27 March 2003

Brian Barr Solicitors
Enfield House
Bury Old Road
Manchester M7 4QX

www.brianbarr.co.uk

JUDGEMENT

Ms. Jayne Bennet Vs. Ms P Smith (Case No: MA007522)

HIGH COURT JUDGE RULES IN FAVOUR OF FIBROMYALGIA VICTIM

In a landmark Judgment, a High Court Judge has upheld on Appeal a decision made by a Recorder establishing that the Claimant, Jayne Bennett, was suffering with Fibromyalgia caused by a road accident in which she was the innocent party in April 1997.

In April 2000 Brian Barr issued Court proceedings on behalf of Mrs. Bennett. In August 2000 Solicitors acting for the driver who drove into the back of her car admitted responsibility for the accident, but made no admissions that Mrs. Bennett was suffering from Fibromyalgia, or, if she was, that it was caused by the trauma of the accident.

In December 2001 a District Judge ordered that the medical issues be tried before damages were assessed. On several days in April and May 2002 Mr. Recorder Prosser heard evidence from Mrs. Bennett and various witnesses as to (a) whether she was suffering from Fibromyalgia and (b) whether that condition was caused by the accident in April 1997. A House of Lords case intervened – the Recorder wanted to see the written Judgment in the Fairchild case before giving his own Judgment – and it was not until September 2002 that Mr. Recorder Prosser made his findings both that the Claimant suffered from Fibromyalgia and that the condition was caused by the road accident. The Recorder had heard evidence from two doctors for the Claimant, the Rheumatologist Dr Bourne and Physician Dr Bardsley and two for the Defendant, the Rheumatologist Dr Hamilton and Neurologist Dr Pearce. He preferred the evidence in particular of Dr. Bourne in a case which was particularly difficult because Fibromyalgia was not diagnosed until over two years after the accident and there were few helpful entries in the GP records after the initial six months from the accident. Nevertheless, Dr. Bourne believed that the onset of symptoms was consistent with and indicative of Fibromyalgia being caused by the accident, giving his evidence as follows:-
“My approach to this is what happened at the accident? It is clear that there was whiplash. What are we dealing with now when we see the patient, when I saw the patient at my examination? That was clearly Fibromyalgia to me. What has happened in between? It’s clear from talking to the patient and looking at the records that there has been a continuum of pain, initially localised and then becoming more generalised. The timing is a little difficult to be precise but there’s clearly never been a return to a normal function. That’s the important thing for me. If we have an injury, the patient had recovered, adopted a perfectly normal lifestyle, taken up all the reins of her usual activity and at a later date developed Fibromyalgia, that’s a different matter but there was a continuum here, a focus of pain in the neck gradually merging into this syndrome and that’s, I think, a very important clinical link.”

Fortunately for Mrs. Bennett, a Senior House Officer in June 1999 had recorded in hospital notes that she had had continuing pain and disturbed sleep. It was also helpful for the Claimant that although the Defendant’s doctors denied that she had Fibromyalgia when they examined her, they did agree that the extract from the Textbook of Rheumatology (Fifth edition 1997) edited by Kelley & Others which defined fibromyalgia as “a syndrome of widespread musculo-skeletal pain and fatigue arising in particular from poor sleep” was an accurate one. They also broadly agreed that the condition could be diagnosed by reference to the patient’s history (a subjective test) and by an objective test involving the examination by a doctor of 18 tender points on the quadrants of the patient’s body.

The Defendants appealed against the Recorder’s decision, but in a lengthy written Judgment given by Mr Justice Andrew Smith at the Royal Courts of Justice in London on 28th February, he concluded that the Recorder, having heard the expert medical witnesses, was entitled to prefer the evidence of Dr. Bourne. The Recorder was entitled to make findings about the presence of fibromyalgia and its causes. He felt that there were no good grounds for an Appeal Court to reject the Recorder’s findings on these points and the Appeal was therefore dismissed. This leaves Mrs. Bennett free to proceed to the quantification of her claim and steps are already in hand for that to be resolved as promptly as possible.

Brian Barr adds, “This was a carefully argued case and will give a boost to those who believe that trauma can trigger Fibromyalgia. Please take note, however, that Dr. Bourne has been too busy to take on any new medico-legal cases for the past two years now.”

Tel: 0161 720 6700
Fax: 0161 721 4274
E-mail: info@brianbarr.co.uk