In this recent Scottish decision from the Court of Session (Scotland's highest civil court), the court was asked to award a significant sum to a school teacher for psychological injury relating to an accident at work. The Court awarded the teacher damages for concussion but refused to award for psychological injury due to a lack of causation evidence.

In Thorvaldsen v Dundee City Council a high school teacher (the pursuer) claimed against his employer, Dundee City Council, after being hit on the head by a wooden partition while teaching. He had been knocked to the floor and rendered briefly unconscious. Liability for the accident was admitted. In addition to a concussive head injury, the pursuer claimed for psychological damage, arguing that the accident had exacerbated his poor mental health, which he characterised as a recurrent depressive disorder and a somatic symptom disorder.

At proof (trial), evidence was led by the pursuer, his partner at the time of the incident and his GP. He claimed that the psychological damage caused by the accident had been debilitating to him both in his professional and personal life. In response, the Council claimed that the pursuer had completely recovered from his concussive head injury within 7 weeks of the accident and that the psychological injury he had was not accident related.

Both parties led expert evidence from consultant psychiatrists. In the pursuer's expert's opinion, the pursuer was already suffering from a recurrent depressive disorder and somatic symptom disorder at the time of the accident, but the accident had exacerbated both conditions. In contrast, the Council's expert's view was that the pursuer had suffered a relapse in his depressive mood disorder but the accident had not caused it. The Council's expert took into account the pursuer's own description of having returned to full function prior to the accident but also the time lapse between the accident and onset of symptoms when reaching her conclusion.

On considering the evidence before it, a key factor in the court's decision was the lack of an objective clinical basis to determine the pursuer's pain, or its origins. For example, the reported symptoms of persistent headaches could not be traced to any neurological injury sustained in the accident.

Given the lack of objective clinical evidence, such as an x-ray or scan, the court tested the pursuer's evidence against contemporaneous records, such as his medical records. The pursuer's evidence often conflicted with the accounts from the medical records. Of particular note was a lack of reference to headaches in the GP records, even when the pursuer was attending his GP for other matters. Ultimately, the judge did not find the pursuer to be an altogether reliable historian. The court also took account of the fact that the first notable entry in the pursuer's records of persistent headaches was some 6 months after the accident.

The court considered the pursuer's pre-existing medical history of having suffered, from time to time, throughout his adult life with depression and persistent headaches and also other stressors including his pre-accident difficulties at work, family illness, bereavement and relationship breakdown., These were relevant when determining the extent to which the pursuer's psychological symptoms, which appeared to have arisen 6 months post-accident, were, in fact, accident related. The court preferred the defender's expert evidence and ultimately held that the pursuer had not proved that the psychological damage had been caused, or exacerbated, by the incident. The court therefore awarded damages on the basis of post-concussion syndrome alone, rejecting the claim for damages for psychological injury.

The value of the claim attached to psychological injury was, comparatively, substantial. The full amount claimed for injury in this case was £45,000; while the award, which excluded psychological injury, was only £5,000 for a minor head injury with post-concussion syndrome.

This was a difficult case on causation given the pursuer's pre-existing history and the lag between the incident and relevant symptoms being reported. It is a reminder that careful consideration should be given to the pre-accident position and contemporaneous records, as the court will place reliance on these when assessing the reliability of the pursuer's evidence.


Lynn Livesey

Legal Director