PI Brief Update

Defendant requests for medical testing demand a careful balancing exercise - Amy Lanham Coles, Temple Garden Chambers

23/07/24. Clarke v Poole [2024] EWHC 1509 (KB). 

This case provides an important re-examination of the law governing a thorny case management issue. Can and should a Claimant be compelled to undergo medical tests in order to pursue her claim?

FACTS

The Claimant suffered life changing injuries in a road traffic accident in 2018 at age 31, including weakness in her limbs, diminished mobility, and impairments with her memory, mental flexibility and processing speed. Separately, her mother had been diagnosed with asymptomatic myotonic dystrophy (“MD”) which could be passed on genetically. MD causes progressive muscle loss and weakness. There was a 50:50 chance of the Claimant having the relevant gene and the Claimant had declined to undergo genetic testing both before and after her accident. Both parties’ neurologists agreed that the Claimant exhibited symptoms which could in theory be attributed to MD, although they disagreed as to likelihood.

ISSUES

The Defendants contended that that the Claimant’s life would have been significantly limited by her MD in any event, significantly diminishing the Claimant’s losses attributable to the accident. The Defendants accordingly applied for an order that the claim, or at least all claims for any future loss, be stayed unless the Claimant submitted to neurophysiological testing to determine whether she was suffering from active/symptomatic MD. The Claimant’s case was that she did not have the MD gene or, even if she did, that she was asymptomatic or had such low-level symptoms that MD would have had no material effect on her health. She objected to testing on the basis that the test itself was invasive, would impact her mental health and the results could have lifelong impacts on her health, travel and life assurance.

It was agreed that the starting point was the two stage test set out in Laycock v Lagoe [1997] PIQR 518, as follows:

1. Do the interests of justice require the test which the defendants propose? and, if the answer that question is yes,
2. Has the claimant put forward a substantial reason for that test not being undertaken: a substantial reason being one that is not imaginary or illusory.

The parties also agreed that the Defendants had established that the interests of justice indicated the neurophysiological testing and that the Claimant had put forward a substantial reason to resist. However, the Defendants contended (in reliance on Starr v National Coal Board [1977] 1 WLR and an interpretation of Laycock v Lagoe) that there was a third stage to the test which required an evaluative balancing exercise of the parties’ competing positions in order to determine a just and proportionate outcome.

JUDGMENT

HHJ Gargan agreed with the Defendant that there was a...

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