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Casey v Cartwright, Court of Appeal, 5 October 2006

13 October 2006
The issues

Case management – low velocity road traffic claim – expert evidence.

The facts

On the 6th September 2004 the Defendant’s car hit the rear of the Claimant’s car. Liability was admitted. Proceedings were begun in March 2005 with damages limited to £10,000.00. The Claimant relied on the reports of Dr Middleman who concluded that the Claimant had suffered a typical soft tissue whiplash injury which, with physiotherapy, should recover within 9 months of the accident. At a very early stage the Defendant’s insurers said that they thought this was a low velocity impact case and that causation would be an issue. The Defence pleaded this issue, noting the fact that it was a gentle impact and that the speed of the Defendant’s vehicle was about 2 mph and that the force from the Defendant’s vehicle transmitted to the Claimant’s vehicle was insufficient to cause the alleged personal injury.

The District Judge gave both parties leave to instruct a joint expert to deal with orthopaedic issues. The claim was allocated to the Multi Track and transferred to Manchester.

The joint expert’s report concluded that there was much evidence to the effect that impact velocities of between 5 and 10 mph injury to people inside the vehicle struck was unlikely to occur, and that if it did occur would result in symptoms lasting no more than a few days. Mr Williams concluded that on the information available, and on a balance of probability, the collision in this case occurred at a low velocity with a delta v of less than 5 mph.

The matter came before the Judge for case management in March 2005. The Judge revoked the decision of the District Judge, giving leave to the parties to rely on the evidence of Mr Williams. Amongst other issues the Judge was concerned at a lack of objectivity in Mr Williams’ evidence – matters to which he referred to as “problems” – and the Judge concluded that Mr Williams was not suitable to act as an expert witness. Revoking permission to rely on Mr Williams the Judge gave permission to the Defendant to put questions to Dr Middleman and gave further permission to Dr Middleman to give oral evidence at Trial if so required by the Defendants. The case remained in the Multi Track.

The Defendant appealed.

The decision

In Kearsley v Klarfeld the Court of Appeal had tried to give guidance to Judges faced with issues relating to low velocity impact claims. The Court had been told that since Kearsley had been decided there had been a wide divergence of approach and interpretation by Judges. It was clear therefore that the Court’s attempt to provide guidance in that case had been unsuccessful and the guidance needed to be amplified.

Case management decisions were ultimately a matter for the discretion of the Court. It was undesirable however that different Courts should adopt different approaches to the same general problem. In ordinary run of the mill road traffic whiplash cases there would be no need for expert evidence on the issue of causation. The issue as to whether such evidence should be allowed arose only where the Defendant contended that the nature of the impact was such that it was impossible or very unlikely that the Claimant had suffered any injury or any more than trivial injury as a result of the collision and that accordingly the Claimant had fabricated the claim. It was only in such a case that the causation issue arose.

If a Defendant wished to raise the causation issue certain formalities should be satisfied to minimise the risk of confusion and delay. A Defendant should notify all other parties in writing that it considered this to be a low impact case and that it intended to raise the issue of causation. This should be done within 3 months of receipt of the letter of claim. The issue should be expressly identified in the Defence and 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 on the other parties a witness statement clearly identifying the grounds on which the issue is raised. The 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. On receipt of the witness statement the Court would, if satisfied that the issue had been properly identified and raised, generally give permission for the Claimant to be identified by a medical expert nominated by the Defendant.

If on receipt of the Defendant’s medical evidence the Court was satisfied on the entirety of the evidence submitted that it had properly identified a case on the causation issue which had a real prospect of success then the Court would generally give the Defendant permission to rely on such evidence at Trial.

There may be circumstances where a Judge can reasonably decide that notwithstanding the Defendant’s evidence and the real prospects of success, that the overriding objective nonetheless requires permission for expert evidence to be refused. It is not possible to produce an exhaustive list of such circumstances but they will include the following:-

1. The time when the Defendant notifies the Claimant that he intends to raise the issue. Unless this happens within 3 months permission should normally be denied to the Defendant;
2. If there is a factual dispute, the resolution of which one way or the other is likely to resolve the causation issue, then that is a fact militating against the granting of permission to rely on expert evidence. In such cases expert evidence is likely to serve little or no purpose.
3. 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 produce so extensive and complex that considerations of proportionality require refusal of permission. This is a matter for the good sense of the Judge.
4. The causation issue was controversial. Until 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. Such test cases should be brought on as soon as possible.

Comments

As a clarification this case will no doubt be welcomed as something helpful. The list of circumstances in which a Judge can depart from the general guidance might be thought to be somewhat less helpful, particularly since the second issue may lead Defendants to the view that the only way forward in such cases is to look for a split Trial and as to the third, there is surely the possibility that, as with all issues of proportionality, judicial views as to the “smallness” of damages and the “complexity” of the Defendant’s evidence, may be somewhat elastic.

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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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