Malvicini v Ealing Primary Care Trust

Where a minor physical injury triggers a chronic psychologically mediated pain disorder, causation is assessed on the balance of probabilities by examining whether the condition would probably have arisen without the accident. A low pre-existing vulnerability does not establish that the accident merely accelerated an inevitable outcome.

Where the risk of a similar condition arising from another event is real but speculative quantification remains possible, the court may make a percentage deduction from the damages otherwise recoverable. Allegations of malingering amount to allegations of dishonesty and require clear evidence, although the standard remains the balance of probabilities.

The claimant, a nurse, suffered a minor soft tissue injury at work. She subsequently developed chronic widespread pain and severe disability without an identifiable physical explanation. Liability for the accident had been admitted, and the assessment of damages proceeded on the issues of causation, malingering or exaggeration, vulnerability, prognosis and quantum.

The defendant argued that the claimant was malingering or exaggerating, and that her condition would have arisen from another minor event, including a gardening incident. The court therefore had to determine whether the accident caused the continuing disability and, if so, how any risk of a similar condition arising independently should affect damages.

1. Malingering and credibility. The claimant’s condition was medically recognised and genuinely suffered, despite its psychological mediation and the absence of structural injury. Malingering involves dishonesty. Applying the approach in Re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, the allegation had to be proved on the balance of probabilities, with the seriousness of the allegation informing the assessment of inherent probabilities and the evidence required. The court found no deliberate malingering or conscious exaggeration beyond an occasional tendency to overstate symptoms through anxiety.
2. Causation and vulnerability. The evidence did not establish that the claimant would probably have developed the disorder without the accident. Her previous episodes of stress, pain and illness did not demonstrate a strong vulnerability to a disorder of comparable severity. The gardening incident would not, on the evidence, have produced the same outcome. The accident therefore caused the continuing disability, subject to an allowance for the risk of a similar condition arising in the future from an independent event.
3. Percentage deduction. The court considered Blamire v South Cumbria Health Authority [1993] PIQR Q1 and Heil v Rankin [2001] PIQR Q3. Where the imponderables are not so significant as to make assessment speculative, a percentage approach may be used. The additional risk was assessed at 10 per cent and deducted from the damages otherwise recoverable.
4. The claimant had only a small prospect of returning to work and no realistic prospect of resuming nursing. Damages were assessed at £765,992 before the 10 per cent deduction, together with appropriate interest. The court directed that submissions be made on the consequential order.