Malvicini v Ealing Primary Care Trust [2014] EWHC 378 (QB)

Case No HQ12X01546[2014] EWHC 378 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 5 March 2014
Before
ROBERT FRANCIS QC(Sitting as a Deputy High Court Judge)
Between
JOSEFA CLAUDIMARY DE OLIVEIRA MALVICINIClaimantEALING PRIMARY CARE TRUSTDefendant
Daniel Lawson (instructed by Messrs Slater & Gordon (UK) LLP) for ClaimantJudith Ayling (instructed by Messrs Clyde & Co Claims LLP) for DefendantHearing Hearing dates: 28, 29, 30 January 2014
JudgmentRobert Francis QC :Introduction
[1]This is a claim for damages for personal injury alleged to have arisen out of an accident sustained by the claimant at work on 5 May 2009. The claimant is a qualified nurse who was employed at a hospice in London. She was then 43 and is now 47. By a defence filed on 16 August 2012 the defendant admitted that the accident had been caused by its negligence and/or statutory duty, but did not admit that the claimant had in fact been caused any injury. Judgment for damages to be assessed was entered by Master Cook on 8 October 2012 and directions given for the assessment.

The issues

[2]The claimant alleges that in this accident she 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.[3]The defendant’s case is set out in the counter-schedule, and I quote:
“The Defendant’s case is neatly encapsulated in the evidence of its Psychiatrist, Dr Reveley who opines… that the Claimant has a Conversion disorder…. and… symptoms suggestive of Persistent Somatoform Pain Disorder. Dr Reveley opines that the Claimant may also have elements of malingering or exaggeration… As regards causation it is the Defendant’s case that the progressive and extensive problems after the accident suggest such exquisite vulnerability and such an all encompassing need to be dependant and unwell that, had this accident not occurred, then another minor accident or incident would have served exactly the same purpose. The incident whilst gardening in June 2010 is extremely likely to have led to a similar clinical picture had the material accident not occurred The position of the Defendant is therefore that the Claimant would have been in the same position by June in any event (+1 year post accident).”

Dr Reveley opines that the Claimant may also have elements of malingering or exaggeration…

[4]The defendant’s case, as advanced during the hearing, raises the following general 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.[5]In coming to my conclusions in this case I have been greatly assisted by the submissions made by counsel, including those made following the hearing. Iam grateful to them.[6]The court has heard oral evidence of fact only from the claimant. Written expert medical reports have been put in evidence as follows:• Orthopaedic: for the claimant Mr AH Osborne, for the defendant Mr MMS Glasgow• Pain management: for the claimant Dr JMJ Valentine; for the Defendant Dr CJ Glynn• Neurology: for the claimant Dr J Stone; no neurological evidence was called for the defendant but the evidence of Dr Stone was not agreed.• Psychiatry: for the claimant Dr T Read; for the defendant Dr A Reveley.• Dr Stone, Dr Read and Dr Reveley also gave oral evidence,• There were joint expert statements prepared by the orthopaedic, pain management and psychiatric experts.[7]A large but not complete measure of agreement was reached between the parties on issues of quantum, subject to causation, and accordingly the evidence was limited to the written reports and the joint statement of Caroline Wright, Occupational therapist on behalf of the claimant, and Sally Gooch, Registered Nurse and Health Visitor, on behalf of the defendant[8]For reasons which will appear when I consider the various issues in this case where there is a significant difference of opinion between Dr Reveley and the claimant’s expert witnesses, in particular Dr Stone and Dr Read, I prefer the evidence of the latter.[9]In addition a large number of medical records and other documents were placed before the court, mercifully few of which proved to be material to the issues I have to decide.

The claimant

[10]A picture of the claimant’s background and employment history can be obtained from her witness statements and an account she gave the defendant’s care expert. It is an account which has not been challenged, and I accept it.[11]She was born in Sao Paolo, Brazil where she grew up. She is the eighth of twelve children. She met her husband in London when she moved to London; they have been married now for some 13 years. The claimant’s mother lives in Brazil, as does at least one sibling. A sister lives in Sheffield and a niece near her own home. Mr Malvicini is 63 and worked as a handyman at a local hotel until it closed in 2012. He has had health problems, in particular heart disease for which a stent was inserted in 2010 and a further two in July 2011. He also has Type 2 diabetes stabilised by insulin.[12]The claimant has worked regularly since she was 14. She obtained a teaching diploma, and then trained as a civil servant working in tourism in Brazil. After moving to this country she was employed for a woman for over seven years. After that she found work as a health care assistant and qualified as a nurse in 2005. After working for an agency she became employed at the Meadow House Hospice, which is in the grounds of Ealing Hospital, in September 2006 as a health care assistant. She became a staff nurse there in 2008.[13]Mr Lawson for the claimant has directed my attention to various records which he contends show the passion and commitment the claimant had for nursing as a career. In the application form for the role of staff nurse, completed in 2008, she said this:
“I am passionate about caring for people whatever their medical/psychological needs may be and I have a genuine interest in continue to expand my nursing skills and knowledge in the area of palliative care as I find it challenging and at the same time a rewarding specialty…. Although I find the nature of palliative care psychologically demanding… caring for patient who’s disease are not longer curable make me feel personally and professionally rewarded.”
[14]She described her introduction to palliative care through her work as a carer for a terminally ill lady and how it was the care and support of the community palliative care team which inspired her to want to become a nurse herself.[15]It is clear that the defendant regarded the claimant highly as an employee and that they regretted feeling compelled to dismiss her in January 2011 because of her absence from work since July 2009. At a meeting at which this decision was announced to the claimant the Assistant Director of Human Resources is recorded as saying that it had been a difficult decision which she was sorry to make, and that the claimant had “worked hard” during her employment. She thanked her for her “loyal and valued service” and stated that the decision was “in no way reflective of the quality of her work”. It was made clear that if her health improved the defendant would always welcome another application for employment from her. These sentiments were repeated in the formal letter of dismissal.[16]In her evidence the claimant stated that she had been “completely devastated by her injury and the effect it had had on her. She said that she loved her job and had only taken the role of health care assistant because she was “desperate” to get into palliative care nursing. She was “devastated” at the thought that she might not be able to return to this.[17]I accept that the claimant was hard working and strongly committed to pursuing a career in nursing. Before the accident she was not absent from work for sickness with any unusual frequency or for unexplained or unexpected periods of time. She showed great determination in becoming qualified as a nurse and obtaining employment in palliative care.[18]I will return in due course to consider the reliability of the claimant as a witness and of her evidence in relation to her disabilities.

The accident

[19]On 5 May 2009 while on duty at the hospice the claimant was asked by colleagues to help transfer an elderly patient from a commode to his bed as he was suspected of having had a fit. The claimant has told the court both in her written statement and in oral evidence that when summoned to the patient’s room he was sitting on a commode apparently unconscious. He was tall and well built. She asked what had happened and was told it was suspected the patient had had a fit. She suggested getting the hoist but the sister in charge said not to do so as there were four members of staff present. The claimant told Mr Glasgow, the defendant’s orthopaedic expert, that she was distressed because she had suggested use of the hoist twice to the sister, but she had disagreed on both occasions. The claimant said she was not very happy about that and asked what they were going to do. The sister in charge asked her and a colleague to lift the patient’s bottom half while she and another nurse lifted the top half. The claimant stood next to the patient’s upper legs and facing the bed. She placed both hands and forearms under the patient’s upper legs and bottom which she found difficult because of an armrest on the commode. She said that she had to bend forward about 90 degrees to get her hands and arms under the patient. Her colleagues were holding other parts of the patient and on an indication from one of them they all lifted the patient on to the bed. The claimant described what happened next in these terms:
“As the patient was lowered on to the bed and my arm was stuck between his body and the bed, pressing down on my arm, I felt a sharp pain in my left upper arm going down from my elbow up to my shoulder, across my back and up the left side of my neck. I called out in pain. [A colleague] said ‘are you alright?’ I said ‘I think I have done something’.”
[20]She reported the incident to the charge nurse and that she was in “great pain”. The claimant says she was instructed by the charge nurse to fill in an accident report form and if not recovered to see an in house doctor before she went home. She started to fill in the form but was interrupted by a doctor who asked to look at her. The claimant says that the doctor looked at her left arm, shoulder, back and neck but said that she had not broken anything. The doctor advised her to take a painkiller and if not better in a week to see her general practitioner or an occupational health doctor. The doctor then signed the accident report form. She asked the charge nurse, she says, if she could complete the rest of the form the following day as she was in such pain, but in fact somebody else completed the form.[21]In the part of the accident report form filled in by the claimant she described how she and a colleague were supporting the patient’s legs while two to her staff supported the upper body, and that:
“while transferring the patient I felt a sharp pain from my left elbow up to my neck”
[22]Miss Ayling, for the defendant points out that this note makes no reference to any back problem.[23]There has been no challenge of the claimant’s description of the accident, and I accept it. This was a relatively minor incident at work which the defendant accepts should not have happened. The claimant herself had suggested obtaining a hoist but this had been ignored.

The initial injury

[24]The contemporaneous evidence of the nature of the initial injury other than the claimant’s own account is limited. I have not been shown any note by the doctor who saw her on the day of the accident. She did not visit her general practitioner about the injury until 19 May, 10 days after the accident. That doctor noted the injury to be a “pulled muscle” in the left scapular region, i.e. the left shoulder blade. On examination a tender left trapezius was noted and the range of movement in the neck and shoulder were “OK”.[25]There is a great deal of common ground between the experts in the nature and extent of the original injury although there are slight differences of nuance.[26]The orthopaedic experts agreed that the claimant had sustained minor soft tissue injuries to the neck and upper limb and that there has been no subsequent evidence of any structural damage caused by this accident. They would have anticipated a full recovery within two to three months.[27]The pain management experts jointly described the injury as a medically minor soft tissue injury to her left shoulder. They thought that a full recovery could have been expected within five weeks and three months.[28]Dr Stone, the sole neurological expert instructed by the claimant, described the initial injury more precisely as a soft tissue injury to her trapezius muscles or possibly peri-capsular muscles, and thought that ordinarily improvement could have been expected within three to four weeks. He maintained that opinion in his oral evidence.[29]The psychiatric experts predictably have deferred to other experts on the nature of the initial injury.[30]I am satisfied on this evidence that the claimant did suffer a minor soft tissue injury in the area of the left shoulder blade and the neck. It is not material to make a precise finding as to when there might have been a full recovery in normal circumstances, but I am satisfied that but for any psychological sequelae, the claimant could have been expected to have recovered fully within three months, in other words by about the beginning of August 2009.[31]Miss Ayling has argued that it is of some significance in relation to the claimant’s credibility that she is not recorded as having referred to any back pain until some time after the accident, whereas in a letter in support of a benefits claim she had said that she had mentioned back pain at the time, to the nurse and the doctor. In her evidence to this court the claimant has said that she felt low back pain about three months before the so-called gardening incident in June 2010. None of the experts referred in their agreed statements to any injury to the claimant’s back as such.[32]It is clear that the claimant said enough to her general practitioner for him to note a tender trapezius muscle. As this muscle, and indeed the shoulder blade, extend some way down the back I do not find that the absence of a recorded complaint about the back as such to be significant. Dr Stone when asked about this said he would have been surprised if the claimant had not felt back pain in 2010 as such pain would be typical of the syndrome which he and other witnesses consider explains the claimant’s subsequent condition. On the basis of this evidence I am satisfied that the claimant did feel pain in her back, albeit not necessarily the lower back, at the time of the accident and did report that to the doctor she saw on the same day, and later to her GP. The absence of the full detail of what she said from the GP note is not surprising. Such notes are invariably in short and very summary form. There is no material here capable of undermining the claimant’s credibility or reliability as a witness in my judgment.

The development of the claimant’s condition

[33]When the claimant arrived at home she took some ibuprofen but did not thereafter absent herself from work at that stage although she said, her arm continued to be painful. As I have noted above she did not visit her general practitioner until 19 May 2009, 10 days after the accident. At work she attended the occupational health department on 5 June 2009 where it was recorded that the claimant appeared to be suffering from soft tissue damage of the tendons around the shoulder muscles which might be causing discomfort. The report of the assessment recorded that the claimant “frequently looks uncomfortable” at work. The nurse noted in a letter to the hospice that the claimant was keen to stay at work, but advised that she should refrain from handling heavier patients. She referred her to an osteopath. He refused to treat her because he considered she needed further investigation by her general practitioner, expressing the fear that treatment might make her condition worse. She followed that advice, and the GP referred her for physiotherapy. The claimant stated that “By then the pain in my arm was getting gradually worse and continued to deteriorate”.[34]She had about three sessions of physiotherapy and was lent a TENS machine. She says she was then discharged by the physiotherapist because she needed further investigation.[35]On 18 June 2009 the claimant attended basic life support training where there was no report of her not participating fully. Until this time she had not taken any time off work because of her injury. However on 5 July 2009 she went on sick leave and has not worked since.[36]The claimant was then referred to a neurologist who saw her on 12 August 2009, 5 months after the accident, and sent for an MRI scan. This was reported as being perfectly normal and she was advised that her symptoms would resolve in time. The claimant states that “By this time I was getting involuntary jerks in my left arm and to a certain extent in my right arm.”[37]By then the claimant had stopped work, because, she stated, she was in so much pain, and has not worked since. The neurologist recorded a complaint that the pain, which was continuous, had moved from the left arm and shoulder to the left wrist and shoulder involving the left scapula and back of the neck. There was reduced power and function in the left hand and “involuntary jerking movements of the left arm,” also described as “intermittent tremor… which was largely distractible”. An MRI was again performed on 21 September and reported as normal. That exercise was repeated with the same result on 8 October 2009.[38]On 14 October she was complaining of occasional jerks in the outstretched arm and a lot of neck pain but overall things were a lot better. The doctor thought she might benefit from physiotherapy. Three sessions do not appear to have resulted in improvement. On 4 February 2010 the claimant was seen by a different neurologist, Dr O’Riordan, who thought there was significant “functional overlay” and doubted there was a significant neurological problem. Psychological support was suggested. On 30 March 2010 nerve conduction tests were within normal limits. There was a motor interference pattern which suggested to the observer a degree of functional overlay. Assessment by a psychologist was suggested.[39]On 28 April 2010 the claimant submitted a benefits claim form in which she stated that as a result of the accident she had suffered “terrible pain” in her left wrist, arm, shoulder, back, neck and head, a loss of sensation and movement in her left hand and arm an increased weakness and jerks in her arm and leg, and a pins and needles sensation. In May 2010 pain control was noted to have deteriorated, having previously apparently improved in April. In June the claimant was referred to a pain management team and in October it was recorded that there was no treatable cause or underlying undiagnosed disease.[40]On 4 June the benefits office wrote to the claimant asking her to describe her complaint of back pain, as this had not been included in the employer’s report of the injuries. On 8 June 2010 the GP records noted a complaint of low back pain after some light gardening the previous day. There was tenderness in the lumbosacral area and all movements were reduced.[41]On 16 June the claimant replied to the benefits office asserting that she had reported pain in her back to the nurse and doctor at the time of her accident and recalled rubbing an area with her right hand somewhere along the thorax and lumbar area. She stated that over the ensuing months it had not caused much discomfort until 7 June when she was unable to get out of bed because of back pain which she described as “excruciating”; her husband had to call an ambulance. The claimant told me that in fact she started to have back pain about three months before this time and that it may be have been exacerbated by some gardening. I accept her evidence on this point for the reasons given above.[42]In a letter of 1 October 2010 Dr Duncan of the INPUT pain management programme reported that he could not detect any sensory changes with pinprick but she could distinguish between hot and cold in the left upper limb. Dr Glynn, the defendant’s pain management expert, points out that this is inconsistent with the findings of Dr Valentine on 1 February 2012 and Dr Stone on 26 September 2012. The claimant reported to Dr Valentine reduced sensibility to pinprick in her left arm. Dr Stone found sensory disturbance down the left side of the body to light vibration and light touch.[43]On 6 December 2010 the pain clinic considered that the claimant was suffering from fibromyalgia. On 25 January 2011 a physiotherapist wrote that the claimant’s speech and ability to articulate words had deteriorated. She had Grade III muscle power in the left leg of L5 to S1 distribution, and Grade III power in her left arm with myotome distribution. It was noted that the claimant could dress and undress, use a bath independently, although showers were easier. She could use the toilet independently and could get out of bed although this took time, as she was stiff. She could hold a mug with both hands and used her right hand to lift a kettle as the left was weaker. She had difficulty in gripping, lifting and reaching up and avoided bending. Her husband did the cooking.[44]In 2010 at around the time she was seeing a neurologist at the Charing Cross Hospital, the claimant says she was suffering from numbness and “pins and needles” in her left arm and hand, as well as pain. Nerve conduction tests at the time were said to be clear. In her first witness statement, dated 19 May 2010 she complained of being in “constant pain which travels up my left arm from my hand to my shoulder, across the back of my shoulder and up the back of my head. In the last 10 days I have developed a burning sensation in both feet and legs. I also experience numbness and pins and needles in both my left hand and left arm.”[45]She described various medications she had tried but none had done more than numb the pain a little. She complained that the medication was causing side effects including tiredness, poor concentration, slow and unsteady movement, slurred speech, dizziness, loss of sleep, increase in weight, loss of ability to walk more than a 100 metres without pain. The pain was, she said, preventing her doing the domestic chores which had been taken over by her husband. She had, however, managed to walk to Ealing Hospital from home.[46]In the claimant’s second witness statement dated 5 July 2012, over three years after the accident, she reported that her symptoms were still severe, including pain and “sensation of pressure” in the back of her head, going down her neck and into both shoulders, arms, wrists and hands, the left being more painful than the right, and also down her upper back. Her buttocks were painful with pain radiating through her legs to her feet (where she also suffered a “constant burning”), she suffered from weakness in her left arm and leg and had poor balance. In addition she said her face was painful particularly around the jaw, she had poor memory, moments of blankness three or four times a day followed by dizziness, and poor concentration. She had good days on which she could sit for some 30 minutes, but on the bad she could only do so for five or ten minutes. Sometimes the pain was so severe she could not get out of bed. Even on a good day she needed crutches to walk for about 20 minutes albeit with rests on the way. On a bad day she could only manage 50 or a 100 metres.[47]On good days the claimant says she tries to do some gardening in raised beds made for her by her husband. She finds it difficult to watch TV or to attend to her paperwork and appointments. A trip to the RHS garden at Wisley was not a success because she was in such pain every time the wheelchair in which she was being pushed went over a bump. She relies on her husband for all domestic chores. Her relationship with him has suffered: they have had no sexual relations since the accident and because they sleep in separate rooms they do not talk or watch movies as they used to do.[48]In her witness statement dated 4 March 2013 the claimant stated that her symptoms were as before. Because of the pain in her jaw she was unable to eat hard food. Another matter not mentioned in the previous statement was that she was suffering from urinary incontinence. This was because she was unable to move quickly enough to the toilet because of the pain, stiffness, weakness and dizziness. This makes her depressed. She feels devastated at the loss of her career as a nurse and is entirely reliant on her husband for care.[49]I had the opportunity of observing the claimant while she was giving evidence and while she attended court throughout the hearing. She presented as a somewhat overweight woman. She sat in a wheelchair and progressed from it to the witness box with great apparent difficulty. She sat in a hunched fashion and, while in the witness box, moved around frequently in apparent discomfort. When not giving evidence her head was often slumped on her chest with the appearance of being asleep some of the time. She spoke with an apparent effort in a low and slow voice, slightly slurring her words. Overall she conveyed the impression of a sadly demoralised person, but not one who had given up the will to get better if she could. She showed a clear understanding of all questions asked of her, and gave answers in coherent and clear English, having a familiarity with medical terminology, as one might expect of a qualified nurse.[50]In summary the claimant’s evidence, as seen in the context of what she is recorded to have told the many healthcare professionals since the accident, is that since then she has never been free of pain and disability. The intensity of these has varied in that she has good days and bad days, but in general her condition has got worse. On her account she is now incapable of working, and in need of the care and support which has been provided gratuitously by her husband. The care experts broadly agree that she is in need of some two hours care a day. Her principal disability is in relation to mobility. She can only manage to walk for a short distance, sometimes 50 metres, sometimes a little further. She takes a significant quantity of medication, including opiate painkillers. She is unable to undertake the wide variety of activities she enjoyed before the accident. She feels deeply her inability to return to the job she has loved.

Observations of the experts on examination

[51]Mr Osborne saw the claimant on 11 October 2011. He noted hypersensitivity on the soles of both feet, pain radiating into the buttocks from the mid lumbar region, and inability to use a manual wheelchair because of a weak left arm. In his opinion the claimant was not at that stage suffering from an orthopaedic injury but a chronic pain syndrome associated with fibromyalgia.[52]Dr Valentine reported on an examination taking place on 1 February 2012. He recorded the claimant’s current complaints as being pain and numbness in her left arm, which had spread to her legs. The pain in her left leg did not feel the same as that in the right. She described her leg symptoms as “more of a fatigue or tiredness”. She reported a “sensation of fire” going down her back “with flames coming out into the left arm and both legs.” It extended from her buttocks to her feet. These symptoms were just as bad as those in her arms, but she felt that the tremor and shaking previously suffered had improved. Dr Valentine recorded the impacts of these problems reported by the claimant. She was only able to stand for 10 minutes, walk with the aid of two crutches for 20 metres, and for five without them. She needed to stand up after sitting for 30 minutes. She could only manage three or four stairs at the most and had to sleep downstairs. She had been unable to drive since the accident. On examination Dr Valentine observed no gross muscle wasting. This, he agreed in answer to written questions on behalf of the defendant, indicated that the limbs were being used. However he did not think that any conclusions could be drawn from this as the claimant had not claimed to suffer from complete disuse of her limbs. The claimant presented with a high level of expression of pain, sufferance and disability. Various limitations on her range of movement were noted to be accompanied by various expressions of suffering. The demonstration of movement at the elbow was described by Dr Valentine as “bizarre”.[53]Dr Stone saw the claimant on 26 September 2012. She described suffering from pain over her whole body and that it was “burning, aching, sharp, severe, tingling agonising piercing, and unbearable. She said it was like a knife slicing through her body”. She described weakness in her left leg, poor memory, loss of sleep, slow and slurred speech [which she still exhibited in her oral evidence], dizziness, dribbling incontinence, shortness of breath on exertion, and low mood She could walk with two crutches outside for 50 metres or five minutes. She needed a wheelchair for longer distances. On examination he found a global weakness in the left arm and leg with intermittency of movement typical of functional weakness. There was a clearly positive Hoover’s sign [a test for functional weakness] in the left leg, and sensory disturbance reported over the whole of the left side.[54]Dr Glynn for the defendant saw the claimant on 6 February 2013. She produced a pain chart supplied by the INPUT pain management team on which she had marked the location of her pain. I have seen that chart and agree with Dr Glynn’s description that it shows “effectively total body pain”. She told Dr Glynn that she thought INPUT’s pain management programme had helped her challenge her thoughts and she now hoped that they would one day find a treatment to stop the pain. However she did not accept that the pain was not an indication of ongoing damage. Dr Glynn observed that the pain management programme had not resulted in improvement in any physical outcome measure. The claimant expressed the belief that she had a wound in her right shoulder deep down which had caused problems and that “something little had gone wrong in her brain and was reporting all this pain.”. She listed her problems, in order of importance, as pain, disability, fatigue, sleep, and incontinence of urine since 2010[55]Dr Reveley saw the claimant on 15 February 2013. She noted her psychomotor activity to be grossly abnormal, grunting moving her body in response to apparent pain and unusual movements of her head. Her slurred speech was interrupted by facial grimacing. Dr Read saw the claimant on 3 April 2013. He also observed an unusual gait, unusual grimaces, but no psychomotor retardation.[56]Mr Glasgow saw the claimant on 9 April 2013. He 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

Diagnosis

[57]There is general agreement between the experts that there is no orthopaedic or other physical explanation for any of the claimant’s current symptoms or presentation as observed by the experts. They have given her condition a variety of diagnostic labels.[58]The orthopaedic experts agreed to describe her condition as “bizarre” and made it clear in their joint statement that they would defer to experts in other specialties for a further opinion on the condition.[59]The pain management specialists agreed that it was reasonable to state that the claimant presented with widespread chronic pain associated with a highly significant emotional/psychological component. In his report Dr Valentine gave his opinion that if the claimant were reliable in her account and genuine in her presentation she presented with a chronic pain syndrome that is primarily psychologically mediated. Dr Glynn offered the diagnosis of Chronic Widespread Pain, a diagnosis which he explained is almost always psychologically driven. They agreed that chronic pain syndrome was more of a description of the claimant’s presentation than a diagnosis and that the pertinent formal diagnoses were in the psychiatric domain, namely conversion disorder, persistent somatoform disorder/pain disorder.[60]Dr Read and Dr Reveley agreed that the primary cause of the claimant’s disability was likely to be a psychiatric disorder and that she fulfilled the diagnostic criteria for persistent somatoform disorder according to ICD-10. In their reports they explained that this is a diagnosis where the pre-dominant complaint is of a persistent, severe and distressing pain, which cannot be explained by a physical disorder. It occurs in association with emotional conflict or psychosocial problems sufficient to allow the conclusion they remain causative influences. The condition is predominantly driven by anxiety, which is not conscious or prominent, but subsumed into physical symptoms. Dr Read agreed with Dr Stone that there were some features of conversion disorder. In his oral evidence he said that persistent somatoform disorder of this severity is very rare. Dr Reveley also thought the symptoms were suggestive of Conversion Disorder [or Dissociative Disorder] according to ICD10 (F44.4). She explained that this is an interference with movement and sensation which suggests a physical disorder although none can be found which would explain the symptoms.[61]Dr Stone, the neurological expert, is a professional with a high degree of special interest and distinction in the field of psychologically based pain syndromes. Among other roles he is an advisor to the American Psychiatric Association regarding new criteria for Conversion Disorder in DSM-V and is advisor to ICD-11 regarding a new category of functional neurological symptoms. He has published a multitude of chapters and articles in this field as can be seen from the CV submitted to the court. The majority of his clinical work involves seeing patients about pain. He is therefore particularly well qualified to assist the court in this case. He preferred the diagnosis of Pain Disorder [DSM-IV] as the “best fit”. He thought alternative reasonable diagnoses would be chronic pain syndrome and fibromyalgia. Like others he thought there was elements of conversion disorder. [DSM-IV (300.11)]. In his oral evidence he made it clear that these disorders were both neurological and psychological. Psychological factors were very relevant to the perpetuation of the disorder. Helpfully for the layman he explained the phenomenon as the “pain volume being turned up in the brain”. This does involve an actual physiological change in the neurological pathways. Therefore, he said, most pain experts say it makes no sense to divide these disorders into the physical and psychological.[62]I found Dr Stone’s analysis particularly helpful in a field in which it is difficult to grasp distinctions between diagnoses. Guided by him it seems to me that the diagnostic label attached to a presentation such as the claimant’s depends as much on the specialism of the diagnostician as it does on any subtle distinction between their criteria. Certainly there appears to me to be no difference about the nature of the diagnosis between the experts of significance to the assessment of damages, subject to the court’s view on whether the claimant is malingering or consciously exaggerating, issues to which I turn below. Therefore I am satisfied on the totality of the evidence, but the expert evidence in particular, that the presentation of the claimant’s condition as described by her to the court and to medical attendants is of a known and medically recognised chronic condition in which chronic and disabling pain is suffered, and genuinely suffered, without any discernible physical explanation, driven by psychological factors which may be known, or discoverable, but often are not.

Malingering/deliberate exaggeration

[63]Given that it is a precondition of at least one of the offered diagnoses that the patient is not malingering, I will next consider this issue. The Counter Schedule asserts that there are or may be “elements” of malingering in the Claimant’s condition. In her opening skeleton argument Miss Ayling relied on the opinion of Dr Reveley that there may be “elements of malingering or exaggeration.” She maintained this position in her closing submissions accepting when I asked, that a finding of malingering would require a finding that the claimant had been dishonest in her descriptions of her condition. She pointed, as did Dr Reveley, to various episodes which gave rise to this submission. I sensed, however, that her submissions fell short of asserting that the claimant was, on the balance of probabilities, deliberately telling untruths about her condition. In other words Miss Ayling was seeking to raise doubts in my mind rather than to make an explicit if serious allegation. Without intending to criticise her personally, this is an unhelpful position to adopt. However I must deal with it.[64]There is general agreement between the experts that there have been inconsistencies of description in what the claimant has told various doctors. There is also agreement that this may give rise to an issue of malingering, although most, if not all of them, are keen to step back from offering their own conclusion, saying that it is a matter for the court.[65]Mr Osborne did not refer to the possibility of malingering in his report. His counterpart Mr Glasgow did. He thought that there was some degree of “calculation”. The claimant had appeared very drowsy at times, speaking with a diminishing voice, but, inconsistently with that presentation, had offered a pain diagram and medication list promptly. She also seemed to be alert when asked to detail her suffering. He thought there was some evidence of a conscious attempt to mislead and that some of the symptoms were so bizarre as to defy categorisation. Therefore he concluded there was some evidence of a deliberate attempt to dress up the severity of the symptoms and a conscious attempt to mislead. The areas to which he was referring presumably included his observation in his own examination of an inconsistency between the claimant’s claimed difficulty in rotating the neck as opposed to what he was able to observe, an ability to walk without foot drop in spite of a claimed inability to pull her foot up, a claimed hypersensitivity to touch anywhere on her body, and bizarre facial twitching. In their joint statement they disagreed on the issue of exaggeration. Mr Osborne had seen no evidence of deliberate exaggeration; as noted above Mr Glasgow had.[66]Dr Read in his report accepted that malingering was part of the differential diagnosis of the claimant’s condition but was unaware of any evidence that she was not entirely genuine. In his oral evidence he told me that in this disorder there is likely to be a degree of exaggeration because of an anxiety that the doctors to whom the patient is talking do not understand the severity of the condition. Occasionally, he said, there would be an element of conscious exaggeration, but he would be astonished if evidence came to light in this case of “gross” exaggeration. He could not, however, exclude it.[67]Dr Reveley’s report was not inconsistent with this opinion, although her emphasis was rather more in favour of conscious exaggeration. She thought there may be elements of malingering or exaggeration present. She explained that Conversion Disorder and Pain Disorder were deemed to be unconsciously driven, but there was often a continuum of intention from the unconscious need to be disabled or unwell to conscious exaggeration for the purpose of gain. She thought it was significant that the claimant was able to visit Brazil and was well enough to plan a visit to the theatre. However she accepted it was for the court to decide whether all or any of her problems were consciously exaggerated. In her oral evidence she accepted that medically unexplained symptoms were very common, and that doctors from different specialities used different names for them. She also accepted that this was not a case of “flat out malingering” but thought there were elements of exaggeration.[68]In the joint statement of the psychiatric experts Dr Reveley reiterated that she found some evidence of exaggeration, and Dr Read stated that this was normally found in somatoform disorder. They agreed it was for the court to decide whether there was malingering in this case[69]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) [1996] AC 563, 586 “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.”[70]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.[71]There have been occasions where treating doctors and experts have observed behaviour or the claimant has claimed to be suffering from a symptom which is not explicable by reference to an organic or mechanical cause. However I accept that these are features of the very disorders from which the claimant suffers. They are not necessarily indicative of malingering or conscious exaggeration although they may raise a question-mark. Dr Reveley goes rather further but even she accepted that such matters could be seen with these disorders. Therefore the consensus among the experts was that the issue was one for me to determine on the evidence.[72]The claimant’s family background and employment history suggest she is a person of impeccable character highly committed to caring for the sick, and in particular the terminally ill. Working as she has done for a significant period in a hospice requires dedication and compassion of the highest order. That she has demonstrated these characteristics is shown by the esteem in which she was held by her employers. The claimant did not absent herself from work immediately after the accident, but tried to remain. She expressed keenness to do so. This is not the behaviour of someone setting out to exploit a false excuse to give up work.[73]Various inconsistencies have been identified in her account of her symptoms and the progress of her condition. None of these impresses me as being likely to be the product of a deliberate deception. Firstly the course of her condition has been complex and it would not be at all surprising if the claimant omitted to mention every symptom on every occasion. She explained to me that she might not have mentioned matters she had raised on previous occasions. Much was made of an apparent omission to mention back symptoms. Yet Dr Read asserted, and I accept, that back symptoms would be expected to have developed given her other symptoms.[74]Miss Ayling argues that a lack of frankness has been shown by the claimant in particular by not mentioning in her statements of 5 July 2012 and 4 March 2013 her two trips to Brazil in 2011 and another trip to Sheffield. She argues that these were not mentioned because such long journeys showed she had a wider range of ability than she was claiming. In her 2012 witness statement she had said that she and her husband rarely went out socially, although they occasionally visited family members in London. They had gone out occasionally, once for example to the Royal Horticultural Society Gardens at Wisley. They had only stayed for half an hour or so because of the pain caused by being pushed in her wheelchair over the bumps. In the 2013 statement she had said that she used to love travelling but could no longer do much. She said she had previously enjoyed going to concerts, camping visiting gardens and garden centres. In her oral evidence the claimant could not offer an explanation for not mentioning these trips, other than pointing out that the trips to Brazil were in the nature of visits to see her family rather than pure holiday, and that in her statement she was describing daily life. The omission from the witness statement might have been of more concern if there was evidence that the trips had not been mentioned to others. A trip was mentioned in the GP record for 19 August 2011. The topic was mentioned to the claimant’s care expert in March 2013 and again to the defendant’s care expert in the same month. She also appears to have told Dr Reveley about a trip to Brazil. This does not appear to be a topic which was being concealed. I accept that the likely explanation for the omission of these trips from the witness statements is that the claimant was there addressing her mind to the impact of her injury on her daily life, rather than events which happened rarely.[75]Finally on this point I take into account my overall impression of the claimant when she gave oral evidence to me. She clearly found considerable difficulty in getting into the witness box from a wheelchair, and on remaining sitting on a not entirely comfortable chair there, yet she managed to do so. She did not pretend she could not. When invited to accept that her symptoms were psychologically based, she did so, although that might not have suited her case. Her manner of speech was laboured and slow, but she spoke clearly and coherently in good English and never claimed she could not understand a question however challenging they might have been. She answered questions directly and without prevarication or evasiveness. In short I found her to be a witness doing her best to tell me the truth.

Exaggeration/actual abilities

[76]The fact that the claimant has been honest about her problems does not mean there has not been an element of unconscious exaggeration. Indeed this is part of the disorder identified in this case. I have already described some examples of this. It is important therefore to note what the claimant can do, as well as what she cannot. As already mentioned she has succeeded in undertaking two arduous flights to and from Brazil. She has visited relatives in Sheffield by car. She has been able to cope with her attendance at court, with the help of a wheelchair. Nonetheless I am satisfied that she genuinely suffers from constant pain of the nature she has described. This is only partly controlled by pain-killers, which themselves are likely to have caused distressing side effects such as abnormal fatigue, drowsiness, and some difficulty with speech. She is clearly but a shadow of the woman who appears in the photograph taken before the accident which she showed me. She is genuinely in need of care and assistance of the nature provided to her with laudable dedication by her husband. I have no doubt that her disabilities have had a severe impact on the quality of her daily life.

Vulnerability

[77]The defendant’s next argument is that the claimant was so vulnerable to contracting a disorder of this sort that it would have happened in any event even without the accident. On this issue reliance is placed on the evidence of Dr Reveley who offered the opinion that the accident was of such a minor nature that she must have had an “exquisite vulnerability” to pain disorder, and an “all encompassing need to be dependent and unwell”. She thought the gardening incident in June 2010 was “extremely likely” to have led to a similar outcome. She expanded on that opinion in her oral evidence, explaining that cases arise where there has been no, or no obvious, triggering incident. She refused to offer a percentage figure for the risk of this occurring but the risk factors were genetic or biological propensity, “limbic scarring” from a bad experience in early emotional development and learned experience. She felt there were many things not known about the claimant’s early life. However, she argued, we did now know the claimant was “100% vulnerable” because of what happened after the accident. With hindsight greater emphasis had to be placed on the past hints of vulnerability which would not have appeared significant at the time. She considered that the accident brought forward something that was going to happen in any event. She accepted her reason for saying this was tautological: the disorder was going to happen anyway because we now know it did happen. There must have been an unknown combination of circumstances at the time and the accident itself may not have been a necessary condition for causing the disorder.[78]On this issue the experts were not of one view. The orthopaedic experts did not express an opinion on this topic in their joint statement, but Mr Glasgow speculated in his report that as in his view there had been a past history of symptoms of a similar nature and the index accident was of a similar significance, it would not have been long before in the normal course of events a similar set of circumstances would have taken place. However as he and Mr Osborne agreed that they would not express a view on matters outside their expertise, and that the symptoms were not explicable in orthopaedic terms I can place little if any weight on Mr Glasgow’s views in so far as they related to vulnerability.[79]The pain management experts agreed in their joint statement that “we found no evidence to indicate that Mrs Malvicini would have developed severe chronic pain and marked disability in the absence of the index accident. We agree that on balance of probabilities, she would not have developed severe chronic pain but for the index accident”[80]When pressed for a percentage chance of this disability occurring in any event, something he, like many experts, was reluctant to do, Dr Stone expressed the view that there was a 10% chance that this might have occurred at some time in any event. He said he was struck by how this disorder could be triggered in a random fashion “out of the blue”. He did, however, point out that a nurse was perhaps more prone to injury than some. He stressed that his assessment of the risk was not based on scientific evidence but clinical experience.[81]He based his view on vulnerability on four episodes in the claimant’s past medical history. In 1999 and 2000 she presented to her GP with stress causing her not to sleep. From the GP records this seems to have started in November 1999 where there is an entry noting domestic stress. The next potentially relevant record is in September 2000 when she is recorded as complaining of a neck sprain after bumping her head on a cupboard. In December 2000 she is noted to be complaining of headache and muscle aches while on her nursing course. In February 2001 she is advised about lifestyle measures to reduce tension headaches and fatigue. Dr Read pointed out that headaches like this were very common in primary care. I do not consider that this is persuasive evidence of a serious vulnerability, even with hindsight.[82]In May 2003 the claimant complained of being tired all the time for three months. Stress at work “but no more than usual” was reported. She was noted to be sleeping a lot, but waking with left shoulder pain for the previous two months. Tenderness over the trapezius and left shoulder muscles was found on examination. Blood tests proved normal. In July and August 2003 she presented with headaches again. In September prescribed analgesia was stopped as the headaches had improved. In December 2004 when seen for an upper respiratory tract infection it was noted that the claimant had had a lot of stress after failing nursing exams over a number of months. Dr Stone thought that the neck pain and the apparent need for physiotherapy which followed indicated a degree of vulnerability to neck and shoulder problems. However I do not consider it follows that there was an equivalent level of vulnerability to an abnormal psychological reaction from any such problem.[83]In March 2007 a fibroid was detected which led to the need for a hysterectomy for which the claimant was off work for some six months. Dr Stone thought that this was an excessive amount of time off given the nature of the problem. I observe from the records that the claimant was put on a waiting list for this procedure and was, understandably, unhappy about the projected waiting time of five months. In order to expedite treatment she chose to go to Brazil for the surgery in July. In a note of 17 September it was recorded that the scar had not completely healed and she was unsure of she was fit to work as she had pain on movement and was unable to lift objects. She was found still to be in pain in November 2007. While there was clearly a level of anxiety here, given the delays in getting treatment for a condition which would worry anyone, it is difficult in my judgment to read anything of significance with regard to future vulnerability into this episode. Even if she took longer than expected, the claimant did recover from the fibroid and its treatment, quite unlike the consequences of the accident with which this case is concerned.[84]Dr Read and Dr Stone were asked about four attendances at Ealing Hospital A&E, it being suggested that these were inappropriate and reinforced the case for a vulnerability. These were in November 2007, and February, July and December 2008. I accept Dr Read’s view that these have no obvious significance. While many might have taken such minor complaints to their general practitioner, it is well known that many people choose to attend a hospital because of difficulties in obtaining appointments with their own doctor. In the claimant’s case this must have been all the more tempting as the hospice at which she worked was in the grounds of Ealing Hospital.[85]In my judgement the incidents raised by the defendant as indicating a pre-accident vulnerability amount to no more than an indication of a very small chance of a pain disorder arising in any event. None of the incidents seem to me either individually or collectively to amount to any strong indication of vulnerability, and certainly not a vulnerability to a disorder of the gravity of that now suffered by the claimant. In each case the claimant’s reaction was understandable given her circumstances at the time or the nature of the incident described. Indeed if the claimant was as vulnerable as Miss Ayling urges me to find, it is surprising that the claimant did not succumb then rather than in 2009.[86]Therefore I accept the view of Dr Stone and other experts that it was highly improbable that but for the accident the claimant would have suffered as she did. I do not consider that the so-called gardening incident in 2010 would have triggered a pain disorder in any event. Dr Reveley’s argument that the mere fact it happened after the index accident shows it would happen is, as she accepts, tautologous, and therefore not in my view a convincing argument at all. I consider there are some features which distinguish the index accident and its aftermath from other experiences she may have had. The accident took place in the course of her employment which she loved. It occurred as a result of her suggested mode of work being ignored, and involved her colleagues. She tried to carry on working but would have been anxious about being unable to carry on.[87]Dr Read thought there was some evidence of pre-accident stress in association with physical symptoms, and of delayed recovery from physical symptoms, but he thought this was within 95% normal limits for the general population. Indeed he thought that but for the accident there was no reason to believe that she would not have continued her working life for the foreseeable future and probably until retirement age. There would have been some vulnerability to a pain syndrome triggered by the type of soft tissue injury she suffered in the accident at some time in her working life. He considered a triggering event would have been required.[88]Given these findings, what is the correct consequence with regard to the damages awarded? The fact that an abnormal reaction of the nature under consideration here was highly unlikely to have occurred but for the accident does not mean there was not an increased risk of it doing so. Mr Lawson submits that if I accept the approach of Dr Stone, which he says I should, I should deduct 10% across all heads of damage, past and future. Miss Ayling submits that I do not have to accept Dr Stone’s suggested percentage, and invites me to find that the accident merely accelerated the inevitable. Therefore, she says, I ought to award sums for the contingency that this would have occurred anyway and to reflect the acceleration, in accordance with Blamire v South Cumbria Health Authority [1993] PIQR Q1. That was a case in which the Court of Appeal accepted that number of imponderables made an arithmetical multiplicand/multiplier approach inappropriate and that an award of a broadly based lump sum was acceptable. Both parties have drawn my attention to Heil v Rankin [2001] PIQR Q3. In that case it was held that the possibility of subsequent tortious acts, triggering similar injuries to those triggered by the events for which the claim was brought, could be taken into account in the assessment of the loss as part of the account given to the vicissitudes of life. The court also accepted that an appropriate way to take such factors into account was by arriving at a percentage deduction from what would otherwise have been the full damages awarded for, in that case, loss of earnings. The facts of that case were so different from those of the present case that little assistance can be derived from the percentage adopted, but I observe that in coming to a figure of 50% deduction, as opposed to the 25% and 75% contended for by the claimant and defendant respectively, the Court of Appeal appears to have adopted a broad approach to its assessment. I deduce from these authorities that it is appropriate to adopt a percentage approach if the imponderables are not so significant that it would make it speculative to do so.[89]Mr Lawson conceded that any percentage deduction in this case should be applied to the whole of the damages which I would otherwise have awarded, but submitted that I should disregard any chances of another tortious event for which the defendant would have been responsible triggering a pain disorder. Miss Ayling did not dissent from that, but urged me to deal with the matter on the basis that there was a probability that the only effect of the index accident was to accelerate the inevitable.[90]I have already set out my conclusions with regard to the claimant’s vulnerability. It follows 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. Accordingly I conclude that it is appropriate to make a percentage deduction to reflect the increased chances in this case that the claimant would have sustained a similar disability. Any percentage has to reflect the consideration that the chances of similar facts, whatever they were, to those arising at the time of the accident, are very small. Further even if such an event had occurred, it would not necessarily have triggered this sort of reaction. I have to take into account the consideration that even if such an event occurred and even if it triggered such a reaction this might well not have occurred for many years. Bearing in mind that any calculation of future losses will already have taken into account the normal vicissitudes of life, and that the percentage deduction I am now considering is confined to the additional risk of a similar injury, I consider that the 10% suggested by Dr Stone is a reasonable and fair deduction. Therefore I conclude that the proper deduction to make, to reflect these risks from the damaged that would otherwise have been awarded is 10%.

Prognosis

[91]In their joint statement Dr Valentine and Dr Glynn, the pain management experts, agreed that the claimant’s prospects of returning to work were poor unless she responded favourably to pain management therapies. Dr Stone thought that symptoms and disability would remain the same in the short to medium term [one to five years] but in the longer term he thought there was likely to be a trend towards slight improvement, but with persistent symptoms and disability. He did not see her returning to sedentary work. Dr Read thought it was highly unlikely the claimant would return to work, a view he maintained under cross-examination. He thought it was hard to see her being sufficiently motivated in engaging with therapy to achieve a return to work. Dr Reveley thought she would return to normal function within 12 months. She relied on an improvement observed during a rehabilitation programme by a team called Input, and her view as to the restraining effect of litigation. She pointed to the fact that the claimant retained the capacity to enjoy herself as evidenced by her trips to Brazil.[92]I consider that Dr Reveley is unduly optimistic about the claimant’s prospects of a recovery. The improvement if any during the Input programme was not sustained, and even if this was repeated such therapies cannot be continued on an indefinite basis. Litigation may be a factor in focussing the claimant’s attention on her disabilities, but they are real nonetheless. It is clear that she would need a very significant improvement to approach a return to any sort of work. The trips to Brazil were to visit family, and although possible to undertake, I do not consider they are evidence of any prospect of a significant improvement. On the other hand, I accept on the balance of the remaining expert evidence that there is likely to be a minor degree of improvement. The claimant recognised in the course of her evidence to me that her problems were psychological, and, as hard as it was for her to say this, it suggests that in time she may be more responsive to therapy. However any improvement will not be such that she will regain her mobility sufficient to dispense with her wheelchair or to cease to need care. I think that as she is a determined lady there is some prospect of her finding sedentary or similar low paid work but probably not on a consistent basis or in the near future. I see no prospect of her regaining her abilities sufficiently to return to the demands of nursing.

Damages for pain suffering and loss of amenity

[93]Mr Lawson submits that I should award [before 10% deduction] £45,000 for pain suffering and loss of amenity. He points me to the Judicial College guidance for severe pain disorders [12th edition paragraph 8(b)(i)] which gives a range of £31,000 to £46,300. Miss Ayling submits that this injury should be regarded as being in the moderate category [paragraph 8(b)(ii)] which gives a range of £15,500 to £28,300, to take proper account of the likelihood of improvement in the claimant’s condition in future. She cited Mubarak v NSK Bearings (Kemp, 13 February 2007, Manchester County Court) as additional support for a figure in this range.[94]The disabilities which I have accepted the claimant suffers from can only be described as serious. I do take into account that the claimant has good days and bad days, and that she is able, when the occasion demands, to travel long distances. It is at least possible that once the focus on her condition that is inevitable in the course of litigation ceases, she will come to recognise that. She does now, albeit reluctantly and probably not consistently, recognise that her symptoms are psychological. There is therefore some prospect of a degree of recovery. However there is only a small prospect of her regaining sufficient ability to work again, to which I shall return, or of recovering her previous enjoyment of life. To reflect that marginal prospect of improvement I consider that the appropriate award of damages for pain suffering and loss of amenity is £40,000.

Loss of congenial employment

[95]£5,000 is claimed for loss of congenial employment. Miss Ayling accepts that this may be appropriate if causation is made out, which it has been, and if there is no prospect of improvement. She submits that no award should be made if I were to find, which I do not, that the claimant will make a full recovery within a year, and that a proportionate reduction should be made for any longer period required for improvement.[96]In my judgment, whatever improvement is made, there is no prospect of the claimant returning to her very much loved job and vocation as a nurse. Although there is some prospect of her obtaining alternative employment, it is not realistic for her to resume a nursing career. The history of this accident and its aftermath would dissuade nursing employers from taking the risk of offering her a job. Therefore I accept that £5,000 is the appropriate figure under this head of claim.

Past loss of earnings

[97]The claim is for £80,394 for past loss of earnings. The defendant has accepted a loss of only £10,853.82 after credit claimed for sums paid to the claimant between July 2009 and May 2010. The concession is on the basis of loss of earnings only to 31 March 2010, on the basis that any causative effect of the accident had passed by that date. The claimant’s figure appears to have given credit for a sum paid to the claimant, but is for the period until the hearing. On the basis of my findings with regard to the nature of the claimant’s injury and its cause it follows that the period off work until the hearing has been caused by the injury she suffered as a result of the accident for which the defendant is responsible.[98]Since the hearing the parties have informed me that if loss of earnings to the date of the hearing is allowed, as I have found it should be, the figure of £80,934 is agreed.

Past gratuitous care

[99]This is agreed at £35,599. Travel and transport[100]£83.50 has been agreed for past travel expenses. It is agreed that a further figure of £3,050 should be added for the cost of purchasing an alternative vehicle if it was reasonable to do this. This depends on whether it is reasonable for the claimant to transport a wheelchair as a result of the accident. While the claimant is not physically confined to a wheelchair because of her condition I am satisfied that the use of a wheelchair is reasonably required by her in order to get about at an acceptable speed. I accept this is a genuine need. Therefore I award the sum of £3,133.50.

Past equipment

[101]This is agreed at £750.00.

Future loss of earnings

[102]The claim is for an annual loss of £22,525.88 net multiplied by 12.21 producing £275,040.99 to reflect a loss to a retirement age of 65. If it is accepted that the claimant has lost earnings to the age of 65 the defendant agrees the multiplier and the multiplicand, but contends that the figures should be reduced by at least a half. In any event the defendant contends that there is a residual earning capacity which should reduce the multiplicand, or in some other way reduce the sum awarded. Mr Lawson provided me with suggested figures should I decide that there was a residual earning capacity He submitted that if she was to return to work paying £10,000 net a year in five years time her residual earning capacity would be £5,000 x 9.33 (a base multiplier of 14.03 less 4.70) x 0.20 [to reflect deductions for contingencies other than mortality, for a disabled unemployed, 52 year old person in educational category D in Ogden table D], producing a total of £18,660 to be deducted from then future loss of earnings claimed.[103]As I have already explained I find that the claimant has only a small prospect of working again, whatever improvement occurs in her condition. She has no realistic chance of returning to a nursing career. At most she is likely to obtain some form of lower paid work, and she may well have difficulty in adapting to that. She will not begin to be able to consider such work for five years. Mr Lawson’s figure for a deduction was not a concession on his part but an illustration. However taking it as a point of reference I consider that if the claimant were to obtain employment she would have some prospect of earning more than £10,000 even though she could not return to being a nurse. She is capable of determination. I accept that she does not want to remain without work if she can manage it, but it might take her longer than five years to achieve a higher level. Doing the best I can, I think it is appropriate to use a multiplicand of £12,000 net starting at the age of 54, in roughly seven years from now. The parties have agreed that the appropriate base multiplier for residual earnings starting in 7 years time is 7.60. Miss Ayling argues that the discount for contingencies other than mortality should be less than the .20 indicated by Ogden Table D. I disagree. If anyone has the obstacles to regaining and retaining employment taken into account in that table it is this lady. I also observe that Table D assumes a retirement age of 60 for a female. This is because there is no employment data available for different retirement ages. The guidance notes suggest that where there is a difference in actual retirement age this should be ignored, unless this claimant is very close to the retirement age. It seems to me that it is appropriate to assume in the absence of evidence to the contrary that the factors which make this claimant vulnerable on the employment market are not decreased by the longer period to retirement. Therefore I consider that the appropriate deduction is £12,000 x 7.60 x 0.20. That produces a total deduction of £18,240.00. Accordingly I award the claimed sum of £256,801.00.

Future care

[104]The multiplicand for future care is agreed at £9,600 a year. The length of time this is needed is in issue. Mr Lawson has put forward figures on the assumption of a 20% improvement in need after five years. Bearing in mind that a slight degree of improvement of function will not lead to much of a reduction in need for care I consider that this assumption is reasonable. If, as I find, the claimant is likely to need assistance with transport, and generally getting about, much of the time currently devotedly provided by the claimant’s husband will continue to be needed. Therefore I agree with Mr Lawson’s calculation and award £202,406 under this head.

Equipment

[105]The claim for a shower is agreed at £5,275. It is agreed that the multiplicand for other equipment is £2,000. Mr Lawson has produced a calculation based on the same assumption as to improvement I have considered in relation to care. Again I accept it to be a reasonable reflection of the evidence. The resulting total for equipment is £47,443.

Travel and transport

[106]These are agreed at £800 per year. A lifetime multiplier is 25.18 and I award £20,144 under this head.

Therapies

[107]A total of £3,740 is agreed under this head for psychological and occupational therapy. A multiplicand for other items under this head has been agreed at £350 a year. Mr Lawson has suggested a multiplier of 22. I think it more reasonable to apply the same approach that Mr Lawson has suggested for care and equipment. Using that approach the parties agree that calculation here should be (£350 x 4.70) + (£350 x 0.8 x 17.30) producing £6,489.00. The total for this item is therefore £10,229.

Loss of pension

[108]Loss of pension has been agreed in a total of £ 63,553. Summary[109]Therefore the figures I have arrived at to make up the award are: Pain, suffering and loss of amenity £ 40,000 Loss of congenial employment £ 5,000 Past loss of earnings £ 80,934 Past care £ 35,599 Past travel and transport £ 3,133 Past equipment £ 750 Future loss of earnings £ 256,801 Future care £ 202,406 Future equipment £ 47,443 Future travel and transport £ 20,144 Future therapies £ 10,229 Loss of pension £ 63,553 Total £ 765,992 To this figure must be added appropriate interest. From this total 10% must be deducted to arrive at the total award.[110]I will hear submissions with regard to the order required to reflect this judgment.