PERSONAL INJURY


Negligence - civil procedure - case management directions - expert evidence - road traffic accidents - whiplash injury - low velocity impacts



Debbie Casey v David Cartwright: CA (Civ Div) (Lords Justice Keene, Dyson, Hallett):

5 October 2006



(D) appealed against the case management decision of the judge which revoked the permission granted by the district judge to rely on the evidence of a joint expert (W).



D's car had collided with the rear of a car driven by the respondent (C). D admitted liability. C issued proceedings with damages limited to £10,000. C's particulars of claim were supported by medical reports from M which stated that C had sustained a typical soft-tissue whiplash injury. D's insurers considered that, as the claim was low-velocity impact case, causation would be in issue.



The district judge gave permission to C to rely on M's evidence and to both parties to instruct W to deal with orthopaedic issues. Following a case management conference, the judge, having found that problems had arisen with W's evidence in relation to its objectivity so that he was not suitable to act as an expert witness, revoked the permission given to the parties to rely on W's evidence.



D contended that the defaults in the presentation of W's evidence could have been cured; and that, following the decision of the Court of Appeal in Kearsley v Klarfeld 2005 EWCA Civ 1510, 2006 2 All ER 303, the judge had erred in his approach to the permissibility of expert evidence on causation in low-velocity impact cases, as that authority had been interpreted as deciding that, where a defendant showed reasonable grounds for believing that the claimant had suffered no injury, the defendant should generally be permitted to adduce his own expert evidence on the causation issue.

Held, in the circumstances, the judge had been entitled to disqualify W from giving evidence.





In ordinary road traffic whiplash injury cases, there would be no need for expert evidence on causation. It was only where a defendant contended 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 had fabricated the claim that the causation issue would arise.





If a defendant wished to raise the causation issue, he should satisfy certain formalities: to notify the other parties in writing within three months of receipt of the letter of claim that he considered the matter to be a low-impact case and that he intended 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 such a defence to serve on the court and the other parties a witness statement which clearly identified the grounds on which the issue was raised, and which dealt 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 examined by a medical expert nominated by the defendant. If on receipt of any medical evidence served by the defendant following such examination, the court was satisfied on the entirety of the evidence submitted by the defendant that he 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 (Kearsley v Klarfeld 2005 EWCA Civ 1510 , 2006 2 All ER 303 explained).





Appeal dismissed.



Mark Turner QC, Paul Higgins (instructed by Horwich Farrelly) for the appellant; David Allan QC, Timothy Willitts (instructed by Brown Dunne & Cray) for the respondent.