Extracts from the FND casebook: disclosure and early offers

Our first case study in a new series examining FND strategy highlights the importance of pursuing disclosure to allow examination of a claimant’s pre-accident history. This means existing health issues and red flags can be identified, and a well-pitched early offer made.

Background

The claimant, aged 49 and employed full-time as a warehouse cleaner for a major grocery chain, was involved in a workplace accident on 19 April 2020. CCTV captured a minor collision between the claimant and a reversing pallet truck, following which she fell and remained prone. Colleagues couldn’t move her, and she was taken to hospital by ambulance. Within days her husband requested the footage.

A Claim Notification Form (CNF) was submitted on 24 November 2020, describing:

"An injury to the neck, discs C5 C6 moved out of place. The claimant's left-hand side is partially paralysed. Neurological issues affecting the ability to eat and blurred vision, injury to abdomen"

Primary liability was admitted although contributory negligence remained in issue.

Proceedings were issued on 16 August 2023, with damages limited to £50,000. FND was pleaded, and although the schedule of loss was largely ‘TBA’, the claim for past loss of earnings was estimated at £50,000.

 Expert evidence

The claimant served expert evidence in the following disciplines:

• Orthopaedics: Neck and lower back pain was confirmed, with loss of limb function and reliance on mobility aids out of the house. Symptoms could not be explained orthopaedically, and neurology and pain evidence was recommended.
• Neurology: Attended examination in a wheelchair and a neck brace, with a grade 1/5 weakness in the left arm and leg. No organic explanation could be provided and FND was diagnosed, attributed to the accident. Malingering was rejected and substantial disability accepted.
• Neuropsychiatry: Noted significant pre-accident factors including a compensation claim for a 2016 knee injury. Workplace bullying, bereavement, and a history of anxiety and depression were also highlighted. Accident-related FND was accepted and Multidisciplinary Team treatment (MDT) recommended. However, the prognosis was poor without the claimant’s acceptance of the diagnosis. Litigation was identified as a perpetuating factor with the claimant unlikely to return to work. The list of documents reviewed included reference to the expert report of a pain specialist, which had not been served.
   

Disclosure

Disclosure on 17 September 2024 revealed a complex pre-accident history:

• A 2016 injury with prolonged work absence
• An abusive marriage
• CRPS diagnosis in 2017
• Episodic back pain since 2016
• Long-standing anxiety and depression
• Workplace bullying complaint in 2019
• Bereavement in 2020

An updated schedule of loss served on 3 January 2025 sought over £7 million, with future care alone exceeding £5.75 million.

On 20 January 2025, the defendant applied for specific disclosure of the pain report and prior personal injury claims documentation. This yielded further evidence related to the 2016 accident, including:

• Medically unexplained pre-accident pain in various parts of the body
• Inconsistencies and exaggerations in medical records
• A view that the claimant’s presentation was either psychological or fabricated

In March 2025, the claimant requested funding for an Initial Needs Assessment (INA) costing £18,500, with anticipated inpatient MDT treatment exceeding £100,000. No detailed treatment plan was provided.

Defence strategy

Following counsel’s advice several areas were identified for investigation, while maintaining a focus on fair compensation for the claimant:

• Veracity: Concerns over exaggeration/fabrication prompted a plan for multiple periods of surveillance.
• Causation: Consideration of alternative triggers such as bereavement.
• Exacerbation: Evidence of pre-existing FND-like symptoms meaning the accident was only partially responsible for the claimant’s presentation.
• Acceleration: Possibility that FND would have developed regardless of the accident given previous history, meaning the accident only brought forward the onset of her symptoms.
• Treatment: Legal opinion suggested poor recovery prospects with treatment. Given contributory negligence was a potential issue, INA funding was resisted with a view to seek expert advice on appropriateness and timing around the resolution of litigation. No Part 36 offer was made to avoid the claimant using the offer to support an interim payment application.
• Expert evidence: Robust expert evidence was commissioned across orthopaedic, neurology, neuropsychiatry, and pain disciplines.

Resolution

Despite concerns, it was acknowledged that the claimant had been functioning independently and working full time before the accident but had stopped working and presented with severe impairments afterwards.

While the care claim was deemed overstated, a reserve of £1.5 million was set, with a reasonable settlement range thought likely to be £750,000 – £1 million.

These figures were subject to revision once the defendant’s medical evidence was available. Given the costs involved in obtaining that evidence, an early commercial offer of £150,000 was made and accepted without negotiation. This concluded a potentially protracted and expensive claim swiftly and economically.