Charnock and Others v Rowan and Others
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Sedley,Mr Justice Mann,Lord Justice Gross |
| Judgment Date | 20 January 2012 |
| Neutral Citation | [2012] EWCA Civ 2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2010/2462 |
| Date | 20 January 2012 |
[2012] EWCA Civ 2
IN THE COURT OF APPEAL (CIVIL DIVISION)
HHJ Gore QC
7LV18468 / 8LV12546
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Mann
and
Sir Stephen Sedley
Case No: B3/2010/2462
Mr Mark Turner QC and Mr Paul Higgins (instructed by Horwich Farrelly) for the Appellants;
Mr Frank Burton QC and Mr John Gruffydd (instructed by E. Rex Makin) for the 1st – 8thRespondents
Mr Kevin Grice (instructed by Goodmans) for the 9th and 10thRespondents
Hearing dates : 19th December 2011
On 30 June 2007 in Ullet Road, Liverpool, a saloon car which was being driven by the first defendant truck a stationary bus. The damage to the vehicles was slight: it cost £427.50 to repair the bus. But 14 passengers on the bus claimed to have suffered whiplash injuries, and in the proceedings with which we are concerned 10 of them succeeded in establishing liability for modest agreed damages.
The agreement was, however, subject to a contest on liability. The second defendants, who were the first defendant's insurers, were understandably highly suspicious of these claims. Their suspicion was initially founded on the sheer unlikelihood of so many passengers having suffered remarkably similar trauma from a very minor jolt. By the date of trial, before Judge Gore QC in the Liverpool County Court from 28 June to 1 July 2010, this suspicion had the backing of an engineering expert, Mr Parkin, whose report concluded that to reach the conventionally accepted threshold for collision trauma known as Delta V, representing here an enforced movement of 3 m.p.h., the car would have had to be travelling at 30 m.p.h. or more. Since the damage to the vehicles was inconsistent with a collision speed of more than 15 m.p.h., Mr Parkin's expert opinion was that there could not have been enough force in the collision to cause any injury, let alone to injure 14 passengers.
If this evidence had been accepted, it would have been an end of the case. The injuries would necessarily have been fabricated. But, for reasons which are not challenged in this court, the judge found that the totality of expert opinion allowed the possibility of injury at lower speeds, and that there was in reality no scientific threshold below which injury could not occur. This was in part because the physiological mechanism of injuries such as those the court was concerned with was itself not scientifically known. In short, the judge found it not impossible that this minor collision could have caused whiplash injuries to passengers on the bus.
The challenge did not end here, however. The second string to the defendants' bow was that the accounts given by the respective claimants were themselves pockmarked with inconsistencies, making them one and all unworthy of belief. It is on this aspect of the case that this appeal turns.
Before I deal with it, it is relevant to observe that the two limbs of the defence interlocked. If a low-speed collision like this one could not cause injury, the claimants must be lying when they claimed to have been injured by it. Equally, if none of the claimants had in truth been hurt by the collision, the collision, irrespective of Mr Parkin's opinion, had caused no injury. But the second limb, as Mark Turner QC for the insurers has readily accepted today, required the disbelief of the claimants en bloc. The endeavour was therefore to demonstrate collusion, not merely single instances of exaggeration or malingering (of which the defendants' examining doctor made no suggestion in relation to any claimant). As the judge said to the second defendants' trial counsel, Paul Higgins: "Either I have got ten liars or, frankly, I have got none." "That," replied Mr Higgins, "is our position."
A major part of the trial was accordingly devoted to the cross-examination of the claimants (with the exception of the 8th claimant, Terence McLean, who did not give evidence as his statement was admitted under the Civil Evidence Act 2005, and the 10th claimant, a young child, whose mother, the 9th claimant, gave evidence for him). A substantial part of this took the form of putting to each of them the content of the medical reports on them in order to highlight discrepancies between what they were now saying and what they had said, or allegedly said, to the doctors who had treated them or examined them for forensic purposes. To this end use was repeatedly made, without objection on the claimants' behalf, of the reports which had been routinely exchanged and now formed part of the agreed court bundle.
Notwithstanding the absence of objection, Judge Gore QC was not happy with the deployment of this material without explicit notice to the claimants. He pointed out that, precisely because insurance fraud was such a serious matter, it should not be alleged on the basis of mere suspicion: it must be based on "proper and admissible evidence … managed and presented in accordance with the substantive and procedural laws and rules of this jurisdiction". No issue has been taken with this comment. What has brought the case to this court is what followed in the judgment.
The judge, taking his own course rather than one charted by counsel, reminded himself of what Brooke LJ had said in Kearsley v Klarfield [2005] EWCA Civ 1510 about the relationship of pleading to evidence, and then said this:
"7. It is at this point material for me to note and observe that Mr Shah was instructed on behalf of the Second Defendants to examine and provide a report on all 10 Claimants. He advances no substantive reasons for disbelieving the account of any individual claimant and he make no assertion that any of them are to be disbelieved, confining himself instead in some but not all cases neutrally to draw attention to 'a slight discrepancy' here (page F14 paragraph 61 re the First Claimant) or 'another discrepancy' there (page F37 regarding the Second Claimant) and sometimes he drew no attention to discrepancies that did exist in materials available to him, from which one infers that he thought them to be trivial"
Although it does not overtly criticise Mr Shah, implicit in this passage is a suggestion that it is an examining doctor's job to make out the case, if there is a case, for disbelieving a claimant's account of how he or she came to suffer injury, or of the injury he or she has suffered. There are of course cases in which, for clinical or related reasons, the doctor is driven to advance such an opinion; but if it was intended here to suggest that the doctor's role is routinely that of a sleuth, I must record my respectful disagreement. Forensic medical practice has been disfigured in the past by practitioners who took on such a role; but it was to Mr Shah's credit that he confined his report to those divergences which emerged from his own interviews and from the records supplied to him and did not take on himself the task of deciding who was to be believed.
Similarly Mr Nee, to whose reports on behalf of the claimants the judge then turned, had correctly left it to the court to determine whether the claimants were telling the truth. Like Mr Shah, he confined himself to the medical coherence of the accounts given to him. And both specialists found that, subject to the discrepancies to which I shall be coming, the accounts given to them were medically credible. It followed that the defendants had either to succeed on the basis of Mr Parkin's evidence that collision dynamics excluded the possibility of injury or to show the claimed injuries to be uniformly bogus; or, ideally, both.
There followed in the judgment seven very substantial paragraphs setting out decisions on the admissibility of documents to prove the factuality of assertions recorded in them. These included a long passage from the judgment of Buxton LJ in Denton Hall Legal Services v Fifield [2006] EWCA Civ 169, as well as a judgment to similar effect of Judge Stewart QC in Lawrenson v Lawrenson and Equity Red Star (unreported, 12 July 2005). This was Buxton LJ's conclusion:
"To obviate such difficulties in future, and to ensure that factual issues in medical cases are economically and efficiently tried, the following procedure should be adopted. First, a party who seeks to contradict a factually pleaded case on the basis of medical records or reports should indicate that intention in advance, either by amendment of his pleadings or by informal notice. Then, the opposite party must indicate the extent to which they take objection to the accuracy of the records. When the area of dispute...
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