Medical history ruled recoverable

Defenders win right to recover pursuer's records as relevant to earnings claim

News, 13 November 2007

An accident victim's pre-accident medical records have been ruled recoverable by defenders seeking to challenge a claim for loss of earnings.

Lord Malcolm in the Court of Session granted the order in favour of defenders Alexander Taylor & Sons and their insurers NIG Insurers Ltd, who admitted liability for a road accident in which pursuer Leanne Hendry was injured but challenged the damages claimed.

In her pleadings Ms Hendry stated that she had sustained a psychological injury as a result of the accident, that she could not continue in her employment, which involved a lot of driving, and that she had to take another job at a lower salary.

The defenders wanted to see her records both before and after the accident, to find out whether her future loss claim might be limited by a condition which would have restricted her earnings even without the accident. Ms Hendry objected that this was a "fishing exercise" unless the defenders could point to circumstances that would justify a wider recovery than the records since the date of the accident.

Lord Malcolm said he had been told by counsel that different judges had reached different conclusions on this point in the past but that none had previously issued a written opinion.

"The underlying rationale of our procedure, he said, "is that recovery is allowed in respect of documents if, and only if, they are relevant to an issue raised on record."

He agreed with the 1993 English Court of Appeal case of Dunn "that when a pursuer in a personal injury action claims future wage loss he is putting in issue his state of health at the time of the accident, since he must prove that any such loss was caused by the accident".

"Even if the pre-accident records reveal no illness or medical condition of note," he continued, "that itself is relevant, albeit unhelpful to the defender. I agree... that this demonstrates that in such claims calls seeking pre-accident medical records are not in the nature of a speculative or fishing diligence."

Current procedures, he added, required the defenders to lodge their valuation of the claim at an early stage, which pointed to early recovery of all relevant medical records. If the defenders had been Ms Hendry's employers and knew of her medical history, it was accepted they would be able to recover suchg records and there was no reason why defenders who were strangers to her should be at a disadvantage. The question of confidentiality was overridden in such cases by the public interest.

Lord Malcolm's decision can be read at http://www.scotcourts.gov.uk/opinions/2007CSOH178.html .