident in that assessment.  She observed, however, that the Plaintiff's finances appeared to be in a poor state and their viability depended upon the children giving up their futures, which would have had an effect.  The test that she used was MMP1-2 which covered a wide range of factors.  The secondary gain element of any patient's attitude towards gaining of compensation is conscious.  The Plaintiff's demeanour changed when challenged in the questioning, for example about a cycle accident that she had in Poland.  Dr Carstairs felt that the Plaintiff was likely to be in this state even without the accident due to her other circumstances.  She does not have enough information to say whether or not the Plaintiff is malingering - which equates to conscious deception - but in Dr Carstairs opinion, she is "certainly exaggerating".  

Joint statement - Dr Agostinis and Dr Carstairs

102.   In summary, both experts agreed that the presenting diagnostic picture now is one of somatic symptom disorder and depression.  They disagree on the relative causal contribution at the accident and the family situation, with Dr Agostinis of the view the accident is the main cause of her current presentation with some contribution from the family situation, and Dr Carstairs of the view that, absent the family situation, the Plaintiff would have recovered.

103.   The experts agree that the difficulty in communicating in the nature of the treatment the Plaintiff was offered played a role in the developing symptom picture and agree that the family situation has contributed to her distress.

104.   Both experts agree that the Plaintiff was at risk for developing anxiety and depression due to the stress of coping with her husband's illness and incapacity and the family finances.  They both agree that they could not identify a timeframe for that, however.  With regard to the symptoms, both experts agree that the situation has become entrenched.  Dr Carstairs holds the view that there is a strong element of exaggeration in this self-report, whereas Dr Agostinis is of the view that catastrophising is the main feature.

105.   Both experts agree the prognosis is poor for a full recovery.  Dr Carstairs holds the view that there is room for improvement in the Plaintiff's level of distress and does not put a percentage figure on this.  Dr Agostinis has given an estimate of less than 30% likelihood of benefit from treatment based on his clinical experience. 

Psychological evidence

106.   As is apparent from the above, somatisation is the conversion of psychological factors into physical symptoms.  As we understand it, such factors as depression or distress can manifest for the patient in pain, even though there is no obvious orthopaedic cause for it. 

107.   In this case, were the somatic pain to be entirely the product of the accident, then leaving aside questions of exaggeration, it seems to us that the Plaintiff is entitled to recover the damages that flow from that pain.  If, however, the somatised pain did not come around as a result of the accident, but because of other personal distress and pressures in the Plaintiff's life, then significantly less damages would flow from the pain if, indeed, any. 

The Law

108.   In essence, the Defendant's case is that the Plaintiff's psychological illness is not related to the accident or a consequence of it, it is a result of her family dynamics and particularly the financial pressure that the family is under.  In effect, this appears to us to be an allegation of a novus actus interveniens.

109.   In Brown -v- Collis and Le Sueur (Electrical Contractors) Limited and Higgs and Hill Limited [1992] JLR 145, the Court said this: 

"The duty of care expected in cases of this sort is confined to reasonably foreseeable dangers but it does not necessarily follow that liability is escape because the danger that actually materialises is not identical with the danger reasonably foreseen.  Each case must be decided on its own facts.  The defendants are liable for all foreseeable consequences of their neglect in relation to the first accident ... As Lord Wright said in The Oropesa 1943:  

           "These phrases, sanctified as they are by standing authority, only mean that there was not such a direct relationship between the act of negligence and the injury that the one could be treated as flowing directly from the other.""

110.   In the case of Spencer -v- Wincanton Holdings [2010] PIQR, the court further asserted that in addition to the consequence of being reasonably foreseeable, the conduct of the plaintiff should also have been reasonable.

111.   In Brown above, the court also said: 

"Negligent conduct is more likely to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction.  Mistakes and discharges are to be expected when human beings, however well trained, have to cope with a crisis; what exactly they will be cannot be predicted, but if those occur which are natural, the wrongdoer cannot, I think, escape responsibility for them and their consequences, simply by calling them improbable or unforeseeable.  He must expect the risk of some unexpected mischances ... the answer to this difficult question must be directed by common sense rather than logic on the facts and circumstances of each case."

112.   In Spencer above, the court went on to say: 

"Fairness, boldly stated, might be thought to take things little further than reasonableness.  But what it does is acknowledge that a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue.  In relation to tortious liability for personal injury, this point is reached when (though not only when) the claimant suffers a further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tort < >."  

113.   Later in the same judgment the court said: 

"The question is always: having established the fact, what is the extent of the loss for which a defendant ought fairly, or reasonably or justly to be held liable?"

114.   In our view, it is for us to determine what consequences flow for this Plaintiff from the accident and what consequences should, if any, be attributed to the Plaintiff's situation in the family which is caused by the failing health of her husband.  In this, the psychological experts disagree and we must determine where, in our view, the answer lies. 

Discussion and Conclusion

115.   In our judgment, having considered the evidence in the round, and on the balance of probabilities:

(i)        we have no doubt that the Plaintiff suffered an injury which caused her to manifest symptoms of pain and reduced mobility;

(ii)       orthopaedically, there was no reason why she would have continued those symptoms beyond 18 months at the latest and could indeed have returned to work at some point earlier if those had been the only considerations. 

(iii)      there is a significant element of exaggeration by the Plaintiff of her symptoms, and the consequences of her injury.  There were inconsistencies in the evidence given by her children, and it seems to us almost inexplicable if she is as debilitated as she claimed, that she was able to effectively spend five nights and almost six days unaided in Jersey during the time leading up to the trial. 

116.   It is difficult for us to assess what the level of exaggeration may be, but we are satisfied that it is substantial.

117.   Of much greater concern is the extent to which there was a new factor in the Plaintiff's life which was responsible for the somatic pain that she has suffered.  In our view the presentation of the Plaintiff cannot be divorced from the other things going on in her life at the time.  During 2016 her husband was becoming increasingly infirm and incapable and now is bedridden.  This has placed significant strain on her family and in particular on the children to whom she feels close.  This, in our view, must be a very substantial contributary factor to the Plaintiff's experience and manifestation of her difficulties. 

118.   We note that she was improving but then became very much worse during the period in which  her husband's health was failing and more financial strain occurred in the family.

119.   In our judgment, we prefer the evidence of Professor Grimer and Dr Carstairs.  The larger part of the Plaintiff's pain and debilitation flows not from the accident but from her family circumstances.

Quantum

120.   In the light of the fact that the Court has preferred the evidence of Professor Grimer and Dr Carstairs, we turn now to consideration of quantum.  Quantum was not argued before us but we have the benefit of the written submissions of counsel and, in particular, the Plaintiff's legal adviser has helpfully set out a number of potential calculations based upon which of the expert evidence is to be preferred.  We do not, herein, set out in full the financial sums but rather, in our view, the principles that should apply to that calculation.  They should be susceptible of ready calculation applying these principles.

121.   Under the heading of Pain, Suffering and Loss of Amenity, both counsel have drawn to our attention the provisions of the Judicial College guidelines.  We accept the Plaintiff's assessment as to £2,090 for the neck injury and a further £6,730 for the back injury making a total of £8,820 under this heading.  We also allow 2% per annum interest on this sum from the date proceedings were commenced until the date of payment.

Loss of earnings

122.   In our view, based on the evidence as we understand it, whilst it is possible that she may not have been sufficiently symptom free for up to eighteen months, the Plaintiff would have been fully recovered after this time.  In our view, therefore, she should be entitled to loss of earnings of eighteen months from the date of the accident at her average rate of pay taken over the fifty-two weeks preceding the accident. 

123.   It has been argued that the pre-existing degenerative changes in her neck would have been accelerated but we found the evidence on this to be uncertain and we do not allow for degenerative change accelerated by the accident.

124.   Under the heading Care and Assistance, as we have made no allowance for acceleration, it does not appear to us that care and assistance is appropriate at any time after the eighteen months. 

125.   We accept, however, that the Plaintiff needed care and assistance for the initial months at least following the accident and that this need can be attributed to the accident.  We have not heard evidence as to the amount of care that the Plaintiff needed during that period, but we are satisfied that she did need some.

126.   Absent further material evidence, we would be minded to say that she may have needed some two hours per week for the first three months and, thereafter, perhaps an hour per week for the remaining period.

127.   As to medical and travel expenses, we see no reason to demur from the Plaintiff's claim of £800 in this regard. 

128.   In addition to the interest set out above with relation to pain, suffering and loss of amenity, to be calculated on the remainder of the claim in damages as to 1.375% from the date of the commencement of the proceedings to the date of payment.

129.   We trust that the above will assist counsel in calculating the final amount due and payable, but in the event that there needs to be further assistance from the Court in that regard, the Court is prepared to sit to hear submissions tailored specifically to damages in the light of the Court's findings above.  In other words, the figures set out under the heading 'Quantum' are, in the absence of full argument in the light of the Court's other findings, provisional at this point.

Authorities

Brown v Collis and Le Sueur (Electrical Contractors) Limited and Higgs and Hill Limited [1992] JLR 145. 

Spencer -v- Wincanton Holdings [2010] PIQR