Third Party Cost Order Against Expert Witness Overturned on Appeal: Robinson v Liverpool University Hospitals Nhs Trust [2023] EWHC 21 (Kb) - Grace Corby, Temple Garden Chambers

24/02/23. The first instance Judge had erred in making a third-party costs order against the Claimant’s expert in a clinical negligence claim

Background

The Claimant had brought a clinical negligence claim against the defendant NHS trust following a dental extraction procedure which she underwent on 8 November 2016. She alleged that the surgeon was negligent for failing to remove her upper left molar. She instructed Mr Mercier, the appellant, as her expert. He was a general dental practitioner, but not a maxillofacial surgeon.

Following the first day of trial, it was accepted that the central issue in the case was whether or not a reasonable body of dental surgeons would have concluded, during the course of the surgery, that the upper left molar tooth was restorable based on the information available at the time. When the appellant gave evidence, he conceded that it was not unreasonable of the surgeon to err on the side of caution during the surgery and leave the tooth in place. Following that evidence, the claimant withdrew her claim.

The Respondent then made a successful Third Party Costs Order (“TPCO”) against Mr Mercier in the sum of £50,543.85. The basis of the application for costs was that Mr Mercier was the wrong expert to give expert evidence and should have appreciated that, either at the outset or during the course of litigation: as a General Dental Practitioner, he should not have been expressing an expert opinion on the standard of care afforded to the Claimant by...

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FREE CHAPTER from 'Low Velocity Impacts in Road Traffic Accidents: Law and Practice' by Jake Rowley

17/02/23. In this book, Jake Rowley will provide a concise and practical consideration of the law and practice relating to ‘low velocity impact’ (or “LVI”) road traffic accidents. Amongst other topics, the book will consider what is meant by the term ‘LVI’; the tell-tale signs of a potential LVI claim; the key authorities setting out the the law in this area; the procedural steps which Defendants will likely need to take in order to advance allegations of LVI; the sorts of evidence which features in such claims and when, and how, it should be obtained and deployed; and how such cases are approached by Judges at trial.

The book is written with Claimant and Defendant practitioners, and insurers, in mind.

CHAPTER ONE – WHAT IS A LOW VELOCITY IMPACT CLAIM?

What is meant when we refer to a ‘low velocity impact¹’ claim (or ‘LVI’ for short)?

Such terminology is used in conjunction with claims arising out of a road traffic accident (‘RTA’) in which a Defendant alleges that the collision was so minor or insignificant in its nature that it was incapable of causing any occupant(s) of the vehicle any injury whatsoever or, often asserted in the alternative, that the nature of the collision was such that it was inherently unlikely that any occupant(s) of the vehicle did, in fact, sustain any injury.

Legally speaking, a defence which asserts that the collision was a low-velocity impact is a challenge to the causation of injury.

The issue arises most commonly (although by no means exclusively) in claims in which it is alleged that the Claimant sustained soft-tissue/whiplash type injuries to the neck, shoulder(s) and/or back. Given the prevalence of such injuries in LVI type cases it is in relation to these sorts of injuries that this publication focuses its attention, however the observations made apply equally to any injury which might have been allegedly suffered in a LVI type collision.

It is generally accepted that in order for an occupant of a vehicle to sustain soft-tissue/whiplash type injuries to their neck/shoulder(s) and/or back they must experience a degree of occupant displacement within the vehicle in which they are travelling i.e. that is to say that their body must be physically moved/jolted by the impact caused by the Defendant’s vehicle.

In simple terms, a LVI defence is one in which the Defendant argues that the circumstance of the collision, together with any other evidence which may have been collated, collectively demonstrate or tend to suggest that the forces transmitted between the Defendant’s vehicle and the Claimant’s vehicle, at the point of collision, were insufficient to cause occupant displacement or, as a matter of fact, did not cause such occupant displacement, and thus, the collision was incapable of causing any injury. This impartation of force is often referred to in the relevant authorities and elsewhere as the ‘v’ (i.e. ‘velocity’) or ‘ v’ [“delta v”]² i.e. the change in velocity – the force which is actually transmitted to/experienced by the Claimant’s vehicle and thus the Claimant, by reason of the impact.

In order to make good the assertion that a collision was incapable of causing injury Defendant’s often rely on a variety of evidence from varying sources, including: (i) an account from the Defendant driver him/herself as to the movement of his/her vehicle immediately before, and at the time of, impact; the speeds involved; how he/she experienced the collision etc.; (ii) photographic evidence of damage to the vehicle and/or their positioning post-accident; (iii) expert engineering evidence; and (iv) medico-legal evidence. The ultimate goal for any Defendant is, essentially, to present to the Court a persuasive account of an insignificant, mere touching of the two vehicles.

Although long-standing and reasonably common place, defences asserting LVI are not without their controversy or difficulties. It is beyond the scope of this publication to consider the specific medical and technical engineering detail relating to LVI cases. What can be said, however, is that whilst general understanding of this particular field (sometimes referred to as ‘biomechanics’) has greatly improved, there are still wide divergences of respectable opinion in relation to critical issues that arise in such claims. By way of illustrative example: there continues to be serious disagreement between experts as to whether there is, in fact, any ‘v’ figure below which it can be reliably concluded that injury becomes unlikely/highly unlikely/impossible; with some arguing that no such figure even exists. Whilst it may be possible to ascertain, scientifically, the level of force transmitted from one vehicle to another (by assuming various speeds, point of impact, specific vehicle bumper specifications etc.) some point to a long list of other variable factors which, it is argued, have a bearing on whether injury is, or is not, likely to be suffered by an occupant of the vehicle. These include:

• A Claimant’s age;

• A Claimant’s gender;

• A Claimant’s previous medical history (both generally and in relation to spinal conditions specifically);

• A Claimant’s general vulnerability to injury;

• A Claimant’s previous accident history;

• Whether a Claimant was aware of the impending collision and/or whether he/she was braced at the point of impact, or not;

• The precise position of a Claimant’s head/neck at the point of collision;

• The presence/absence of head restraint;

• The age of the Claimant’s vehicle;

• The design and construction of the Claimant’s vehicle’s bumpers;

• The angle and precise position of impact from the Defendant’s vehicle.

Given there is no consensus on whether there is actually a ‘v’ figure below which it can reliably be concluded injury is unlikely, it is wholly unsurprising that there also continues to be disagreement on what any such ‘v’ figure actually is. With such crucially important matters still being the subject of ongoing academic and expert debate, it is easy to see why LVI cases are not entirely straightforward.

Furthermore, LVI issues routinely arise in low value personal injury claims which, on their face, would objectively warrant allocation to the Fast Track given the value of injuries alleged. However, a Defendant’s desire for expert evidence to support an allegation of LVI has ultimately led to LVI defences causing a number of case management difficulties vis-à-vis appropriate track and permission for expert evidence, which has required the Court of Appeal’s consideration on more than one occasion. This publication considers the two key Court of Appeal decisions later, in Chapter 4, and the way in which LVI defences should be approached procedurally.

MORE INFORMATION / PURCHASE THE BOOK ONLINE

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Mixed Injury Cases and the Civil Liability Act 2018: Hassam v Rabot [2023] EWCA Civ 19 - Sebastian Bates, Temple Garden Chambers

23/02/23. ‘As a general rule, the quantification of damages for [pain, suffering, and loss of amenity, or PSLA] is governed by the common law’: see [11] of Nicola Davies LJ’s judgment in this case. However, as she recognised at [25], the Civil Liability Act 2018 and the Whiplash Regulations 2021 represent a statutory incursion into the common law method of assessing damages and a radical departure from the common law approach to such an assessment in that they abandon the “fair and reasonable” approach to the assessment of whiplash injuries and minor psychological injuries in cases falling within the scope of the legislation’. Instead, as she explained at [7]–[10], awards for these injuries are made according to a tariff. While the legislative scheme ‘recognises that there will be cases in which an assessment of damages for PSLA reflecting the combined effect of injuries in cases of tariff and non-tariff (mixed injury cases) will be carried out’, it is ‘silent as to how the courts are to assess damages’ in such cases.

Summary

Nicola Davies LJ considered (at [26]) that ‘[t]he mischief at which the legislation is directed is minor whiplash claims resulting from a motor vehicle accident’ and ‘[t]here is nothing in the wording of the statute or in the extra Parliamentary material which suggests, let alone demonstrates, an intention to alter the common law process of assessment for, or the value of, non-tariff injuries’. She reasoned (at [27]) that ‘Parliament has chosen to legislate into the area of the common law of England and Wales but having done so, and in the absence of any clear indication to the contrary, it is presumed not to have altered the common law further than was necessary in order to remedy the mischief which was the focus of the 2018 Act’.

She thus took the view (at [33]–[38]) that, in a mixed injury case, a ‘court is required to carry out two separate assessments’: the assessment of a tariff award and the assessment of an ‘award for non-tariff injuries on common law principles’. The court is then to ‘step back’ and adjust for any overcompensation, ‘recognising that the sum included in the tariff award for the whiplash component is unknown but is smaller than it would be if damages for the whiplash component had been assessed applying common law principles’ and with the ‘caveat’ that ‘the final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant’.

Conclusion and Comment

Stuart-Smith LJ agreed with Nicola Davies LJ. Her judgment therefore lays down the principles that will govern in mixed injury cases for the time being.

However, Vos MR gave a dissenting judgment (to which Stuart-Smith LJ responded in a short judgment of his own). It may be that the Supreme Court—or indeed Parliament—will assess these principles in due course.

UPDATE: The Association of British Insurers (ABI) has now announced that it has sought permission to appeal the rulings in Briggs and Rabot that were handed down last month by the Court of Appeal.

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