Category Archives: Time

The Use of Medical Testimony in Personal Injury Cases

Coal-miner Thomas Brennan appeared before the Court of Session in Edinburgh in 1955 to seek £3,000 reparation from his employer, the National Coal Board (NCB), whom he claimed had failed to adequately protect his safety. Brennan referred to an incident that had occurred in a coal-mine five years previously. On 10th February 1950, Brennan had been proceeding to his place of work via an underground roadway owned and operated by the NCB. Yet the roadway was slippery and steep, according to Brennan, and it was because of this, he claimed, that he fell with such force that he sustained a hernia. He further averred that he had developed traumatic neurasthenia following the accident, characterised, according to Brennan’s GP, by nervousness, insomnia, hand tremors and dizziness. The NCB disputed Brennan’s account, arguing that there were inconsistencies in the claimant’s story and that his hernia had, in fact, pre-dated his fall by around a decade.

Cases like this are central to my PhD. I focus on the medico-legal sequelae of traumatic accidents in twentieth-century Britain, pivotal to which are concepts like traumatic neurasthenia, neurosis or hysteria — labels which, though marked by considerable semantic slippage, were normally used in this period to refer to the sequelae of industrial or road traffic accidents by the numerous medical professionals who treated, examined and assessed accident-victims. Such accidents typically produced physical injuries of a mild or moderate nature, it was argued, yet also vague and long-lasting symptoms like headaches, dizziness, mood changes, restlessness, sleeplessness, gastric disturbance, social withdrawal or lack of appetite, libido or concentration. Often, these symptoms were causally attributed by psychiatrists, neurologists, orthopaedic surgeons and general practitioners to the systems of compensation and insurance made prevalent by private motorcar ownership and heavy industry. The thinking ran that post-accident symptoms, whilst often understandable, were unconsciously exaggerated or prolonged by the sufferer through the effort required to make and sustain a claim for compensation. As one neurologist commented in the 1940s: ‘The cumbersome machinery [of compensation] itself involves endless delays during which the workman’s symptoms, originally a “traumatic neurosis,” become transformed into a “condition neurosis” in the sustained effort required in a fight for compensation.’[1]

One theme that I am particularly interested in is the use of expert medical testimony in personal injury cases, and especially when claimants allege long-term traumatic sequelae. Brennan’s trial had no shortage of medical testimony, including from his GP, two psychiatrists and the NCB’s own doctor. Much of it related to whether or not Brennan had a hernia prior to his fall. But doctors were also asked to account for the claimant’s psychological sequelae. His GP, Dr. Robert Aitken, explained:

During the time [Brennan] was coming to me while he was still at work he was developing a condition — a hysterical condition. It was a form of traumatic hysteria. He said he was dizzy but we could find nothing wrong with his brain. He said he felt the skin on his legs and thigh was dead and he made all sorts of complaints for which we could find no organic cause. This condition is described as traumatic neurasthenia. I found no physical cause for this condition. […] I think that the man’s troubles are, as we say, upstairs. I am satisfied that the man’s condition prevented him from doing his work. There is no doubt about that.[2]

 

The involvement of medical experts in civil litigation has aroused little attention from historians and legal scholars, most of whom are more interested in criminal than civil law (or in PTSD and shell-shock than whiplash and traumatic neurosis). Those few studies to examine personal injury litigation have related the involvement of expert medical witnesses to the desire, on the part of insurers, to identify malingers, or else to the need for courts to deduce any motives on the part of the claimant.[3]

These arguments have some merit, but I think could be extended, following Jane F. Thrailkill’s suggestion, to include further reference to the unconscious: for, from the nineteenth century onwards, physicians argued they had privileged insight into the claimant’s unconscious, and could use this to illuminate not only motive but also offer an explanation of how the claimant’s post-accident sequelae had developed.[4] This assisted courts in several ways, not least in assessing the severity of the claimant’s disability. But medical testimony was also useful, I want to suggest, because of the perceived imperfections of the claimant’s memory.

I think it’s helpful at this stage to introduce a conceptual framework to understand the relationship between courts and memory. I want to suggest that, at least in personal injury cases, the modus operandi of the court was to act as a memory-retrieving machine: through the reconstruction of the accident and its sequelae, civil courts activated and acted as conduit for multiple forms of recollection — from claimants and their relatives, from eyewitnesses of the original accident and from expert medical witnesses who had examined the claimant. In effect, the court’s job was to contract different rhythms and durations of temporality into the one, single, homogenous time of the court. Yet this machinic process was subject, like the operation of any machine, to breakdown, interruption or atrophy depending on how its various components interacted. Judge or jury could be dissuaded by medical testimony if it contradicted their established ways of thinking about temporality or causality. As psychiatrist David Henderson, writing in 1956, explained:

The difficulty the psychiatrist is faced with in cases of compensation is the long interval which has elapsed between the accident and the psychiatrist’s examination. Months or years may have elapsed, and during that time the claim, instead of getting less, has usually become greatly increased, and the claimant’s condition aggravated and set […] Often the alleged disability is entirely out of proportion to the precipitating cause, but it may be difficult to prove that the accident has not been the main factor, especially when the person has been in employment until the time of the accident. For instance, a man 28 years old, who had suffered no serious physical injury but experienced a degree of shock, claimed four years later, when I examined him, that he suffered from “turns” and had had a serious loss of memory. In fact, his memory disturbance was a massive amnesia only compatible with a diagnosis of hysteria: the accident had been the precipitating factor, but it was not easy to convince a judge or jury of the true position.[5]

In other words, the court-as-memory-retrieving-machine was circumscribed in its movements and potential, governed by an over-arching set of rules and codifications — what memories judge and jury were willing to accept and also, we could add, what precedent and certain legal concepts permitted.

Indeed, many of these rules and codifications are still around today, in civil and criminal courts alike. Consider one further aspect of the court’s memory-retrieving machine — it pivots on a linear model of recollection. By this, I mean that courts insist upon an unmediated, near-perfect ability to recall past experiences and details. That memory is usually a dynamic process, and that recollection is impossible to insulate from other experiences and emotions, is not countenanced by the court. As has recently been argued with respect to sexual abuses cases (e.g., R. v Ghomeshi), courts require an unbroken, linear model of recollection, where the witness (or complainant) has to able to recall past events in such a way as to be unmediated by later experiences. Or as neurologist James Kirkwood Slater complained in 1948:

The law is well aware that students of applied psychology have all manner of recommendations for revolutionising the so-called commonsense method of obtaining evidence which for so long has stood the test of time. […] For instance they tell us that scores of memory variations can be discriminated. Let your friends, they say, describe how they have before their minds yesterday’s dinner table and the conversation around it, and there will not be two whose memory shows the same scheme and method. They urge that we should not ask a short-sighted man for the slight visual details of a far distant scene, yet it cannot be safer to ask a man of the acoustical memory type for strictly optical recollections…[6]

 

It is by bearing this in mind that we can properly grasp the function of the expert medical witness in personal injury cases: claimants, doctors argued, often had an unconscious or imperfect recollection of the events that had followed their accident. The claimant’s memory of their accident was too heavily coloured by the events that followed it (i.e., the various medical assessments and treatments the claimant had undergone). Indeed, in the cases that I have sampled, claimants were rarely cross-examined about their post-accident sequelae, with attention instead focussing on where they were at the time of their accident, what attempts they had made to check their own safety, etc.

Thus, when he testified in his case, Brennan was asked only briefly about his neurasthenic condition. Legal counsel were more interested in probing the account offered by medical experts. As Dr. Aitken observed:

[Brennan] is quite unaware of the whole business. He believes that something has happened as a result of the accident in his pelvic region — his groin region — and he believes this is the cause of all the trouble and he, accordingly, gets in a very unstable state. He is not capable of a sustained effort either in thinking or action. He isn’t capable of sitting down to thrash out a problem. […] If you asked him about his accident his hands would shake […] At times now when you are speaking to him you feel isn’t grasping properly what you are saying to him.[7]

Hence the involvement of medical experts: for the memory-retrieving machine to function, doctors were needed to bridge the divide between the claimant and the Court.

 

References
[1] James K. Slater, ‘Trauma and the Nervous System: With Particular Reference to Compensation and the Difficulties of Interpreting the Facts’, Edinburgh Medical Journal, vol. 53, no. 11 (1946), p. 640.
[2] National Archives of Scotland, CS258/1958/1704, ‘Notes of Evidence in Jury Trial: Thomas Brennan V. The National Coal Board’, 1958, p. 97.
[3] E.g., Danuta Mendelson, ‘English Medical Experts and the Claims for Shock Occasioned by Railway Collisions in the 1860s: Issues of Law, Ethics, and Medicine’, International Journal of Law and Psychiatry, vol. 25, no. 4 (2002), pp. 303-29.; Karen M. Odden, ‘Able and Intelligent Medical Men Meeting Together’: The Victorian Railway Crash, Medical Jurisprudence, and the Rise of Medical Authority, Journal of Victorian Culture, vol. 8, no. 1 (2003), pp. 33-54.
[4] See Jane F. Thrailkill, ‘Railway Spine, Nervous Excess and the Forensic Self’ in Laura Salisbury and Andrew Shail (eds), Neurology and Modernity: A Cultural History of Nervous Systems, 1800-1950 (Basingstoke, Hampshire and New York: Palgrave Macmillan, 2010), pp. 96-112.
[5] David Henderson, ‘Psychiatric Evidence in Court’, British Medical Journal, vol. 2, iss. 4983 (1956), p. 4.
[6] James K. Slater, ‘The Medical Man in the Witness Box’, Edinburgh Medical Journal , vol. 55, no. 10 (1948), p. 590.
[7] ‘Notes of Evidence in Jury Trial: Thomas Brennan V. The National Coal Board’, pp. 98-99.

Nonlinear Histories of Feminism

My interest in feminism is fairly limited. But I still enjoy engaging with feminist scholarship — it’s self-reflexive, usually intrepid and normally quite accessible. Furthermore, feminist scholarship has a creativeness to it, an intellectual restlessness. And when these features are turned to towards the feminist movement’s recent past, it animates a set of themes of interest to historians, such as chronology, causality and time. It is these issues that I want to probe in this post, using recent debates on the history of feminism as a conduit for thinking about historical narrative.

Traditionally, the history of feminism has been written with reference to waves — first-wave, second-wave, etc. Yet this narrative has been subject to several criticisms, most recently by Victoria Browne.9781137413154 In Feminism, Time, and Nonlinear History, she argues that there is a Whiggish, ‘progressive’ model of time inherent to the traditional history of feminism, where it is assumed that each wave supersedes, and thereby improves upon, the previous one. Amongst other things, Browne suggests that this approach limits the radical potential of certain sections of the feminism movement — schisms are created between feminists of different generations, whilst any attempt to re-animate, or learn from, past waves is perceived as backwards or anachronistic. Feminism, Time, and Nonlinear History therefore advocates for a less restrictive understanding of time, one that acknowledges nonlinearity and respects the different ways in which events are experienced, understood, become resonant. Browne contends that feminists need to develop a more nuanced approach to history, dispensing with notions of linearity and continuity in favour of repetition, reinvention or re-appropriation.

There is promise in Browne’s work (a full review of which an be found here). I am especially taken with her discussion on the need to rethink the linearity of time and accept that temporality can move in multiple directions. Her comments connect with a similar argument made by Claire Colebrook, who has also critiqued the Whiggish narrative of feminism. Yet Colebrook stresses a different way of reading history to Browne, one that is reliant on a Deleuzean theory of time (c.f., Browne’s criticisms of Deleuze).

What Colebrook calls ‘stratigraphic time’ refers to the potential for each event to be both of its time and thoroughly untimely: an event, she argues, can follow others events in a chronological sequence, but can also reconfigure that sequence in new ways. Think of the archetypical artist, to take one hypothetical example. Let’s say her work is largely unappreciated and ignored during her lifetime. But let’s also say that the occasion of her death imbibes her earlier work with fresh significance and meaning. Her death is thus an event in time, which followed others events in a chronological sequence; but it also possessed a potential to retroactively animate earlier events, the artist’s life and artwork.

Moreover, consider the examples used by Colebrook. She argues that the creation of new philosophical concepts like subjectivity were products of their time, but allowed the re-reading of earlier philosophical texts with this new knowledge in mind (e.g., Plato could now be read by someone interested in subject-positions). Likewise, capitalism is/was a product of its time and followed feudalism in a chronological sequence. Yet capitalism was also able to fold time back upon itself, for it was only after its emergence that we could reinterpret earlier feudal societies in terms of the concepts capitalism prized (e.g., the exchange of labour) or created (e.g., the modern family).

By relying on this reading of stratigraphic time, Colebrook is able to argue for a different role for the past in the feminist movement’s present. The past need not simply be disconnected or studied in isolation from the present. Feminism can be both historicist and counter-historicist — it can contextualise texts but also read them anew, from new perspectives and with recourse to different values. In so doing, the past can be affirmative, productive even: we can read earlier texts ‘not according to the time within which [they] occurred to a time [they] might enable.’ The past can animate new futures.

Now, I have little to say on Browne/Colebrook’s contribution to feminist debate: I am not a card-carrying member of the movement, and, were they written down, my feminist credentials could not fill the back of a postage-stamp. But there’s an obvious spillover between the history of feminism and the writing of history more broadly. My attraction to Browne and Colebrook is that they both challenge the idea of time as linear, singular and infinite. But, more significantly, they decouple temporality from causality — e.g., just because third-wave follows second-wave feminism chronologically does not mean that the former cannot operate on the latter, cannot imbibe it with new meanings, new values. The implications of this debate on history-writing are wide-ranging (imagine composing a historical narrative that privileged the retroactive movement of causality, of the way in which time folds continuously back upon itself). It’s for this reason that I remain an avid reader of feminist philosophy: it has a heuristic value, an ability to produce new ways of knowing, thinking, becoming. If we let it, feminist debates over history can fold back upon, and radically transform, how we write history.

Conceptualising Time and (Re)Thinking History.

Two newspaper articles have caught my eye recently as they, somewhat obtusely, pivot around themes central to how we study the past; they illustrate what are, I think, deep and profound challenges to writing history in the way that we currently do.

Firstly, the Financial Times. A few weekends ago, it carried a feature on so-called ‘millennials’, the generation born between c.1980 and 2000, who are characterised by both a lack of brand loyalty and an unwillingness to plan long-term. The article pondered the economic consequences of millennials’ spending, and expressed concern that they would rather, say, blow their savings on a holiday than hoard it for retirement.

Elsewhere, Wednesday’s Guardian carried a long, densely-packed article on the haunting past, of how various cultures appropriate past grievances or atrocities for present-day ends. Its author, journalist David Rieff, is of the view that we are now overburdened by memory, that both western and non-western societies alike need to move on and learn to forget. He asks:

What if collective historical memory, as it is actually employed by communities and nations, has led far too often to war rather than peace, to rancour and resentment rather than reconciliation, and the determination to exact revenge for injuries both real and imagined, rather than to commit to the hard work of forgiveness?

 

My interest is not whether millennials actually exist as a homogenous social group. Nor do I have a strong opinion on whether we should let the past be the past. Instead, I think it is more profitable to reflect on the temporal relationship that these phenomena express, and what this means for academic history.

I would suggest that millennials are a product of what François Hartog identifies as the new regime of presentism, of a culture that privileges the here and now over the past or future — millennials live entirely in the moment, we are told, with no concern for their past (brand loyalty) or future (retirement).[1] They are imbricated in, shaped by, a culture of instantaneity (online shopping, dating, etc.) and financial short-termism (after all, what is the purpose of low interest-rates if not to encourage spending over saving?).[2]

Hartog’s regime of the present finds expression in Rieff’s article, too, in his references to what scholars dub ‘retrospective justice’ (i.e., attempts, in the present, to right the perceived wrongs of the past).[3] Reiff alludes to various conflicts, from the middle-east to Bosnia, where collective memory and national identity have been mobilised to commit all nature of atrocities. We could extend his discussion further: the UK is awash with allegations of child sexual abuse against former politicians, children’s entertainers and celebrities. A number of inquiries and investigations are being pursued, and they have been motivated, I would suggest, by a similar use of  memory as in the conflicts discussed by Rieff; they, too, have created a new, present-day framework for viewing the past, one that emerged following the death of Jimmy Savile in 2011, and which is animated by the believed superiority of present-day knowledge, or of knowing what we know now.[4] These inquiries are also facilitated by the new centrality of trauma to medical thought and are further bound up with, and enabled by, what Hartog identifies as the rise of ‘victim culture’ in the twentieth century. Instances of retrospective justice, in other words, are a product of present-day concerns and values, and have colonised the past in their image.

That our age privileges the present, and violates the past-present distinction, is of significance to academic history, for it challenges our comonsense understanding of time, the backbone of historical research. Generally speaking, time acts as a medium or plane through which historians can locate events, and is often conceived, rather simplistically, as objective, neutral, chronological, universal, singular and unending. Furthermore, historians install a firm demarcation between the past and the present in their writings, and stress the linearity of time. Hence why any attempt to impose present-day values onto the past is anathema: historians insist that the past is and should remain detached from the present.

There seems little appetite for moving away from this model of time. Indeed, my worry is that historians will simply capture, and thereby mollify, new temporal challenges within pre-existing narratives, that the discipline has nothing novel or insightful to say about what is changing in front of us. Disconcertingly, historians often assume that time just exists, and eschew any attempt to conceptualise it more thoroughly. Witness the way in which ‘big history’ and ‘deep history’, recent attempts to study the past across long durations, posit time as central to their methodology but then fail to conceive of it as anything other than a neutral, objective medium for stratifying events.

The recent debates over the emotional dynamics of historical research are another case in point. Incorporating themes such as distance, fantasy, presence, affect and materiality, these debates have found their fullest articulation in historical research influenced by queer studies, feminism, trauma theory and psychoanalysis.[5] Its adherents are all in broad agreement that researching and writing about the past implicates the historian’s psychology, facilitating emotional investments between scholar and the object of her study that transcend temporal distance.[6] But though at first glance such histories suggest a willingness to experiment with a new past-present relationship, they follow traditional accounts in relying on the distinction between a temporally demarcated then and now. For ‘affective history’, past-present connections can be formed through an emotional bond, but this can only ever be a bridge between — not a dismantling of — the separate domains of past and present. The historian’s belief in the linearity of time remains unshaken.

Why historians privilege this linear model of time over any other is unclear. It stymies any attempt to engage imaginatively with the new past-present relationship, and seems quaint when considered from the perspective of a physicist or anthropologist (whose disciplines long ago discarded the belief in universal, objective, linear time). Indeed, there is something naive in relying on a temporal model that assumes an ‘objective’ plane in which all events can be located, and made all the more so given the energy devoted by historians to rescuing those disempowered by class, race, gender and other distinctions. I would also ask whether historians (plus journalists like Rieff), in claiming that time is objective, neutral and irreversible, eschew moral engagement with the past and excuse themselves from historical acts of injustice (imagine telling a proven victim of abuse or sufferer of PTSD that their experiences are in the past, no longer of validity or importance).[7]

So, how should historians respond to this new present-centric culture? Outright denial would risk estrangement and instead offer further evidence of historians’ disdain of anything that smacks of ‘theory’. Hartog’s response, meanwhile, is insipid and reactionary, articulating a wish that historians vigorously (but fruitlessly) police the new culture of the present whilst preaching the importance of the past-present divide. My own view is that history needs to reflect the temporal order around it — that is, historians need to be more self-critical of their understanding of time, more open (indeed, experimental) with the concepts that they adopt. They need to respond to the new cult of the present, not by entrenching old concepts but by working to create new methodologies. I don’t know what form the eventual solution(s) will take, but I don’t think it’ll emerge until we look more critically at what we’ve got.

Footnotes.

[1] François Hartog, Regimes of Historicity: Presentism and Experiences of Time, trans. by Saskia Brown (New York: Columbia University Press, 2015).
[2] A culture of instantaneity that I am bound up in, too (why is blogging so popular, if not for its immediacy, its unmediated dissemination of ideas?)
[3] On retrospective justice, see Berber Bevernage, History, Memory, and State-Sponsored Violence: Time and Justice (London and New York: Routledge, 2012).
[4] As allegations were made against Ted Heath in the summer of last year, an article in one broadsheet explained: ‘So what should we read into new police investigations [into Heath]? Probably not too much at this stage. As we know now, historically the police failed to take this type of allegation seriously and ignored or possibly covered up child abuse claims made against prominent individuals such as Cyril Smith and Jimmy Savile.’ The italics are my own. See Oliver Wright, ‘The Allegations Multiply, But Why Now? And Where Did They All Come From?’, The Independent, 5 August 2015, p. 5.
[5] On recent histories that engage with affect, fantasy and distance, see Joan Wallach Scott, The Fantasy of Feminist History (Durham, NC: Duke University Press, 2011).; Laura Doan, Disturbing Practices: History, Sexuality, and Women’s Experiences of Modern War (Chicago: Chicago University Press, 2013).; Eelco Runia, ‘Presence’, History and Theory, vol. 45, no. 1 (2006), pp. 1-29.; and Mark Salber Phillips, ‘Distance and Historical Representation’, History Workshop Journal, iss. 57 (2004), pp. 123-141.
[6] On this, see Barbara Taylor, ‘Historical Subjectivity’ in Sally Alexander and Barbara Taylor (eds), History and Psyche: Culture, Psychoanalysis, and the Past (Basingstoke, Hampshire: Palgrave Macmillan, 2013), pp. 195-210.
[7] To be clear, Reiff does not advocate this position, nor come close to it. My point is that, in less sympathetic hands, this is where an argument like his could lead.