Life Expectancy Evidence in Personal Injury Claims: Case Update

8 Jul, 2019

In the recent hearing in Dodds v Arif & Anor [2019] EWHC 1512 (QB) Master Davison refused the defendant’s application to rely on a specialist report in relation to the claimant’s life expectancy and gave a helpful overview of the principles involved for the courts when considering whether to grant permission for such evidence.

The Underlying facts

The claimant was 73 years old when she was struck by a car driven by the first defendant whilst she was crossing a road in south west London. The main injury was a traumatic brain injury, classified as moderate or severe.  

The Expert Evidence

The view given by the claimant’s expert neurologist was that unless the claimant develops epilepsy (as to which there is a 5% risk), her life expectancy "is unlikely to be significantly reduced".

The defendants disclosed a report from Professor Bowen Jones, a distinguished consultant physician and publisher of a number of papers on mortality, who commented on this claimant’s life expectancy alone. He used what is commonly referred to as the "Brackenbridge" methodology; applying this approach, he expressed the opinion that the claimant's pre-accident life expectancy had to be adjusted downwards for her high blood pressure and raised cholesterol and upwards for her non-smoking status – the net result being an overall reduction of 3.29 years from her "Ogden prediction" of 16.89 years. Post-accident, his opinion was that the effect of head injury has further reduced the claimant's life expectancy so that it now stands at 15.08 years – a total reduction of 5.08 years.

The Arguments

The claimant resisted permission for Professor Jones’ report to be relied upon, arguing that in personal injury claims, life expectancy was catered for by applying the Ogden Tables and not by “bespoke” life expectancy evidence. Life expectancy evidence as such was only appropriate in a case where the claimant was “atypical”. The defendant submitted in response that the claimant was indeed "atypical" because she had a head injury which had reduced her life expectancy.

The Court’s Reasoning

Permission was refused. Master Davison made the following observations:

(a)    The Explanatory Notes to the Ogden Tables state unless there is clear evidence in an individual case to support the view that the individual is atypical and will enjoy longer or shorter expectation of life, no further increase or reduction is required for mortality alone;

(b)   This proposition is clearly illustrated by the case of Edwards v Martin [2010] EWHC 570 where Clarke J refused to depart from the Ogden Tables multiplier in circumstances where the claimant was a smoker and had some history of depressive illness;

(c)    The cohort used for the Ogden Tables is a general cohort which includes lives affected by a variety of medical conditions, lifestyles (including smoking) and localities;

(d)   The defendant had not first sought to clarify the opinion of the claimant’s neurologist through Part 35 questions;

(e)    Life expectancy is and has often been held to be "a medical, or clinical, issue" - what matters is the clinical judgment of the experts on the facts of this particular case" and accordingly the issue of life expectancy is normally channelled towards the clinical experts;

(f)    In practical terms it is usually very much more convenient and cost-effective to ask the clinical experts for their opinion on life expectancy;

(g)   If it became a frequent practice to instruct bespoke life expectancy experts, then that would have the effect of introducing delay as well as considerable extra cost – to no great advantage.

When would Life Expectancy Evidence Be Reasonably Required?

Master Davison considered bespoke life expectancy evidence from an expert in that field should be confined to cases where the relevant clinical experts cannot offer an opinion at all or state that they require specific input from a life expectancy expert (see e.g. Mays v Drive Force (UK) Limited [2019] EWHC 5), or where they deploy, or wish to deploy statistical material, but disagree on the correct approach to it.

Conclusion

The judgment emphasises that where a claimant's injury has not itself impacted upon life expectancy, permission for this category of evidence will not be given there is clear evidence to support the view that the individual is atypical and will enjoy longer or shorter expectation of life.

Even then, the "normal or primary route" for life expectancy evidence is the clinical experts. Further, Master Davison considered the methodology which the experts adopt to assess the claimant's life expectancy is a matter for them.

This refusal of the defendant’s application provides a useful survey on the scenarios in which the court will and will not entertain permission for bespoke life expectancy evidence. It provides helpful ammunition for a claimant seeking to resist such an application for the defendant and reminds that a claimant with an apparently unhealthy lifestyle pre-accident – some fondness for cigarettes, alcohol or evidence of obesity – will not in of itself provide a gateway for a defendant to obtain such specialist expert input.

The full judgment can be found here.

Author: John Schmitt

 

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