Life expectancy evidence in personal injury cases
The judgment of Master Davison in the case of Dodds v Arif and Aviva Insurance helpfully clarifies the law in respect of admissibility of bespoke expert life expectancy evidence.
The facts of the case are that the claimant suffered a moderate to severe traumatic brain injury as a result of a road traffic collision in February 2017. She was 73 years old at the time and was still suffering from the enduring effects of her brain injury.
The claimant served expert evidence from a consultant neurologist, Dr Sylvester, and a consultant geriatrician, Dr da Costa. Dr Sylvester’s report dealt briefly with the issue of the claimant’s life expectancy stating that it was “unlikely to be significantly reduced” unless she developed epilepsy of which the risk was 5%.
The defendant’s legal team on its own initiative and without canvassing the views of the claimant’s legal team, commissioned bespoke life expectancy evidence from a consultant physician, Professor Bowen Jones, and sought permission to rely upon on it at a case management conference on 4 June 2019. Professor Bowen Jones’ evidence was that the claimant’s life expectancy was likely to be reduced as a result of her traumatic brain injury and her pre-morbid conditions of high blood pressure and raised cholesterol. His conclusion was that the claimant’s life expectancy was likely to be reduced by a total period of 5.08 years.
The claimant resisted the defendant’s application to rely on Professor Bowen Jones’ evidence. The claimant asserted that the correct way to approach the issue of life expectancy was for the clinical experts to comment upon it initially, and that bespoke evidence was only appropriate if the claimant was “atypical” as per the Explanatory Notes to the Ogden Tables.
Master Davison refused the defendant’s application but applied a different approach to that argued for by the claimant. His judgement is well reasoned and is summarised below:
- He confirmed that the issue of life expectancy is important in personal injury litigation but normally there is no expert evidence adduced on it. He stated that the normal starting point was to refer to the Ogden Tables which provides life expectancy data from a general cohort whose lives are affected by a variety of medical conditions, lifestyle choices, and localities. The Explanatory Notes to the Ogden Tables confirm that bespoke life expectancy evidence is not permitted unless the claimant is “atypical” from the general cohort. Master Davison cited the case of Edwards v Martin, where the claimant was a smoker with a history of depression but the medical experts agreed that his head injury had no effect on life expectancy. In that case, Clarke J refused to allow bespoke expert evidence or to depart from the conventional Ogden Tables as the claimant was not “atypical”.
- Importantly Master Davison distinguished Edwards v Martin from the facts before him as there was clear evidence that the claimant’s brain injury had impacted on her life expectancy (Dr Sylvester’s evidence). He was clear that expert evidence on life expectancy was necessary and required. He reached this decision not because the claimant was “atypical” because her pre-morbid conditions left her outside the general cohort comprised in the Ogden Tables, but because simply her brain injury had reduced her life expectancy. The issue of by how much her life expectancy had been reduced could only be determined with the aid of expert medical evidence.
- Master Davison then considered whether bespoke life expectancy evidence was required or whether it should come from the clinical experts (most likely the neurologists). Firstly, he confirmed that life expectancy is and often has been held to be a medical or clinical issue, rather than a statistical issue. Secondly, he stated that practically it is more convenient and cost effective to ask the clinical experts for their opinion on life expectancy. The clinical experts will normally be accustomed to comment on life expectancy by reference to the Ogden Tables. If the facts of the case are more complicated that then can be further recourse to statistics however if those circumstances arise, then the starting point is for the clinical experts to consider and apply those statistics. Master Davison stated that it is only when there is a disagreement between the experts in how to apply those statistics that bespoke life expectancy evidence might be required.
- Master Davison then summarised the instances when bespoke life expectancy evidence would be suitable in the following circumstances:
1) Where the clinical experts cannot offer any opinion on life expectancy.
2) Where the clinical experts expressly state they require specific input from a life expectancy expert.
3) Where the clinical experts deploy statistical material but disagree in their approach on how to apply it.
Master Davison stated that the case before him did not, or did not yet, fall into any of those categories. On this basis, he refused the defendant’s application to rely on Professor Bowen Jones’ evidence.
Master Davison also commented on the conduct of both parties in terms of their failure to communicate their intentions in respect of expert evidence. The claimant failed to inform the defendant that they would be seeking expert evidence from a geriatrician, and the defendant failed to disclose that they were seeking bespoke life expectancy evidence. Master Davison, whilst appreciating it was not mandatory to do so, felt it would have been sensible for the parties to have communicated their intentions to rely on such evidence, so the basis for resisting such evidence could be set out before the costs were incurred.
This judgment clearly sets out the parameters in which bespoke life expectancy will be permitted and should stop defendants making routine applications to rely on the same.
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