Update on low speed impacts: Casey v Cartwright

By Tim Kevan and Duncan McNair

Following on from Armstrong v First York and then Kearsley v Klarfield, we now have a third Court of Appeal case in the area of low speed impact cases and whilst in some ways it provides useful, it also adds even more room for arguments at the interlocutory stages.

Briefly, low speed impact cases involve insurers arguing that the speed of the collision means that the accident could not have caused the Claimant’s injuries.  Armstrong fist looked at this although it really only decided that a court can choose o follow a Claimant over an expert which on its face is nothing new.  Kearlsey suggested that such cases  may go into the multi-track and also did not criticise the use of medical and engineering evidence.  It alsosuggesed that so long as the case being put was fully pleaded, fraud itself did not need to be.

Following this, the Court of Appeal has now given some further guidance in the case of Casey v Cartwright.  The full transcript can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/1280.html&query=casey&method=all.  In that case the Judge below had criticised the joint medical expert and revoked permission.  The appeal of that decision itself was dismissed on the basis that it was within the judge’s wide discretion.  However, the Court gave some guidance more generally.

First, they said that it is desirable that, if a defendant wishes to raise the causation issue, he should satisfy certain formalities.  The Defendant should notify all other parties in writing that he considers this to be a low impact case and that he intends to raise the causation issue.  This should be done within three months of receipt of the letter of claim. The issue should be expressly identified in the defence, supported in the usual way by a statement of truth. Within 21 days of serving a defence raising the causation issue, the defendant should serve on the court and the other parties a witness statement which clearly identifies the grounds on which the issue is raised. Such a witness statement would be expected to deal with the defendant's evidence relating to the issue, including the circumstances of the impact and any resultant damage.

The court then went on:

31. Upon receipt of the witness statement, the court will, if satisfied that the issue has been properly identified and raised, generally give permission for the claimant to be examined by a medical expert nominated by the defendant.

32. If upon receipt of any medical evidence served by the defendant following such examination, the court is satisfied on the entirety of the evidence submitted by the defendant that he has properly identified a case on the causation issue which has a real prospect of success, then the court will generally give the defendant permission to rely on such evidence at trial.

Having said this, the court then went on to state that there will be circumstances where the judge decides that, even though the evidence submitted by the defendant shows that his case on the causation issue has real prospects of success, the overriding objective nevertheless requires permission for expert evidence to be refused.  This clearly begs the question as to what those circumstances might be.  The answer was the following:

33. …It is not possible or desirable to produce an exhaustive list of such circumstances. They include the following. First, the timing of notification by the defendant that he intends to raise the causation issue. Unless the defendant notifies the claimant of his intention to raise the issue within 3 months of receipt of the letter of claim, permission to rely on expert evidence should usually be denied to the defendant. It is important that the issue be raised at an early stage so as to avoid causing delay to the prosecution of the proceedings. The period of 3 months is consistent with para 2.11 of the Pre-Action Protocol for Personal Injury Claims which provides that a defendant be given 3 months to investigate and respond to a claim before proceedings are issued.

34. Secondly, if there is a factual dispute the resolution of which one way or the other is likely to resolve the causation issue, that is a factor which militates against the granting of permission to rely on expert evidence on the causation issue. In such a case, expert evidence is likely to serve little or no purpose.

35. Thirdly, there may be cases where the injury alleged and the damages claimed are so small and the nature of the expert evidence that the defendant wishes to adduce so extensive and complex that considerations of proportionality demand that permission to rely on the evidence should be refused. This must be left to the good sense of the judge. It does not detract from the general guidance given at para 32 above.

The court then went on to comment on joint experts stating that they accepted that at least until some test cases have been decided at high court level, judges should be slow to direct that expert evidence on the causation issue be given by a single joint expert on the basis that the causation issue is controversial.  They also repeated what was said in Kearsley about the desirability of having authoritative guidance by a test case or cases on the issue as soon as possible.

Clearly there are a lot of issues which were covered and the ambiguities will no doubt be argued out in the county courts.  Perhaps the really significant points are in the exceptions to the general rule which they mention.  First, as to the effects of failing to meet the timetable.  No doubt there will be many arguments on this.  Second, the sort of cases the court was alluding to when mentioning factual disputes.  Potentially this might be where, for example, the simply dispute is as to whether the collision was at great speed or no speed at all and both sides are agreed that this is the only issue.  Perhaps most controversial will be the mention of proportionality as almost all of these cases are small and it would not be surprising to see this passage being mentioned in such cases and judges potentially deciding it in different ways in different regions.  It is unfortunate perhaps that the court has left such uncertainties when it was attempting to provide guidance as to the conduct of the cases.