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Recoverability of Pre-Accident Records: A New Approach for Scotland? - Catriona Hepburn, Brodies LLP

06/07/17. The English Position

In England it is a well-established principle that, where a plaintiff is claiming for loss of future earnings based upon personal injury, disclosure of full medical records will be allowed. In Dunn v British Coal Corporation [1993] ICR 591 concerned a neck injury at work and on that basis disclosure of medical records was initially restricted to records relating the claimant’s neck. As one of the main issues was the financial loss suffered by the claimant following his injury it was held that the presence of a pre-existing condition was influential. The claimant had retired early and without full medical records it was impossible to tell whether he would have had to have done so even in the absence of the injury. It was not disputed that the records contained relevant information and as a result, the defendant could ultimately have issued a subpoena for their recovery at court. It was held therefore that in the interests of justice, they should be produced before the trial.

The judgement in Dunn describes this approach as...

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