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Legal Mind Case and Commentary No. 36: Levels of Unreliability in Chronic Pain - [Koch HCH, Jansen F, Grace J, Gill I and Huntley F, October 2021]

Case

Elgamal v Westminster City Council [2021] EWHC 2510(QB).

Marwan Elgamal (22) suffered a knee injury while exercising at the defendant’s gym. He was awarded damages for this injury and its effects on his hopes of a career as a stuntman. Surveillance evidence was consistent with “exaggeration of the ongoing effects of his injury”, HHJ Mardock found. This circuit judge concluded that exaggeration as to the level of the ongoing disability were not fundamental to the case and this did not result in a reduction of the general damages awarded.

Jacobs J said that if an individual “genuinely believes that the facts are as he represents them to be, then there can be no question of dishonesty”.

The judge continued: “it does not seem to me that the exaggerations alleged had an actual or potential impact on the claims advanced so as to move into the territory of fundamental dishonesty”.

Commentary

The issues raised here relate, in my opinion, to two key issues:

  1. How to understand reliability of evidence

and

  1. How does unreliability interface with concepts of chronic pain pursuant to a physical injury.

Previous Legal Mind Case and Commentaries have addressed the importance of understanding levels of reliability in personal injury cases. In particular, commentary number 21 suggested a flow diagram to illustrate the dimensions of evidential reliability:

Commentary number 16 clarified the debate about whether unreliability pertaining to one aspect of a personal injury claim necessarily had a significant and negative effect of the claim in its totality.

In cases of chronic pain and its effects following a serious and diagnosed physical injury, it is well understood by lawyers and clinicians alike, that a physical injury can result in a variety of legitimate psychological effects, cognitive, emotional and behavioural (Koch 2016; 2018). Some individuals will develop pessimistic and negative thinking about their abilities, negative verbalisations about their perceived competence and these will be accompanied by increased observable pain behaviour and apparent discomfort and/or disability. These psychosocial effects are amenable to cognitive-behavioural interventions in the context of a chronic pain management approach, often multi-disciplinary.

Once the initial index injury (physical) has been diagnosed, much of this psychological effect should be seen in the context of a psychological injury such as “chronic pain” rather than an example of dishonesty or fundamental dishonesty.

This is an excellent additional example of the importance of collaboration between Law and Psychology.

Authors

Prof. Hugh Koch, Dr Jonathan ‘Joe’ Grace, Dr Ian Gill and Dr Fay Huntley are all members of HK Associates.

Professor Koch is visiting professor in Law and Psychology at Birmingham City University.

Dr Friso Jansen, Senior Lecturer in Law, Birmingham City University.

References

Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.

Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort law Psychology. Expert Witness Publications. Manchester

Koch HCH (2019) Legal Mind Case and Commentary: Publication Directory. LCB Publishing. Manchester.

Koch HCH, Bowe J, Strachan R, Day S (2018) Legal Mind Case & Commentary No. 16. Fundamental Dishonesty: Honest Claimants Have Nothing To Worry About. PIBULJ. February 2018.

Koch HCH, Mushati D and Francis A (2019) Legal Mind Case & Commentary No. 21. To convince or deceive? The analysis or reliable or realistic evidence. PIBULJ. July 2019.

Rose N (2021) Claimant who exaggerated impact. Legal Futures. 23/09/2021.

Previous commentaries have covered

Koch HCH, Aldridge M, Grace J and Jansen F (2021) Legal Mind Case and Commentary No. 35 A reasonable expert, please? PIBULJ. July.

Koch HCH, Gill I and Wilson S (2021) Legal Mind Case and Commentary No. 34 Fundamental dishonesty of genuine unreliability? PIBULJ. May.

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