02/11/2020

Low speed impact; a look ahead from a Scottish perspective…

Where there is blame, there is a claim

In a world of “where there is blame, there is a claim”, low speed impact (LSI) or low velocity impacts (LVI) are at the forefront of road traffic insurers’ minds; a scenario where the pursuer (claimant) claims to have suffered an injury after being involved in a minor road traffic collision with another road user.

It is a live, hot topic which is encountered both north and south of the border. The defence to such claims is broadly consistent across the jurisdictions; the pursuer could not have been sufficiently physically disturbed within the vehicle as a result of the collision and therefore did not suffer injury i.e. the speed and force of the collision did not cause the occupant to be displaced within their vehicle. More often than not the vehicles involved in the collision either sustained no damage or minimal cosmetic damage only.

While various strategies can be adopted in such cases, in order to increase the prospects of defending a low speed claim, detailed investigations have traditionally been required, which again are similar in both jurisdictions. Each case turns on its own facts and circumstances, and independent expert evidence may be required. For example, an expert engineer may be instructed to examine the vehicles with a view to assessing the repairs and damage.

However, it is of course, for the pursuer to discharge the onus of proof and satisfy the court that on the balance of probabilities they suffered an injury as a result of the collision. If the pursuer cannot discharge the burden, or the court cannot decide whose evidence to prefer, the pursuer’s case must fail.

In certain cases, it is possible to adopt a strategy without incurring the additional costs of independent experts. By relentlessly challenging and testing the pursuer’s inconsistencies and their expert evidence, the court may be persuaded that the pursuer has failed to prove their case.

However the method by which the evidence is presented to the courts in Scotland differs drastically. In Scottish cases, documents that are to be relied upon at trial are not self-proving i.e. the author will be required to attend to court to speak to the document in order for it to be admissible as evidence. In certain cases, the documents can be agreed by parties ahead of the trial, however, in LSI cases it is unlikely the engineer reports will be agreed as they are controversial. Often competing reports will be presented by the opposing side.

In the lead up to trial, there is no ‘witness statement exchange’, nor do we need the authority of the court to obtain independent expert evidence. More often than not, it comes down to how the witness presents their evidence at trial. The Scottish courts will heavily rely on the oral evidence on the day, as well as considering any expert reports that have been prepared. Close attention is paid to what is said by each witness on the stand; especially when challenged.

A further key difference that defenders (defendants) are aware of between the jurisdiction is the implication of costs. Often defending these types of claims quickly becomes disproportionate when considering the overall value of the claim. It is vital that investigations are carried out efficiently and effectively and the prospects of success are quickly assessed. The pursuer’s costs soon stack up and are usually not fixed.  

At present in Scotland, where a defender is successful in repudiating a claim, judicial costs will normally follow success. For example, if the defender has incurred the costs of instructing experts, obtaining reports and instructing Counsel, usually the majority, if not all, of the costs will be recovered from the other side.

However, Scotland will soon take a step closer to the position in England and Wales with the introduction of qualified one-way cost shifting (QOCS): a successful defender will be unable to recover their costs of defending claims unless the court finds the pursuer has made ‘fraudulent representations’ or ‘otherwise acts fraudulently in connection with the claim or proceedings’. The change in law will force parties to carefully consider their appetite to pursue or defend claims. A defender will need to carefully and quickly, weigh up prospects with economics when choosing which case to defend in full.

Unlike south of the border, there is no legislative foundation for fundamental dishonesty and (currently) there is no specific definition of ‘fraudulent misrepresentation’ or ‘otherwise acts fraudulently’. We therefore envisage that this will be tested by Scottish lawyers on a case by case basis who look to the courts for clarification.

Please contact fraud.scotland@kennedyslaw.com to discuss further.

Related item: Low speed impacts – the little and often problem