Samantha Danyelle Clarke v Matthew Poole & Ors

Where a claimant refuses medical testing relevant to the assessment of damages, the court must decide whether a stay is just and proportionate unless the testing is undertaken.

The court should ask whether testing is in the interests of justice and whether the claimant has raised a substantial objection. Where there is a substantial objection, the court must balance the defendant’s right to defend the claim against the claimant’s right to personal liberty. Particular weight should be given to objections involving invasion, pain, discomfort, or physical or psychological harm. Any stay must be no wider than reasonably necessary to protect the fairness of the litigation.

The claimant sustained life-changing injuries in a road traffic accident. Liability had been admitted. The defendants contended that the claimant might have active myotonic dystrophy which would have caused substantial future loss even without the accident.

The claimant refused EMG neurophysiological testing because she did not wish to know whether she had the condition and objected to the invasive nature and psychological consequences of testing. The defendants applied for a stay of the claim, or of claims for future loss, unless testing was undertaken.

The central issue was whether the two-stage approach in Laycock v Lagoe required a further evaluative balancing exercise before a stay could be ordered.

1. Application granted in part. The claim for future loss was stayed on terms requiring the claimant either to undergo EMG neurophysiological testing or to concede, for the purposes of the litigation, that she had active myotonic dystrophy and that damages should be assessed on that basis. The stay was to be drafted so that it remained just and proportionate.
2. The court accepted that the proposed testing would materially assist determination of the dispute about whether the claimant had active symptoms of myotonic dystrophy. A positive result would support the defendants’ case, although it would not determine the likely future progression of the condition. A negative result would establish that any condition was asymptomatic and would materially support the claimant’s case.
3. The approach in Laycock v Lagoe was a succinct formulation of the earlier three-stage approach identified in Prescott v Bulldog Tools Ltd and applied in Hill v West Lancashire Health Authority. It did not remove the evaluative balancing exercise.
4. The applicable approach is: first, determine whether, absent the claimant’s objections, testing is in the interests of justice; secondly, determine whether the claimant has raised a substantial objection which is more than imaginary or illusory; and thirdly, where there is such an objection, balance the defendant’s right to defend the claim against the claimant’s right to personal liberty.
5. A substantial objection is not automatically determinative. Particular weight should be given to concerns involving an invasive procedure, pain or discomfort, or physical or psychological harm. The court must also examine the proposed terms of any stay and ensure that it goes no further than reasonably required to enable the defendant properly to defend the claim.
6. Although the claimant’s concerns about discovering active myotonic dystrophy were genuine and psychologically significant, the testing had substantial evidential value and modest physical risks. A blanket stay covering all future losses would have been disproportionate. The narrower stay proposed by the court preserved the claimant’s choice while preventing her from pursuing the most favourable damages case without allowing the defendants a fair opportunity to investigate the material issue.

First-instance decision. No prior appellate history was stated in the judgment.