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Bennett v Smith, High Court

18 March 2003
The issues

Fibromyalgia – road traffic

The facts

The Claimant had a road traffic accident in April 1997. The Judge found that she suffered from Fibromyalgia, which had been caused by the accident. Previously, she had suffered intermittent lower back pain for many years and 4 years before the accident had been diagnosed as suffering from Endometriosis (fragments of membrane imbedded in the muscle of the uterus or ovaries causing severe pain before periods). She also suffered from Dyspareunia (pain during sexual intercourse). 8 months before the accident she had suffered a crushing chest pain lasting 3 to 4 days. The Judge explained his decision on the basis of a passage in “A Text Book of Rheumatology” 5th Edition 1997 edited Kelley where it is described as “a syndrome of widespread musculo-skeletal pain and fatigue arising in particular from poor sleep” and went onto say that the condition was diagnosed by reference to the patient’s history – a subjective test – and an objective test involving the examination by a Doctor of 18 “trigger points” on the patient’s body. To meet the diagnostic criteria, pain ought to be present at 11 or more of the 18 tender point signs. This description derived from the American College of Rheumatology. The Judge expressed difficulties when faced with the divergence between Claimant’s experts and Defendant’s experts and moreover, a lack of clarity as to what constituted Fibromyalgia and whether there were other syndromes and if so, what distinguished Fibromyalgia from them. The Defendant appealed to the High Court Judge

The decision

1. When faced with divergence of expert evidence (following the dissenting Judgment in Eckersley -v- Binnie and Flannery -v- Halifax Estate Agencies Limited and English -v- Emery Reimbold) the Judge should deal carefully with expert evidence and be prepared to rebut a coherent reasoned opinion with a coherent reasoned rebuttal. This did not mean that the Judge had to apply the same or even superior degree of expertise as that displayed by the expert witness, but should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another.

2. In this case, the Judge preferred the evidence of Dr Bourne over Dr Pearce, the Defendant’s expert. He found that Dr Bourne had more current experience of Fibromyalgia than the other expert witnesses. That conclusion was one the Judge was entitled to come to and had not been criticised. The Judge had noted that whilst the Claimant had related her medical history between 1997 and 1999 accurately and without exaggeration, he found her evidence to be “less frank at Trial as to other matters. She had had her tender points tested on 4 occasions by Dr Bourne who found 12 in January 2000, by Dr Pearce in December 2000 who found none, by Dr Hamilton in December 2000 who found 3 and by Dr Bardsley in April 2001 who found 9.

3. There was a danger in adopting an inflexible approach to the diagnosis of Fibromyalgia. Kelley referred to the ACR as providing guidelines and not a definition and that a diagnosis could be entertained when fewer than 11 points were present.

4. The Defendants argued that because the symptoms did not emerge within 4 to 6 months of the accident but therefore there was good reason to conclude that the Claimant’s condition was not caused by the accident, but by some other stressful event or indeed spontaneously. The Judge however had been entitled to accept Dr Bourne’s evidence that the Claimant had suffered whiplash like symptoms after the accident and that there had been a “continuum of pain initially localised and then becoming more generalised. The Judge was entitled to follow Dr Bourne’s evidence that where that continuum existed (as distinct from recovery and then at a later date development of symptoms) that the accident had a causal link to the condition.

Appeal dismissed.

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