Abstract
The importance of calculating life expectation in catastrophic injury claims, the impact of periodical payments and the limited extent to which the calculation of life expectation can be avoided, the needed for statistical evidence, the use of table 28 and the 6th edition of the Ogden tables.
The calculation of life expectation has always been a sensitive and important part of the calculation of loss in personal injury claims. The introduction through the Damages Act 1996 and the amendments made by the Courts Act 2003 of the power of the Courts to order Periodical Payments instead of a conventional lump sum had sought to reduce the impact of the importance of accurately estimating life expectation. The introduction of periodical payments has been bedevilled with litigation. The House of Lords recently granted permission to the NHSLA Defendants in the cases which have become known as the Thompstone cases1 to pursue their appeals to the House of Lords, however having obtained permission the NHSLA have now withdrawn the appeals. The main issue in these cases was whether when a Claimant is awarded periodical payments for care and case management the periodical payments should be index linked by retail prices index (RPI) or by an earnings-related index or other measure such as ASHE2 6115. The issue was of considerable significance in respect of the appropriateness of periodical payments in meeting claims with high care costs. A number of Judges have now determined that if indexation of periodical payments was confined to RPI then periodical payments cannot be said to meet the Claimant's future needs on a 100% basis as envisaged in Wells v Wells.3 If the NHSLA had pursued the appeals to the House of Lords and succeeded in overturning the Court of Appeal decision then in the vast majority of cases damages would have needed to be awarded by way of a conventional lump sum instead of periodical payments. Many of the recent settlements with NHSLA Defendants provided for an alternative lump sum award in the event that the House of Lords found RPI to be the applicable index for care claims. Now that the appeals have been withdrawn, periodical payments will remain an attractive form of settlement or award for both Claimants and Defendants in cases where there is a real dispute as to life expectation. However, life expectation continues to be a central part of the calculation of personal injury awards for other heads of loss and in particular in respect of accommodation and loss of earnings claims. Further, in cases where there is less than 100% recovery, it is frequently not appropriate for an award to be by way of periodical payments as the Claimant will never be able to meet the cost of care in any year from a percentage award. In cases of only partial recovery the flexibility of a conventional lump sum award will frequently be required.
Lord Justice Brooke explained in Flora v Wakom (Heathrow) Ltd
4
that if periodical payments were not linked to an appropriate index then: ‘there would be a real danger that this new statutory scheme would not have the beneficial effect identified by Lord Steyn in Wells v Wells but would be rendered to a great extent a dead letter. If it is ordered that the whole of the damages for future pecuniary loss are to take the form of periodical payments, then the Claimant will lose the facility of an investment policy that may extinguish the baneful effect of a discount rate that ultimately derives from calculations based on RPI.’
In an article published in January 2004 in Clinical Risk, Doctor Lewis Rosenbloom, Consultant Paediatric Neurologist, stated some of the problems in estimating life expectancy as a clinician: ‘It follows when clinicians are asked to give an opinion on the prognosis for survival in medical negligence or personal injury litigation that figures that are statistically derived from the epidemiological studies can and should be weighted for clinical factors. What is less certain is whether it is appropriate to weigh statistically derived figures in relation to assumed future quality of care. While it is intuitive to attempt to do so there is hitherto no supportive published evidence.’
Dr Rosenbloom concludes the discussion by stating: ‘It is beyond the scope of this review to provide an opinion on soundness of determining an important component of quantum in high value claims in this way. The inevitable inaccuracy of the bulk of these estimates must however be as powerful an argument as there can be for advocating a system of periodic payments rather than a lump sum to successful Claimants.’
For a number of reasons however it remains necessary to consider the life expectancy of a client with cerebral palsy at an early stage in the litigation:
It is necessary to plan how best to obtain evidence on life expectancy:
should the first paediatric report on condition and prognosis for service with the particulars of claim give an assessment or should this be left to a later stage; which type of expert should be instructed on life expectancy; which experts will the master or district judge allow to be used at trial; is a joint report ever appropriate; It is necessary to plan when proceedings should be issued by considering life expectancy:
if proceedings are issued too soon the court may case manage the claim to trial before life expectancy can be properly assessed; or the Defendant may make an early Part 36 offer which the Claimant cannot properly assess; on the other hand if life expectancy is very uncertain the Claimant may die before proceedings are issued; it will be necessary to give an assessment of life expectation when making an application for a significant interim payment in order to demonstrate the overall award is likely to exceed the amount sought by way of interim payment; It will be necessary to consider whether a periodical payments award best meets the needs of the client where life expectancy is uncertain; however this is not a way round assessing life expectancy at all as the accommodation award will still need an assessment of life expectation and other items are likely to need to be capitalized to produce a sufficiently large capital lump sum; It will be necessary to plan when to raise the issue with the family as discussions on life expectancy can be difficult for the family.
In the case of Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child)
5
the issue before the HH Judge Langhan was to decide the multiplier to be applied to the agreed cost of future care for the rest of the Claimant's life. Statistical evidence was called on behalf of the Defendant from Professor Strauss. The judge came to a conclusion based on a combination of the statistical evidence and the paediatric evidence as to life expectation and calculated the multiplier in accordance with what is now table 28 of the Ogden tables. That is, he assumed once he had heard all the evidence and come to a conclusion on life expectation he should use that life expectation as term certain. All the contingencies that could possible effect the child in question had already been taken into account.
The Defendant appealed and in the Court of Appeal Tuckey LJ said: ‘I should perhaps add that the passage which I have quoted in which the judge referred to his criticisms of Professor Strauss's evidence suggests that the judge thought that acceptance of Professor Strauss's evidence would be a departure from the conventional manner of determining life expectancy. If he had meant by this that the court should not have regard to relevant statistical evidence he would have been wrong. But I do not read his judgment this way. What he is saying is that it would be wrong to decide the expectation of life purely by reference to Professor Strauss's statistics.’
Further, Lord Justice Tuckey explained that: ‘In an appropriate case such evidence may well provide a useful starting point for the judge, but if it is to serve this purpose Professor Strauss or any such expert should be required to give evidence if his report is not agreed. Such evidence, together with medical evidence should provide a satisfactory interdisciplinary approach to the resolution of issues of the kind which arose in this case.’
Lord Justice Evans explained that: ‘The judge also said and I agree:
“I accept that statistics are a useful tool in the hand of the clinician but where reliable medical evidence is before the court, they should not displace the expertise of the clinician. They provide, rather, a useful background to and cross-check the work of the doctor…
…When a doctor gives expert evidence, the court relies on the witness for a professional opinion which takes account of contemporary knowledge and expertise, not limited to his or her own personal experience but including reports of the experiences of other doctors and other published material. The published material clearly includes statistical information such as was produced by Dr Strauss, though not, of course, the individual assessment made by him in the present case. Whether or not such an assessment has been made, the court must still rely primarily in my judgment on expert medical witnesses before reaching a conclusion in the particular case. It would be wrong to allow a statistician or an actuary to do more than inform the opinions of the medical witnesses and the decision of the court on what is essentially a medical, or clinical, issue.”’
Thereafter courts have been reluctant to order statistical evidence as well as medical evidence in respect of life expectancy until it is apparent there is a real and significant dispute between the medical experts as to life expectation. In the case of Arden v Malcolm [2007] Mr Justice Tugendhat refused the Defendant permission to rely on evidence from Professor Strauss and found: ‘In my judgment it is in the spirit in the decision of the Court of Appeal in Royal v Victoria that the clinician experts should be the normal and primary route through which such statistical evidence should be put before the court. It is only if there is disagreement between them on a statistical matter that the evidence of a statistician, such as Professor Strauss, ought normally to be required.’
That is, the Judge did not rule out the possibility that statistical evidence might be required, but required the medical experts to consider the statistical evidence in the light of the clinical condition of the Claimant to see if they could reach agreement before evidence from a statistician was required. Frequently the real reason why the medical experts cannot reach agreement as to life expectation is that they have formed an entirely different clinical assessment of the Claimant's condition and abilities. Katie Lewis v Royal Shrewsbury Hospital NHS Trust 6 was a stark example of this. While it will not always be practical to do so, sometimes the best way of resolving such an issue will be for the medical experts to meet at the Claimant's home and assess together the extent to which the Claimant complies with various features of the Strauss ‘Patient Evaluation Questionnaire’ (PEQ) to see if they can then agree the statistical category into which the Claimant should be placed before clinical factors are applied to adjust this.
A further point that has recently arisen in respect of life expectation is whether table 28 is the appropriate table to apply to the clinical assessment of life expectation. The 6th edition of the Ogden tables suggest an alternative way of using tables 1 and 2 and table 0% column. No reference is made in this commentary to the case of Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child). However since the publication of the 6th edition of the Ogden tables the position has been considered by Mr Justice Flaux in Burton v Kingsbury.
7
Mr Justice Flaux at paragraph 43 of his judgment set out the relevant commentary from the Ogden tables and the passage from the judgment of Lord Justice Tuckey in Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child) at which he stated: ‘The simple answer to this point, one would have thought, was that the quantification of B's expectation of life already took into account the chance that she might die earlier or live longer and that she would almost certainly not die on the predicted date. If one also had to take mortality into account in determining the discount this would, as the judge said, be a double discount.’
Mr Justice Flaux pointed out that the reasoning of Lord Justice Tuckey had been applied by Mr Justice Lloyd Jones in the case of Sawar v Ali 8 where he distinguished the decision of Mr Justice Leveson in Tinsley v Sarkar 9 where the experts were not giving a clinical view of life expectation but simply making an estimate by deduction of negative factors and addition of positive factors. In cases where the medical experts have carried out a detailed clinical assessment and come to a clinical judgment on life expectation table 28 should continue to apply.
The starting point in terms of the legal principles for the calculation of both life expectancy and resulting multipliers was reviewed and reformed by the House of Lords in the cases of Wells v Wells, Thomas v Brighton Health Authority and Page v Sheerness Steel Co PLC. 10 These cases (referred to as ‘Wells v Wells’) still provide the fundamental approach to the calculation of life expectancy and multipliers. The earlier authorities no longer assist and the House of Lords specifically departed from them.
The Defendant in the case of Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child) argued in the Court of Appeal that the Judge at first instance was wrong to find that he was bound by the decision in Wells v Wells. As the passages set out below from the speeches in the House of Lords demonstrate the proper approach to assessment of life expectancy and the calculation of multipliers was an important part of the decision in these cases. Further in respect of these calculations the House of Lords reversed the decision of the Court of Appeal. The Court of Appeal in the case of Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child) confirmed that they were bound by the decision in Wells v Wells and the judge had adopted the correct approach by applying these principles.
Lord Lloyd in giving the leading speech in the House of Lords set out the principles of calculation of damages in personal injury cases. He accepted the principle that the calculation of life expectation may be too high or too low but nevertheless it forms the basis of the calculation of damages. At page 363H he stated: ‘It is the nature of a lump sum payment that it may in respect of future pecuniary loss, prove to be either too little or too much. So far as the multiplier is concerned the plaintiff may die the next day, or he may live beyond his normal expectation of life. So far as the multiplicand is concerned, the cost of future care may exceed everyone's best estimates. Or a new cure or less expensive form of treatment may be discovered. But these uncertainties do not affect the basic principle. The purpose of the award is to put the plaintiff in the same position, financially, as if he had not been injured. The sum should be calculated as accurately as possible, making just allowance, where this is appropriate, for contingencies. But once the calculation is done, there is no justification for imposing an artificial cap on the multiplier. There is no room for a judicial scaling down. Current awards in the most serious cases may seem high. The present appeals may be taken as examples. But there is no more reason to reduce the awards, if properly calculated, because they seem high than there is to increase the awards because the injuries are very severe.’
Lord Lloyd considered individually the position in respect of life expectancy in each of the three cases before the House of Lords. In respect of Wells v Wells at 376H–377D, Lord Lloyd summarized how the Claimant's expert, Doctor Harvey, had suggested life expectancy was unaffected by the injuries and that her life expectancy was normal and 20 years. The Defendant's expert, Mr Richardson, predicted a life expectancy of 10 years, or 13 years at the most. The Judge made a finding that the Claimant's life expectancy was 15 years, the Court of Appeal reduced this to 10 years. The House of Lords restored the Judge's finding of 15 years and Lloyd Lord explained: ‘The Court of Appeal fastened on the judge's preference for Mr Richardson's evidence, and held that he was therefore wrong to split the difference (if that is what he did) by taking 15 years. But this is to misunderstand the judge's approach. Even though he preferred Mr Richardson's evidence, he was not obliged to accept the lower of his two figures uncritically. Nor was he obliged to reject Dr Harvey's views out of hand. In arriving at a life expectancy of 15 years the judge took all the medical evidence into account, and all the other evidence besides. In my view the Court of Appeal should not have interfered. I would therefore restore the judge's figure of 15 years’ life expectancy.' (emphasis added)
In the case of Thomas v Brighton Health Authority Lord Lloyd explained at page 377H how the agreed medical evidence was that the Claimant had a life expectancy to age 60. Both the Judge and the Court of Appeal reduced the arithmetic (i.e. Ogden Table 38) multiplier for ‘contingencies’. Lord Lloyd asked at page 378B: ‘Was it correct for the Judge or the Court of Appeal to reduce the arithmetical multiplier and therefore in effect, override the expectation of life agreed by the doctors?’
At page 378E Lord Lloyd explained why this was the wrong approach and why the older authorities were also wrong in their approach: ‘There is no purpose in the courts making as accurate a prediction as they can of the plaintiff's future needs if the resulting sum is arbitrarily reduced for no better reason than that the prediction might be wrong. A prediction remains a prediction. Contingencies should be taken into account where they work in one direction, but not where they cancel out. There is no more logic or justice in reducing the whole life multiplier by 15% or 20% on an agreed expectation of life than there would be in increasing it by the same amount.’
Lord Lloyd went on to point out that the discounts applied in earlier cases were erroneous. He did not agree with the discount which McCullough J allowed in Janardan v East Berkshire Health Authority
11
and explained: ‘In that case the plaintiff, aged 5 at the time of trial, had a life expectancy to 55. This indicated a multiplier of just under 20 by reference to a 4.5% discount rate. McCullough J held that a discount was required to allow for the possibility that the plaintiff might not survive to 55. I do not accept this; and it may be that McCullough J would not have accepted it either, if he had not felt constrained by previous authority. Left to himself, he said, he would have taken a whole life multiplier of 17.5 to 18. But the multiplier chosen by the Court of Appeal in Croke v Wiseman [1982] 1 WLR 71 and by the House in Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 required him to choose 17 instead. But this meant, as Mr Havers pointed out, that the plaintiff in Janardan's case would have run out of damages at the age of 33, although he was expected to live to 55.’
Lord Lloyd then considered the position in Hunt v Severs
12
and the approach of Sir Thomas Bingham MR (as he then was) to an allowance for ‘contingencies’: ‘Such an allowance is not appropriate in the present case, where the agreed life expectancy of the plaintiff is 25 years. That is a fact, or rather an agreed assumption, upon which the damages payable for future care must be based.’ (emphasis added)
Lord Lloyd then considered the approach of Lord Bridge in Hunt v Severs and concluded: ‘The plaintiff's life expectancy was not derived from any tables. It was the agreed life expectancy of this particular plaintiff, taking her individual characteristics into account. I cannot for my part see what further room there was for “life's manifold contingencies”. The whole point of agreeing a life expectancy, if it can be done, is to exclude any further speculation. With respect therefore I prefer the approach of Sir Thomas Bingham MR and the Court of Appeal. The explanation for the different approach of the House in Hunt v Severs may be a continuing hesitation to embrace the actuarial tables. I do not suggest that the judge should be a slave to the tables. There may well be special factors in particular cases. But the tables should now be regarded as the starting point, rather than a check. A judge should be slow to depart from the relevant actuarial multiplier on impressionistic grounds, or by reference to “a spread of multipliers in comparable cases” especially when the multipliers were fixed before actuarial tables were widely used.’
Lord Lloyd therefore concluded at page 379H in the case of Thomas v Brighton Health Authority that both the Judge and the Court of Appeal had been wrong to reduce the arithmetic multiplier for the agreed life expectancy of the Claimant. Once life expectancy was agreed at 60 the only task was to calculate the appropriate arithmetic multiplier with the appropriate discount rate.
In the case of Page v Sheerness Steel Co PLC it was agreed that the Claimant had a normal life expectancy. Lord Lloyd found at page 381C that there was no justification for the Court of Appeal to reduce the full life multiplier.
Lord Steyn at page 382 H emphasized that the basis of recovery of damages in personal injury cases is the 100% principle ‘subject to the obvious qualification that perfection in the assessment of future compensation is unattainable’. Lord Steyn did not deal separately with calculation of life expectancy but agreed with Lord Lloyd on the remaining points in the case at page 389 B.
Lord Hope set out the principle at page 389 H that: ‘The court cannot say precisely what will happen. It can only proceed by means of assumptions. The calculations that it then makes will involve the use of arithmetic as the multiplier is applied to the multiplicand. To that extent the exercise will give the impression of accuracy. But the accuracy of the result achieved by arithmetic will depend on the assumptions on which it has been based. In making these assumptions the court must do the best it can on the available evidence.’
Lord Hope explained at page 390D the interplay between the annuity approach and the assumptions the court needs to make: ‘The annuity approach requires that, once the necessary assumptions have been made, the calculation of the award will result in an amount which matches as accurately as possible the sum required over the entire period of the assumed loss. Whatever policy reasons there might have been for regarding it as acceptable that there may be less than a full recovery in regard to wage loss and I should make it clear that I do not subscribe to that policy – there can be no good reason for a shortfall in the amount required for future care or to meet all the other outlays which have been rendered necessary by the disability. The calculation should make the best use of such tools to assist that process as are available.’
Lord Clyde set out the principle that in calculating awards in personal injury cases a number of assumptions need to be made at page 395F/G: ‘The exercise of calculating the lump sum which will produce the annual figure proceeds upon certain assumptions which strive to achieve a precision but necessarily involve an element of artificiality. One assumption is that the plaintiff will live for an expected number of years, no more and no less. The period will be based on an actuarial calculation, modified or not to meet any special considerations appropriate to the particular case. It will no doubt be the best approximation which can be achieved by such methods, but nevertheless the assumption may not eventually turn out to have been correct. Then again it is to be assumed that the whole of the income will be consumed each year, that it will be sufficient for its purpose and that there will be neither accumulation nor reinvestment throughout the whole of the period. Further it is to be assumed that constantly throughout the period in addition to the income a balancing sum of capital is being used each year to make up the annual amount required so that the capital will steadily decrease and will eventually be exhausted at the end of the period. It may well be that this is not the way in which the plaintiff will in fact deploy the award but these are the hypothetical requirements which the notional annuity requires to meet. The question is not one of asking what the ordinary prudent investor would do but rather what form of investment will most nearly secure the notional annuity able to meet these hypothetical requirements.’
Lord Hutton set out at page 398G the principles of recovery as follows: ‘The injuries caused to the plaintiffs have left each of them so gravely and permanently incapacitated that they will require constant nursing care for the remainder of their lives and they are entitled to compensation for the future cost of such care… at page 399A each plaintiff must receive a lump sum to provide annual compensation for the annual cost of lifetime nursing care and for the loss of future earning capacity.’
From the passages set out above, the following points of principle can be derived from the speeches in the House of Lords in Wells v Wells:
Claimants are entitled to full compensation for their injuries; Full compensation requires compensation to continue for the remainder of the Claimant's lifetime; To discount from the best estimate of life expectancy for other contingencies is unacceptable as it leaves the Claimant at risk or even with the certainty that the money will run out (see page 378C and 378H); If life expectancy cannot be agreed the Judge must come to the best estimate he can of a particular Claimant's life expectancy based on the totality of the available evidence; Once the Judge has arrived at the best estimate for life expectancy for a particular Claimant he should proceed to treat that estimate as a certainty and apply an arithmetic multiplier in calculating future losses; There is no room for taking into account that a Claimant may die before reaching the estimated life expectancy to do so is to make a double discount. ‘The life expectancy of an individual of a given age and condition may be defined as the average number of remaining years of life for a cohort of individuals with that age and condition.’
It was against the background of the principles set out in Wells v Wells that the Judge in the case of Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child) considered the evidence from the paediatricians called by each side and Professor Strauss called by the Defendant. The Judge saw his task as arriving at the closest figure he could get to for how long the Claimant would live. The Judge was not distracted by Professor Strauss' attempts to hijack the term ‘life expectancy’ so as to give it his own unique meaning which he sets out in his reports as follows:
This is not what the court is required to determine in respect of a particular individual. The exercise the Court is required to carry out is to find the best estimate for an individual Claimant. Individual Claimants with cerebral palsy may have a number of features which place them personally above or below the average child (or adult) with cerebral palsy. The Defendant's argument required the Court to replace the features of the individual Claimant in the case with the average in Professor Strauss' cohort. For insurance purposes the average calculation is what is required. Over a number of years it enables insurers to calculate their risks accurately. Professor Strauss himself makes this point when he said in evidence: ‘Insurance companies have flourished for over 200 years without trying to predict anyone's survival time; it is enough to know their mortality risk and their life expectancy (see below – i.e. in Prof Strauss’ sense) I would note that insurance companies have known for over a century that life expectancy is an actuarial matter. They would never ask a doctor for a life expectancy opinion, as it is not in the doctor's area of expertise. This last point has been noted by Doctor Lewis Rosenbloom among others.'
In cross-examination Professor Strauss stressed that he was not trying to predict survival time for a particular Claimant. He accepted that if the Court was required to predict as accurately as possible the number of years that this Claimant will live then his calculations of ‘life expectancy’ were not appropriate. Professor Strauss suggested the most likely number of years this Claimant was likely to survive was zero as it was more likely than any other single number. He accepted this was not a very useful observation.
The Defendant's case was that the Court should make a radical departure from the conventional method of calculating damages in personal injury cases. It suggested the Court should look to Professor Strauss to calculate the average life expectancy of any Claimant. He would do so on the basis of a crude questionnaire and then apply his own life tables to this calculation. Professor Strauss' own life tables take into account the contingency that year by year the Claimant may fail to reach the average life expectancy for a child in her cohort. As all the contingencies affecting the Claimant's reduced life expectancy should be taken into account in the calculation the Judge makes of life expectancy this must constitute double discounting.
Professor Strauss accepted in cross-examination that his multipliers would not be appropriate if the task the court was attempting to do was to work out how much money to award a particular Claimant.
In the Court of Appeal Lord Justice Tuckey confirmed that: ‘The Judge's task was to award a lump sum for future loss so as to put B, as nearly as possible, in the same position financially as if she had not been injured. The sum awarded might prove too little or too much but the Judge was still required to make his best estimate of what that sum should be. The court must do the best it can (see Wells v Wells [1999] 1AC 345 at 363, 364, 389 and 395). In the ordinary case where the court is considering a claim for future loss for life it will be able to use actuarial tables as its starting point for determining the multiplier. In such a case the court will be using statistics relating to the general population to predict the life expectancy of the claimant in question. But it was common ground that such statistics could not be used in this case because B's expectation of life had been substantially reduced by her disability. So in this case the Judge had to decide what B's expectation of life was. In other words he had to make his best estimate of how long she would live. Without that estimate he could not determine what lump sum to award so as to give her the means to provide the care she needed for the remainder of her life. Whether an actuary or statistician would call this estimate her “expectation of life” is not to the point. It is inescapably what the Judge had to decide. In making that decision in this case it is common ground that the Judge could and should take into account relevant, statistical and/or actuarial evidence. Professor Strauss's evidence was admitted without objection for this purpose and the Judge made it clear from the passages from his judgment which I have quoted that he took this evidence into account. What the Appellants’ submission comes down to is not an argument about the question the Judge asked himself but an assertion that the Judge was bound to accept Professor Strauss's evidence. He was not. It is for the Judge and not experts to decide issues of this kind, although of course in a case such as this, he will be much guided by expert evidence.'
The Court of Appeal considered the evidence that had been before the Judge and Tuckey LJ found: ‘…the Judge was entitled to accept Dr Kovar's evidence, based as it was on his own fairly limited experience and the reported experience of other members of his profession and others including Professor Strauss. Statistics alone cannot determine any case of this kind; some medical input is required as well. Other factors may also be relevant such as the standard of care which the parents are able to provide. In his skeleton argument Mr de Navarro boldly contended that “resolution of the appeal should render it unnecessary to call Professor Strauss to give oral evidence in other cases in the future…” This contention is presumably based on the assumption that the appeal is allowed. But if it is not, I do not think we should be taken to have accepted this. In this case no statistician was called by the Claimant. This obviously created difficulties for the Judge, as he said. But based on this one case I do not think it would be right to say that a customized life table prepared by Professor Strauss based on his Californian data base should be given the status of the tables produced by the government actuary. This is not, I emphasize, to say that Professor Strauss's evidence or the evidence of any other statistician or actuary is inadmissible.
Professor Strauss’ evidence cannot therefore be accepted without challenge in the usual way. It is important to stress that the peer-reviewed literature that medical experts often use as a starting point is in a different category to the content of customized reports provided by Professor Strauss and his customized life tables. The published literature is based on 95% confidence intervals and has been co-written and approved by the journals in which it is published.
The individual Professor Strauss reports, on the other hand, are prepared on the basis of a patient evaluation questionnaire and this is frequently filled in with inadequate information. In cases where Professor Strauss' evidence is being used it is important to check that the Claimant's medical expert also has an input to the questionnaire. If this has not already been achieved beforehand at the expert's meeting the medical experts should discuss the content of the questionnaire and seek to agree the answers given.
The confidence intervals used by Professor Strauss for individual reports may be 50% and the assessment of life expectation is based on his own use of a database which others do not have access to.
The further difficulty with Professor Strauss' evidence that was addressed by the Court of Appeal in Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child) was that once he has assessed life expectancy (which is the term he uses for an average cohort of patients with similar basic characteristics) he then adjusts the figure for the prospects that the Claimant may not reach the average and may exceed it.
On this point Lord Justice Tuckey stated: ‘So I turn to the final question on this appeal which relates to the multiplier taken by the Judge. Should the discount have simply been for accelerated receipt (Ogden Table 38) as the Judge decided, or should it also have included a discount for mortality to reflect the fact that B would not live exactly to her life expectancy? The simple answer to this point, one would have thought, was that the quantification of B's expectation of life already took into account the chance that she might die earlier or live longer and that she would almost certainly not die on the predicted date. If one also had to take mortality into account in determining the discount this would, as the Judge said, be a double discount. Mr De Navarro however, sought to demonstrate that this was not the case with the aid of a table. This showed, he said, that even on the Ogden Tables there was a small difference in the multipliers, but in this case where there was a larger chance of B dying earlier than living longer, the difference would be greater. Professor Strauss's calculations suggested that a further reduction of about 1.6 should be made. I remain wholly unpersuaded by this exercise although I confess I did not fully understand it or the reason why the figures differ. However, I feel safe in my ignorance because it seems to me that the Judge's approach followed that of the House of Lords in Wells v Wells and the other cases decided with it. Thus, in Thomas v Brighton HA the agreed medical evidence was that the Claimant had a life expectancy to age 60. Both the trial judge and the Court of Appeal had taken the Table 38 multiplier but reduced it to discount for further contingencies. The House restored the full Table 38 multiplier. Lord Lloyd said at 378 D to E “There is no room for any discount in the case of a whole life multiplier with an agreed expectation of life.” In the case of life expectancy the contingency can work in either direction. The plaintiff may exceed his normal expectation of life or he may fall short of it. There is no purpose in the courts making as accurate a prediction as they can of the plaintiff's future needs if the resulting sum is arbitrarily reduced for no better reason than that the prediction might be wrong. A prediction remains a prediction. There is no difference in principle between an agreed expectation of life and one determined by the judge. Lord Lloyd made similar comments about an earlier decision by McCullough J in Janardan v East Berkshire HA [1990] 2 Med LR pointing out that the effect of the increased discount was that the Claimant would run out of money before he reached the age to which the court had decided he would live. This would also be the effect of reducing the multiplier in our case. This together with the fact that we are bound by the decision in Wells v Wells persuades me that the Judge applied the right discount in this case. For these reasons I think this appeal should be dismissed.’
Simpson v Diamond & Anor 13 (‘the Simpson Case’) was a claim for personal injury damages by a girl suffering from cerebral palsy. The case was heard in the New South Wales Supreme Court by Whealy J. The trial took place over 65 days between 5 March 2001 and 14 June 2001. Judgment was delivered on 5 November 2001. Life expectancy was an important issue in the case and many of the same arguments were raised as were raised in Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child) case.
At paragraph 75 of the judgment Whaley J described how: ‘The issue of life expectancy in this case has been most complicated. At one level it tended to develop into an all out battle between the clinicians on the one hand and the statisticians on the other. On the plaintiff's side there has been an array of medical evidence (Drs Wise and Buckley, and Professor Breslin) plus biostatistical, epidemiological, and actuarial evidence (Professor Berry, Doctor Staines and Mr Cumpston). In turn the defendant called a rehabilitation specialist, Doctor Bowers, Doctor Anthony a paediatric neurologist and an American researcher and Statistician, Dr Shavelle. In reply the plaintiff called Professor Yeo, a well known spinal injury rehabilitation physician.’
Calculation of life expectation therefore remains a central part of the calculation of damages in any catastrophic personal injury case. The principles set out in Wells v Wells and Royal Victoria Infirmary and Associated Hospitals Trust v B (A Child) remain applicable and have been re-enforced by the difficulties that have arisen in respect of periodical payments. The suggestion in the notes to the 6th edition of the Ogden tables that table 28 should not be applied to medical prospective predictions of life expectation has been rejected by the Judges who have considered it. Even if periodical payments can be made to work to meet the nursing care needs of Claimants with 100% recovery, the calculation of life expectation will continue to be one of the most important aspects of the assessment of quantum in catastrophic injury claims.