The claimant sustained catastrophic injuries in a road traffic accident, resulting in cognitive and physical impairments and rendering her unable to work and in need of significant care for the rest of her life. The defendants admitted liability in full and judgment was entered against them with damages to be assessed. On the basis of their neurological expert evidence the defendant disputed the claimant’s claim for future loss, arguing that even if the claimant had not been injured in the accident, she would have developed symptoms of myotonic dystrophy, a genetic disorder which caused progressive muscle loss and weakness, such that she would not be able to work and would require significant care in any event. In light of the dispute as to whether the claimant was suffering from myotonic dystrophy and the potential effect on her future health, the defendants requested the claimant to undergo neurophysiological testing. The claimant objected to such testing on the ground of the potential detrimental impact of the testing result on her mental health. The defendants applied for an order to stay the action or the claim for future loss unless the claimant submitted to the proposed neurophysiological testing.
On the application—
Held, application granted. In considering whether to stay an action where a claimant refused to undergo a medical examination as requested, the overarching question was whether it was just and proportionate to order a stay unless the claimant underwent such medical examination. Where the court was satisfied that the interests of justice required the claimant to undergo the medical examination and the claimant put forward a substantial objection which was more than imaginary and illusory, the court was required to undertake a balancing exercise between the defendant’s rights to defend itself in the litigation and the claimant’s right to personal liberty, with particular weight given to the claimant’s concerns about the examination’s nature, impacts and risks, ensuring that the proposed terms of the stay was proportionate to the reasons for and likely consequences of the examination. In the present case, the proposed neurophysiological testing would have a material bearing on the determination of the parties’ dispute as to the extent of future loss, which would outweigh the testing’s modest physical risks and potential adverse impact on the claimant’s mental health. Accordingly, it was just and proportionate for the court to stay the claimant’s claim on future loss until she underwent the neurophysiological testing (paras 83–88, 90, 91, 98-101).
David Rivers (instructed by Slater and Gordon) for the claimant.
Steven Snowden KC (instructed by Weightmans LLP) for the defendants.