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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kearsley v Klarfeld  EWCA Civ 1510 (06 December 2005)
Cite as:  2 All ER 303,  EWCA Civ 1510
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
District Judge Stephens
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President, Court of Appeal, Civil Division)
LORD JUSTICE DYSON
LORD JUSTICE CARNWATH
| Alan Mark Kearsley
|- and -
Benjamin Williams (instructed by Coyne Learmonth) for the Respondent
Hearing date: 8th November 2005
Crown Copyright ©
Lord Justice Brooke : This is the judgment of the court.
"In this case Mr Newman concluded that:-
(i) It is very unlikely that injury was sustained by [the] claimant;
(ii) If any symptoms were truly experienced then these would not have been associated with the functional detriment claimed over the period of time described.
(iii) The prognosis offered by Dr Picardo is unduly pessimistic and it is highly unlikely that symptoms which apparently take so long to settle can be sustained in impacts of such minimal severity.
In these circumstances, and guided by the opinions of Northern Assessors and Mr Newman, the defendant's case is that the claimant is fabricating his symptoms and that no injuries were truly sustained by [him]."
This amended defence was signed by a trainee solicitor.
"It seems to me fairness dictates in a fraud case it be investigated properly. No one should lose his name merely because the Rules seem to say otherwise. They are not our masters. They are to help matters progress. If things go wrong then they must be put right."
"In my judgment 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 second-hand material he received in this case - must be dispositive of liability in such a case and that a judge must be compelled to find that, in his view, two palpably honest witnesses have come to court to deceive him in order to obtain damages, in this case a small amount of damages, for a case they know to be a false one."
"He was reporting on the basis of what he had been told about the damage to the bus and an inspection that had been made on his behalf to the Ford Fiesta after repairs had been carried out. His evidence was that in order for the Fiesta to move just on its springs, without the vehicle's wheels moving, the impact would have had to be such as to cause some distortion to the panels of the vehicle, but there was not any. But if there was no distortion to the panels of the vehicle and the vehicle did not even move on its springs, there would be no movement of the occupants of the vehicle, much less any movement which would possibly injure their spines. [He] said that unless the person in question is peculiarly vulnerable the vehicle would have to move on the road surface in order to cause injury. There was no evidence that this vehicle moved across the road surface at all with either the footbrake or the handbrake on. [Counsel for the defendant] encouraged us to read the transcript of [this witness's] evidence, which I have done; and he stood up to a lot of questioning by counsel instructed by the claimants and also by the judge himself. His thesis, as the judge found, stood up to this questioning."
"(1) Where the court is to decide whether to allocate to the fast track or the multi-track a claim for which the normal track is the fast track, it will allocate the claim to the fast track unless it believes that it cannot be dealt with justly on that track.
(2) The court will, in particular, take into account the limits likely to be placed on disclosure, the extent to which expert evidence may be necessary, and whether the trial is likely to last more than a day."
i) Whiplash associated disorder is a well recognised consequence of low speed impacts, particularly when the claimant is a driver or front seat occupant, when there is no anticipation or bracing, and when the collision occurs from the rear;
ii) Vehicle damage is not a good indicator of injury risk, because modern cars are equipped with bumper systems that will often prevent property damage at speeds well above the so-called threshold for harm;
iii) Delta V (the estimated change of velocity in the struck vehicle) is only one factor implicated in injury risk, and the modern understanding of the kinematics of whiplash injury requires many other factors to be taken into account;
iv) 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 comes from a superficial examination of one or both vehicles some time after the event. The notion that an engineer can determine Delta V and injury risk in these circumstances is absurd;
v) If the engineers are using a validated method to determine the Delta V, it is necessary to know the margin for error in the estimation and to have access to any peer-reviewed literature supporting this method of assessment as a valid means of determining Delta V in crashes in the real world;
vi) The medical literature addressing the relationship between impact vehicle and injury risk needs to be carefully analysed because it appears to give conflicting messages;
vii) In his opinion the examining medical expert must conduct a clinical examination of the claimant and obtain a detailed medical history from him, as well as reviewing associated documents.
Mr Williams, who appeared for the claimant, also told us that factors like the comparative stiffness of the vehicles and the alignment of their bumpers may also come into play.
"In addition to the matters listed in paragraph 10, full particulars of any allegation of dishonesty or malice and, where any inference of fraud or dishonesty is alleged, the basis on which the inference is alleged should also be included."
"The allegation is one of fraud. If it had been made good…[the plaintiff] would have been exposed to the possibility of criminal proceedings. Surprisingly, given the serious nature of the allegation, the body of the defence contained no pleading to support it."
A little later she said:
"I do not consider it satisfactory that an allegation as serious as fraud, which is required by RSC O 18 r 8(1)(a) to be specifically pleaded, should be capable of ascertainment only by conducting a paper chase through the medical reports. … Counsel for the defendants told me that it is not the usual practice to plead malingering. If that is so, it seems to me that the usual practice is in disregard of O 18 r 1(a), which is itself a reflection of common justice. I asked for the defence to be pleaded and gave leave for the amendment"
"5. In those circumstances, and guided by the opinions of Northern Assessors and Mr Newman, the defendant's case is that the claimant is fabricating his symptoms and that no injuries were truly sustained by them.
6. Accordingly the claim for loss of earnings, prescription charges and miscellaneous expenses are not admitted and the claimant is put to strict proof."
"I think we have got to make it absolutely clear to the Bar and to judges that 'you are a liar' is something that people are entitled to proper notice of because if that is alleged against them they are entitled, on the face of it, subject to the individual cases, to have expert evidence in support."
In the context of the present appeal all we need say is that in our view, however strongly the defendants' experts may believe that because of the theories they hold the accident could not have happened in such a way as to cause any injury, the defendant does not have to put forward a substantive case of fraud in order to succeed. In the present instance the defendant's case was founded on the contentions in paras 3 and 4 of the amended defence, from which his representatives will be inviting the judge at the trial to conclude that the claimant has not proved what he has set out to prove and therefore to dismiss the action.