The Dekagram: 8th July 2024

This week the team has taken time out of its celebrations marking Matthew Chapman KC and Sarah Prager KC’s victories in the latest cases on Spanish penalty interest and the Montreal Convention respectively, to consider what can be done where a claimant refuses to undergo testing pertinent to her claim, and how to value fatal accident claims. Later this week of course we will be glued to our screens for the dekinar on the Montreal Convention; we hope to see you there.

Samantha Clarke-Barnes v (1) Matthew Poole; (2) Andrej Borisenkov & (3) Great Lakes Insurance SE [2024] EWHC 1509(KB): What to do when the Claimant Refuses to Undergo Testing

Abstract

This concerns a vigorously contested application brought by the Defendants, seeking for the court to sanction the performance of tests on the Claimant against her will. The purpose of testing would be to identify whether a Claimant was symptomatic for a genetic disorder unrelated to a personal injury action.

The application provided an interesting intersection between principles of causation, burden of proof and personal autonomy.

The Background 

The Claimant had suffered a traumatic brain injury following a road traffic accident (for which liability was admitted). She was never going to be able to work again and required lifelong care. However, there was a potential complicating factor regarding causation: the Claimant had an unusual genetic background; her mother suffered from a degenerative disorder (myotonic dystrophy (“MD”)) and there was an even chance the Claimant might have the genetic inheritance. On a strict balance of probabilities test, this was therefore perhaps not proved to be likely. However, the position remained a complete unknown because the Claimant to date had never undergone a genetic test to find out the true position.

The Application

The Defendants, understandably, wanted to know the position in order to argue that absent the index accident occurring the Claimant, in any event, might likely suffer the effects of degenerative disorder with an impact on functionality and life expectancy. This would be highly relevant in its interaction with the Claimant’s accident-related position. Further, expert neurological evidence had highlighted that neurophysiological testing would assist in revealing whether the Claimant displayed active and symptomatic presentation of the MD condition.

The Claimant resisted undergoing testing. This was evidently not something she had previously sought to explore, it was likely to be invasive and uncomfortable, and she did not want to risk damage to her mental health in finding out.

The Legal Test

Laycock v. Lagoe [1997] PIQR 518 suggested a two-stage test was apposite:

1. Do the interests of justice require the test which the defendant proposes? If the answer to that is in the negative, that is the end of the matter. If the answer is yes, then the court should go on to consider –
2. Whether the party who opposes the test has put forward a substantial reason for that test not being undertaken; a substantial reason being one that is not imaginary or illusory…

This appeared to provide the Claimant with a reasonable refusal of the Defendant’s application: surely it was real and substantial that she did not want to know something deeply personal to her genetic make-up and leading to bodily deterioration?

However, HHJ Gargan (sitting as a judge of the High Court) considered there was a third stage to the test, following Starr v National Coal Board [1977] 1 WLR 63 and Prescott v Bulldog Tools Ltd [1981] 3 AER 869:

3. This was to be a balancing exercise in light of competing rights of the parties inherent in the first two tests, that is –

1. The Defendants’ right to defend themselves in the litigation; set against
2. The Claimant’s right to personal liberty, noting the Claimant’s principled objections.

The Defendants’ rights triumphed.

While issues of personal autonomy and bodily integrity are often vindicated in issues of breach of duty in tort (such as issues of consent), this related to issues of quantum and apportionment of accident-related loss. The Defendants should not be prevented from exploring the potential MD diagnosis, especially given its potential impact on the claim’s scope and value.

Of course, the Claimant would not be compelled to undergo testing. But if that were to be her position, she is faced with either conceding the presence of active MD symptoms or a stay imposed on her claim for future losses.

Permission to appeal was refused.

This judgment provides a welcome interpretation of the correct legal test to apply in such scenarios, while shifting the balance of power away from Claimants who wish to avoid invasive investigations for conditions unrelated to index accidents, but which are otherwise potentially relevant to issues of causation and apportionment. 

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He is described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.

Harris and Coward remain dependable

Max Melsa analyses the appeal case of Price v Marsdon’s [2024] EWHC 1352 (KB).

The appeal was brought by the Defendant, with the Claimant cross-appealing against two elements of the judgment on quantum.

The Claimant’s husband had tripped at work, fell, and it was claimed that he thereby sustained injuries whilst working as a chef for the Defendant. It was alleged that the injuries he sustained in the fall allowed commensal staphylococcus to infiltrate his bloodstream causing bacterial bloodstream infection. He went on to develop sepsis from which he died a number of weeks later.

The Defendant admitted breach of duty for the fall but disputed that the fall caused the Claimant’s husband’s death. The Defendant argued that there were no identified portals of entry for the infiltration of bacteria and in any event the Deceased was symptomatic of bloodstream infection in such a rapid time that science did not support the fall as the source of infection.

Even though the Claimant had exhibited signs of bacterial bloodstream infection within 15 hours, the Judge nonetheless found that without any other explanation for the infection the fall was the cause of the infection which then led to sepsis and death.

The Judge’s decision on quantum was informed by his findings that the husband’s obesity meant that, had he not died as a result of the fall, his life expectancy would have been nine years shorter, and that the Claimant’s financial dependency on her husband was not as much as was claimed and would have ceased once her husband reached the age of 73.

The issues were whether the judge had fully explained his reasoning and whether he had erred in respect of causation; life expectancy; and in calculating loss of financial dependency.

Causation

Both parties called experts in microbiology, anaesthesia and intensive care. The Judge preferred the evidence of the Claimant’s experts, which concluded that bacteria had entered the husband’s body as a result of the accident. The Defendant did not criticise the Judge’s self-direction on the law of causation but instead argued that the judgment given was inadequate – running to just six paragraphs in relation to 60 paragraphs of important expert evidence.

On appeal, the Court found that a judgment must summarise and select, and it was not objectionable for a judgment to deal with an issue more briefly than what was provided in evidence. The Defendant’s appeal was therefore dismissed.

Life expectancy

There was an argument relating to whether Life Tables in the UK or Wales should have been used. Ultimately, the Judge used the UK tables. The Claimant’s expert had put forward an eight-year deduction; the Defendant’s expert had said 10 years. The Judge decided to make a nine-year deduction from the husband’s baseline life expectancy. The Claimant submitted that this could not reasonably be explained or justified and was wrong, because neither expert had indicated that this was correct.

The nine-year reduction was not supported by the Judge’s assessment of the evidence or by his own reasoning. The appeal was therefore allowed, and an eight-year deduction substituted.

Financial dependency

Quantifying loss of financial dependency requires speculation about what would have happened had the fatal accident not occurred. The usual approach is for judges to counterbalance the uncertainties by using the Ogden tables and the two-thirds / one-third rule of thumb as set out in the leading cases of Harris v Empress Motors Ltd [1984] 1 W.L.R. 212, and Coward v Comex Houlder Diving Ltd Independent, July 25, 1988 [1988] 7 WLUK 215. This approach is not to be discarded lightly, especially if an unconventional approach leads to a result which did not seem correct or fair (O’Loughlin v Cape Distribution Ltd [2001] EWCA Civ 178).

This case was not exceptional. However, on appeal it was held that the Judge had departed from this method and instead had taken an approach that had no precedent and not been suggested by either party. The order also failed to break down the award for loss of financial dependency; did not distinguish between pre-trial and post-trial loss; did not identify a multiplier or multiplicand; did not identify a retirement date; and did not explain the sum being awarded for the period after the husband’s suggested retirement age of 66 but before he reached 73.

About the Author

Prior to being called to the Bar in 2015, Max Melsa worked with Gerard McDermott KC on all aspects of high-value cases arising from catastrophic personal injury, in particular involving travel and cross border claims of significant value and complexity. He now maintains a mixed practice of civil and family work, alongside representing interested parties at inquests.