In Sean Robert Grinyer v Plymouth Hospital NHS Trust (28th October 2011. Unreported) His Honour Judge Cotter QC, sitting at Plymouth County Court, assessed damages for personal injury under s.13 of the Data Protection Act 1998 on a conventional common law basis and held that a claim for aggravated damages could be sustained thereunder, but not exemplary damages.
The Claimant (represented by John Isherwood of Unity Street Chambers) brought an action against the Defendant after unauthorised disclosure of his personal medical data, in or about December 2007.
The Claimant’s then partner had unlawfully accessed his medical records in the course of her employment as a nurse and thereby committed a breach of the Act. This and the handling of his resultant complaint caused a 4 ½ year exacerbation of a pre-existing paranoid personality disorder and prevented him also from accepting an offer of employment.
HHJ Cotter was satisfied such exacerbation constituted an injury which had given rise to direct consequential loss and accordingly fell within the ambit of “pecuniary loss” identified by Buxton LJ in Johnson v The Medical Defence Union [2007] EWCA Civ 262 (para 24) and further held that compensation for damages or distress under s.13 (1) and (2) respectively of the Act should be assessed on a common law basis, with any reduction because recovery was statute-based artificial and wrong.
The claim for aggravated damages however failed, as there was no evidence of malicious action or exceptional misconduct, in a litigation context, on the part of the Defendant.
£12,500 was awarded for exacerbation of the Claimant’s pre-existing condition and £4800 for loss of earnings on the premise that he had been offered 6 months work but in light of the medical evidence, viz that he would have been unable, probably, to sustain employment for any length of time, likely to have held a job down for only 8 weeks also.
John Isherwood
http://www.unitystreetchambers.com/barrister/johnisherwood.php
