When defending personal injury claims, insurers strive to find ways of reducing the value of a claimant’s compensation award with the aim of paying a smaller bill at the end of their case. One method currently in use is court-ordered genetic testing to establish whether a claimant has a genetic degenerative condition.
Picture the scene: a claimant is injured in a car accident caused by another driver’s negligence. However, the injured party’s condition could potentially have alternative root causes so, if genetic testing could demonstrate they carry a particular gene, a defendant might use this to argue against the claimant’s entitlement to compensation; not only might the injuries or symptoms have an alternative cause but, over time, the symptoms from the car accident could also be superseded by the symptoms linked to the underlying genetic condition.
Following the decision in a recent case – Clarke v Pool [2024] EWCH 1509 (KB) – there has been a significant question concerning the law as it relates to what the court considers when deciding whether or not to order a claimant to undergo genetic testing.
Since 1997, a two-stage test, as set out by Lord Justice Kennedy in Laycock v Lagos [1997] PIQR 518, is applied in this scenario. The first question asked is whether the interests of justice require the genetic testing proposed by defendant. If the answer to this question is ‘no’, that is the end of the matter. However, if the answer is ‘yes’, the court needs then to decide whether the party opposing the testing has put forward a substantial reason for it not to be undertaken. In answering this second question the court must take into consideration the extent to which the results may progress the claim as well as the force of the objection put forward by the claimant. In essence, it is the claimant’s reasons for refusal that become the deciding factor for the judge.
Clarke v Pool [2024] EWCH 1509 (KB) has introduced a new third stage to the test, namely that the court should finally also perform an evaluative exercise of both parties’ respective interests, in order to determine the just and proportionate outcome in all circumstances. So the court must now effectively balance the defendant’s right to an effective litigation defence against the claimant’s right to personal liberty and bodily integrity if they choose not to undergo voluntary genetic testing. A difficult task!
Whether or not this third test will be applied to the Laycock v Lagos [1997] PIQR 518 decision will be clarified at appeal. However, this seems to be a swinging of the pendulum back towards the defendant’s advantage in what is an incredibly personal and important decision for claimants, and one that carries significant potential to impact personal injury claimants’ mental health.
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Author: Rachel Strange
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