piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Scrutiny of Medical Evidence & Physiotherapy Charges in low-value PI cases

I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist.   The claimant claimed damages for neck injuries sustained in a road traffic accident. He signed the Particulars of Claim which were vague as to the description of his injury, but which made reference to an appended medical report. The medical report was of the lamentably short “tick box” variety and concluded that the claimant had sustained a “soft tissue neck injury which resolved in around five months”. At the time of the examination by the GP expert around three months post-accident, the claimant complained of some ongoing symptoms.   Well, the Claimant’s social media persona begged to differ. The Defendant’s online sleuths obtained evidence that the Claimant actually undertook a half marathon a few days post-accident and an ‘Iron Man’ a few weeks after that. This was at a time when the medical report suggested that the Claimant’s symptoms were most acute (“moderately-severe” – whatever that means!).   The Claimant submitted a Notice to Discontinue.   His solicitors came off the record as acting for him.   The Defendant applied to have the Notice of Discontinuance set aside.   On the day of the listed hearing, the Defendant’s solicitors received a remarkably candid witness statement from the Claimant, who had procured the services of a direct access counsel. This expressed a great deal of regret for what had occurred and made a large number of serious allegations against the claimant firm of personal injury solicitors including: that the firm aggressively pursued the Claimant to encourage him to litigate when he was reluctant; indeed, that the firm “reminded” him that he may have sustained an injury despite his being unaware of it at the time and/or drawing any causal link with the index accident; that despite the Claimant telling the firm that his injury resolved in “about one week” she was pressured into attending physiotherapy sessions; the said physiotherapy sessions were arranged by the solicitors without any reference to any medical opinion; and he was persuaded to sign the Particulars referencing the medical report despite knowing the conclusion of the doctor therein to be incorrect. (This does not explain the complaints of ongoing symptoms however!).   The Claimant settled with the Defendant insurer with a Strike Out on the grounds of Abuse of Process by consent ant the payment of costs, however the case throws into an unpleasantly harsh light the tactics which many who may represent insurers and indeed the insurers themselves have long since suspected are employed by some less scrupulous law firms.   The lesson for such firms is of course obvious, but those for legal professionals representing defendant parties can be distilled thus in cases where the medical evidence appears formulaic (i.e. in the majority of routine Fast Track cases, particularly now costs for the provision of such evidence have been limited by the CPR): defendants should be less prepared to accept the conclusions of medical professionals as face value; claimants ought to me more rigorously cross-examined on the duration and significance of their symptoms; charges for physiotherapy charges should be more stringently scrutinised. These frequently are “evidenced” by invoices made out to the solicitors. Without further evidence of under what mechanism the claimant party is expected to meet these, they are arguably unproven losses. This may raise consumer credit points of course and potentially wider issues in cases where it transpires there is a connection between solicitors and physiotherapy providers. In my experience it is not unusual for the claimant to deny receiving such treatment or as many sessions as claimed for; the chronology also should be more carefully looked into. Perhaps Part 35 Questions should ask when was physiotherapy recommended and by whom? If it was the (medically-unqualified (and often formally legally-unqualified) “solicitors”, can the fact that a subsequent medical report makes reference to this in the “treatment received” section, undermine such a report or seriously be said to pertain upon its conclusion?

Car vs Cyclist: Apportionment of liabilty

Fenella Sinclair (A protected person by her litigation friend & daughter) v Rachel Joyner [2015] EWHC 1800 (QB). The Claimant was cycling along a rural road. She was in the middle  of the road, standing on her pedals. She was not wearing a helmet. The Defendant was driving her car along the same road in the opposite direction. She had just come around a bend when she saw the Claimant. She had not been travelling very fast before the bend and she immediately slowed down to around 20 mph. That was the speed she was travelling when she passed the Claimant. Her evidence also was that she was as far over to the nearside of her lane as possible. As the car and and the bike passsed one another their wheels collided.  The Claimant lost control and fell.  She suffered multiple injuries, including a severe brain injury. She was left with a permanently impaired conscious level. The trial was liability only. The Claimant's case was that the Defendant had not kept a proper look out and had failed to properly assess the hazard presented by the Cliamant who was in the middle of the road stadning on her pedals. The Defendant maintained that as she approached and past the Claimant she was driving slowly and appropriately. She reasonably considered the Claimant to present a hazard which required her to do no more than slow down and drive past her. The Claimant lost control of her bike and deviated unexpectedly onto the Defendant's side of the road so that contact occurred. She (the Defendant) was not responsible for that. Mrs Justic Cox held: 1. The courts must not fall into the trap of imposing a counsel of perfection on car drivers. 2. Nevertheless, cyclists are amongst the most vulnerable of road users. The Highway Code expressly says so and advises car drivers to give them plenty of room. 3. The Claimant was on her side of the road but only just. She was also standing on her pedals. The evidence suggested that she was grimacing or loooking uncomfortable. 4. In all the circumstances, a reasonably prudent driver would have appplied the brakes immediately and stopped to allow the Claimant to pass safely. The Defendant did not do that and primary liability was therefore established against her. 5. In terms of contributory negligence, the Claimant should not have been riding in the middle of the road. Her conduct in doing so materially contributed to the damage and was negligent. 6. In assessing apportionment: "The causative potency of the motor vehicle is highly significant in assessing apportionment. There was a risk of very serious injury to the Claimant in this case if the Volvo were to collide with her...the appropriate apportionment of fault for the Claimant in this case is 25 per cent" 7. The Defendant had pleaded that failure to wear a helmet was contributorily negligent. It was not explored in evidence, however, and was not addressed in the Defendant's closing submissions. The judge said that there was no medical evidence adduced to show that failure to wear a helmet had made the injury worse. The allegation was therefore rejected.   Comment This strikes me as placing really quite an onerous burden on drivers. After all, the Claimant was in the middle of the road, on her pedals and approaching a bend. The Defendant was not speeding, she slowed down and she was as far over to the nearside as possible. To suggest that she ought to have stopped completely seems too high a requirement. The case is also worth a read because it involved live evidence from the parties' accident reconstruction experts. The Defendant's expert appears to have been so poor in evidence that, ultimately, counsel did not rely on him. The judge thought this was wise and was critical of his report and his oral evidence.   Sophie Mortimer

Expert evidence in road traffic cases

Is the evidence of an expert in cycling safety reasonably required in a personal injury claim arising out of an accident which the claimant alleges was caused by the highway authority’s breach of duty (in respect of maintenance, layout etc)? At a Case Management conference in the case of Allen v Cornwall Council [2015] EWHC 1461 the District Judge gave the claimant permission to rely on such evidence to deal with allegations of contributory negligence made by the defendant. He refused to grant the defendant permission to rely on its own evidence.  In the case of Liddell v Middleton (7th July 1995, Unreported), the Court of Appeal gave guidance as to the admissibility of expert evidence in road traffic claims. Stuart-Smith L.J. said that in such cases the function of the expert is to furnish the judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the judge to interpret the factual evidence of the marks on the road, the damage, or whatever it may be. What he is not entitled to do is reach conclusions on facts or give his opinion on whether there was a breach of duty. In Liddell the Court of Appeal found the ‘expert’ had overstepped the mark and given evidence which was entirely irrelevant and inadmissible. The defendant in Allen appealed the District Judge’s order and the case was heard by Green J. He would not interfere with what was a case management decision of the district judge. Green J found that the district judge was addressing a threshold issue as to whether the evidence should be admitted for the purpose of case management but, he had made it clear it was without prejudice to any more mature and considered view which a trial judge might take. He had not given the defendant permission to have its own report because it might see the expert evidence of the claimant and decide that it wanted to abandon allegations of contributory negligence altogether. Green J held that the district judge had not seen the expert’s report at the time he made his decision and therefore he was not in a position to assess its content; he took account of the fact his decision would not bind the trial judge. Green J thought that the facts of the case were somewhat unusual (as it was not a case of a collision with a pedestrian or another vehicle but one involving the condition and layout of the highway). He did not rule on the admissibility of the evidence but thought the judge had not acted outside the generous ambit afforded to a judge exercising his case management powers. Green J acknowledged the ‘practical force’ of the defendant’s complaint that the judge should have required the report to be prepared and produced before granting permission. Indeed the defendant’s suggestion that this would have been the appropriate course was commended as ‘sensible’. It is notably the course commended by the Court of Appeal in Casey v Cartwright in the context of low velocity road traffic accident litigation. But Green J did not think the judge had erred in not adopting this approach. This case raises an interesting question as to when exactly the threshold is reached for the granting of permission for expert evidence at the case management stage: when is expert evidence ‘reasonably required’ (CPR 35.1)? In Casey the question was whether, once the judge had seen the expert evidence, the issue itself had a ‘real prospect of success’. Liddell v Middleton and the decision in Allen tend to suggest that at the case management stage the question is no more than whether it is arguable that the evidence is admissible - the final decision rests with the trial judge. The questions the expert was to examine included where a cyclist should be positioned on a carriageway and whether he was cycling too fast or should have dismounted where visibility was poor. Do such questions require expert evidence? If so, why not in cases involving motorcycling, lorry driving and other modes of transport which may be outside the experience of a trial judge? It will be interesting to see what the trial judge decides. In the meantime it is striking that, at the appeal, Green J gave the defendant permission to rely on its own expert evidence before it had seen the evidence of the claimant. Draw what conclusions you will… (Ian Miller represented the defendant on the appeal)

Whiplash and fraudulent claims

The justice secretary spoke to the Association of British Insurers yesterday telling them about the new panels of medical experts in whiplash claims, reported The Times today. The government’s plans for such panels have long been known about but he announced that accredited experts would be allocated randomly to cases going through the Portal. He said there was an expectation that there would be one report per case. Experts who are not accredited by April 2015 will be barred from providing reports in whiplash claims. The difficulty of experts in personal injury cases providing reports which please/suit the party instructing is a long standing problem. The danger is that experts on these panels will decide the outcome of cases and that the courts will make it difficult to challenge their conclusions. If a panel expert finds that a claimant has not suffered any injury and the claimant obtains his own report which says the opposite, how receptive will courts be to an application to adduce evidence from the claimant’s expert? If there is an expectation of one expert per case, such an application may well not succeed. Mr Grayling is also reported to have said that new rules were to be introduced so that claims could be dismissed in their entirety if the courts were satisfied that claimants had been fundamentally dishonest. This may be aimed at the Supreme Court decision in Summers v Fairclough Housing Limited [2012] 1W.L.R. 2004 in which a claimant was found to have fraudulently misstated his case as worth £800,000 but was awarded £88,000. The Supreme Court held that it had an inherent jurisdiction to strike out such claims but that the jurisdiction was to be used exceptionally. It would be interesting to know whether Mr Grayling had this decision in mind.

Applicable Law in Tort and the Instruction of Expert Witnesses

Wall v Mutuelle de Poitiers Assurances [2014] EWCA Civ 138; LTL This appeal arose out of a preliminary issue trial on the proper meaning of Articles 1.3 and 15 of the Rome II Regulation in the context of permission to rely on expert (medico-legal) evidence which was to be adduced on behalf of an Englishman who suffered spinal cord injury during the course of a visit to France. Liability was conceded and it was common ground that the English Court had jurisdiction. However, the applicable law was that of France. The Defendant sought to restrict the Claimant's medico-legal expert evidence to the kind of French or "French-style" expert evidence that might be permitted by a French Court. The Defendant's arguments were rejected at first instance ([2013] EWHC 53 (QB)) and subsequently on appeal. The Court of Appeal gave important and timely guidance on the proper approach to expert evidence in claims of this kind (and on the meaning of Articles 1.3, 15 of and recital (33) to the Rome II Regulation).

Personal Injury practices safe 'at this stage'

“Will they or won’t they?” has been the question for many personal injury lawyers wondering whether their practices were about to disappear into oblivion with the raising of the small claims limit. The question has now been answered: “not at this stage”. The government clearly thinks that it would be good to raise it. However it does not intend to do so ‘at this stage’ because it might have an adverse effect on victims of RTAs with genuine injuries. It wants to develop safeguards before an increase in the limit is considered. The government has also responded to the consultation on its proposal to set up panels of independent medical experts. It intends to go ahead with this with the intention of having experts who give better advice on whiplash injuries. The view is that only reports from accredited medical experts would be accepted in evidence in whiplash claims. Reports will be in a standardised format and the government intends to stop experts being paid by those who favour a certain outcome. Further work is to be done before a proposal is published. You may or may not have been aware that the transport select committee had recommended reducing the limitation period for road traffic cases involving personal injury from three years. The government has made it clear it does not intend to do so. Such a move would make the law of limitation more complicated and would cause a massive surge in litigation – at a point when the court system is struggling in any event. The government has also suggested measures to challenge fraudulent or exaggerated claims. These include better data collection in order to establish the extent of the problem, prohibiting settlement without a medical report and the sharing of data by insurance companies with claimant solicitors to help claimant lawyers carry out ‘know your client checks’. Whether this will really make any difference is open to doubt – one school of thought is that vehicle technology (dashboard cameras, speed recording devices etc) will only really make a difference.

Applicable Law in Tort under Rome II and English Case Management Decisions

    It’s one of the oldest chestnuts in private international law and has been brought into sharper focus by the Rome II Regulation on applicable law in tort. Assume that the English Claimant is catastrophically injured in a road traffic accident in France. The Claimant sues the tortfeasor’s French insurer in the English Courts (in line with his right to do so under section 3 of the Brussels I Regulation and the Odenbreit (2007) decision of the ECJ). Liability is not in issue and it is agreed that, by reason of Articles 4 and 15 of Rome II, French law will apply to the assessment of the Claimant’s damages. The Claimant wishes to rely on a panel of English experts (medico-legal and non-medical) of the kind usually instructed in catastrophic injury claims case managed and tried in this jurisdiction. The Defendant insurer, by contrast, wishes to restrict the Claimant to the sort of expertise that a French Court would rely upon (usually, one principal expert and a very limited number of additional experts). The Defendant’s argument is that the English Court – required to assess damages on a French law basis – needs, so far as possible, to adopt and replicate the approach that would be taken by a French Court. The Claimant argues that the selection and instruction of expert witnesses is a matter reserved to the law of the forum (English law) by reason of Article 1.3 of Rome II. An issue of just this kind arose in the very recent decision of Tugendhat J in Wall v Mutuelle de Poitiers Assurances [2013] QB 53 (QB). The following preliminary issue was tried, “Does the issue of which expert evidence the court should order fall to be determined: (a) By reference to the law of the forum (English Law) on the basis that this is an issue of ‘evidence and procedure’ within Article 1.3 of Rome II; or (b) By reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II?” The academic writing on this issue was somewhat mixed and inconclusive. However, Tugendhat J resolved the preliminary issue – thought to be the first time this question had been tried in this jurisdiction – by accepting the Claimant’s argument: the instruction of experts is a matter of evidence and procedure and, therefore, a matter for the law of the forum (English law). There is an application by the French insurer for permission to appeal.

The addition of a late expert: case note

Van Niekerk v Carnival Plc & Anor. [2012] LTL 13/6/12 (QB, HHJ Seymour QC)   This claim concerned further directions for a High Court trial that was listed a little over 2 months after a Pre-trial review in which further permissions for expert evidence were sought. The Claimant’s husband had died on holiday while he had been taking part in a diving excursion arranged by or through the Defendant cruise line operator. Liability, causation and quantum were all in issue. The Claimant brought a substantial claim for damages. The Claimant’s schedule of loss included, among other things, a claim for loss of financial dependency based on pension income. In correspondence, the Defendant had queried the calculation of this head of loss. Approximately, two months before the date fixed for trial of liability and quantum the Claimant applied for permission to obtain and rely on a report from an expert forensic accountant on the investment growth rates relating to the financial dependency claim. Each party had also obtained a medico-legal report on the cause of death. The Claimant's expert was a histopathologist. The Defendant's expert was a cardiologist with experience in the cardiological aspects associated with diving. The issues considered at the Pre-trial review concerned: (i) whether permission should be granted to adduce expert accounting evidence; (ii) whether directions should be given for a joint statement by the cause of death experts; (iii) the appropriate order for costs.HELD: (1) Permission was granted to obtain expert accounting evidence limited to the issue of investment growth rates - while this evidence was being sought at a late stage, it would likely assist in the accurate calculation of loss and would be helpful to the Trial Judge. (2) There was potential value in the cause of death experts producing a joint statement, despite the risk that it would simply repeat their individual reports (and in spite of the fact that they were experts in different disciplines). (3) Although the Claimant had succeeded on her application to admit accounting evidence, it had been necessary because there was a deficiency in her case which the Defendant had pointed out some months earlier, and she had sought to adduce additional evidence close to the trial and in circumstances where it raised serious questions about whether the trial could proceed in the event that permission were granted. The issue about a joint experts' report had been a serious issue. Taking those issues into account, the proximity to trial and the matters on which the parties had argued, it was appropriate to consider the hearing as a pre-trial review. In those circumstances, the appropriate order for costs was costs in the case.

The Animals Act rears its head again…

‘Oracular and opaque’ are the words Jackson L.J. uses of the Animals Act in a judgment (Goldsmith v Patchcott [2012] EWCA Civ 183) which is impeccably logical and clear. The facts are the easy bit: ‘Red’ was a horse who reared and then bucked violently, throwing the claimant to the ground and then striking her in the face with its hoof and causing her nasty injuries. Hold tight for a moment whilst we canter through the law: If you are dealing with an animal which is not of a dangerous species then you need to establish that (a) the damage the animal caused by the animal is likely to be severe unless the animal is restrained (b) the likelihood of damage is caused by characteristics of the animal not normally found in animals of the same species or not normally so found except at particular times or in particular circumstances and (c) those characteristics were known to the keeper at the time. It is a defence for a defendant if the claimant voluntarily accepted the risk (s.5(2)). The judge found that horses’ characteristics included bucking in particular circumstances when they were startled or alarmed and thus (b) above was made out. The claimant took issue: horses do not only buck when they are startled or alarmed. Jackson L.J. said that was a conclusion the judge was entitled to come to on the evidence. Strikingly however there was no expert evidence in this case. Longmore L.J. said that the appeal on (b) would have succeeded if there had been expert evidence that bucking was a normal characteristic of any horse in any circumstance. The lesson for defendants is to go to court armed with such expert evidence. However the claim failed because the judge found that the claimant had voluntarily accepted the risk of Red rearing and bucking. The claimant’s argument was that she had not voluntarily accepted the risk of the horse rearing and bucking as violently as it did. The Court of Appeal found that the claimant did not need to foresee the precise degree of energy with which the animal would engage in its characteristic behaviour. This case includes a useful review of the authorities on sections 2 and 5 of the Animals Act for anyone who practices in this field…   (Photograph courtesy of Freefoto.com)

Whiplash: Again ...

A short article in yesterday’s Guardian caught my eye (Let’s not add insult to personal injury: 20.2.12). It wasn’t the author’s commentary on David Cameron’s recent “Insurance Summit” that attracted my attention (see, Laura Johnson’s PIBLAWG piece a week ago). It wasn’t the reporting of the statistics, although it has to be admitted that these are eye-popping (the CRU apparently reports a 52% increase in reporting of motor personal injury claims – up to 790,999 claims in 2010/11. The reported statistics are not consistent, but everyone seems to agree that there has been an increase in claims and, er/um, the increase has been massive: can we believe that all of these claims are entirely genuine?) Instead, my eye was drawn to the following, “The practice of insurers making a compensation offer to injured people before they have even had a proper medical examination has become more widespread, and they are trying hard to get to third parties quickly and settle their claims before they have gone to a solicitor for independent advice. This all encourages people to have a go. Why, instead, have insurers not challenged in court claims they believe to be bogus? Interestingly, one outcome of the Downing Street summit was a commitment that they will. [emphasis added by me]” It remains to be seen whether the insurers’ “commitment” proves to be real, but we probably all know why such claims are not contested to trial. First, by the time that a modest whiplash claim comes to Court, the costs will usually have outstripped by a considerable margin the amount that is at stake in the claim itself: an obvious reason why insurers will instead seek to settle claims early – even those that are believed to be bogus (indeed, contesting a bogus or fraudulent claim will generate greater costs than taking issue with discrete aspects of a claim believed to be genuine). The problem, of course, with paying Danegeld of this kind is that it simply encourages more claims – as the statistics referred to above make clear. It also removes work from solicitors, although insurers probably won’t lose any sleep over this. Second, it is not easy to satisfy a Court that a claim is bogus; most Judges will apply – whether or not this is acknowledged – a Hornal v Neuberger Products [1957] 1 QB 247 approach to any allegation that a claim is bogus/fraudulent and will require a quantity of cogent evidence in order to find such allegation proved. Some medical expert witnesses are adept at finding a whiplash injury in factual circumstances where it would be surprising (at least to the lay person) that a Claimant had sustained any injury at all. Where such medical evidence is available, it is not easy for the Defendant to challenge this without incurring speculative costs. The result is that, by a default process, the claim will succeed/be settled. Third, it has to be said (on the finest anecdotal evidence) that on occasions the Courts have encouraged questionable claims. One is reminded of the increasing volume of highway tripping claims (some decades ago); the advancing tide was only retarded when the higher Courts started to dismiss these claims and provided guidance on what needed to be proved in order for the Claimant to succeed. If the Judiciary had been less credulous as to whiplash then we might all – genuine Claimants and insurers alike – have been in a happier position. If the Guardian piece is to be believed, we seem now to be reaching a position where only the bravest insurer would challenge a whiplash injury claim at trial; it will be interesting to see whether recent Government action will make any difference.