The Claimant had been involved in a RTA sustaining complex and life-changing injuries, most notably a severe traumatic brain injury. As a result, the Claimant suffered from cognitive and physical impairments. She will not be able to work again.

However, the Claimant’s mother had been diagnosed with a genetic condition which, if passed to the Claimant, would over time (if ‘active’) render the Claimant unable to work and so she would require significant care in any event.

This hearing was to determine whether the court ought to impose a Stay on the Claimant’s claims for future losses, until testing to ascertain whether the Claimant had such a genetic condition was undertaken.

Background

 

Liability for the accident was agreed at 100%. The Schedule of Loss was claimed at £22.5m, of which over £15m was for future care.

However, the Defendants argued that the Claimant ought to undertake testing to determine whether the Claimant is suffering from myotonic dystrophy (MD), a generic disorder which causes progressive muscle loss and weakness.  The Claimant’s mother had been diagnosed with the condition and it was agreed by the parties’ experts that the Claimant had a 50/ 50 chance of having the gene.

A Counter-Schedule, based on a diagnosis of MD, valued the claim at £5m, including £3.5m for future care.

The Defendants sought an Order staying the claim for future loss until testing had taken place.  The Claimant opposed such an order.  She had chosen not to undertake such testing both before and after the accident.

The Condition and the Testing

The details of MD are somewhat complex, though (if I may say) very well set out within the Judgment.  This summary of the case necessarily simplifies what is clearly quite complex medical evidence.

The experts had jointly examined the Claimant and found that there were some clinical signs of MD, and some findings which were inconsistent with MD.  It was accepted that there may be some clinical benefit to the Claimant to know if she has MD, though also that such testing would only happen in practice with consent of a patient.

It was agreed that the testing (EMG – electromyography), if positive, would confirm if the Claimant has symptoms of MD.  However, the results would not provide a definitive guide to the way symptoms were likely to develop.

The Claimant’s view:

 

The Claimant’s principal objection was that she did not wish to know whether she has MD or not.

The results could have lifelong implications for her health, travel, and life assurance. She believed the testing to be invasive in nature and yet another insult to her body, which has been so damaged as a result of the accident.

A letter from a consultant clinical psychologist explained that a diagnosis of MD would negatively affect her mental health and outlook on life, leaving a ‘black cloud’ hanging over her.

The Claimant explained that the consequences of the accident had taken away so many choices in her life that she would not wish this to be another.

It was said that any pressure on her to undergo testing would likely have a detrimental effect on her mental health.

The Law

The parties agreed that the starting point was the test set out by the Court of Appeal in Laycock v Lagoe [1997] PIQR 518, being:

(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.

There was, however, disagreement between the parties as to whether that was the end of the matter. The Claimant said if the answer to the second question is yes, then the application must be dismissed.

However, the Defendant argued that if the answer to both questions was yes, then there was a third stage to the test, essentially whether it was just and proportionate to order a Stay unless the Claimant undergoes medical testing.

The Court was taken to a number of previous decisions suggesting a third stage, most notably Starr v National Coal Board [1977] 1 WLR – a case not cited in Laycock.

Finding as to the Law

The Court agreed that the correct test to apply was not simply the two-stage test, but a three-stage test.  The third stage would balance the competing arguments put forward in favour of and against medical testing taking place.

In such circumstances, the court should balance the competing rights, namely (a) the Defendant's right to defend itself in litigation and (b) the Claimant's right to personal liberty. The court should give particular weight to concerns if the test would be invasive and/ or involves pain or discomfort and/ or the risk of physical or psychological harm.

It was also important that the Stay be no more restrictive than is reasonably required to enable the Defendant to properly defend the claim.

Applying the test to this case

It was conceded on the facts of this case that both questions set out in Laycock were answered in the affirmative, and therefore, it was the third question which would determine the outcome of the application.

The Court considered the terms of any such Stay.  In any event there was a substantial claim for future loss.

The Court considered that the testing was likely to have a very substantial effect upon the damages awarded, and a material bearing on the determination of the medical dispute.

The physical risks to the claimant were considered to be very modest, and at least potential therapeutic advantages to her in determining whether she does have MD.

Anxiety about the procedure could be reduced by the means of testing, either at home or in a location near to the Claimant.

The Court did consider that a finding of active MD would result in an adverse impact on the Claimant’s psychological health, though conversely, the Claimant would derive significant comfort from a negative test.

Further, the Court would not force the Claimant to undergo such testing. However, she would not be able to pursue damages for life-changing injuries on the basis that she did not have MD if, in fact, it was unknown.

Essentially, without undergoing the testing, the Court would limit the extent to which the Claimant would be able to recover future damages to those she would be entitled to if she did have MD.

Judgment

 

The Court considered that, having put the factors into the scale, it did not seem just that the Claimant should be able to pursue her claim in full if the Defendants were denied the opportunity to carry out testing which would identify whether the Claimant has active MD or not.

Accordingly, a Stay would be ordered on the basis of the least restrictive order that could be made and so as not to unduly pressurize the Claimant to undergo tests.

Conclusion

This is an interesting and unusual case which practitioners may wish to consider in circumstances such as this - where testing for a condition unrelated to the injuries forming the basis of a claim, may have a significant effect on the value of a claim. 

In this case, clearly there may be a significant effect on the value of the claim depending on the outcome of the testing.  Conversely, this was testing which the Claimant did not wish to undertake.  This case may provide assistance to those trying to weigh these competing factors in the balance.

Link:

A link to a copy of the Judgment is here: