Future losses and statistical life expectancy evidence
Mays v Drive Force UK Ltd
High Court (QB)
4 January 2019
In substantial personal injury claims there is often an issue as to the appropriate multiplier to adopt for future losses where the claimant has health issues which are unrelated to the accident. In this case, the High Court considered the introduction of life expectancy evidence based upon statistics and, in line with previous decisions, held that such evidence could be of assistance to the court and admissible in "appropriate cases".
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.
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.
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.
- 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.
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