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No need for notice of hearsay evidence

23 January 2012

There is no need for a separate notice of the fact that reliance is to be based on hearsay evidence contained in a court bundle, the Court of Appeal has decided.

Giving the leading judgment in Charnock and others v Rowan and others [2012] EWCA Civ 2, Sir Stephen Sedley said that such a rule could lead to “almost limitless and costly wrangling both before and at the trial”.

The case involved a crash in Liverpool, in which a saloon car hit a stationary bus.

“The damage to the vehicles was slight – it cost £427.50 to repair the bus,” Sir Stephen said. “But 14 passengers on the bus claimed to have suffered whiplash injuries, and in the proceedings with which we are concerned ten of them succeeded in establishing liability for modest agreed damages.”

Sir Stephen said the saloon car’s insurers were “understandably highly suspicious” of the claims.

However, he said the trial judge found that “the totality of expert opinion allowed the possibility of injury at lower speeds, and that there was in reality no scientific threshold below which injury could not occur.

“This was in part because the physiological mechanism of injuries such as those the court was concerned with was itself not scientifically known. In short, the judge found it not impossible that this minor collision could have caused whiplash injuries to passengers on the bus.”

Sir Stephen said the insurers also argued that the claimants’ accounts were “pockmarked with inconsistencies, making them one and all unworthy of belief”.

He criticised the trial judge, Judge Gore QC, for suggesting that it was “an examining doctor’s job to make out the case, if there is a case, for disbelieving a claimant’s account of how he or she came to suffer injury, or of the injury he or she has suffered.

“There are of course cases in which, for clinical or related reasons, the doctor is driven to advance such an opinion; but if it was intended here to suggest that the doctor’s role is routinely that of a sleuth, I must record my respectful disagreement.”

Sir Stephen said forensic medical practice had been “disfigured in the past” by practitioners who took on such a role.

He also took issue with the trial judge on his conclusion that, had the defence been properly conducted, formal notice would have been given of the insurers’ intention to rely on hearsay contained in medical reports.

However, accepting all of counsel for the insurers’ strictures on the judge’s approach, Sir Stephen concluded that there was nothing in the trial judge’s fact-finding that suggested he had gone any distance towards actually applying his view of the law and “when you refer back to the detailed findings he has made about each claimant, you find no sign of any devaluation of the discrepant evidence relied on by the insurers to discredit them”.

Sir Stephen dismissed the appeals. Mr Justice Mann and Lord Justice Gross agreed.

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Road traffic