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How far do you have to go to prove that someone is a malingerer...?

The answer is: quite far – If you read the recent judgment of Field J in the case of Noble v Owens [2011] EWHC 534 (QB). For those who can’t be bothered to trawl through 30 pages, here are the facts. C sustained severe personal injury in a motorcycle accident. Liability was admitted and damages were assessed in 2008 in the sum of almost £3.4million. 

C bought a property with his partner and enjoyed a relatively quiet life until he was snapped by the investigators doing things that he claimed he could not do and would never be able to do. The insurer appealed to the CA who found that there was a case to answer in fraud and remitted it back for a re-trial.

The insurer relied on a number of matters to demonstrate that C was a malingerer. Firstly the video footage, secondly that he had provided false accounts to the Inland Revenue, thirdly that he had done virtually none of the things that he said he would do concerning his future care and assistance claim. Lastly that he’d lied about a number of matters in order to make the medical evidence suit his claim.

Now, don’t get angry! But this was apparently insufficient to persuade the court that he was dishonest or malingering. The fact that he’d cheated the Revenue and had not put his damages to the use that he declared that he had, was not of itself probative of his dishonesty.  It was a matter for him to spend his money how he so chose. His explanation that he appeared to be fitter and more active on account of his over-dependency on painkillers was accepted by the court. The footage of him walking unaided did not demonstrate malingering but a determination to succeed in regaining mobility. The judge was very much influenced by his demeanour in court and the general manner in which he answered questions. Thus the allegation of fraud was dismissed.

In the current climate, where the Press and Media bemoan the enveloping miasma of the ‘Compensation Culture’, it is cases like this that add to the list of examples of where the law is going wrong.

I’m sure there must have been some cogent evidence to have persuaded Field J to find for the Claimant; but one can see the press having a field day with this (excuse the pun!).

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