Road traffic — Negligence — Causation — Low-impact collision — Claimant contesting possibility of injury — Whether expert evidence admissible to show collision unlikely to have caused injury

Casey v Cartwright [2006] EWCA Civ 1280

CA: Keene, Dyson and Hallett LJJ: 5 October 2006

Where a defendant sought to challenge a claim of whiplash injury on the grounds that the impact was too low to have caused injury, the challenge should normally be made in writing within three months of receipt of the letter of claim. The court would normally permit expert evidence to be adduced in support of the challenge where it had a real prospect of success.

The Court of Appeal so held when dismissing an appeal by the defendant Debbie Casey from a decision of Judge Holman in the Manchester County Court revoking permission granted by a district judge to admit evidence of a joint expert on orthopaedic issues in a claim for personal injury by the claimant David Cartwright.

DYSON LJ giving the judgment of the court, referred to guidance in Kearsley v Klarfeld [2006] 2 All ER 303, on the correct approach to the permissibility of expert evidence on causation in low-impact cases, at least pending test cases before a high court judge. Practice since Kearsley had shown a wide divergence of approach between different courts. The guidance needed amplification. If a defendant wished to raise the causation issue he should
satisfy certain formalities, notifying all other parties in writing within three months of letter of claim that he intended to do so. The issue should be expressly raised in the defence and within 21 days of serving a defence, the defendant should serve a witness statement clearly identifying the grounds for raising the issue. If the witness statement satisfied the court that the issue had been properly identified, permission would generally be given for the claimant to be examined by the defendant’s medical expert. If the expert’s evidence showed the issue had a real prospect of success, the defendant would generally be allowed to rely on the evidence at trial. Even then, the court might refuse to let in the evidence if the overriding objective required it, for example if the evidence was disproportionately complex given the size of the claim. Single joint experts should not be used at least until some test cases were decided at High Court level.

Appearances: Mark Turner QC and Paul Higgins (Horwich Farrelly, Manchester) for the defendant; David Allan QC and Timothy Willitts (Brown Dunne & Gray, Altrincham) for the claimant.

Reported by: John Spencer, barrister