Jersey Unreported Judgments

Personal Injury - application to adduce expert evidence on the life expectancy of the plaintiff.  Reasons.

[2021]JRC089

Royal Court

(Samedi)

29 March 2021

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

Advocate J. N. Heywood for the Plaintiff.

Advocate D. M. Woodside for the Defendants. 

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2-4
3.	Procedural history	5-8
4.	Submissions	9-25
5.	Decision	26-45

judgment

the master:

Introduction

1.        This judgment contains my reasons for refusing the defendants' application to adduce expert evidence on the life expectancy of the plaintiff, due to the plaintiff smoking between 20 to 30 cigarettes a day and therefore being classified by the defendants as a heavy smoker.  The application was of general importance because it raised the question of when a defendant might challenge the life expectancy of a plaintiff in personal injury cases and, if a challenge is permissible, what evidence might be filed in support of such a challenge. 

Background

2.        The present proceedings relate to allegations of negligence against the defendants for certain treatment the plaintiff received.  It is not necessary for the purpose of this decision to set out what that treatment was or why it was said to have been negligent.  The defendants have admitted they acted in breach of duty.  The issues in dispute are therefore what damages the defendants are obliged to pay to the plaintiff.  There are three separate questions that arise on the pleadings:-

(i)        What amount of general damages the plaintiff should receive for the pain and suffering as a result of the admitted negligence of the defendants;

(ii)       Whether the court should make an award of provisional damages under Part 9 of the Royal Court Rules 2004, as amended, i.e. should the court permit the plaintiff to seek further damages if the plaintiff developed a disease or suffered a deterioration which that plaintiff is not currently expected to develop; and

(iii)      Whether the admitted negligence and injuries suffered by the plaintiff have led to the need for future care costs and case management costs.

3.        Both parties have already been permitted to adduce expert evidence from surgeons.  Both surgeon experts are agreed that the admitted negligence conduct did not lead to any reduction in the plaintiff's life expectancy.

4.        The argument that the defendants wished to adduce, however, was that because the plaintiff was said to be a heavy smoker, his life expectancy would be reduced in any event and accordingly any damages payable should be assessed by reference to such a reduced life expectancy.

Procedural history

5.        The question of whether the defendants could adduce evidence about the plaintiff's life expectancy first arose at a previous directions hearing that took place on 3^rd February 2021.  At that hearing directions were given in respect of adducing evidence on the claims for provisional damages and care and case management costs.  However, the application to adduce expert evidence on the plaintiff's life expectancy was refused (see paragraph 5 of the Act of Court of 3^rd February 2021), but subject to paragraph 6 which stated as follows:-

"6. Notwithstanding paragraph 5 of this Act, liberty to the Defendants to bring an application to admit expert evidence on the question of the Plaintiff's life expectancy provided that such an application is accompanied by the evidence upon which the Defendants wish to rely and the application is issued by close of business Friday, 26th February 2021."

6.        This approach was taken because on 3^rd February 2021 I did not have before me the evidence that the defendants wished to adduce.  I ruled that I was not prepared to agree to a challenge to life expectancy in principle without seeing the evidence the defendants wished to adduce.  At the hearing on 3^rd February 2021 I had also not been provided with any analysis or authority on what approach I should take to such an application. 

7.        As permitted by paragraph 6 of the Act of Court of 3^rd February 2021, the defendants have now renewed their application, which application is supported by a report from Professor N. C. Barnes, a professor of consultant respiratory and a general physician.  Paragraphs 7, 8 and 9 of his report state the following:-

"7. I have not included or excluded anything which has been suggested to me by anyone, including those instructing me, without forming my own independent view of the matter.

8. I will notify those instructing me if, for any reason, I subsequently consider that the report requires any correction or qualification.

 9. I understand that this report will be evidence that I will give under oath, subject to any correction or qualification I may make before swearing to its veracity and I may be cross examined on my report by a cross examiner assisted by an expert."

8.        The defendants therefore wish to adduce this evidence to argue that the plaintiff's life expectancy should be treated as being reduced by some 8 years. 

Submissions

9.        Advocate Woodside for the defendants contended there was a lack of precedent in Jersey about how a defendant might adduce evidence that a plaintiff's life expectancy might be less than that assessable by reference to statistical tables.  He also contended that the tables used in England (the Ogden Tables) might assist but they were not binding and may not be persuasive for individuals residing in Jersey. 

10.      He accepted that the central question was whether the fact that the plaintiff was a heavy smoker was atypical and the issue I had to determine was whether it was permissible to assess the plaintiff's life expectancy separately. 

11.      Based on the Ogden tables the average life expectancy for an individual of the plaintiff's age was another 56 years.  The defendants wished to argue that in the case of the plaintiff this average figure should be reduced by some 8 years. 

12.      Advocate Woodside accepted that Professor Barnes's report was not determinative.  However, he argued that the plaintiff would have an opportunity to adduce evidence in reply and the court would then ultimately resolve the question of the plaintiff's actual life expectancy.  At this stage the issue for me to determine was only whether the defendants should be permitted to challenge the average life expectancy figure relied on by the plaintiff.  The defendants' position was that, if such evidence was reasonably arguable, then it should be admitted leaving it to the Royal Court to decide what was the plaintiff's life expectancy. 

13.      In relation to whether this would lead to an opening of the floodgates to life expectancy being challenged in every  or many personal injury cases, Advocate Woodside argued that there was some merit in an English context to relying on the Ogden Tables given the number of personal injury cases in that jurisdiction.  However, that concern did not arise in Jersey where the number of cases was much lower. 

14.      He also accepted that where any arguments on life expectancy would not make a significant difference then such evidence should not be permissible.  He suggested that any difference of more than 10% was an appropriate threshold. 

15.      If the defendants in principle were permitted to challenge life expectancy it was a matter for the court whether evidence from Professor Barnes was to be permitted or whether it was a matter for the expert surgeons already retained to opine upon the question. 

16.      Advocate Heywood argued that the sole factor that the defendants were seeking to rely on was the fact that the plaintiff was a smoker.  There was nothing else advanced to say why the plaintiff was atypical and therefore why there should be a departure from reliance on the Ogden Tables. 

17.      What the Ogden Tables showed was explained at paragraphs 10 and 11 of Dodds v Arif and Aviva Insurance Plc [2019] EWHC 1512 (QB), a decision of Master Davison dated 18^th June 2019. The Ogden Tables were prepared by the actuarial department of the government of the United Kingdom.  They set out average life expectancy.  Their function was not however to identify a definitive life span for a particular plaintiff. 

18.      The study relied on by Professor Barnes indicated the inherent difficulties with the defendants' approach because that same study indicated that a smoker could live to 95 years of age.  No one had a crystal ball from a scientific perspective as to how long an individual might actually live which was why the Ogden Tables were a sensible basis for a fair calculation, unless a plaintiff was atypical. 

19.      Although Professor Barnes suggested that the plaintiff was atypical because he was a smoker, the Ogden Tables dealt with a variety of medical conditions including smokers. 

20.      The study relied upon by Professor Barnes also only assessed 1,373 men born between 1900 and 1920.  The Ogden tables were more reliable because they were based on a much larger sample. 

21.      It was only if the court was satisfied that a plaintiff was atypical should the Ogden Tables not be applied.  In such a scenario it was then a matter for the relevant medical experts assessing a plaintiff's condition to set out their views on a plaintiff's life expectancy.  This is because ordinarily such experts would be looking at what effect any injury or in the case of clinical negligence, alleged negligence had had on a plaintiff.  It was only if such experts could not agree might appropriate statistical evidence be adduced. 

22.      Advocate Heywood also criticised the defendants' approach because to use the Ogden Tables and then apply a further discount as the plaintiff was a smoker was in effect applying a double discount.    

23.      Advocate Heywood also criticised Professor Barnes for expressing the views on areas outside his expertise which had nothing to do with the plaintiff being a smoker. 

24.      Finally, he was critical of the defendants because this was the second occasion upon which the defendants had tried to apply to adduce such evidence.  Yet, the defendants had not carried out the necessary research to produce relevant authorities when the defendants should have done.  This meant that the defendants' application was ill-conceived. 

Decision

25.      In respect of the approach that should be taken where a defendant wishes to challenge the life expectancy of a plaintiff, I was persuaded by the arguments advanced by Advocate Heywood and in particular by the decision in Dodds v Arif.

26.      The approach in England and the reason for reliance on the Ogden Tables was set out at paragraph 10 of Dodds as follows:-

"10 Life expectancy is an important issue in the field of personal injury litigation, but in the ordinary run of cases, there is no medical evidence on it. This is because life expectancy and the multipliers derived from life expectancy are taken from the Ogden Tables. The Explanatory Notes to the Tables state as follows: "4. The tables are based on a reasonable estimate of the future mortality likely to be experienced by average members of the population alive today and are based on projected mortality rates for the United Kingdom as a whole ... 5. The tables do not assume that the claimant dies after a period equating to the expectation of life but take account of the possibilities that the claimant will live for different periods, e.g. die soon or live to be very old. The mortality assumptions relate to the general population of the United Kingdom. However, unless there is clear evidence in an individual case to support the view that the individual is atypical and will enjoy longer or shorter expectation of life, no further increase or reduction is required for mortality alone.""

27.      How the Ogden Tables work was then explained at paragraph 11 as follows:-

"11 The cohort used for the Ogden Tables is a general cohort which includes lives affected by a variety of medical conditions, lifestyles (including smoking) and localities. The Tables are designed to achieve broad justice for personal injury cases generally, Bespoke evidence on life expectancy is not generally permitted unless the condition set out in para.5 of the Explanatory Notes is met. There must be "clear evidence to support the view that the claimant is atypical"."

28.      The Ogden Tables themselves contained an explanation about how they work at paragraph 8 as follows:-

"8. The Tables are based upon average or typical male and female life expectancy, which it is assumed claimants will have unless proved otherwise. the tables do not assume that the claimant dies after a period equating to the expectation of life, but take account of the possibilities that the claimant will live for different periods, e.g. die soon or live to be very old. The mortality assumptions relate to the general population of the United Kingdom as a whole. therefore no further increase or reduction is required for mortality alone, unless there is clear evidence in an individual case that the claimant is "atypical" and can be expected to experience a significantly shorter of longer than average lifespan, to an extent greater than would be encompassed by reasonable variations resulting from place of residence, lifestyle, educational level, occupation and general health status."

29.      I see no reason why reliance on the Ogden Tables should not continue to take place in this jurisdiction as has occurred for many years in relation to personal injury cases.  The Ogden Tables are a much larger statistical sample than would be available by using any availabalecomparable data in Jersey.  The defendants have also not persuaded me that the factors relevant to lifestyle are significantly distinct from the United Kingdom so that a different approach is required. The number of personal injury cases I deal with including clinical negligence at present represents the largest area of cases that I have to case manage. To require life expectancy to be addressed in every such case because a plaintiff was said to be atypical would add significantly to the length and complexity of personal injury cases. Such a development is unattractive and is not necessary where a reliable alternative exists i.e. the Ogden Tables.   

30.      The Dodds case also makes it clear is that two different situations may arise as to where evidence about life expectancy might be admitted.  The first of those is because a plaintiff is "atypical" and as noted at paragraph 15 of Dodds:-

"...that expression is directed 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."

31.      The second category is where the injuries the subject matter of proceedings have reduced a plaintiff's life expectancy and the court will have to decide by how much in order to arrive at the correct multiplier.  What that will require is the assistance of expert medical evidence.

32.      In the present case the injuries suffered by the plaintiff have not impacted upon his life expectancy.  What is therefore required is to show that there was clear evidence to support the view that the plaintiff is atypical and will enjoy a longer or shorter expectation of life outside the norms assessed by the Ogden Tables.

33.      I was not satisfied in relation to this plaintiff that the defendants had persuaded me that the plaintiff was "atypical" because he was a smoker.  As it was put in the article by Mr Simon Fox "life expectancy - issues and evidence" Journal of Personal Injury Law J.P.I. Law 2005, 4, 138-344:-

"If it is correct to admit such evidence in the case of a smoker in order to reduce the multiplier, then it must be appropriate for the same reasons to adduce expert evidence in the case of a non-smoker to increase the multiplier from that given in The Ogden Tables (in particular because the population upon which The Ogden Tables are based contains both smokers and non- smokers) In a case which is otherwise similar in respect of the amount of damages in issue, etc. there can be no logic to any other approach. Such a result will clearly lead to a very significant proliferation of expert evidence in personal injury cases. It will also lead to significantly extended trial periods in order to allow for further evidence and legal argument.

The result of this would be that, at least in cases where a sufficient amount of damages is at stake to justify the evidence, such expert evidence would be necessary in every single case, whether the claimant was a smoker or not."

34.      As Mr Fox also argued:-

"There is no logic to limiting such evidence to the issue of smoking. Defendants have also made applications in respect of obesity.  If evidence should be admitted in every case on the issue of a smoker/ non-smoker, then it should also be admitted on other lifestyle factors which are as potent such us obesity, exercise and alcohol. The list would go on."

35.      If I acceded to the defendants' approach, again as noted by Mr Fox, it would open the floodgates because in many if not most  personal injury cases (and certainly any cases where injuries were more complex or serious) an argument would arise as to what the life expectancy of a plaintiff might be and whether it was longer or shorter than set out in the Ogden Tables.  The arguments would not just be about smokers but would be about any or all lifestyle factors that might shorten or lengthen a plaintiff's life expectancy. This would lead to the consequences of delay, more complex and longer trials as set out by Mr Fox which are serious concerns. Yet the Ogden Tables in the round produce a fair result and any variances between typical individuals are outweighed by the certainty that reliance upon such tables brings. It is therefore only for outliers or in exceptional cases should the Ogden Tables not be applied. The plaintiff is not such an outlier or an exception.

36.      There is also force to Advocate Heywood's submission, again based on Mr Fox's article, that the defendants' approach involves seeking to apply a double discount.  The Ogden Tables already take into account the fact that some people smoke.  To use this figure as the starting point for the plaintiff and then to apply a discount for that plaintiff is therefore effectively discounting twice for the same issue.

37.      Once the court is satisfied that an individual is atypical the parties then start with a clean slate.  Even then however the parties do not retain experts on life expectancy or experts such as Professor Barnes.  Rather the starting point is the experts dealing with the injuries suffered by the plaintiff.  This led Master Davison to state the following at paragraphs 18 and 19 of Dodds as follows:-

"18 Second, in practical terms it is usually very much more convenient and cost-effective to ask the clinical experts for their opinion on life expectancy. They will already be instructed and can deal with life expectancy together with the other matters they are concerned with (in this case the claimant's cognition and other neurological problems). It is 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. This is a clear and accessible method which, if adopted, makes the choice of a suitable multiplier a simple matter. It is certainly not in every case that recourse (or further recourse) to statistics is required. But if it is, then such material is still, in the first instance, a matter for the clinicians and it is only in the case where they disagree on how to apply the statistics that an expert such as Professor Bowen Jones might be required. A further factor pointing in favour of the clinical experts and against bespoke life expectancy experts is that the latter are in very short supply. If it became a frequent practice to instruct them, then that would have the effect of introducing delay as well as considerable extra cost - to no great advantage.

19 For these reasons, it seems to me that bespoke life expectancy evidence from an expert in that field should be confined to cases where the relevant clinical experts cannot offer an opinion at all or state that they require specific input from a life expectancy expert (see e.g. Mays y Drive Force (UK) Limited [2019] EWHC 5), or where they deploy, or wish to deploy statistical material, but disagree on the correct approach to it. This case does not, or does not yet, fall into any of these categories."

38.      In the present case, the issue of smoking does not arise from the plaintiff's injuries and there is only a passing reference to the plaintiff being a smoker in the expert evidence from the surgeon adduced by the defendants.  There is no express suggestion from either surgeon expert that the plaintiff's remaining life expectancy should be reduced because he is a smoker.

39.      There is therefore no evidence before me to conclude by reference to the medical experts already permitted that the plaintiff is atypical or that any reduction in life expectancy should be taken into account because of the injuries suffered by the plaintiff.

40.      I also agree with Advocate Heywood that Professor Barnes' report is less reliable because it relies on one article only based on a much smaller sample than the Ogden Tables of individuals born between 1900 and 1920. 

41.      Professor Barnes' report is also problematic because it relies on the Ogden Tables and then applies a reduction in life expectancy for smoking without explaining that the Ogden Tables addresses lifestyle factors affecting life expectancy.  Nor does Professor Barnes explain why the plaintiff is atypical.

42.      If Professor Barnes had set out why the plaintiff was atypical then he would have had to have performed a full assessment to reach an actual conclusion about the plaintiff's life expectancy.  This has not occurred.  Instead, he has simply applied a discount to the Ogden Tables which is inconsistent with Dodds and therefore is a flawed approach.

43.      For all these reasons the defendant did not persuade me that the plaintiff is atypical or that the fact of him currently smoking 20 to 30 cigarettes a day justified a departure from the Ogden Tables or required a trial to assess his actual life expectancy.  I accordingly concluded that the plaintiff's life expectancy should be assessed by reference to the Ogden Tables and that the application to admit the evidence of Professor Barnes should be refused.

 

 

Authorities

Royal Court Rules 2004.

Dodds v Arif and Aviva Insurance Plc [2019] EWHC 1512 (QB)

Journal of Personal Injury Law J.P.I. Law 2005, 4, 138-344