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LOW VELOCITY IMPACTS
Tips on what to look out for when dealing with personal injury claims arising out of low velocity impacts
Introduction
1. Low velocity impact (“LVI”) claims are defended on the basis that the force of the impact between vehicles involved in a road traffic accident was so minor that no personal injuries would have been sustained as a result. It follows from this that such claims can involve an allegation of fraud. Alternatively, it can be alleged that: (i) there is some other cause of the claimant’s injuries other than the accident; and / or (ii) the accident-related injuries were negligible and would not attract an award worth pursuing by the issue of proceedings.
2. An allegation of fraud should only be made after careful consideration of the evidence in any particular case. Claimants can rely on the evidence of a medical expert in support of their claim that the accident was causative of their injuries. Defendants are increasingly adducing expert engineering evidence in an attempt to challenge the medical expert’s diagnosis, which tends to be based on the claimant’s account of how the accident happened.
3. This paper analyses the guidance given by the Court of Appeal in Armstrong & Anor v First York[1] and Kearsley v Klarfeld[2], and offers tips on handling LVI claims highlighting the tactical considerations involved when dealing with such claims.
Allocation of personal injury claims arising out of a LVI
4. Minor whiplash type injuries are a common consequence of a LVI. The value of personal injury claims arising out of a LVI is usually relatively low and only just exceeds the small claims limit. However, if fraud is pleaded, this may result in the matter being allocated to the multi-track due to the seriousness of the allegation, with all the attendant costs consequences involved.
5. In any other type of personal injuries claim the value of the claim would ordinarily determine its allocation. In LVI claims, consideration needs to be given to the practice direction to Part 26, which sets out the rules as to allocation in this context. CPR 26PD.9.1 reads as follows:
“(1) Where the court is to decide whether to allocate to the fast track or the multi-track a claim for which the normal track is the fast track, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track.
(2) The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary and whether the trial is likely to last more than a day.”
6. The need for oral expert evidence in LVI claims will often necessarily result in allocation to the multi track. This is because in fast track cases the general rule is that expert evidence is to be given in a written report prepared by the expert and not, unless the court directs otherwise, by the expert’s oral evidence: CPR 35.5(1) and (2). The parties must therefore make out a strong case for requiring oral expert evidence in fast track cases.
Kearsley v Klarfeld
7. In this case, both parties sought allocation of the case to the multi-track on the basis that an allegation of fraud had been made and the trial would involve oral expert evidence. The district judge refused to allocate the case to the multi track due to the relatively low value of the claim, which the district judge considered would turn on the claimant’s credibility as a witness at trial. An appeal against that order was allowed by the judge and the Court of Appeal endorsed the judge’s decision to overrule the district judge and to re-allocate the claim to the multi-track. Brooke LJ commented as follows:
“…the district judge did not adequately address the question whether the case could be dealt with justly on the fast track, or consider whether because fraud was alleged it was necessary in the interests of justice for the experts to attend so that the trial judge could properly unravel the complexities that were inherent in their contested evidence.”
8. Brooke LJ went further and stated that it would not be wrong or disproportionate to allocate such claims to the multi track as a matter of course on the grounds that the criteria for the admission of oral expert evidence are satisfied and the time estimate for trial is likely to exceed one day.
Must the defendant plead fraud?
9. According to the Court of Appeal in Kearsley, provided the defendant complies with CPR 16.5 (which sets out what a defence must contain) it is not necessary to go further and include an allegation of fraud in the defence. Whilst a claimant must specifically plead an allegation of fraud in particulars of claim (CPR 16PD.8.2), there is no equivalent requirement for the contents of a defence to include any allegation of fraud under the rules (CPR 16PD.10).
10. Solicitors defending LVI claims will therefore need to make a tactical decision and consider whether it is appropriate to plead fraud in the circumstances of the particular case or whether it would be preferable to simply put the claimant to proof.
11. If fraud is pleaded, this imposes an onerous burden on the defendant to prove it. If no allegation of fraud is made, all that would be necessary would be to plead the facts and matters relied upon from which the inference could be drawn that the claimant had not suffered any personal injuries as a result of the accident in question. The credibility of the claimant will be a relevant factor for the trial judge to consider in any event.
Expert Evidence
Medical
12. In many LVI claims claimants do not attend hospital following the accident as the presentation of symptoms can be delayed. They may not visit their GP and may self-medicate with painkillers. Medical reports are in some cases completed by general practitioners or orthopaedic surgeons who have not had sight of the claimant’s medical records. Solicitors acting for claimants should ensure that the medical expert has had sight of the medical records prior to preparing a report.
13. The evidential value of a medical report can be undermined in that it does not objectively prove that injuries were sustained where it is based on the claimant’s version of events, together with a physical examination often carried out a considerable length of time after the accident date. Even if symptoms still persist on the date of examination of the claimant, the expert may not have objectively verified the claimant’s pre-accident history.
14. Where claimants have attended their GP or undertaken treatment, say, in the form of physiotherapy, notes or records evidencing this should be obtained and disclosed in support of the claimant’s claim.
Engineer
15. If an LVI claim is to be properly investigated by the trial judge this would normally require the expert evidence of an engineer as well as medical evidence. Parties can instruct either a forensic consultant engineer or an automotive damage assessor. The expert must have experience in the fields of forensic vehicle examination, as well as accident reconstruction.
16. The letter of instruction to the expert engineer should seek an opinion on whether the forces on impact would have been sufficient to result in injury to the claimant. In most cases, the expert’s opinion would not be case specific and would simply comment generally on the risk of injury to a person of normal fortitude. If, however, a claimant’s personal characteristics make him / her particularly vulnerable then this should be taken into account as well as other factors relating to the design, speed and mass of the vehicle.
17. Where the expert concludes that the forces involved in the accident were such that no injury could have been sustained, then clearly this can go some way towards casting doubt on the claimant’s credibility. For that reason, solicitors acting for claimants should scrutinize the engineer’s report closely and consider whether the opinions expressed in it are limited in any way.
18. In Hindmarch v Hasford [3] Judge Moir sitting in the Newcastle County Court refused to grant the defendant permission to admit the engineering evidence of an expert who had been unilaterally instructed on the grounds that the expert had not inspected either vehicle and had not had sight of the claimant’s witness statement. The proposed report was therefore fundamentally limited as it was not based on precise data and was not capable of assisting the trial to any significant extent. It was held that it would be disproportionate in the circumstances to allow the defendant’s application.
19. In the latter case, the defendant did not go so far as to allege fraud and simply put the claimant to proof as to causation and damage. In cases where fraud is alleged, and the expert engineer’s report has been jointly commissioned and properly prepared, defendants should be granted permission to rely on expert engineering evidence as well as medical evidence. Even where the defendant is able to rely on both, the credibility of the claimant will be largely determinative of the outcome of a contested trial.
Armstrong v First York
20. In this case the Court of Appeal endorsed the approach of a trial judge who preferred the evidence of the claimant to that of an expert engineer. The circumstances of the case were that fraud had been alleged on the basis of the engineer’s opinion that the forces generated by the impact were insufficient to have caused the injuries claimed. Notwithstanding the expert evidence, and the fact that the trial judge could not identify any flaw in it, it was held that the credibility and honesty of the claimant amounted to sufficient grounds for the judge to reject the expert’s evidence.
21. Brooke LJ could find no flaw in the trial judge’s reasoning and gave the following judgment:
“In my judgment there is no principle of law that an expert’s evidence in an unusual field…must be dispositive of liability in such a case and that a judge must be compelled to find that, in his view, two palpably honest witnesses have come to court to deceive him in order to obtain damages, in this case a small amount of damages, for a case they know to be a false one.
In Liddell v Middleton [1996] PIQR P36 Stuart Smith LJ, who had immense experience of personal injury litigation, said this at page 43,
“We do not have trial by expert in this country; we have trial by judge.”
In the last resort it is for the judge…to determine, on the balance of probability, on all the evidence they receive, where the probabilities lie.”
22. Solicitors acting for claimants in LVI claims should carefully consider whether the claimant and any other witnesses in support are likely to come up to proof, particularly in cases where there is compelling expert evidence which could tip the scales in favour of the defendant.
Checklist
23. The following is a checklist of points to consider when handling LVI claims:
Claimants
· Access to the vehicle in question should be offered to the defendant’s insurers at an early stage for inspection of any damage.
· Contemporaneous GP notes or other relevant medical records should be disclosed to the defendant’s insurers as soon as practicable.
· If a medical report needs to be prepared, the medical expert should have the benefit of the claimants’ medical records before preparing the report.
· Once any corroborative medical evidence has been disclosed, a realistic Part 36 offer of settlement should be made.
· If a Part 36 offer is refused and the claimant’s evidence is accepted following a contested trial, apply for interest at an enhanced rate and / or indemnity costs (CPR 36.21(2) and (3)).
Defendants
· Check the claimant’s medical records and consider whether there could be a viable, alternative cause of the injuries complained of.
· Scrutinize the expert evidence and do not plead / pursue an allegation of fraud unless the quality of the expert evidence merits it and the defendant is likely to come across well at court.
· Identify any substantive reasons for disbelieving the claimant’s account.
· Forewarn the claimant’s advisers that the claim is being treated as an LVI case and that the costs of seeking advice and obtaining evidential material will necessarily be disproportionate to the value of the claim.
ALEJANDRA HORMAECHE
Tanfield Chambers
[1] [2005] EWCA Civ 277, [2005] All ER (D) 107.
[2] [2005] EWCA Civ 1510, [2005] All ER (D) 98.
[3] LTL 12/7/2005
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