This is the first of two articles explaining how to prove the link between your chronic pain and your accident. See the second article on evidence. Whether or not you currently have a solicitor, our team is available to discuss your claim on 01225 462871. Alternatively, you can email them or complete the contact form.
Whether it was an accident, illness, or medical procedure, most people who develop chronic pain have little or no doubt about the cause. But in the context of a compensation claim, how do you prove the link?
To answer that question, we must examine two things:
- the law on ‘causation’;
- medical and other evidence (see our next article).
What is ‘causation’?
Proving causation means establishing whether another person’s negligent conduct caused you to suffer harm. Causation breaks down into two questions or tests:
- First, did the other person’s negligent conduct cause your injury and loss?
- Second, assuming it did, were your injury and loss too ‘remote’ or ‘unforeseeable’ to be compensated?
What is the ‘but for’ test?
When considering the first question, the court will apply the ‘but for’ test. Your claim will fail unless you can prove you would not have suffered the injury and loss ‘but for’ the other person’s negligent conduct. When applying the ‘but for’ test, the court considers and examines all factors on ‘the balance of probabilities’, ie was it more likely than not.
If the first test is satisfied, the other person will be liable for all of the ‘reasonably foreseeable’ consequences of their negligent conduct. In general, where the type of damage was foreseeable, all injuries resulting from that type of damage are recoverable.
Causation in a chronic pain claim
You may or may not have been diagnosed with a specific pain condition such as Complex Regional Pain Syndrome (CRPS) or Fibromyalgia (FM). However, if your persistent pain originated from a physical injury, the absence of a medical label should not make a massive difference to your prospects of proving causation. Even if there is no identifiable organic cause for your pain, the courts have held repeatedly that it is sufficient to establish that the pain is a consequence of the original injury, irrespective of whether the mechanism causing it can be explained.
But what if there is no physical injury? In one very well-known case, the claimant suffered an exacerbation of his pre-existing ME following a road traffic accident. The House of Lords (as it was then, now the Supreme Court) held that although he suffered no physical injury in the accident, the fact that a physical injury would have been a reasonably foreseeable consequence entitled him to claim for non-physical injuries alone.
To prove your chronic pain compensation claim, medical and other evidence is crucial.