The High Court recently assessed a personal injuries claim whereby a minor impact originally resulted in minor injuries, which developed into a psychological reaction known as “catastrophisation”.
The Plaintiff had a number of pre-existing issues with her back, all of which were said to have resolved at the time of the rear-ended impact in October 2012. Following the accident, the Plaintiff initially complained of neck injury / whiplash type injury, but claimed this subsequently developed into an “electric shock” type pain to her lower back.
It was common case that the accident was of a minor nature and little damage was caused to either of the cars involved in the accident.
The claim came before the High Court by way of an assessment only, with a denial on behalf of the Defendant that the Plaintiff suffered any appreciable injury in the accident, and that the Plaintiff had grossly exaggerated her claim, thus invoking Section 26 of the Civil Liability and Courts Act 2004.
The Plaintiff’s medical experts all agreed that there were existing osteophytic changes to the Plaintiff’s lumbar spine, but there was no neurological problem with the Plaintiff which would lead to the “electric shock” type pain being complained. One of the experts went as far to say that the Plaintiff’s pain pattern did “not follow any dermatomal pattern” (nerve / root pattern).
That expert went on to say that there was no objective evidence of nerve root impingement and that the sensory changes complained of did not follow the root of any specific nerves or dermatomes. Following an examination of the Plaintiff, the expert concluded that the Plaintiff was suffering from a medical term known as “catastrophisation”.
Judge Cross summarised the Plaintiff’s claim as a minor impact, which produced a small physical finding in the lumbar area which was already weakened due to previous incidents, and concluded that the Plaintiff essentially had a psychological reaction to that minor physical ailment out of all proportion to the physical findings.
No psychological or psychiatric assessment was carried out on behalf of the Plaintiff and no further expert evidence was provided to support the position advanced regarding catastrophisation.
Subsequently the Defendant had the Plaintiff examined by both an orthopaedic surgeon and a neurosurgeon, neither of whom could explain the complaints of the Plaintiff from a review of the clinical findings.
One expert went on to say that the presentation by the Plaintiff’s complaints was a “very abnormal pain pattern or behaviour and not organic”, concluding that it could only be explained on the basis of a psychological problem or that she was, in effect, acting deceitfully.
The Defendant undertook a period of surveillance of the Plaintiff which lasted for a total of 29 days. During those 29 days, the Plaintiff only left her house on 4 occasions. On the occasions when she did leave her house, there were variances in the use of the crutch that she had alleged to have heavily relied upon.
Judge Cross assessed the claim on a two-fold basis. The first assessment was whether or not the Plaintiff had in fact sustained a minor injury. Judge Cross came to the conclusion that the Plaintiff did suffer a minor physical injury, and that the complaint of an electric shock type pain was consistent with the description of the accident.
Secondly, Judge Cross assessed whether or not the Plaintiff had deliberately exaggerated her injuries or had suffered the catastrophisation as had been contended by her medical experts.
Judge Cross concluded that he accepted that the medical description of catastrophisation was the most probable explanation for the Plaintiff’s symptoms. The Plaintiff has predicted a negative outcome and interpreted everything that had occurred since the accident as a catastrophe. Since the accident in 2012, the Plaintiff’s life had been dominated by the accident and the perception of her injuries. Judge Cross went on to state that he accepted that the Plaintiff was a vulnerable person who suffered from the minor impact to a significantly worse degree than would otherwise have been the case. He stated he had no difficulty in utilising the term catastrophisation as meaning that the impact of this minor trauma to the Plaintiff had had a significantly worse affect than would otherwise be the case.
Judge Cross concluded that he viewed the Plaintiff as someone with an “egg shell skull” who was affected far more by this injury than anybody else. He went on to state that he accepted that “the Plaintiff subjectively believes she is in a far worse position that she actually is. She is entitled to be compensated for this subjective position..”
Judge Cross awarded a total of €100,000 to the Plaintiff broken down as follows:
|Loss of Earnings||€20,000|
|General damages to date||€50,000|
|General damages into the future||€15,000|
|Loss of Job Opportunity||€15,000|
This Judgment is interesting in that Judge Cross accepted the position of catasthrophisation without the benefit of expert evidence provided by a psychologist or psychiatrist on behalf of both the Plaintiff and / or Defendant.
This is a departure from the normal requirement to present expert medical evidence when claiming for a psychological / psychiatric injury.
Interestingly, Judge Cross stated that there was ”no doubt that her pain complaints do not correspond with any known neurological or orthopaedic pattern, but I am driven to accept the description of catastrophisation as set out by Dr Gallagher as being the most probable explanation for the Plaintiff’s symptoms”.
Katarzyna Plonka v Ainars Norviss  IEHC 137. A full copy of the judgment is available here.
The award was subsequently appealed to the Court of Appeal. Courts.ie provides information that the case was settled and that the “PL recovers €40,000 from DEF”.