A man has been awarded more than £760,000 damages for a neck injury he sustained in an accident at his workplace, even though the judge ruled that his symptoms had been greatly exaggerated.
David Kerr aged 38 from Tullibody, Clackmannanshire, was employed by Stiell Facilities, based in Uddingston, as an electrician, when the accident happened in October 1999. He was helping his colleagues to move a large circuit breaker at offices in Lothian Road when he injured his neck. He was taken to Stirling Royal Infirmary where he was diagnosed as suffering from a minor muscular injury in his neck.
He has not been able to work since November 2001 after the pain in his neck increased after his accident at work. Mr Kerr sued Stiell Facilities at the Edinburgh Court of Session for £1 million. The judge ruled that Mr Kerr’s complaints of severe pain and fatigue were “in large measure genuine”.
Ruling Lord Hodge said that he was satisfied that the accident contributed to Mr Kerr’s condition because a muscle injury and resulting pain was the trigger for chronic pain syndrome. He said: “I am persuaded on a balance of probabilities that the bulk of his complaints are genuine and not consciously fabricated. I am satisfied that he suffers from a very significant pain disorder.” He said he was satisfied that Mr Kerr suffered a muscular injury when pulling the equipment back into an upright position.
It was heard in court that Mr Kerr had greatly exaggerated his symptoms and disability, when applying for benefits. The defence for Stiell Facilities showed the court film footage of Mr Kerr filmed secretly, of him helping his wife unload shopping from a their car, with little difficulty. However Lord Hodge rejected a contention that Mr Kerr was unreliable and that his case failed because medical experts who supported his claim had reached their judgements largely on information he provided.
He said: “While he clearly exaggerated his disability in the application forms for benefits. I am not persuaded that he is to be treated as incredible or unreliable in relation to the existence of a long term condition in which he suffers pain and fatigue.” Lord Hodge said of the video evidence against him: “He generally appeared to have normal mobility, apart from a dipping gait or limp and an occasional appearance of protecting his left arm, and did not manifest significant pain.”
Medical experts differed in their view of Mr Kerr’s disability. Psychiatrist Dr David Gill said in court that there were concerns that Mr Kerr had exaggerated his problems and was influenced by the court case. He said that the extent of his long-term disability was out of all proportion to the seriousness of his original accident. However evidence from consultant neurologist Jon Stone concluded that he was genuinely suffering for chronic pain syndrome.
The defence lawyers of Stiell Facilities said: “The pursuer’s principal complaint is pain. One cannot measure pain. A doctor has to rely on what a patient tells him. While he spoke of only limited use of his left arm, there was no muscle wasting in that arm. Nor was there significant degeneration of his hands. There was a striking contrast between the appearance of him in court and his appearance in the surveillance videos, when he did not know he was being watched.”
Lord Hodge went on to say that he was not surprised that Stiell’s doctors had suspected Mr Kerr of faking his disabilities, but he also noted that the amount of time and effort Mr Kerr had spent trying to work out what was wrong with him. He added: “I am impressed by the fact that so many of the health professionals who have treated him since 1999 were persuaded that his complaints were genuine.”
The judge found that Stiell facilities were liable for Mr Kerr’s accident and subsequent disability and awarded him £762,227 compensation.
Mr Kerr refused to comment on his court victory but his wife Sandra said: “We have got the judge’s decision and that’s all that matters to us. We don’t want to say any more about it.”