These notes accompany a talk given by Matthew White from St John s Chambers, Bristol on 18/11/10. This is not an advice. LOW VELOCITY IMPACT RTAs

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1 These notes accompany a talk given by Matthew White from St John s Chambers, Bristol on 18/11/10. This is not an advice. LOW VELOCITY IMPACT RTAs 1. The defendants insurers argument traditionally goes like this:- (i) The road traffic accident in this case was at low speed; (ii) It is impossible to sustain a whiplash (or other) injury at such low speed; accordingly (iii) The court cannot be satisfied that the claimant sustained the claimed or any injury in the RTA. 2. The insurer sometimes seeks to rely upon the following:- (i) An engineering report considering the damage to the vehicles and concluding that the speed of impact must have been very low. (ii) A medical report, sometimes from a from a self-styled biomechanical orthopaedic expert. 3. I have given a version of this talk over a number of years now, and every time the trend of such cases is a little different. These cases started as big business in the north of England, then spread across the country. They then went into partial retreat (with some insurers apparently taking the view that they were losing too many of them to make them worthwhile). More recently they have changed direction slightly. The traditional LVI defence is still being run, but defendants are focussing more on fraud as a side-dish to the LVI argument. This talk focuses on LVI (fraud is being covered separately), but there is obvious crossover between LVI and fraud claims. The early days 4. The pattern of the litigation at first was:- Claimant obtained medical evidence from a consultant or GP of LVI/ δv. Matthew White, 18/11/10. Page 1 of 14

2 his/ her choice; Defendant obtained an engineering report and posed a series of questions to the claimant s medical expert challenging the (inevitable) conclusion that the claimant tells me that his/ her neck hurt for 6 months [or whatever], and in the absence of any alternative cause in my view that is attributable to the accident. Questions could be detailed, and often involved questions relating to specific literature and delta V. Claimant s expert answered the questions and defendant was inevitably unhappy with the answers provided and sought its own medical evidence. There was then a fight as to causation. 5. Defendants ran into the problem of engineers who went too far, often crossing the limit of their expertise by some distance to conclude that injury could not have been sustained. They stopped seeking engineering evidence so routinely, preferring sometimes to rely upon a medical expert alone. The defendant s medical expert would, typically, set out the defendant driver s version of the accident and opine that injury could not have been sustained. 6. An early significant case on the topic was Armstrong v. First York [2005] EWCA Civ 277. In that case the claimant s car was struck a modest blow by a bus for which the defendant was responsible (leaving a 5 inch scratch along the side as deep as a double thickness of normal paint). Mr Childs (engineer) gave joint expert evidence that the claimants could not have been injured in the accident. The claimants said that they had sustained injury, and had attended hospital and their GPs. HHJ Stewart QC faced a conundrum. He found:- (i) The claimants to be honest witnesses; and (ii) Mr Childs evidence to have stood up to cross-examination. LVI/ δv. Matthew White, 18/11/10. Page 2 of 14

3 7. To resolve this conundrum the judge needed to decide either that the claimants were lying or that the expert was wrong for some reason which the judge did not know. He found that because he believed the claimants, the expert must be wrong for some reason which he did not know. The Court of Appeal upheld this decision. 8. The Court of Appeal also found that (per Brooke LJ at para 29) In very many cases the evidence of a witness like Mr Childs may very well be sufficient to tip the balance strongly in the defendant s favour. That did not happen in practice. Whilst you will find defendant representatives who say that they won (and win) these cases a lot, in my experience that is inaccurate. Rather Ds win in cases where C is extremely shady, and it is rarely the LVI argument that results in the win (rather C struggles because he/she is shown to be a liar, although the LVI evidence can be a useful back up to the evidence of lies in such cases). 9. In Liptrot v. Charters, unreported, 6/4/05, Manchester CC, HHJ Holman demolished PJ Childs evidence in such a way as might be useful in other cases, but does not close the door on the low velocity impact argument. The problem of an unpredictable approach 10. A problem faced by both sides was that different courts were adopting different approaches in these cases. Judicial opinion included:- (i) This argument is a waste of time and money. If I let the defendant have an engineer and a medic we will just end up with an expensive trial which the defendant will lose anyway, and since the claim is only worth 1,500 it is not worth it. No permission for any defendant s experts. (ii) It is only fair that the defendant be allowed to put the arguments that it wants to and it needs evidence to so that, so LVI/ δv. Matthew White, 18/11/10. Page 3 of 14

4 (iii) defendant can have the experts that it wants. A not uncommon approach was to analyse the facts of the case. Where there was no reason to suspect that the claimant was not being straightforward, expert evidence would be refused to the defendant. If, however, there was some peg upon which the defendant could hang the proposition that symptoms could not be shown to come from the accident, courts would be more willing to allow the evidence. This approach could result in expert evidence being refused to the defendant when (for example) the claimant had a pre-existing problem (and hence was vulnerable), or had immediately attended the GP complaining of whiplash and had then undergone treatment for the same. Where there were no contemporaneous records or there were contradictory records, the evidence would be more readily allowed. The development of a standard procedure 11. In Kearsley v. Klarfeld [2005] EWCA Civ 1510 (CA, 6/12/05) the Court of Appeal have given a strong steer in favour of:- (i) Allocating claims of this type to the multi-track; (ii) Giving the Defendant permission to rely on expert evidence; (iii) Giving equality of arms such that if the defendant gets an orthopaedic surgeon, the claimant ought not to be stuck with his/her GP (or whatever less qualified expert); (iv) Having a trial with oral expert evidence. They also indicated the hope that a test case (or cases) will be run to give authoritative guidance on some of the issues that arise in these cases. We are still waiting for that. I first gave a lecture in these terms in I am now (4 years later) no longer holding out for a test case. The Court of Appeal also made clear that defendants do not need to plead fraud in these cases. 12. Casey v. Cartwright [2006] EWCA Civ Important parts of the LVI/ δv. Matthew White, 18/11/10. Page 4 of 14

5 decision are:- (i) If a defendant wishes to raise low velocity causation he should notify all other parties in writing within 3 months of receipt of the letter of claim. (ii) The issue should be expressly identified in the defence supported by a statement of truth. (iii) Within 21 days of serving a defence raising the causation issue the defendant should serve on the court and the other parties a witness statement which clearly identifies the grounds on which the issue is raised. That statement should deal with the defendant s evidence on the issue including the circumstances of the accident and any resultant damage. (iv) Upon receipt of the witness statement, the court will, if satisfied that the issue has been properly identified and raised, generally give permission for the claimant to be examined by a medical expert nominated by the defendant. Thus there are procedural hoops for defendants to jump through which some fail to clear. If the hoops are cleared on a legitimate evidential basis (or, presumably, if the defendant secures the court s indulgence on the question of timing etc, providing that the evidential basis is sound), the defendant will get its own medical evidence. (v) If on receipt of the medical evidence the court is satisfied on all of D s evidence that he has properly identified a case on causation with a real prospect of success (see further below), permission will generally be given to rely on that evidence at trial. (vi) There will, however, be circumstances where the judge decides that, even though the evidence submitted by the defendant shows that his case on the causation issue has real prospects of success, the overriding objective nevertheless requires permission for expert evidence to be refused. Such circumstances include (a) a failure on D s part to give notice within 3 months of receipt of the letter of claim; (b) where LVI/ δv. Matthew White, 18/11/10. Page 5 of 14

6 (vii) there is a factual dispute the resolution of which is likely to resolve the causation issue [in the author s experience this second category of cases is unlikely to prove realistic:- where there is a dispute on severity of impact there is always a spectrum of possible findings rather than a straight choice, but judges can nonetheless go for this argument to refuse a defendant an expert, and claimants should certainly try it]; and (c) where the claim is so small and the expert evidence so extensive that proportionality demands its exclusion. There is a firm steer against single joint experts in cases of this nature until test cases have been determined. The call for such test cases was repeated. 13. FOIL were quick to comment on Casey, effectively claiming it as a victory for defendants but raising concern that defendants might be prejudiced by unilateral witness statement exchange. Defendants generally adopted the (in my view entirely appropriate) approach of providing an early witness statement only dealing with the severity of impact (holding back any evidence on for instance the circumstances of the accident if liability is in dispute). That approach does not seem to have caused any problems in practice despite FOIL s initial concern. 14. Mahmood v. Shaw and Buckley v. Cargill, unreported, 29/2/08, High Court (Manchester - Akenhead J) are instructive on the application of Kearsley and Casey. (i) In Mahmood permission for defendant s orthopaedic evidence was refused at first instance because (a) the judge thought that the proposed expert was a partisan LVI expert; and (b) the judge could not see the point of examining a claimant whose symptoms had resolved on his own account. The appeal was successful on 5 bases:- (1) Equality of arms; LVI/ δv. Matthew White, 18/11/10. Page 6 of 14

7 (ii) (2) It is not disproportionate to have the expert examine the Claimant (that cost being born by D initially at least); (3) Resolution of symptoms does not make examination pointless, since the expert will base his view on his discussion with the claimant and would be assisted by seeing a claimant with a pre-existing condition; (4) Examination by D s expert need not lead to a long delay; (5) It cannot be a ground to refuse permission that the expert has an interest in LVI:- it would be odd if the expert did not have such an interest. In Buckley permission for a defendant s expert to examine the claimant was refused at first instance despite the fact that counsel had agreed between themselves (and had put in a consent order) that the defendant s expert should examine the claimant. The appeal was allowed on the same basis as in Mahmood, the appeal judge adding that where sensible parties, properly advised, have agreed directions, as a matter of generality, unless it offends against some fundamental principle of practice in these courts, or if the agreement will lead to a significant waste of court resources, it should generally be the case that consent orders should be upheld by judges. Real Prospect of Success :- Strategy 15. It will be noted from the above that after D has its medical evidence, it must have a real prospect of success on the causation issue before permission to rely on the evidence will be given. That is the same as the test under CPR Part 24 for summary judgement:- C can get summary judgment where D has no real prospect of success (and there is no other compelling reason why the claim should be disposed of at trial). Where a claimant wants to argue that there is no real LVI/ δv. Matthew White, 18/11/10. Page 7 of 14

8 prospect of success hence permission should not be given for the expert s report, he/she may wish to raise a Part 24 application for summary judgment on the claim. 16. There is some tactical thinking to be deployed here. (i) Whilst, technically, the court is considering real prospect of success to determine whether or not a defendant gets permission to rely on its own evidence, as a matter of practical reality, that real prospect of success bar is set reasonably high:- judges tend to need to see a defendant s case which is at least half-decent on the evidence. (ii) When considering whether or not to give summary judgment, real prospect of success tends to be set lower such that really quite iffy cases are allowed to proceed to trial. (iii) Thus whilst, technically, the test is the same in both instances, as a matter of practical reality a judge will more often say that there is no real prospect of success when the only outcome of that determination is that the defendant cannot rely on medical evidence than when the outcome is judgment for C. 17. Accordingly it seems to me that it is going to be in a rare case that a claimant wants to issue a proper Part 24 application (for summary judgment) to be heard with the case management conference at which permission for D to rely on expert evidence is considered:- such application would lower the bar (for D) unnecessarily. 18. If a decision favourable to C is made at the CMC, C could:- (i) Immediately make an oral application for summary judgment; (ii) Have the court record in the decision that permission for expert evidence is refused, D s case having no real prospect of success (thereby setting up a subsequent application); LVI/ δv. Matthew White, 18/11/10. Page 8 of 14

9 (iii) (iv) Seek to agree with D after the hearing that as the defence has no real prospect of success, they might as well allow judgment to be entered; and/or Make a Part 24 application. 19. In my view it is mistake to apply for summary judgment under Part 24 and strike out (Part 3) together. There is a risk of a court striking out the claim (which seems to me inappropriate in the usual case, increasing the risk of an appeal) rather than giving summary judgement. This is a common mistake by claimants. Other points for Claimant solicitors 20. The Court of Appeal in Kearsley suggested that when intimating a claim, it would be appropriate to:- (a) offer access to the claimant s vehicle to the defendant s insurers for the purpose of early examination; and (b) give early disclosure (with irrelevant parts redacted if need be) of contemporaneous GP or other medical notes. 21. I have reservations about the first of these suggestions. Defendants will use the regular engineers who are very defendant friendly. Simply offering inspection sets up the situation for the Defendant to get such an expert on board. Rather I would, in appropriate cases, offer access to the vehicle for a joint inspection if the Defendant considers that an inspection is desirable. That way some control can be kept over the type of engineer used. 22. Take care before agreeing to the instruction of PJ Childs or one of the other regular assessors as a joint engineer (such as AIA, UKAA or GBB). 23. Be ready to point out where an engineer has stepped outside of his/her area of expertise. LVI/ δv. Matthew White, 18/11/10. Page 9 of 14

10 24. Consider your own expert engineering evidence and at least put the defendant s engineer s conclusion to your medic. 25. Be aware that if low velocity causation might be an issue, it is dangerous to rely on a GP (or orthopaedic expert who is not up to the job). I would incline in appropriate circumstances towards waiting for the requisite 3 months from the protocol letter before getting the expert evidence. 26. Be aware of the tight Casey timetable and the impact that failure to comply with it might have on a defendant s ability to run the argument. To ensure that a defendant is hamstrung by timetable failures, it is important that the claimant does everything expeditiously (since if the defendant delays by a short time but that it is the context of a lengthy delay by the claimant it seems to me that it would be easier for a defendant to persuade a court to overlook its delay). 27. Be aware in particular that D ought to raise LVI within 3 months of the protocol letter before getting permission to have an expert examine the claimant:- be reluctant to agree to examination where D has not complied with that Casey requirement. 28. Be alive to the possibility of a non-organic cause of genuine pain. 29. Even if C loses he/she might be able to avoid the costs of D s orthopaedic evidence if it was of little or no use. See para 12 of Mahmood. Other points for Defendant solicitors 30. The argument exists - you need to be considering in low speed impact cases whether or not to deploy it. LVI/ δv. Matthew White, 18/11/10. Page 10 of 14

11 31. Your biggest problem is that low speed impacts tend to have low value quanta. This is still a controversial topic which many courts are unimpressed by. 32. Because of the controversy, if you want to run this argument you need to do everything by the book. In particular, getting the engineering evidence on a joint basis might be a good idea and following the strict timetable in Casey is a must. Practical rules of thumb are to avoid claimants with previous problems and ensure that your driver is on side. 33. Have an eye on economics. Some defendant insurers do not seem to care about this argument on a case by case basis - they might be aiming to prevent people running low speed RTAs at all. 34. Make an accurate, early assessment. It is unwise to run LVI simply to keep the option open for later. You risk C issuing and escaping the fixed recoverable costs regime. 35. Be prepared to deal with the argument (not run in Armstrong) that feasibility of injury is a matter for a medical rather than an engineering expert. 36. Be aware of Wooder v. Ward 19/2/04 (appeal to HC in Liverpool). This can be used as authority for the proposition that costs should be limited if the claim is allocated elsewhere than the SCT because of exaggeration on the part of the claimant. 37. Don t admit liability and don t let judgment be entered against you where the question of damage is in dispute. My view (others differ) is that even where it is admitted that C s car was damaged, provided that the damage claim is settled pre-proceedings, judgment should not be entered in the PI claim where causation of all damage which is LVI/ δv. Matthew White, 18/11/10. Page 11 of 14

12 the subject matter of the claim is in dispute (although don t die in a ditch over this:- provided that it is accepted that if D wins on the causation issue C will be liable for costs (and that the judgment will not act as a bar to that) it doesn t really matter). 38. The more arguments on C s credibility that you have to back an LVI argument the better (see below for an example case). 39. Make sure that your insurer has checked the MIAFTR database (the Motor Insurance Anti-Fraud & Theft Register) and the CUE database (Claims & Underwriting Exchange). You want to know whether or not C has made previous similar claims. Discovery that he/she has (and or that the passengers have) made previous claims can lead you down the fraud road as well as propping up your LVI argument. It can also be worth checking Facebook to see what C has been saying about an accident on his/her wall; also look to see whether or not the claimant is friends with the defendant (you d be surprised!). Points for both sides 40. Note that the defendant s allegation can be one of fraud (but is much less likely to be after Kearsley). It is professional misconduct to allege that without evidential foundation, so take care. 41. Be aware that there is a large volume of research literature on low impact RTAs. A list of all of the cited references of which I am aware runs to about 6 pages. You will need to be sure that your expert is up to the job if you are likely to have a fight on an issue like this. 42. Part 35 causes some arguments in connection with LVI claims. I have seen some unappealing arguments run by claimants:- (a) questions should not be allowed because they were not put within 28 days of service of claimant s expert report; (b) questions should not be allowed because they are not to seek clarification. It is usually LVI/ δv. Matthew White, 18/11/10. Page 12 of 14

13 sensible to be more flexible on this. The Shape of Things to Come? 43. From the early days of excitement about LVI claims, things seem to me to have quietened down a fair bit. I observe the following trends:- (i) Insurers are now much keener on dealing (properly) aggressively with fraud claims, particularly staged accidents and phantom passengers. This type of case (criminal prosecution and civil claims being brought by insurers) is securing a reasonable amount of high profile coverage (try Googling cash for crash ). (ii) Whereas insurers tended to run LVI and traditional fraud allegations in the same case, some of them at least are now preferring to leave LVI out of it to focus on the traditional fraud issues. I have mixed feelings about this approach and can see pros and cons for both sides. Defendants motivation seems to be to stop courts getting bogged down in LVI issues (which court have now got into the habit of resolving against defendants). (iii) Both sides lawyers are used to dealing with LVI claims (although it is amazing just how often the procedural hoops are not safely cleared). In my experience even large firms who have set up specialist LVI teams can fail to comply with the Casey notification requirements. (iv) Some courts are adopting standard form directions for LVI claims. There is no standard national approach. An illustration of the issue at trial 44. My own view is that for a defendant to successfully run a LVI defence, the defendant ought to be looking for something more than the mere assertion that the accident was at low speed. It is all very well putting together medical and/or engineering evidence which says that injury could not have been sustained, but doing that might well lead into LVI/ δv. Matthew White, 18/11/10. Page 13 of 14

14 the Armstrong problem unless there is some other basis upon which the defendant can challenge the claimant s honesty. 43. An interesting example to consider is Humphries v. Matthews, unreported, 16/6/06, Liverpool CC. The court found that C was deliberately lying about having symptoms to try to secure a payout. The bases of that finding were as follows. (i) There was the usual starting point:- D said that the impact was very modest. (ii) D also said that after the accident C refused to accept a cash payment for the damage and said that he was going to claim for whiplash (rather than that his neck hurt) unless D offered him more cash. The judge accepted this since D immediately went to his broker to explain what had happened out of an anticipatory sense of injustice. (iii) C had made 3 previous whiplash claims. (iv) Importantly, C did not mention the previous claims to his own medical expert. (v) C was unconvincing in his explanation at trial as to why he did not report the previous problems to his expert. 44. Points which C had in his favour which the judge found to be insufficient to prevent a finding of fraud were:- he had paid for osteopathy and he admitted an early return to football (rather than trying to make the most of the claim). 45. Other common hooks which might lead to an LVI (or fraud) issue being worth running include a history of claims, a full suite of injured claimants (particularly when they have a history of claims), or parties being known to one another. Fraud is dealt with in a separate talk. St John's Chambers, Bristol. ( ) 18 November MATTHEW WHITE LVI/ δv. Matthew White, 18/11/10. Page 14 of 14

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