Disputes over personal injury claims in low-velocity road-traffic accidents have brought the causation issue to the fore, says Stephen Gerlis

'From time to time, problems arise in the context of personal injury litigation in this country which cause considerable case-handling complexities in the county courts during the period before law and practice have learned how to accommodate them,' said Lord Justice Brooke in a recent case. 'When they arise, the same point tends to crop up again and again all over the country, usually in connection with comparatively low-value litigation... it is currently being encountered in connection with claims for personal injury, arising out of low-velocity impacts between two motor vehicles.'


The situation was first considered in detail in Armstrong v First York Ltd [2005] EWCA Civ 277, [2005] All ER (D) 107 (Jan). A forensic expert said that the low-velocity accident could not have caused the injuries complained of by the claimant driver and passenger. The judge could find no flaw in that argument, but the conundrum was that he also found the claimants to be truthful.


In the event, he found for the claimants and was upheld by the appeal court. It rejected a contention that if the court cannot detect any logical flaw in the expert evidence tendered by a defendant, judgment must be entered for the defendant, however honest the claimants may have appeared to the court. The Court of Appeal noted that the defendants relied on 'principles of bio-mechanics in support of their contention that the claimants cannot be telling the truth'. Lord Justice Brooke, giving the judgment of the court, described the field of expertise as 'unusual'.


In Kearsley v Klarfeld [2005] EWCA Civ 1510, [2006] 2 All ER 303, Lord Justice Brooke pointed out that a further problem is created by the fact that it has become customary for a defendant not only to plead the facts on which he relies, but to add a positive allegation that the claimant has fabricated his claim or is otherwise guilty of fraudulent conduct in putting forward the claim and pursuing it to court. The judge said: 'All this [is] against a background, freely accepted by counsel on both sides, that a distressing feature of contemporary England is a willingness on the part of many people to put forward bogus claims for damages of a kind which the defendant's insurer cannot properly evaluate without recourse to the type of expert evidence that features in the present case.'


The way to try and get over this general dilemma, Lord Justice Brooke suggested, was to group some similar cases together to be heard by a High Court judge who has expertise in trying personal injury litigation. At such a series of trials, the judge might be able to hear a number of experts on each side of the argument and be able to give authoritative guidance on the appropriate approach to some of the generic issues that feature in these cases. Unfortunately, this has not yet happened, and, in the meantime, a further case has recently reached the appeal court.


Casey v Cartwright [2006] EWCA Civ 1280, [2006] All ER (D) 72 (Oct) involved a rear-end crash with typical whiplash injuries suffered by the claimant, who was in the car in front. The defendants took the view that this was a low-velocity crash and cast doubts on the injuries alleged by the claimant. A joint expert was ordered on the question of causation. His conclusion was that the crash had happened at less than 5mph. Judge Holman decided to revoke permission for the expert's report, doing so in the light of Kearsley.


Judge Holman concluded that extra evidence on causation should not be permitted. His view was that defendants and their insurers would not be put to a significant disadvantage because they could always put appropriate questions to the claimant's medical expert. In any event, he had some concerns about the expert's report that also justified its revocation.


Lord Justice Dyson, giving the judgment of the appeal court, stated that the guidance in Kearsley needed amplification - in ordinary run-of-the-mill road-traffic whiplash injury cases, there will be no need for expert medical evidence on the causation issue. The causation issue only arises where the defendant contends that the nature of the impact was such that it was impossible or very unlikely that the claimant suffered any injury or any more than trivial injury as a result of the collision, and that, accordingly, the claimant has fabricated the claim.


It is desirable that, if a defendant wishes to raise the causation issue, he should notify all other parties in writing that he considers this to be a low-impact case and that he intends to raise the causation issue. The issue should be expressly identified in the defence, 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 the other parties a witness statement that clearly identifies the grounds on which the issue is raised. It should 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 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. If on receipt of any medical evidence served by the defendant following such an examination, the court is satisfied that the defendant has properly identified a case on the causation issue that has a real prospect of success, it will generally give the defendant permission to rely on such evidence at trial.


However, there will 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 on the issue to be refused.


Practitioners should consider carefully the guidance given in Casey. They should also note that - until some test cases have been decided in the High Court - judges are likely to be reluctant to direct that a single joint expert give evidence on causation. At the moment, the causation issue is too controversial.



District Judge Gerlis sits at Barnet County Court in London