Crashing out

The role of expert evidence in relation to causation in low velocity impact assessment was provided with further guidance last month in Casey v Cartwright [2006] EWCA Civ 1280. Amplifying the guidance provided in Kearsley v Klarfeld [2005] EWCA Civ 1510, Lord Justice Dyson said: 'We do not consider that it is profitable to analyse the judgment in Kearsley and treat it as if it were a statute. [...] But it is undesirable that different courts should adopt different approaches to the same general problem.' If all the hurdles in Casey have been satisfied (see below) the general rule is the defendant should be entitled to their own orthopaedic evidence.

Background

The parties in Casey were involved in a road traffic accident (rear end shunt) for which the defendant admitted liability subject to causation. The defendant's insurers contended this was a low velocity impact case; that is the force transmitted from the defendant's vehicle to the claimant's vehicle was insufficient to cause the claimant to sustain personal injury. The claimant's claim for personal injury was supported by a medical report.

At a case management conference the claimant was given permission to rely upon their medical report and permission was given to both parties to instruct a joint expert to provide an opinion on the orthopaedic issues. The opinion was provided by Mr Williams. At a later hearing HHJ Holman considered there were problems with Mr Williams' report. Consequently, permission to rely on the joint report was revoked and the defendant was given permission to put questions to the claimant's expert and for the expert to give oral evidence at trial. The defendant appealed.

Narrow issue

The defendant tried to argue that the judge had erred in principle and/or reached a decision that was not reasonably open to him. The appeal failed. Such a decision corroborates the view expressed by Lord Justice Brooke (Kearsley, para 35). In the last resort it must be for the judge with case management responsibilities in the particular case to decide what directions are appropriate. Therefore, judges retain their discretion in case management decisions and each case remains fact sensitive.

Time limits

The Court of Appeal has placed the burden firmly on the defendant by formulating a timetable for the defendant to comply with. This ensures defendant solicitors know what is expected of them in order to be able to rely on the evidence. However, the requirements are nothing over and above what the defendant has previously undertaken. The timetable is as follows:

a) Within three months of receiving the letter of claim, the defendant should notify all the parties in writing that this is a low impact case and causation will be raised as an issue (this is required by the personal injury protocol).

b) The low impact argument should be identified in the defence supported with a statement of truth (this was required after Kearsley).

c) Within 21 days of serving the low impact defence, a witness statement that contains the supporting evidence should be served on the court and all other parties. This should include the circumstances of the impact and any resultant damage (provision for a statement has always been in the directions. This is probably a little earlier than would usually be the case).

The Court of Appeal take the view that the defendant should 'usually' be denied the opportunity to obtain expert evidence of causation if they fail to comply with a) above. The use of the word 'usually' suggests there are still circumstances, if the defendant fails to comply with the time limits, when permission to rely on the evidence could still be given. However, it is suggested that this sanction may apply to cases pre the judgement of Casey and if the defendant is in breach of stages b) and c).

The general rule

It is only when and if the steps identified above have been followed the court will 'generally' give the defendant permission for the claimant to be examined by a medical expert nominated by the defendant. This does not necessarily mean the defendant will be able to rely on the evidence. The judge must then consider the report which has been obtained in conjunction with the entirety of the defendant's evidence. On the basis of this evidence the defendant must convince the court that the causation issue has been properly identified and has a real prospect of success. If the defendant overcomes this hurdle the Court of Appeal are of the opinion that 'generally' the defendant should be given permission to rely on the evidence at trial.

The use of the word 'generally' in both stages provides a further loophole for solicitors acting for the claimant to exploit. Cases may be considered by the court not to fall within the general rule for a variety of reasons, including the defendant's failure to comply with time limits and the overriding objective. However, if the defendant is refused permission, the judge will need to provide a good reason why the case falls outside the general rule, or the decision may be the subject of a successful appeal.

Overriding objective

If the defendant overcomes the hurdles already referred to above, the final hurdle is the overriding objective which the judge can utilise to refuse the defendant evidence. One example given is, if there is a factual dispute that is likely to resolve the causation issue. Furthermore, proportionality still has a role to play and is an argument available to the claimant, as the majority of the cases in which the low velocity defence is raised are worth very little money. Proportionality is certainly one of the principle objections that judges tend to raise. Fortunately, for solicitors acting for the defendant, the Court of Appeal clarified their view: if the 'damages claimed are so small and the nature of the expert evidence that the defendant wishes to adduce so extensive and complex', permission should be refused. The question is what level of damages are 'so small'. Assistance is provided in the CPR. A claim for personal injury that is expected to be less than £1,000 is allocated to the small claims track. Therefore, the CPR suggests that any claim for personal injury below £1,000 is 'small'. This interpretation assists the defendant, as most of the cases are of fast track value.

Joint reports

The Court of Appeal is of the opinion that, as the causation issue is currently so controversial, judges should be 'slow to direct that expert evidence on the causation issue be given by a single joint expert'. In the current circumstances. this seems sensible. From experience, I am aware that solicitors for the claimant and defendant have struggled to agree such an expert. Generally the parties are already aware of the expert's view on causation which is either in favour of the defendant or the claimant. However, the Court of Appeal does not go as far as saying such a course would be wrong.

Outstanding issues

If the defendant overcomes all the hurdles and, I would suggest, demonstrates to the judge that it is a case where the low velocity argument can be legitimately raised, the defendant is more likely to be given permission to rely on expert evidence which deals with the orthopaedic issue. However, there are several loopholes within the judgment that solicitors acting for the claimant can exploit.

If the defendant is able to rely on this evidence, what is not considered is whether the claimant will be able to obtain a further report from an expert who has the experience to deal with the causation issues. This often becomes an issue if the initial report which the claimant relies upon is from a General Practitioner who is unable to comment on the causation issue. However, if the defendant complies with the time limits, this will allow solicitors acting for the claimant at an early stage to obtain a report from a consultant orthopaedic surgeon with experience in low velocity impact claims. Should the claimant still choose to obtain a report from a GP that is the claimant's choice. If the decision has been made with full knowledge of the defence, I anticipate the judge will be more reluctant to allow the claimant to obtain a further report. This could be a risky position for the claimant to be in.