Law Report: Access to all medical records: Dunn v British Coal Corporation - Court of Appeal (Lord Justice Nourse, Lord Justice Stuart-Smith and Lord Justice Mann), 26 February 1993

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A plaintiff claiming damages for loss of future earnings caused by personal injury was bound to disclose to the defendants' medical advisers records covering the whole of his medical history, since the presence or absence of other medical factors affecting his earning capacity would be relevant to his claim.

The Court of Appeal allowed an appeal by the defendants, British Coal Corporation, against an order made by Mr Justice Tudor Evans on 20 May 1992, restricting disclosure of medical records by the plaintiff, Thomas Dunn, to current and pre-existing records relating to the area of his injury.

Simon Hawkesworth QC, and Simon Gash (Nabarro Nathanson, Doncaster) for the defendants; Christopher Carling (Brian Thompson & Partners, Newcastle upon Tyne) for the plaintiff.

LORD JUSTICE STUART- SMITH said that the plaintiff, a miner aged 53, was injured in the neck while working at the coalface and was unable to resume work. He claimed damages for, inter alia, loss of earnings until normal retirement age.

The defendants' sickness records showed that the plaintiff had a short period off work from back ache in 1988, and six weeks before the accident had one or two days off because of neck ache. They wished to have him examined by their own consultant and requested that the consultant be shown the plaintiff's hospital records, general practitioner's notes and notes of the defendants' own medical officer.

The judge restricted disclosure to material relating to the plaintiff's neck, saying the defendants were not entitled to 'have possession of all medical records and notes and conduct a 'fishing expedition' to discover whether there may be something which might be relevant in reduction' of the plaintiff's damages. But one of the two main issues at the trial was as to the financial loss resulting from the plaintiff's injury, and that could be affected by any pre-existing condition in relation to the site of the injury and by some wholly unrelated condition which might supervene to affect the plaintiff's earning capacity before normal retirement. The documents requested by the defendants were relevant to that issue.

The onus was on the plaintiff to prove that he was in normal health and did not suffer from any condition that might cut short his working life, and that any loss of future earnings or earning capacity was caused by the accident.

Documents which showed that the plaintiff had never suffered anything more serious than an attack of influenza were relevant to the issue of damages, just as much as documents showing that he was suffering from some condition likely to cut short his working life.

If the documents were not produced before trial, the defendants could issue a subpoena duces tecum for their production. It was not disputed that they contained some relevant material.

Once they were produced to the court, the plaintiff's right not to have them disclosed by the holders to others, his right of confidentiality, was lost. They were not privileged documents.

But it was not in the interests of justice that disclosure should be delayed until trial. Everything pointed to the desirability of early disclosure, and that was consistent with the modern cards-on-the-table approach to litigation.


Paul Magrath, Barrister.