The Claimant, a nurse, suffered an accident at work. Judgment had been entered for damages to be assessed and the trial of damages came before Robert Francis QC sitting as a Deputy High Court Judge. He noted that the Claimant "sustained a soft tissue injury to the left upper arm and scapular region from which she has developed a seriously disabling condition largely mediated by psychological factors. She accepts that the physical effects of the injury have largely, if not entirely, dissipated, but the remaining psychological effects remain with her and are seriously disabling. She claims that her disability is permanent. The gravity of this is shown by her claim for lifetime loss of earnings and a substantial claim for future care. "
In 2013 one expert "observed her walk with a "tottering", spastic-like gait, and an ability to walk five steps without crutches before leaning against a wall. He noted a variety of other movements which led him to suggest that there was evidence of a degree of calculation and conscious exaggeration. This included sudden jerking of limb, groaning, a claim of difficulty in rotating her neck whereas later she succeeded in doing so to 65 degrees, and a demonstration of foot drop which was contradicted by the way she walked ".
The orthopaedic experts agreed to describe her condition as "bizarre".
The psychiatric experts agreed that "she fulfilled the diagnostic criteria for persistent somatoform disorder according to ICD-10".
The Defendant's case was noted to raise the following issues:
"i) That there are indications of malingering and exaggeration, which are entirely or partially conscious. In other words the defendant suggests that the claimant has been dishonest in respect of the extent of her condition;
ii) That if the disability is genuine and psychological then it demonstrates such vulnerability to an abnormal reaction to a minor incident that it was bound to occur in any event. Such an event occurred in June 2010.
In any event there is a good prospect of the claimant's condition improving significantly, following the end of the litigation."
The Defendant accepted that malingering involved dishonesty. Its expert had said there were elements of malingering. The Judge held:
- "As was accepted by Miss Ayling to accuse a person of malingering is to accuse them of dishonesty. While there is only one standard of proof in a claim such as this, the balance of probabilities, clear evidence is required to support an allegation of that nature. The principle was put clearly by Lord Nicholls of Birkenhead in Re H and others (Minors) (Sexual Abuse: Standard of Proof)  AC 563, 586
- I have no hesitation in concluding on the evidence I have heard and have summarised above that the claimant has not at any material time been malingering in the sense of deliberately pretending to be more disabled than she believes she is, or in the sense of deliberately exaggerating her symptoms, beyond an occasional tendency to over-state symptoms a little through anxiety to persuade experts of the truth of her very real suffering. She is genuinely suffering from a condition with a diagnosis as variously described in the evidence I considered in the preceding section of this judgment. There is no direct evidence which demonstrates malingering, and a number of factors satisfy me that she is not a malingerer."
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
This is a familiar finding in such cases. I had a very similar case last year (which the Defendant is appealing and which, therefore I will not comment upon).
Defendants need to be aware that good evidence is required to establish malingering and deliberate exaggeration for the purpose of gain which will undermine the whole or a very substantial part of the claim.
The Defendant contended that the extreme response to a minor initial injury showed that the Claimant was "exquisitely vulnerable"to a pain disorder and had an "all encompassing need to be dependent and unwell". She would have suffered a similar response to any one of a number of minor injuries which she might have befallen even in the absence of the index accident, for example a minor injury she did in fact suffer after the accident. The Judge held that
- "I find that the claimant would not, on the balance of probability, have sustained an injury from an event for which the defendant was not tortiously liable. Indeed I find that the particular circumstances that surrounded the index accident, including the immediate perception of the claimant that it should not have happened, were likely to have been significant. We know that the claimant had sustained relatively routine injuries and illnesses in the past, unrelated to her work, and had not suffered this sort of psychological reaction."
However, he did find that the Claimant was vulnerable to some extent and taking into account all the circumstances her damages should be reduced by 10% to reflect that vulnerability.
Defendants might wish to consider the particular circumstances of the accident and why it gave rise to the extreme reaction. How did they compare with previous or subsequent incidents.
The Judge was influenced by the expert evidence of the pain management experts who were gloomy as to the prospects of recovery. As such he did not accept the more optimistic view of the Defendant's psychiatrist.
In my experience of such cases there are often difficulties in presenting a coherent and consistent set of expert reports. Orthopaedic surgeons, for example, may be sceptical about continuing symptoms, psychiatrists may differ about diagnosis and pain management experts might take a third view!
This initially minor physical injury resulted in an award of about £690,000 (after the 10% reduction).
Thanks to Lee Jenkins for alerting me to this case
Thanks to Lee Jenkins for alerting me to this case