Disclosure of Occupational Health Records in Disease Cases

This blog was written by Philip Godfrey of Ropewalk Chambers and Christine Allen of Weightmans. In a recent appeal in the case of Thrush v RG Buckle before HHJ Gosnell sitting in the County Court at Leeds, the issue of disclosure of occupational health records held by unpursued employers was considered by the Court. Philip Godfrey, instructed by Christine Allen of Weightmans, represented the successful appellant.

The matter arose out of a noise-induced hearing loss case. The Second Defendant to the claim made an application for the Claimant to disclose his occupational health records from a number of employers who had employed the Claimant in apparently noisy environments after the end of his employment with the Second Defendant. Those employers were not parties to the proceedings.

The Claimant opposed the application on the basis that it was a “fishing expedition”.

At first instance, the Deputy District Judge refused the application. The matter was therefore taken to an appeal before HHJ Gosnell.

On appeal, the appellant argued that the approach to disclosure of such occupational health records should be treated in the same way as the disclosure of a Claimant’s medical records. Reference was made to the leading authorities of Hipwood v Gloucester HA [1995] ICR 999 and Bennett v Compass Group UK & Ireland Ltd [2002] ICR 1177. As such, it was argued that the judge was wrong to refuse the application to disclose the relevant occupational health records.

HHJ Gosnell allowed the appeal. The Claimant was ordered to disclose the relevant occupational health records. As was set out in the judgment at [34] to [36]:

[34] Therefore, standing back from the situation, this is an application that should have been granted. My experience is that in deafness cases, often enquiries are made of prior or subsequent employers about occupational health records. It should have been limited to the records in relation to hearing and not other matters and, if that had been done, that would have been a fair reflection.

[35] Mr Rashid makes the point that it is a small value case and these disclosure requests have got to be proportionate. I agree with him about that, but obviously, from my knowledge of deafness cases, they are often worth four figures rather than five. I rarely see a case where the costs are four figures rather than five and so, that is why I think the insurance companies fight them a little harder than we might expect them to.

[36] At the end of the day, I have got to say, was the judge wrong? I think, unfortunately, on this occasion, he was wrong. He was wrong to apply the law that he did, and he was wrong to say that there was an obligation on the defendant to almost show, on a balance of probability, these documents existed when, in my view, there was a reasonable prospect of the documents existing, and that disclosure should have been ordered. Therefore, for those reasons, I intend to grant the appeal.

This decision will be of use to Defendants in disease cases. It has been the recent practice of certain firms representing Claimants to apply a blanket opposition to the disclosure of occupational health records held by unpursued employers. Such records often contain highly useful information on medical causation, limitation and apportionment (Holtby). They plainly fall within a Claimant’s standard disclosure.

A transcript of the judgment can be provided on request of the authors.