Background
The claimant, a transporter driver, sustained a catastrophic traumatic brain injury and orthopaedic injuries when he fell from his lorry. He lacked capacity to conduct litigation or manage his financial affairs, relied upon a case manager, support workers and therapists and had been unable to return to any employment since the accident.
Both parties sought to rely upon the usual raft of clinical expert evidence obtained in such cases including neurological, neuropsychological and neuropsychiatric experts along with care / case management experts and deputyship costs experts. It was common ground that the claim had a value in excess of £1 million with the claimant contending for an award in excess of £2 million.
Issue
The claim came before Deputy Master Hill QC for a CCMC. The issue to be determined was whether, in addition to evidence from the agreed clinical disciplines, the defendant could also adduce evidence from Professor Bowen-Jones on the issue of the claimant's life expectancy given that the claimant was a smoker, was obese and suffered from both hypertension and ulcerative colitis prior to the accident.
Submissions
The parties' neurologists acknowledged that there were issues relevant to the claimant's life expectancy other than the accident itself.
- Dr Foster, for the defendant, had offered a view of the impact of smoking but made it clear that he would defer to another expert on the impact of the colitis. He further commented that it was not the case that reductions in life expectancy were "simply additive". In other words all of the issues needed to be considered in the round. He deferred to a life expectancy expert.
- Professor Bowen-Jones has a clinical background and expertise in statistics. Ignoring the epilepsy risk (flowing from the head injury and, thus, caused by the accident) he assessed that life expectancy had been reduced by approximately 11 years. This would substantially affect the quantification of the future loss claim.
- The defendant further submitted that, as Professor Bowen-Jones was a suitably qualified expert whose opinion had previously been permitted in at least one other reported case, Wolstenhome v Leach's of Shudehill Ltd (2016), they should be permitted to rely upon his evidence, it being a matter for the trial judge to consider his expertise or ability.
- The claimant sought to oppose the application on the basis that life expectancy is generally treated as a clinical matter unless the experts interpret data in a fundamentally different way.
- The claimant also submitted that smoking and hypertension were common conditions and that that neurologists were able to consider their impact upon life expectancy.
- Further, if evidence were permitted it would effectively open the floodgates to similar evidence being introduced in all cases.
- Finally, it was submitted that the approach adopted by Professor Bowen-Jones derived from the insurance statistics and contained a good deal of speculation.
Decision
- In permitting the evidence Deputy Master Hill QC relied upon previous case law, namely the Court of Appeal decision in Royal Victoria Infirmary v B (a Child) (2002) and the High Court decision in Lewis v Royal Shrewsbury Hospital NHS Trust (2007).
- He noted that, in an "appropriate case", the court is likely to be assisted by expert evidence on the point – the issue being who should provide the evidence.
- It was clear from the Royal Infirmary case that statistical evidence (in that case from Professor Strauss and based upon Californian data) was "not necessarily inadmissible" and could be a "useful starting point for a judge" which, together with clinicians' evidence "should provide a satisfactory inter-disciplinary approach to the resolution of the issues". In Lewis it was noted that statistical evidence was "highly relevant to the issues" and provided a "good guide or starting point".
- The evidence could, therefore, be admissible in "an appropriate case" alongside evidence of clinicians. He was not persuaded by the floodgates argument.
Comment
So what can we take from this decision in practice?
- It is only a first instance decision, so of no binding authority, but it is persuasive and will be useful to defendants who may find themselves faced with similar objections from opposition when seeking to adduce statistical evidence of life expectancy.
- There is no guidance as to what would be an "appropriate case". Clearly, in substantial catastrophic cases, a reduction in life expectancy can have a significant impact on the value of the claim. Take, for example, a 50 year old with an ongoing lifetime loss of £30,000 per annum. Adopting a simplistic approach the multiplier for loss for life (per table 1) at the current discount rate of -0.75% is 41.44, a total loss of £1,243,000. At age 61, the multiplier reduces to 28.05, a total loss of £841,500 and a reduction in the value of the claim of £401,500.
- Arguably there could be scope for introduction of statistical evidence in any claim where there is an ongoing loss for life. However, the larger the claim the easier it will be to persuade the court to permit such evidence. It was noted in this case that the evidence would cost approximately £15,000 and the claimant wisely did not raise any objections of grounds of proportionality. Whilst that court was not persuaded by a "floodgates" argument there may be more appetite to consider such representations in lower value claims.
- The nature of the unrelated condition(s) must also be considered. Smoking was clearly something that Dr Foster, a neurologist, felt competent to comment upon. Hypertension may also properly fall within the realm of such experts and, if mild could, arguably, already have been taken into account by the government actuaries when producing the Ogden Tables. Other, more significant, issues, however, such as colitis, diabetes, cancer, cardiac problems etc. are more unique to the specific circumstances of the claimant and statistical evidence, in conjunction with clinicians, may assist. The alternative argument could be that specific evidence from clinicians in their respective field (e.g. gastroenterology, endocrinology, oncology, cardiology etc.) would be required to comment upon individual effects of each condition. This would result in an unacceptable proliferation of experts and costs in the case and still leave the court with the task of trying to assess how the combined effect of each individual condition affects overall life expectancy.
- It is apparent from the claimant's objections that Professor Bowen-Jones also commented upon ability to work to normal retirement age. No further comment was made by the court as to that and, no doubt, it will be for the trial judge to consider whether to accept this opinion on that point. For a claimant in a particularly manual or demanding job the effect of pre-existing conditions upon their ability to work until normal retirement age may have a significant impact upon the value of the claim even if there is no substantive ongoing claim for life. There is no reason why such cases could not be considered to be "appropriate cases" for the introduction of statistical evidence although there is more likelihood that objection will be raised.
Contact
For further information please contact, Liz Harrison +44 (0)151 907 3419 liz.harrison@dwf.law
