The All-Scotland Personal Injury Court has granted a defender’s request to recover the pursuer’s pre-diagnosis medical records in a pleural plaques case, despite the pursuer’s opposition.
In Docherty v Babcock International & Others  SC EDIN 33, the pursuer alleged that he had been exposed to asbestos while employed by the defender, and that he had developed pleural plaques as a result. The pursuer sought provisional damages, or, in the alternative, final decree.
Provisional v final
Provisional damages compensate the pursuer for the extent of his condition at the date of settlement. A pursuer accepting provisional damages retains the right to return to the court for further compensation should he develop another asbestos-related illness, such as mesothelioma or lung cancer. A pursuer accepting full and final settlement is prevented from returning to court if he develops another asbestos-related illness. However, in addition to being compensated for his existing condition, a pursuer awarded full and final damages receives a percentage of the value of his claim, including future wage loss and loss of life expectancy, were he to go on to develop mesothelioma or asbestos-related lung cancer. This percentage is in line with the percentage risk of the pursuer developing these conditions during his lifetime.
In this case, the pursuer sought final decree, as an alternative to provisional damages, and as such, compensation for future wage loss and loss of life expectancy were matters to be considered in the case. Issues to be determined included the pursuer’s anticipated life expectancy and whether, but for the accident, he would have worked until normal retiring age. The Sheriff determined that questions of pre-existing illness and/or lifestyle might be relevant to such matters and therefore granted the recovery of the pursuer’s pre-accident medical records.
The decision will make recovery of pre-diagnosis records easier in pleural plaques cases where full and final decree is sought. The pursuer opposed the motion on a number of grounds, in particular, relating to the privacy and confidentiality of medical records. It may be that, as a consequence of this decision, we see more pleural plaques claims seeking provisional damages only in an effort to avoid full disclosure of sensitive medical records.