High Court, Queen’s Bench Division:
Robert Francis QC (sitting as a deputy High Court judge)
5 March 2014
On all the evidence, but primarily on the expert evidence, the claimant, a nurse, was found not to be a malingerer in line with the defendant’s allegations.
The claimant was injured when asked to transfer a patient in hospital by her supervisor without a hoist. The defendants admitted liability but denied that the claimant had been caused any injury. The claimant was seen by a neurologist five months after the accident who advised her symptoms would resolve with time. She was eight months later diagnosed with fibromyalgia. Two months later she was noted to have deterioration in her speech and ability to articulate words, and the muscle power of her left leg and left arm had also deteriorated.
The defendants submitted that:
(1) there were indications of malingering and exaggeration, which were entirely or partially conscious;
(2) if the disability was genuine and psychological then it demonstrated such vulnerability to an abnormal reaction to a minor incident that it was bound to occur in any event;
(3) in any event there was a good prospect of the claimant’s condition improving significantly, following the end of the litigation.
The court found that on all the evidence, but particularly the expert evidence, the claimant presented with a known and medically recognised chronic condition, which caused chronic and disabling pain; this condition was often driven by psychological factors that were not discoverable. Although there was a prospect of recovery, there was only a small chance of the claimant recovering to the point where she would be able to work again.
Subject to the court’s view on malingering or exaggeration, the court commented that there was no difference in the nature of the diagnosis between the claimant and defendant experts to significantly affect the assessment of damages. Although the claimant had the occasional tendency to overstate her symptoms a little, the court found that this was through anxiety to persuade experts of the truth of her very real suffering.