CAROL DODDS (BY HER LITIGATION FRIEND, JANICE DODDS) v (1) MOHAMMAD ARIF (2) AVIVA INSURANCE LTD (2019)
[2019] EWHC 1512 (QB)
QBD (Master Davison) 18/06/2019
CIVIL EVIDENCE - PERSONAL INJURY
EXPERT EVIDENCE : EXPERT WITNESSES : LIFE EXPECTANCY : OGDEN TABLES : PERSONAL INJURY CLAIMS
Permission to adduce expert evidence on life expectancy in personal injury cases would not be given unless, in accordance with the explanatory notes to the Ogden Tables, there was clear evidence that the claimant was atypical and would enjoy a longer or shorter expectation of life. In such a case, evidence on life expectancy should be given by a clinical expert. The court clarified the circumstances in which bespoke life expectancy evidence could be given by an expert in that field.
At a case management hearing in a personal injury claim, the court was required to determine whether to allow the defendants to adduce expert evidence on the claimant's life expectancy.
The claimant, who was 73, had been struck by a car driven by the first defendant and insured by the second defendant. She sustained a traumatic brain injury and substantial cognitive impairment. A neurologist's report adduced by the claimant stated that, unless she developed epilepsy, her life expectancy was "unlikely to be significantly reduced". The defendants disclosed a report prepared by a professor who was an expert on life expectancy. He concluded that the effect of the accident was to reduce the claimant's life expectancy by five years. The claimant objected to that report being adduced.
HELD: Guidance on evidence concerning life expectancy:
- Where the claimant's injury had not itself impacted on life expectancy, permission for that category of evidence would not be given unless the condition in paragraph 5 of the explanatory notes to the Ogden Tables was satisfied, namely that "there was clear evidence ... to support the view that the individual is atypical and will enjoy longer or shorter expectation of life".
- Where the injury had impacted on life expectancy, or where the para.5 condition was satisfied, the normal or primary route for life expectancy evidence was the clinical experts.
- The methodology which the experts adopted to assess a claimant's life expectancy was a matter for them.
- Permission for "bespoke" life expectancy evidence from an expert in that field would not ordinarily be given unless the clinical experts could not offer an opinion at all, or for reasons stated that they required specific input from a life expectancy expert, or where they deployed statistical material but disagreed on the correct approach to it (see para.23 of judgment).
Was bespoke expert evidence required in the instant case?
Bespoke evidence on life expectancy was not generally permitted unless there was clear evidence to support the view that the claimant was "atypical", Edwards v Martin [2010] EWHC 570 (QB) applied. The instant case was different from Edwards because, although the claimant was not "atypical" within the meaning of the explanatory notes to the Ogden Tables, the expert evidence implied that the claimant's head injury had some potential impact on her life expectancy. If the claimant developed epilepsy, the effect on life expectancy would be significant. The court would have to decide by how much the claimant's life expectancy was reduced in order to arrive at the correct multipliers. That could only be done with the aid of expert medical evidence. It was clear that the claimant's expert's opinion needed to be expanded and clarified. The normal route for doing that would be a supplemental report and/or questions to him under CPR Pt 35. Bespoke life expectancy evidence from an expert in that particular field was not required because:
- Life expectancy was a medical or clinical issue, Royal Victoria Infirmary & Associated Hospitals NHS Trust v B (A Child) [2002] EWCA Civ 348, [2002] P.I.Q.R. Q10, [2002] 3 WLUK 351 followed and Arden v Malcolm [2007] EWHC 404 (QB), [2007] 3 WLUK 72 applied. The statistical evidence which formed the basis of an opinion from a life expectancy expert such as the professor was regarded as only a "useful starting point" on the way to an "inter-disciplinary approach", Lewis v Royal Shrewsbury Hospital NHS Trust [2007] 1 WLUK 628 and Sarwar v Ali [2007] EWHC 274 (QB), [2007] 2 WLUK 532 applied.
- In practical terms, it was much more convenient and cost-effective to ask the clinical experts for their opinion on life expectancy. They were already instructed and could deal with life expectancy together with the other matters they were concerned with, for example the claimant's cognition and other neurological problems. It was commonplace for clinical experts to express their opinion as to life expectancy by reference to a reduction from the Ogden Tables average, sometimes called a "top-down" approach. That was a clear and accessible method which made the choice of a suitable multiplier a simple matter. Recourse to statistics would not be required in every case, but if it was required, then such material was still a matter for the clinicians in the first instance. It was only if they disagreed on how to apply the statistics that an expert such as the professor might be required. There were very few life expectancy experts, and if it became frequent practice to instruct them it would introduce delay and considerable extra cost to no great advantage.
- The professor's report could not be fairly characterised as a clinician's report. It was a desktop report using actuarial methods.
Permission to rely on the professor's report was refused (paras 11-22).
Good practice
It was not mandatory under the rules to canvass the instruction of experts with the opposing party, although both the Pre-Action Protocol and the form of the Directions Questionnaires to be filed under Pt 26 encouraged it. However, where the instruction of an expert might be controversial, a discussion was good practice. In the instant case, a discussion concerning the instruction of the professor would have allowed the claimant's advisers to set out their reasons for resisting his instruction. Those reasons were well-founded and had prevailed, and the cost of instructing the professor had been wasted, which had been avoidable (para.26).
Judgment accordingly
Counsel:
For the claimant: Robert Hunter
For the defendants: Patrick Vincent
Solicitors:
For the claimant: Leigh Day
For the defendants: DWF
LTL 18/6/2019 : [2019] 6 WLUK 243
Official - 6 pages