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Low Velocity Impact Claims

a talk for APIL, South Wales 15 November 2006

Jonathan Clarke

Barrister, Old Square Chambers

Jonathan Clarke

Low Velocity Im pact Claims

Low velocity impact (LVI) claims are claims for damages for injuries sustained in a road traffic accident in which the defendant (whilst often admitting negligently having caused the collision) asserts that the speed of impact was so low that the claimant cannot have sustained the injury complained of. Such a defence is often, but not always, accompanied by a plea of fraud ­ the claimant has made it up. LVI claims most often involve whiplash injuries to the spine, usually the neck. They are mostly low value claims relating to relatively minor symptoms that resolve over a matter of weeks or months. The value of the claims are invariably such that they fall within the bracket to which, in terms of value, allocation to the fast-track is appropriate.

There are three principal areas of interest: (1) the science (2) the options for the trial judge (3) procedure.

THE SCIENCE

the theory In addition to a motivation borne out of cynicism, it is often pointed out that there are no known instances of persons complaining of whiplash symptoms following collisions in fairground dodgems and that in those countries where compensation is not available for minor whiplash, the number of people reporting such symptoms is considerably less than in those countries where it is. The fundamental premise of the LVI defence is that there is level of physical force upon a vehicle's occupant below which no injury can be sustained by the occupant. The measure of force transmitted to the struck vehicle is often expressed as a "delta v" (ÄV) which is the change in velocity. It is the acceleration or deceleration of the

1

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Low Velocity Im pact Claims

claimant's vehicle and is proportionate to the speed at which it is struck by the defendant's. Although the force exerted upon the claimant's body is not related by a fixed ratio to the delta v (because of the variables such as seatbelts, car design, etc) and although the likelihood of injury to any given claimant is not dictated simply by the force exerted upon him (because different individuals exhibit different susceptibilities), the LVI arguments run by defendants purport to take into account such factors and conclude that there is a minimum impact speed below which injury cannot be caused to any occupant. This claimed threshold for injury is often calculated as between 3 or 5 mph ÄV (depending upon what study is used). The studies The basis for this conclusion is derived (by proponents of the conclusion) from a number of studies. These studies are far from universally accepted as able to support the universality of the conclusion reached. The studies are, or may reasonably be said to be, deficient in one or more of the following respects:(1) · · The study group is not large enough to produce statistically significant data. The study group does not include any, or a sufficient number of, variables in terms of age, sex, height or pre-existing pathology. · Whether or not the subject is relaxed (and taken by surprise) or tensed at the moment of collision is not accounted for. · The positioning of the subject (head back against the head rest cf leaning forward; head/neck turned cf looking straight ahead) is not accounted for. · The effects of the following variables are not investigated on basis wide enough to produce statistically significant results: · seat belts (no seat belts cf seat belts, the different positioning of the seat belt anchors, differently tensioned seatbelts) · head rests (no head rests cf head rests, differently positioned head rests, differently constructed head rests)

(1)

For an excellent analysis of the various studies and their respective shortcom ings, see the article by Philom ena Creffield (of Lyons Davidson) entitled "Low Velocity Collisions" in [2005] JPIL 1/05 25. 2

Jonathan Clarke

Low Velocity Im pact Claims

· · ·

the differing constructions of different types of seats the differing adjustments of seats (tilt, lumbar support) the relative weights of the two vehicles (a Reliant rear-ending a Volvo cf vice versa), including the contribution of each of the vehicle's contents (occupants, luggage and fuel load) and whether they are secured or loose

·

braking (whether or not the target vehicle has any brakes applied (and how well) before, during and in the milliseconds after the impact)

·

the construction of the tyres on the vehicles (how good a grip do they afford)

· · ·

the construction of the road surface (how good a grip does it afford) the presence of water, oil, dirt or other substance on the road surface the construction of the bumpers (including any "bumper bar" underneath the bumper) involved in the collision (how much do they dissipate the force of impact before it reaches the occupant).

·

The study imposes too high a threshold before symptoms are considered to amount to an injury.

The failure of the present studies adequately to investigate these variables means that the conclusions cannot be relied upon to produce the certainty required to reject the evidence from a claimant and his medical expert and conclude that, based simply on the speed of impact, he or she simply cannot have been injured as claimed. As HHJ Hickinbottom said in Barker v Watkins:

"[these variables] will all affect the outcom e - to such an extent that it will rarely if ever be possible to deduce that injury from a particular accident is im possible." (2)

(2)

Barker v W atkins (2006) Cardiff County Court, 14.09.06, para 27 of the judgm ent [em phasis added] See also Kearsley v Klarfeld [2005] EW CA Civ 1510 per Brooke LJ at para 37. 3

Jonathan Clarke

Low Velocity Im pact Claims

Evidence as to the speed of the particular collision Unlike in laboratory conditions, the actual speed of the impact in which the claimant was injured will rarely if ever be known with any accuracy. Witnesses' descriptions of speed are notoriously unreliable. Therefore even if it were the case that an impact speed of less than x mph simply could not flex a human spine sufficient to inflict anything other than momentary symptoms, it will not often be the case that the evidence will be such as to compel the court to find that the impact speed was indeed less than x mph. A judge who accepts the x mph threshold but who also accepts that the claimant has been injured as claimed, will therefore have to find that the speed must have been greater than x mph. A number of the variables referred to above also undermine the reliability of any attempt to calculate the impact speed by reference to the distance that the target vehicle was shunted forward (and again witness descriptions of this distance are likely to be vague and inaccurate). Vehicle damage is unlikely to be a reliable indicator of impact speed as parts of different cars absorb or transmit force differently to others.(3) There will rarely be clear and detailed evidence as to the precise nature and extent of vehicle damage. Sometimes there will be no, or no obvious, damage, especially in many modern vehicles with absorbent bumper bars beneath the outer bumper. "Vehicle damage reports" are insufficient. They are prepared by insurance assessors simply enquiring into whether any damage is broadly consistent with the account given and whether the likely cost of repair exceeds the value of the vehicle. They do not involve an inspection intended to detect evidence indicative of impact speed. Repair estimates and bills are equally insufficient. Photographs mostly depict only superficial damage and cannot indicate the extent to which force has been transferred to the occupant.

Conclusion Therefore, in summary, there is no firm basis for the proposition that impact below

(3)

"Many of the factors relevant to energy transfer are not available to "auto crash reconstructionists", particularly when the only evidence that is available to them com es from a superficial exam ination of one or both vehicles som e tim e after the event. The notion that an engineer can determ ine Delta V and injury risk in these circum stances is absurd" per Brooke LJ in Kearsley v Klarfeld [2005] EW CA Civ 1510 4

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Low Velocity Im pact Claims

a specific speed simply cannot cause anybody injury. It will not be possible to accurately calculate whether the speed of a given impact was below that speed.

THE OPTIONS FOR OF THE TRIAL JUDGE

As indicated above, the science will at best be able to indicate, in vague terms, the probability of "the average person" sustaining injury and not the possibility of a particular claimant in particular circumstances sustaining injury. The improbable can and does happen. In addition to any expert evidence on the probability/possibility of injury, the court will also have the evidence from the claimant and his medical expert as to the fact of injury.

"In these cases, the Court is not required to decide how likely it is that the forces involved could have caused injury, but rather whether, m ore probably than not, they actually did cause injuries in the particular circum stances of a particular case and (if so) what injuries they did cause". (4)

In Armstrong v First York [2005] EWCA Civ 277, the defendant alleged that the impact force involved had not been enough to cause the claimants any injury and therefore their claims to have been injured were fraudulent. The claim was accordingly allocated to the multi-track and a jointly instructed forensic engineer permitted to give evidence. He concluded that the impact was insufficient to cause any injury to the claimants. However, the trial judge(5) unreservedly accepted the claimants as truthful witnesses but also found that the expert's evidence was logical, consistent and without any apparent error. The judge relied upon the dicta of the Court of Appeal in Cooper Payan Ltd v Southampton Container Terminal Ltd [2003] EW CA Civ 1223 that:

"There is no rule of law or practice in such a situation requiring the judge to favour or accept the evidence of the expert or the evidence of a witness of fact. The judge m ust consider whether he can reconcile the evidence of the expert witness with that of the witness of fact. If he cannot do so, he m ust consider whether there m ay be an explanation for the conflict of evidence or for a possible error by either witness, and in the light of all the circum stances m ake a considered choice which evidence to accept. The circum stances m ay be such as to require the judge to reach only one conclusion."

(4)

HHJ Hickinbottom in Barker v W atkins (2006) Cardiff County Court, 14.09.06, at para 26 of the judgm ent HHJ Stewart QC in Liverpool County Court 5

(5)

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Low Velocity Im pact Claims

The judge however was unable to resolve the conflict between what he accepted to be the honest and unmistaken evidence given by the claimants and the seemingly flawless evidence given by the joint expert. The judge found that the claimants' evidence was to be accepted and that the engineer's evidence involved "some error which has not been detected by this court and to which the court cannot point. ... I cannot reconcile the evidence of the expert witness with the witness of fact. I can only say that there must be a possible error in [the expert's] evidence, and I make a considered choice because of my clear and unequivocal impression of the claimants as witnesses." The Defendant appealed on the basis that, in line with Flannery v Halifax Estate Agencies Ltd [2000] 1 W LR 377, it was not open to a judge to reject the evidence of an expert without giving clear reasons why. The Court of Appeal dismissed the appeal as the judge had indeed given a reason for rejecting the expert's evidence namely that it was inconsistent with that of the claimant's whose evidence he preferred as he was entitled to. Brooke LJ:

"In m y judgm ent, in this very difficult case the judge directed him self

correctly as a m atter of law. He was entitled to consider the evidence he had been given by the claim ant extrem ely carefully, directing him self about the dangers of witnesses who m ay seem to be very plausible but in fact are telling a pack of lies, and directing him self to consider very carefully the evidence given on behalf of the defendant. He form ed the view that he could not be satisfied that these witnesses were telling a pack of lies. He was very im pressed by their evidence, and he concluded, when he had to balance the evidence of each side, that there m ust be - although he accepted fully that he could not say what it was - som ething which was not accurate in Mr Childs' [the expert's] evidence in this particular case. In m y judgm ent there is no principle of law that an expert's evidence in an unusual field - doing his best, with his great experience, to reconstruct what happened to the parties based on the secondhand m aterial he received in this case - m ust be dispositive of liability in such a case and that a judge m ust be com pelled to find that, in his view, two palpably honest witnesses have com e to court to deceive him in order to obtain dam ages, in this case a sm all am ount of dam ages, for a case they know to be a false one." (6)

Longmore LJ:

"Mr Childs' expert opinion was certainly powerfully argued. The

consequence of accepting it had to be that the claim ants were bringing a fraudulent claim . Mr Grant, for the appellant/defendant in this court, subm itted to us that the Judge Stewart QC had no option other than to conclude that the claim was a fraudulent claim if he could not point to a reason why Mr Childs' evidence was wrong. Since the judge could not do that, it follows, according to Mr Grant, that the claim was a fraudulent claim . This is artificial logic. It would m ean that cases were decided by experts rather than by

(6)

Arm strong v First York Ltd [2005] EW CA Civ 277, per Brooke LJ at paras 26 & 27 6

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Low Velocity Im pact Claims

judges. There m ust alm ost always be a possibility that an expert, particularly an expert in a developing field, such as the field described here by M r G rant as bio-m echanics, which I understand to include assessm ents of vehicle occupant displacem ent, could be wrong even if a judge cannot say precisely why. This is especially so if the consequence of accepting the expert is to hold that a claim ant is m aking a dishonest claim . Judges up and down the land tell juries in crim inal cases that they do not have to accept the evidence of an expert witness even if it is unchallenged. Juries do not of course give reasons whereas judges m ust. If a judge is convinced, on proper evidence, that the claim ants are in fact telling the truth and are not fraudulent, that conviction m ay well be a reason for declining to accept expert evidence to the contrary effect." (7)

In effect by basing their case on the impossibility of injury and thus alleging "fraud", the defendant's insurers had switched the burden of proof onto themselves. Defendants now no longer allege that injury was impossible and therefore the claim is fraud. Rather, as entitled (see Kearsley below), they now allege that injury was so improbable that the claimant simply cannot establish, on the balance of probabilities, the injury claimed.

PROCEDURE

"fraud" The question of whether an allegation of fraud needs to be expressly pleaded in cases where the defendant asserts that the speed of impact was too low to have caused injury was considered in Kearsley v Klarfeld [2005] EWCA Civ 1510. The Court of Appeal decided that it does not. All that is required is for the defendant to comply with CPR 16.5 and clearly identify the grounds upon which the injury is not admitted, e.g. because the speed of impact was too low to have caused injury or that the defendant's medical expert does not believe the claimant to have been injured.(8) Expert evidence As to case management, some courts have treated the defendants' assertions as sufficiently akin to an allegation of fraud as to render the time and expense required to investigate the issue proportionate to the importance of the case and the complexity of the issues (despite not being proportionate to the amount of money

(7) (8)

per Longm ore LJ at para 35 Kearsley v Klarfeld [2005] EW CA Civ 1510, see paras 40 to 49. 7

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Low Velocity Im pact Claims

involved). Other courts have focussed on the fact that these are claims of minimum value and therefore simply do not justify the time and expense of engineering evidence on causation. In an ambivalently worded judgment in Kearsley, the Court of Appeal stated that the mere fact that a claim was of low value did not mean that it was inappropriate to allocate it to the multi-track, even if the application for suitable experts is not made until late in the day and disrupts the trial timetable: Brooke LJ (giving the judgment of the Court):

it appears to us that until som e

of the issues that arise in these disputes have been authoritatively dissected and analysed at High Court level, it would not be wrong or disproportionate to allocate what would ordinarily be a fast track claim (by reason of its low value) into the m ulti-track on the grounds that the criteria for the adm ission of oral expert evidence are satisfied and the trial is therefore likely to last m ore than one day.(9)

The Court went on to give guidance (see below) as to best practice in relation to the early identification and investigation into the LVI causation issue. It did not go so far as to state that compliance with such practice was a precondition for the claim being allocated to the multi-track and permission given to obtain expert evidence on the causal relationship between the collision and the alleged injury. This guidance tended to be interpreted in differing ways by differing judges. Some felt that it meant that expert causation evidence should be permitted in LVI claims, other judges felt that it meant that such evidence could be permitted (but it was most often disproportionate to do so in such low value cases), and still other judges felt that the correct course was to permit only a jointly instructed expert. Consequently last month, the Court of Appeal in Casey v Cartwright [2006] EWCA Civ

1280,

gave further guidance by way of "amplification" of that given in Kearsley. The

guidance, thus amplified, may be set out as follows: · The claimant's letter of claim should offer the defendant's insurer access to the claimant's vehicle for the purpose of early examination and give early disclosure of any contemporaneous GP's or other relevant medical notes (with irrelevant passages redacted, if necessary).(10)

(9) (10)

Kearsley v Klarfeld [2005] EW CA Civ 1510, para 35. Kearsley para 50 8

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Low Velocity Im pact Claims

·

The defendant should, within the 3-month protocol period, notify the claimant (and any other parties) that the LVI causation defence is to be raised.(11)

·

The defendant should expressly plead the causation issue in its defence,(12) which should comply with CPR 16.5 by clearly identifying the grounds upon which the injury is not admitted (e.g. because the speed of impact was too low to have caused injury or that the defendant's medical expert does not believe the claimant to have been injured). Fraud need not be alleged.(13)

·

The defendant should, within 21 days of serving the defence, serve on the court and the other parties a witness statement which clearly identifies the grounds on which the issue is raised. "Such a witness statement would be expected to deal with the defendant's evidence relating to the issue, including the circumstances of the impact and any resultant damage."(14)

·

Upon receipt of the witness statement, the court will consider whether it is satisfied that the issue has been properly identified and raised and, if so satisfied, the court will "generally give permission for the claimant to be examined by a medical expert nominated by the defendant."(15)

·

Upon receipt of the defendant's medical evidence, the court will consider the entirety of the evidence submitted by the defendant and consider whether it is satisfied that the defendant has properly identified a case on the causation issue which has a real prospect of success. If so, "the court will generally give the defendant permission to rely on such evidence at trial."(16)

·

There will still be occasions where the overriding objective nevertheless requires permission for expert evidence to be refused, e.g. · where, despite the Court being satisfied that there is a genuine LVI issue, the defendant has failed to comply with the guidance as to early

(11) (12) (13) (14) (15) (16)

Casey para 30 Casey para 30 Kearsley para 48 Casey para 30 Casey para 31 Casey para 32 9

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Low Velocity Im pact Claims

notification and production of evidence.(17) · where a resolution of a dispute of fact is likely to resolve the causation issue such as to render expert evidence likely to serve little or no purpose.(18) · extreme disproportionality -- where the injury alleged and the damages claimed are so small and the nature of the expert evidence that the defendant wishes to adduce so extensive and complex that considerations of proportionality demand that permission to rely on the evidence should be refused. "This must be left to the good sense of the judge." This does not detract from the principle that where the defence is shown to have real prospects of success, expert evidence in support of it should generally be permitted.(19) · Although single joint experts have an invaluable role to play in litigation generally, especially in low value litigation, judges should be slow to direct that expert evidence on the causation issue be given by a single joint expert because the causation issue is so controversial.(20)

As it had done in Kearsley, the Court in Casey emphasised that its guidance was intended as an interim measure pending resolution of the generic substantive issues in LVI cases by the High Court in a test case or cases. Until such a test case, LVI litigation promises to continue to be unnecessarily complex and expensive.

Jonathan Clarke Old Square Chambers

15 November 2006

(17) (18) (19) (20)

Casey para 33 Casey para 34 Casey para 35 Casey para 36 10

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