High Court provides guidance on life expectancy evidence

The High Court has provided guidance on when it is suitable for bespoke life expectancy evidence to be obtained, whilst re-emphasising the need for parties to discuss expert instructions when they are likely to be contested or controversial.

Background

In 2017, the Claimant was injured in a road traffic collision whilst crossing the road. She suffered a traumatic brain injury, classified as moderate or severe. Cared for by her sister, she is able to perform most activities of daily living but requires support due to an ongoing and substantial cognitive impairment.

The Claimant's representatives obtained expert reports from a neurologist and a geriatrician. The neurology report primarily dealt with the neurological consequences of the accident, and briefly addressed the issue of life expectancy. In response, the Defendants disclosed a report from Professor Bowen Jones, dealing solely with the issue of life expectancy.

The Claimant's representative resisted permission being granted to rely upon Professor Bowen Jones' report, submitting that granting permission would be contrary to the principle that life expectancy "was catered for by applying the Ogden Tables, and not 'bespoke' life expectancy evidence".  The Claimant was not 'atypical' – per paragraph 5 of the Explanatory Notes to the Tables – and therefore the expert opinion was not needed.

The Defendants argued that the Claimant was 'atypical', having suffered a head injury which had reduced her life expectancy. Therefore, they were entitled to seek opinion on this from an appropriate expert.

Outcome

Permission to rely upon Professor Bowen Jones' report was refused, however the Court's decision was not aligned with the Claimant's submissions made during the application.

Master Watson agreed that life expectancy evidence was required, as "the court will have to decide by how much [life expectancy was reduced] in order to arrive at the correct multipliers."  However, 'bespoke' life expectancy evidence was not yet needed. Life expectancy is primarily a clinical issue, and should be handled by clinical experts, resulting in "a clear and accessible method".

Master Watson stated that bespoke life expectancy evidence "should be confined to where the relevant clinical expert cannot offer an opinion at all or state they require specific input from a life expectancy expert," referring to the judgment in Mays v Drive Force. Where statistical materials are used by the clinical experts, yet an approach to interpreting that cannot be agreed, a life expectancy expert may also be considered.

He found that the case authorities supported the following propositions for reliance upon such a report:

1. Where the injury has not impacted life expectancy (LE), permission for this category of evidence will not be given unless "there is clear evidence… to support the view that the individual is atypical and will enjoy longer or short expectation of life."
2. Where the injury does impact LE, the 'normal' route for evidence is via the clinical experts
3. The methodology that those experts choose to adopt when assessing LE is a matter for them
4. Permission for 'bespoke' LE evidence will not ordinarily be given unless the clinical experts:

• Cannot offer an opinion at all
• State they require specific input from an expert on LE
• Have deployed statistical material, but cannot agree on the correct approach to it

What can we learn?

• The decision confirms a set of propositions which practitioners should follow when considering instructing a life expectancy expert to deal solely with that issue
• Master Watson was keen to emphasise the need for sensible discussion when noting the approach that the parties adopted when instructing experts. The Defendants' representatives had instructed Professor Bowen Jones without discussing it with the Claimants. Master Davidson made clear that whilst the "rules do not make [a discussion] mandatory" discussions were encouraged, particularly in cases of an expert whose instruction may be a source of dispute.
• Had the Defendants raised the instruction of Professor Bowen Jones, the Claimant's representatives would have been able to set out their objections, which were "well-founded and have prevailed."The wasted costs of instructing the expert could have been avoided.
• Indeed, Master Watson highlighted that life expectancy experts are in very short supply, and their frequent instruction would "have the effect of introducing delay as well as considerable extra costs – to no great advantage."