The claim arose out of a road traffic accident in 2008. The Claimant, a lorry driver, was making deliveries. He alleged that he was stationary in his lorry when a bus collided into his vehicle. Primary liability was admitted. The Claimant disclosed medical evidence from a GP, in which it was noted that there was relevant pre accident history of pain and symptoms in the back and neck. No medical records had however been reviewed.
We argued that this was an LVI and that the damage caused to both vehicles was minimal. The bus driver was proceeding at between 11-15 mph. The bus sustained damage to the nearside mirror and damage to the lorry was similarly minimal. It was denied that the impact of the vehicles could have resulted in the alleged injuries.
We applied for an order that the Claimant disclose all their medical records. We submitted that, in accordance with Court of Appeal decision in Casey v Cartwright  and case law concerning disclosure of medical records, Bennett v Compass Group UK  and Catchpole v Young and Co’s Brewery plc , we were entitled to access the medical records in order to consider and investigate quantum.
The Court agreed and ordered that both parties have permission to obtain evidence from orthopaedic surgeons and forensic engineers. It became apparent from scrutiny of employment and medical records that the Claimant had had a number of other road traffic accidents during the 12 month period around this accident; details they omitted to mention to their, or the Defendant’s experts.
- Our forensic engineer referred to a study, reported in the winter 2009 edition of IMPACT, which stated that a collision between mirrors attached to the body of two motor vehicles did not accelerate either vehicle and did not cause any unusual occupant movement. He concluded that, given the nature of the impact, it was unlikely it caused any unusual occupant movement or injury.
- Our consultant orthopaedic surgeon concluded that the Claimant did not sustain any personal injury.
- Both parties’ orthopaedic experts subsequently agreed in a joint statement that the Claimant did not sustain injury as a result of the bus impacting on the lorry.
Following consideration of the joint statement, the Claimant’s solicitors came off record and the claim against the Defendant was discontinued.
- When dealing with LVIs, it is important to remember the principles set out in Casey v Cartwright. Allegations of LVI, and the fact that the Defendant intends to raise causation as an issue, need to be raised at the time the Defendant provides a response under the pre action protocol; this must be expressly pleaded in the defence; and within 21 days of filing the defence a witness statement must be filed identifying the grounds on which the issue was raised and identifying the available evidence relating to the issue. The purpose of the statement is for the court to consider whether to grant permission for the Defendant to obtain and rely upon expert evidence.
- Medical records are crucial. In accordance with the principles set out in Bennett and Catchpole, the defendant is entitled to access medical records to consider and investigate issues of causation and quantum, and identify and formulate appropriate questions to put to experts.
- Robust expert evidence is required from a forensic engineer and an orthopaedic surgeon.