Consideration of recent authority
Josefa Claudimary de Oliveira Malvicini -v- Ealing Primary Care Trust
[2014] EWHC 378
An interesting case was heard in January 2014 by Robert Francis QC sitting as a High Court Judge.
The Claimant sustained accidental injuries in a lifting accident whilst at work as a nurse on 5 May 2009.
It was agreed that she suffered soft tissue injuries to her left arm. Liability was not in dispute. The Claimant continued working but continued to complain of pain in the left upper arm going from her elbow up to her shoulder, across her
back and into the left side of her neck. She went off work in July 2009 and was not able to return thereafter.
The Claimant complained of worsening symptoms so that as of December 2010 she was diagnosed as suffering
from fibromyalgia. In July 2012, she complained of widespread symptoms in the neck, shoulders, arms, wrists, hands, upper back, buttocks, legs through to feet, weakness and poor balance. She had poor memory, moments of blankness and poor concentration.
On a good day she could only sit for 30 minutes.
The experts in the case gave varying different diagnoses dependent upon their specialism. It was accepted that there was no orthopaedic or other physical
explanation for the symptoms or presentation. The pain management specialists agreed that it was reasonable to state that the Claimant presented with widespread chronic pain associated with highly significant emotional/psychological pain component. The
Claimant’s pain expert diagnosed chronic pain syndrome that was primarily psychologically-mediated. The Defendant’s pain expert offered the diagnosis of chronic widespread pain which he explained was almost always psychologically driven.
The psychiatrists agreed that the Claimant fulfilled the diagnostic criteria for persistent somatoform pain disorder according ICD 10 which is a condition predominantly driven by anxiety. The Claimant’s
psychiatrist agreed with the Claimant’s neurologist that there were features of conversion disorder according to ICD 10.
Dr Stone, neurologist, preferred the diagnosis of pain disorder under DSM IV as the best
fit but thought that there were elements of conversion disorder under DSM IV.
Dr Stone’s explanation from a lay person’s point of view was accepted by the Learned Judge as explaining the phenomenon as
“the pain volume being turned up in the brain”.
The Defendants ran the argument that there were elements of malingering or exaggeration. The Learned Judge found that the Claimant was credible and
that any degree of exaggeration was due to her anxiety to convince the doctors to whom she was talking as they did not understand the severity of the condition.
The Defendants’ next argument was that the Claimant
was so vulnerable to contracting a disorder of this sort that it would have happened in any event regardless of the accident. The Claimant’s neurologist, Dr Stone, expressed the view that there was a 10% chance that this may have occurred at some
time in the future in any event. The Learned Judge found that it was highly improbable that but for the accident the Claimant would have suffered as she did, but deducted 10% across all heads of damage, past and future, due to the possibility that she
would have developed this condition is any event.
The Learned Judge considered that the Defendants’ argument that she would recover within 12 months of the end of litigation was far too optimistic. He
considered that there was likely to be some improvement and found that there was a residual earning capacity in five years’ time of £10,000 which would be subject to the appropriate multiplier to reflect deduction for contingencies other than mortality,
for a disabled, unemployed 52-year old person in educational category D in the Ogden Tables.
The total claim was assessed at £765,992. From this total 10% was deducted to arrive at the total award.
Commentary
This case is a typical example of a Claimant sustaining modest soft tissue injuries which develop into a chronic widespread pain condition the severity of which is
out of all proportion to the initial insult. The court demonstrated an acceptance of the Claimant’s case as to her level of symptomology and that this had been triggered by the index accident. There was a relatively modest discount for the
possibility of this occurring in any event.
The Defendants’ hints at exaggeration/malingering were not accepted in the absence of clear evidence.
The Learned Judge
found that the Claimant would continue to have symptoms but that there was likely to be some improvement after the litigation finished.
The issue as to whether the Claimant would have developed symptoms spontaneously
was dealt with by an overall reduction of 10% to reflect this contingency.
This case is helpful in that it shows the approach of the court in this instance in the acceptance that the modest injury could result in
catastrophic debilitating symptoms.