Life expectancy expert evidence

A key principle emanating from a recent ruling is that life expectancy is a medical or clinical issue, not a statistical or actuarial issue. The High Court has handed down judgment in an important case concerning the admissibility of expert evidence on the issue of life expectancy.

This case, Dodds v Arif & Anor [2019] EWHC 1512, involved a traumatic brain injury, but the decision has implications for all personal injury cases where a claimant’s life expectancy is potentially affected.

At a case management conference, Master Davison refused the defendants permission to rely on the ‘bespoke’ expert medical evidence of a consultant physician in relation to the claimant's life expectancy. The Master’s approach to this issue and the guiding principles set out in his judgment are invaluable reading for personal injury and clinical negligence practitioners.

What’s the background?

The then 73-year-old claimant suffered a traumatic brain injury in 2017 when she was hit by a car. She is a protected party and cared for by her sister. She can perform most normal daily activities but has substantial cognitive impairment, needing a good deal of support.

Her expert neurologist concluded that unless she developed epilepsy, her life expectancy was unlikely to be significantly affected. However, the defendant’s expert report - by a specialist in life expectancy - was disclosed but without discussing it with the claimant.

In his report, the defendant’s expert applied The Rating of Substandard Lives method (the so-called Brackenbridge method), adjusting the claimant's pre- and post-accident life expectancies downwards - the net result being an overall reduction of 3.29 years from the claimant’s ‘Ogden prediction’ of 16.89 years.

But assessing pre-condition life expectancy and the multipliers using the Ogden Tables are not always reliable, for example, where a claimant is atypical – an expression directed, said the Master, “towards outliers from the population cohort comprised in the Tables who, because of special factors relating to their general health, could be expected to enjoy longer or shorter life expectation”. If a claimant is within this category bespoke expert evidence can be relied upon.

However, the claimant argued that she was not ‘atypical’, so she resisted the defendant’s application for permission to rely on its life expectancy expert evidence.

At issue for the court was whether life expectancy evidence was required at all, and if so, whether bespoke evidence from an expert in that specific field was required, or whether it should come from the clinical experts.

What was the outcome?

The defendant failed in its application. Master Davison made clear that the Court has a duty under CPR 35.1 to restrict the expert evidence to that which is reasonably required to resolve the proceedings. And this rule, as with all rules of procedure, needs to be construed in the light of the overriding objective of the court.

He decided that life expectancy evidence was required under CPR 35.1 – but not because the claimant was atypical but because her head injury had had an ‘impact on her life expectancy’. It is then for the court to decide by how much to arrive at the correct multipliers, which can only be done with the help of expert medical evidence.

The Master’s key reasons were two-fold. First, life expectancy is a medical or clinical issue. On that basis, statistical evidence forming the basis of an opinion from a life expectancy expert is merely a useful starting point. What matters is the experts’ clinical judgement on the facts of the case.

Second, on practical note it is usually much more convenient and cost-effective to ask the clinical experts for their opinion on life expectancy, along with the other matters they are concerned with following their instructions.

He noted that clinical experts normally express their opinion as to life expectancy by reference to a reduction from the Ogden Tables average – sometimes called a ‘top-down’ approach. This is a clear and accessible method making the choice of a suitable multiplier a simple matter. But he said that if recourse to statistics is necessary, such material remains a matter for the clinicians - and it is only if they disagree on how to apply the statistics that a life expectancy expert might be required.

He made two further observations of note:

  1. Though it was argued that the expert was a clinician, his report said he was a specialist in endocrinology and diabetes, these did not feature in the claimant's presentation. It was a ‘desktop report’ and the expert acknowledged his was an actuarial method. Therefore, the report could not fairly be characterised as a report from a clinician.
  2. An expert considering life expectancy is not bound to take the Ogden Tables as a starting point. If there is to be life expectancy evidence it is not for the court to dictate how the medical expert goes about it. The medical expert has a "clean sheet" - the court will then evaluate the evidence and arrive at a finding.

Master Davison concluded his judgment by setting out some propositions following the authorities on this issue:

  • Where the injury has not impacted life expectancy, permission for expert evidence on life expectancy will not be given unless there is clear evidence that the claimant is atypical and will enjoy longer or shorter expectation of life.
  • Where the injury has impacted life expectancy, or the claimant is ‘atypical’, expert life expectancy evidence should normally come from clinical experts.
  • The methodology which experts can adopt to assess the claimant's life expectancy is a matter for them.
  • Permission for ‘bespoke’ life expectancy evidence from an expert in that field will not normally be given unless:
    • the clinical experts cannot offer such an opinion, or
    • they state they need specific input from a life expectancy expert, or
    • where they deploy, or wish to deploy statistical material, but disagree on the correct approach to it.


    On a procedural point, the Master said both parties “would have been wise to canvass their instruction with each other”. Though not mandatory, it is encouraged by the Pre-Action Protocol and by the form of the Directions Questionnaires to be filed under CPR Part 26.

    A discussion in this case could have avoided the wasted cost of instructing the expert whose evidence was not permitted.

     

     

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