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Kearsley v Klarfeld, Court of Appeal, 6 December 2005

14 December 2005
The issues

Case Management – Low Velocity Impact Collision – Whiplash – Low Speed Collision – Expert Evidence – Fraudulent Claim – Case Management

The facts

The Claimant had an accident on 22nd July 2003 for which liability was immediately accepted. The Defendant’s case was that he parked his car a few feet behind the Claimant’s car and that whilst he was waiting for the Claimant to move forward his foot slipped off the clutch and his car collided with the rear of the car in front.

The Claimant instructed a GP, Dr Picardo, although this had not been agreed by the Defendant’s insurers who had rejected Dr Picardo and had suggested Mr Newman.

Dr Picardo when he reported concluded that the Claimant had suffered a soft tissue injury to his neck and upper back from which he would recover within about 8 months. He noted that the Claimant had suffered a previous whiplash and that it was well recognised that a history of neck pain in the past could delay the recovery period.

A Claim Form was issued on 1st December. Allocation Questionnaires were completed in May. Both Claimant and Defendant requested allocation to the Fast Track.

In July an amended Defence was filed. It relied on the conclusions of Mr Ralph who was a member of a firm called Northern Assessors and who was a member of the motor institute but who claimed no other professional qualifications. He had concluded that the collision had taken place when the Defendant was driving at less than 3 mph and that in these circumstances the collision would not have caused any unusual force to be applied to the Claimant as he sat in his car.

The Defendant also referred to the views of Mr Newman that it was very unlikely that the injury had been sustained by the Claimant and that if any symptoms had been experienced, that they would not have been associated with the functional detriment claimed by the Claimant; and that Dr Picardo’s prognosis was pessimistic; and that in all these circumstances the Defendant’s case was that the Claimant was fabricating his symptoms and that no injuries were really sustained by him.

Directions were given by the Deputy District Judge who allocated the claim to the Fast Track and allowed the Claimant to rely on Dr Picardo and the Defendant on Mr Ralph and Mr Newman. In August the Defendant’s solicitors sought allocation to the Multi Track and permission for the experts to give oral evidence with a new time estimate of 2 days.

In October the Claimant’s solicitors disclosed a report from Mr Nee, an Orthopaedic Surgeon. He doubted Mr Ralph’s conclusions.

In November the Claimant’s solicitors applied for a reallocation to the Multi Track and permission to call an orthopaedic Surgeon instead of Dr Picardo. The matter came before the District Judge. The District Judge was concerned that directions being sought were disproportionate given that this was a relatively low value claim. She did not accept that the case should be re-tracked and re-timetabled but instead directed a timetable leading to a joint meeting between Mr Newman and Dr Picardo and refused to give directions that they give evidence orally. The Trial Window was put back two months.

The matter came before the Judge on appeal in March 2005. The Judge allowed the appeal and allocated the matter to the Multi Track allowing the Claimant to rely on Mr Nee in place of Dr Picardo and allowing the Claimant to file and serve a report from the engineer. The matter came before the Court of Appeal.

The decision

The Appeal had to be set in the context of a contemporary problem. The dilemma exposed by these cases was stark; – a personal injury claim only just above the small claims limit; an allegation by the Defendant’s insurers based on complex theorising, to the effect that the claimant had set out to present a claim that he or she knew to be false; a reluctance on the part of the Defendant’s insurers to accept that the Court could do justice in relation to liability and causation simply by hearing the lay witnesses describe what happened in the accident and by considering written medical evidence about injuries and damage to vehicles. How was such a case to be fairly tried in less than 2 days? All of this had to be set against the background that a distressing feature of contemporary England was a willingness on the part of people to put forward bogus claims for damages of kind which the Defendant’s insurer could not properly evaluate without recourse to the type of expert evidence that had featured in this sort of case.

Until some of the issues that arose in these disputes had been authoritatively dissected and analysed at High Court level, it would not be wrong or disproportionate to allocate what would ordinarily be a Fast Track claim by reason of its value into the Multi Track on the grounds of the criteria of the admission of oral expert evidence was satisfied and that the Trial was therefore likely to last more than one day.

It was worrying to think that these issues were now being litigated on an individual basis at disproportionate expense in quite small claims up and down the country. Consideration should be given by the designated Civil Judges on the Northern Circuit to the possible value of grouping a number of these claims together before an experienced High Court Judge. Although a single Judgment in a group of cases would not be able to resolve all the uncertainties it would surely be likely to furnish a more structured framework for judicial decision making in this field than was available to District Judges and Circuit Judges today. In these circumstances the Judge had been correct to permit the Claimant to call Mr Nee and to seek an expert engineer to match Mr Ralph. He was entitled to give directions which would ensure the parties were on a level playing field for that type of Trial.

The Court of Appeal was puzzled by the practice that had begun to emerge in low velocity impact litigation requiring the defence to include a substantive allegation of fraud or fabrication. The consequence of this case was that the Defendant does not have to show or allege fraud in order to succeed. It was sufficient to set out fully the facts from which they would be inviting the Judge to draw the inference that the Claimant had not in fact suffered the injuries that he asserted. All that was necessary was that such an assertion should be based on the sort of assertions that had been pleaded in the amended Defence in this case, namely the substantive allegation that the accident had occurred when the Defendant’s vehicle was travelling at only a few miles per hour together with a substantive allegation that their expert had reached the conclusions that it was unlikely that the injury was sustained by the Claimant.

There was no substantive obligation on the Defendant to plead fraud as long as his reasons for resisting the claim were clearly stated in accordance with CPR Rule 16.5.

In cases of this type when making a claim, the Claimant’s solicitors should offer access to their client’s vehicle to the Defendant’s insurers for the purpose of early examination and give early disclosure with the relevant passages redacted if necessary of any contemporaneous GPs or other relevant medical notes.

In turn it would be desirable for the Defendant’s insurers to make it clear that they regarded the claim as a low velocity impact case in which they would be seeking more expensive advice than the value of the claim would justify.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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