Tom Pacey
Thomas appears regularly in Fast Track matters and has conducted a number of Multi-Track cases through to trial. He has experience of acting in substantial High Court litigation as Junior Counsel and has appeared in the High Court in his own right on interlocutory matters. He has an extensive paperwork practice and is happy to advise on a CFA. Particular expertise includes road traffic accidents, employers' liability of all kinds, sports injuries and cases in which medical causation is disputed.
Practice Area
Panel
- Contributing Author
8 Contributions by Tom Pacey
PRACTICE NOTES
Chronic Pain Claims (CRPS, Fibromyalgia, Somatoform Disorders): NICE/ICD-11, Evidence, Causation, JCG Brackets, Limitation and Costs (England and Wales)
Chronic primary pain and its meaning
Chronic primary pain is a broad label for cases where a claimant experiences pain symptoms but medical investigations have not identified a specific pathological explanation for the pain. The National Institute for Health and Care Excellence (NICE) published guidance in April 2021 addressing the assessment and management of chronic pain. Chronic pain—sometimes called long-term or persistent pain—is defined in that guideline as pain lasting longer than three months. The NICE guidance centres on chronic primary pain, that is, pain with no obvious underlying cause, or pain (or its impact) that is disproportionate to any detectable injury or disease.
The guideline does not recommend for or against pain management programmes for chronic primary pain; rather, the committee agreed that options should be tailored following a patient-centred assessment. ICD-11 (the eleventh revision of the International Classification of Diseases) came into force on 1 January 2022. The NICE guideline is in line with the ICD-11 definition of chronic primary pain...
PI & Clinical Negligence
PRACTICE NOTES
HAVS/VWF workplace claims: liability, employer’s date of knowledge, limitation, medical and engineering evidence, and quantum
Symptomology
The clearest sign of hand-arm vibration syndrome (HAVS), sometimes called vibration white finger (VWF), is blanching of the fingers caused by spasms of the blood vessels that serve them, leading to pallor. Such spasms may involve all or part of one, several, or even every finger, which then become cold and numb, with reduced sensation. Episodes may persist for a few minutes or continue for a couple of hours. It is also possible for similar attacks to arise in the feet or the nose. There is no curative treatment, though spontaneous improvement may occur over time. The condition may occur naturally, yet it is frequently associated with over-exposure to vibrating tools. Its aetiology has not always been understood and, crucially for litigation in these cases, the courts have limited liability to periods after which employers ought reasonably to have been aware of the risks of HAVS and the appropriate preventive practices to adopt. Accordingly, to succeed a claimant must show that their exposure to vibrating tools exceeded what a prudent employer should have allowed...
PI & Clinical Negligence
PRACTICE NOTES
Practitioners' guide to mitigation of loss in personal injury claims: principles, burden of proof, expenses, earnings, treatment, and leading authorities
Basic principles
The basic principles of mitigation are:
damages are not recoverable for losses a claimant could have averted by taking reasonable steps
where a claimant goes beyond what is reasonably required and thereby avoids loss, those avoided losses cannot be recovered
the reasonable costs of taking steps to mitigate may themselves be claimed as damages
A defendant who intends to argue that a claimant failed to mitigate must give notice well before the hearing, via the statements of case or otherwise, and advance a concrete case showing what the claimant might reasonably have done.
Test to be applied
The onus of proving a failure to mitigate lies with the defendant. Nonetheless, a claimant’s practitioner should anticipate mitigation arguments and gather evidence to meet them. The claimant’s reasons for particular decisions should be probed in depth. Expert evidence may also be required. Whether the claimant has mitigated their losses is a question of fact for the judge. The test used is objective. Much will...
PI & Clinical Negligence
PRACTICE NOTES
Proving HAVS/vibration white finger causation: diagnosis, claimant evidence and credibility, photographic proof, expert issues, apportionment of liability, and carpal tunnel syndrome
This Practice Note addresses the causation issues that frequently arise in hand-arm vibration syndrome (HAVS) claims, also known as vibration white finger (VWF). This Practice Note will refer to HAVS. It provides practical guidance on handling such claims, including a survey of the leading case law on causation, the difficulties around diagnosis, the value of photographic evidence and the claimant’s account of symptoms, apportionment of liability, and the overlap with carpal tunnel syndrome (CTS). For guidance on liability and quantum, including the significance of the defendant’s date of knowledge of the risk and limitation considerations, see Practice Note: Hand-arm vibration syndrome (HAVS) or vibration white finger (VWF)—liability and quantum.
Diagnosis
Causation is challenging because there is no definitive diagnostic protocol, and methodologies vary considerably between experts. The position is further complicated by the fact that individuals may exhibit similar vascular symptoms even without any exposure to vibration...
PI & Clinical Negligence
PRACTICE NOTES
RSI and work-related upper limb disorders: common diagnoses, causation, evidence and tactics for claimants and defendants (Great Britain)
This Practice Note offers an overview of injuries that arise or worsen due to powerful, repeated or awkward motions when rest and recovery are inadequate. These conditions go by various umbrella terms, most often labelled repetitive strain injuries (RSI), work‑related upper limb disorders, or musculoskeletal disorders. It addresses optimal strategies for bringing or resisting claims involving such harm. RSI typically denotes pain or damage linked to repeated actions. Most frequently, repetition leads to persistent forearm pain or functional impairment. The label has effectively become interchangeable with work‑related arm pain. Within the spectrum are both clearly diagnosable disorders and non‑specific symptoms such as pain and fatigue. The principal specifically recognisable conditions are listed below. For direction on applicable statutory duties and leading authorities—covering the effect of section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA 2013), the actionability of a claimant’s symptoms, and the leading limitation case—refer to Practice Note: Musculoskeletal disorders—applicable law.
Bursitis
This occurs when the soft tissue cushioning between bone and skin (or a tendon) becomes inflamed...
PI & Clinical Negligence
PRACTICE NOTES
Work-related musculoskeletal disorders (RSI): negligence-based liability post-ERRA 2013, relevant health and safety regulations, causation and foreseeability in case law, and limitation considerations
This Practice Note
This Practice Note surveys the statutory framework governing musculoskeletal disorders, sometimes described as repetitive strain injury (RSI) claims or work-related upper limb conditions. For workplace accidents occurring on or after 1 October 2013, civil liability no longer stems from breach of statutory duty unless the particular regulation so provides, with such actions therefore to be pursued in negligence. The Note also reviews significant authorities, with the principal emphasis on whether the claimant’s symptoms meet the threshold for actionability. In addition, it considers the leading authority on limitation where musculoskeletal disorders are in issue. The Note addresses a category of injuries caused or exacerbated by forceful, repetitive, and awkward movements undertaken without adequate rest or recovery. These conditions, which are known under various umbrella labels, are commonly called RSI, work-related upper limb disorders, or musculoskeletal disorders. Throughout, the Note will use the term musculoskeletal disorders, as it is neutral on causation and can encompass injuries affecting all regions of the body, including the upper limbs as well as the neck, legs, and lower back. That terminology is adopted to avoid causative assumptions and to reflect comprehensive anatomical coverage...
PI & Clinical Negligence
PRECEDENTS
Particulars of claim template—occupational dermatitis from workplace exposure: employer negligence and breaches of COSHH, PPE and Workplace Regulations (England and Wales)
Claim No. [ insert number ]
In the County Court at [ insert location ]
Between [ Insert claimant’s name ] Claimant and [ Insert defendant’s name ] Defendant
PARTICULARS OF CLAIM
Throughout the material period, the Claimant was employed by the Defendant as a [ insert job title ] at the Defendant’s [ insert premises information ] premises.
At all relevant times, the Personal Protective Equipment at Work Regulations 1992, SI 1992/2966 (“the Equipment Regulations”), the Workplace (Health, Safety and Welfare) Regulations 1992, SI 1992/3004 (“the Workplace Regulations”), and the Control of Substances Hazardous to Health Regulations 2002, SI 2002/2677 were applicable.
The Claimant relies on contraventions of the aforesaid regulations as particulars evidencing negligence.
In the course of [ his OR her OR employment the Claimant handled/came into contact with compounds including [ insert name of compounds ] containing [ insert name of salient ingredient ], which caused [ him OR her ] injury.
The Claimant contends that, at all material times, the Defendant knew or ought to have known that the exposure created a foreseeable risk of injury and that such risk was reasonably avoidable...
PI & Clinical Negligence
PRECEDENTS
Precedent employer’s County Court defence to HAVS: limitation (Limitation Act 1980, incl. s33), liability/causation denied, contributory negligence; ERRA 2013 s69 (England and Wales)
IN THE COUNTY COURT AT [ INSERT LOCATION ] CLAIM NO. [ INSERT NUMBER ] Between X Y Claimant - and - A B Defendant
It is accepted that the Claimant commenced employment with the Defendant as a [ insert job title ] on [ insert date ].
On [ insert date ], the Defendant provided the Claimant with its Codes of Safe Working Practice, covering the operation of assorted machinery. The meaning and intent of those Codes were explained to [ him OR her ].
On [ insert date ], the Claimant received the Defendant’s Guide to Hand-Arm Vibration Syndrome. It contained written guidance on the cause, identification, prevention, and treatment of HAVS.
By the end of the 1970s, hand/arm vibration syndrome was widely recognised. From the time [ he OR she ] was given the above Guide, the Claimant understood the risks of hand/arm vibration syndrome arising from using any vibrating tools in [ his OR her ] work and what [ he OR she ] should do if symptoms developed.
...
PI & Clinical Negligence
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