Casey v Cartwright

In low-velocity road-traffic personal-injury claims, ordinary whiplash cases generally require no expert medical evidence on causation. The issue arises where the defendant contends that the impact made injury, or more than trivial injury, impossible or very unlikely and that the claim is fabricated. The defendant should notify the issue within three months of the letter of claim, plead it expressly, and serve a witness statement within 21 days of the defence identifying the evidential grounds. If the defendant’s evidence gives the case a real prospect of success, permission will generally follow. The court retains discretion under the overriding objective to refuse permission for late notification, a decisive factual dispute, or disproportionate expert evidence. Pending authoritative test cases, courts should be slow to direct a single joint expert on this controversial issue.

The claimant brought a low-velocity rear-end collision personal-injury claim. Liability was admitted and damages were limited to £10,000. A district judge permitted the parties to rely on a joint orthopaedic expert. After the expert report was served late, His Honour Judge Holman revoked that permission, although he retained the multi-track allocation and permitted questions to be put to the claimant’s medical expert.

The defendant appealed. The narrow challenge to the expert’s suitability was not pursued. The central issue before the Court of Appeal was the proper approach to permission for expert evidence on causation in low-velocity road-traffic claims, particularly in light of Kearsley v Klarfeld.

Appeal dismissed. The court held that the order revoking permission to rely on the joint expert was unappealable in the circumstances. It nevertheless addressed the wider issue in order to amplify the guidance in Kearsley v Klarfeld [2005] EWCA Civ 1510.

1. Case-management decisions remain matters for the discretion of the court. The guidance in Kearsley was guidance, not a rigid code to be treated as if it were a statute.
2. In ordinary road-traffic whiplash claims, expert medical evidence on causation will generally be unnecessary. The issue arises where the defendant alleges that the impact made injury, or more than trivial injury, impossible or very unlikely and accordingly alleges fabrication.
3. A defendant raising the issue should notify the other parties in writing within three months of receiving the letter of claim, identify it expressly in the defence, and serve within 21 days a witness statement setting out the grounds, including the evidence concerning the impact and damage.
4. Where the issue has been properly raised, the claimant will generally be examined by a medical expert nominated by the defendant. If the defendant’s evidence, considered in its entirety, shows a real prospect of success on causation, permission to rely on expert evidence at trial will generally be granted.
5. Permission may nevertheless be refused where notification was late, a factual dispute is likely to resolve the causation issue without expert evidence, or the claimed injury and damages are small compared with extensive and complex expert evidence. These factors reflect the overriding objective and proportionality.
6. Pending authoritative High Court test cases, judges should be slow to direct that causation evidence be given by a single joint expert because the issue remains controversial. The appellate court also regarded the first-instance analysis of selected county-court cases as unhelpful.

• Court of Appeal (Civil Division) — In [2006] EWCA Civ 1280, the appeal was dismissed. The court declined to entertain the narrow challenge to the revocation of permission and amplified the guidance on expert causation evidence in low-velocity claims.
• Manchester County Court — His Honour Judge Holman revoked, on 6 April 2006, permission previously granted by District Judge Beattie for the parties to rely on a joint orthopaedic expert. The multi-track allocation remained, and the defendant could put questions to the claimant’s medical expert.