Does an injured person have to agree to medical examination or a course of treatment after an accident?
If you are claiming damages from a responsible third party for an accident, you will be entitled to claim compensation from that party for losses that you incur because of the breach of the duty of care, they owe to you.
You may have had an accident at work, in a car, in a shop or on the street.
How will the court assess the damages to which you are entitled and what do you have to do to prove your losses?
It is normal practice for both your solicitor and the other parties’ solicitor to produce evidence in the form of a medical report from an expert on which the judge can base a decision as to the level of damages that should be awarded.
In more serious cases this may involve several experts with different specialisms to give evidence and the court will give directions as to the timelines in which that evidence must be sought and obtained.
This article explores what your obligations are in relation to examination and treatment.
What if you do not want to be examined by a particular Doctor or you don’t want to undergo a particular type of treatment?
Will the court penalise you for these decisions?
The position in law is there is an onus on you (the claimant) to “mitigate your loss”. This means that you cannot expect to recover damages from the breach of the defendant’s duty to you if some or all that loss arose from your unreasonable refusable to undergo treatment.
It is the reasonableness of your decision that will be brought into question and the onus Is on the defendant to show our decision was unreasonable.
Your solicitor will need to ensure that your decision to refuse treatment has been properly explored.
So, for example there may be differing medical opinions as to whether the treatment would work.
Your GP may have advised the chances of success were not high.
You may have reacted badly to that type of treatment in the past.
The judge will have to be objective in his finding which will be based on the facts of your case but if you are not clear an experienced solicitor will be able to guide you on this issue.
Your solicitor will need to help and guide you as to the evidence that will need to be adduced to support your genuine decision not to undergo a particular medical treatment.
In terms of a refusal to undergo medical examination the court will balance your right to personal freedom (IE the right to refuse to be examined) with the right of the defendant to be given the opportunity to defend themselves in the case.
The Judge will ask whether the request for examination was reasonable in the first place and if it finds that it was, then the next question is whether your refusal to be examined was unreasonable.
If the court formed the opinion the examination may genuinely cause an exacerbation of your medical condition it would have a discretion to say your refusal was reasonable.
The judge will look ultimately to what is just in terms of the disposal of the case.
It can be seen from the two issues that are addressed above that even if you were not responsible for your accident and are able to prove another party should pay you damages, the issues that arise in these cases are complex and the decisions can turn on how well your case is prepared.
It is for this reason that you should always seek assistance from an experienced personal injury lawyer in advancing your case.