LOW VELOCITY IMPACTS

Developments since Kearsley

The Court of Appeal’s attempt in Kearsley to provide guidance on the case management of low velocity impact (“LVI”) claims with a view to achieving a degree of uniformity of approach by the judiciary in handling such cases would appear to have been ineffective. It is for this reason that a circuit judge, rather unusually, gave permission to appeal his own case management decision, as he considered that it raised important policy issues, and the Court of Appeal was called upon once again to give further guidance on LVI claims in Casey v Cartwright.

The facts

The appeal related to His Honour Judge (“HHJ”) Holman’s decision to revoke permission to the parties to rely on the evidence of a joint orthopaedic expert on the issue of causation. The matter came before a differently constituted Court of Appeal[1].

The formalities

The further guidance offered in Casey can be briefly summarised. Where a defendant wishes to raise the causation issue, he should satisfy a threefold test, namely: (i) notify the parties in writing of this within 3 months of receipt of the letter of claim; (ii) expressly identify the causation issue in the defence; (iii) serve and file a witness statement identifying the grounds on which the causation issue is raised dealing, in particular, with the circumstances of the impact and any resultant damage within 21 days of service of the defence.

If the defendant is able to satisfy these formalities, the general position is that the court will give permission for the claimant to be examined by a medical expert nominated by the defendant for the purposes of preparing a report on the causation issue.

The effect of Casey

Once the defendant’s medical evidence is served, if it identifies a case on the causation issue which has real prospects of success, then the court would generally give the defendant permission to rely on it at trial.

The Court of Appeal did not interfere with HHJ Holman’s decision in this case to exclude the evidence of a single joint expert, one Mr Williams. It would appear from Dyson LJ’s judgment that the decision was based on the judge’s concerns as to Mr Williams being fit to act as an expert and his lack of objectivity in answering questions put to him by the claimant’s solicitors.

The author suggests that permission to rely on expert evidence at trial in LVI claims will rarely be refused, so long as the formalities summarised above are met, and perhaps only in cases where the case management judge is not satisfied as to the cogency of the report or the suitability and / or impartiality of the expert.

Other developments post-Kearsley

Practitioners will recall the suggestion in Kearsley that a series of test cases should be grouped together and referred to a High Court judge with experience in personal injuries litigation for authoritative guidance on the generic issues that are common to LVI claims.

Unfortunately, by the time of the Court of Appeal’s decision in Casey, some 10 months later, no series of trials had been determined. Following Kearsley, McCombe J was consulted by four designated civil judges on the Northern Circuit with a view to implementing the suggestion and, on 14^th March 2006, a Practice Note was issued directing that, pending an authoritative decision by a High Court judge, all applications to adduce expert evidence on issues of causation in LVI claims on the Northern Circuit should be issued or transferred to the relevant designated civil judge for a consistency of approach in the interim.

The author suggests that the most marked effect of Kearsley will have been that solicitors and barristers defending LVI claims will be far more reluctant to plead and pursue an allegation of fraud in circumstances where they could simply opt for putting the Claimant to proof, and in the absence of very cogent evidence to support such a course of action.

The recent case of Humphries

An interesting example of a case where the Defendant went so far as to allege a dishonest and fraudulent claim post-Kearsley is provided by Humphries v Matthews[2]. The defendant in Humphries succeeded in discharging the onerous burden of proving the very serious, indeed criminal, allegation that the claimant was abusing the court’s process dishonestly in an attempt to gain a pecuniary advantage by deception in an LVI claim.

The main reason for the claimant being discredited in this case was that he failed to mention any of his highly relevant past medical history and previous whiplash injuries to his own medical expert. This failure to respond honestly, fully and accurately to obvious questions put to him by his medical expert resulted in a finding of a deliberate and contrived attempt to present a claim for a whiplash injury as the effect of a rear end shunt. It transpired that the claimant had a pre-existing spinal disorder in that case.

Conclusions

It is perhaps unfortunate that the Court of Appeal was forced to acknowledge that the guidance it gave in Kearsley needed amplification in Casey v Cartwright. The latter case reinforces the view expressed by Brooke LJ[3] in Kearsley that it is ultimately for the case management judge to decide what directions are appropriate in any given case, and any guidance given by the Court of Appeal amounts to just that.

ALEJANDRA HORMAECHE

Tanfield Chambers, 6.2.07