The Royal Victoria Infirmary & Associated Hospitals NHS Trust v B (Child)

In assessing damages for future care, the court must make its best estimate of the claimant’s individual life expectancy where ordinary population tables cannot be used. Relevant statistical evidence is admissible and must be considered, but it does not displace medical expertise or determine the result by itself. The judge must evaluate the evidence as a whole, including clinical evidence, statistical material and other relevant factors. Once life expectancy has been assessed, the multiplier should ordinarily discount for accelerated receipt only. A further mortality discount risks double discounting the contingency already reflected in the life-expectancy assessment.

A child suffered severe cerebral palsy through the hospital authority’s admitted negligence. The parties agreed the annual cost of future care, leaving the High Court to determine life expectancy and the appropriate multiplier. The judge accepted medical evidence that the child would live to between 25 and 35 years, placed her at the lower end of that range, and used Ogden Table 38 to calculate a multiplier of 13.61.

The hospital authority appealed. It argued that life expectancy should be determined by the statistical average for a comparable cohort and that the multiplier should include a further mortality discount. The central issues were the proper evaluation of statistical and medical evidence and whether mortality should be discounted separately from accelerated receipt.

1. Appeal dismissed. Tuckey LJ, with whom Sir Anthony Evans agreed, held that the judge had to make the best estimate he could of the claimant’s life expectancy so as to calculate a lump sum providing for care over the remainder of her life. The terminology used by statisticians did not alter the judicial task.
2. Statistical or actuarial evidence was relevant and admissible. It could provide useful background, a cross-check, or an appropriate starting point. It could not, however, determine the case on its own. The judge was entitled to prefer Dr Kovar’s holistic medical assessment, which considered the claimant’s condition, published data, clinical experience and other professional evidence.
3. The court emphasised that experts assist the judge but do not decide the issue. In an appropriate case, statistical evidence should be tested by oral evidence if disputed, and a satisfactory assessment may require an interdisciplinary approach involving medical and statistical evidence.
4. On the multiplier, the court followed the approach in Wells v Wells [1999] 1 AC 345 and applied the reasoning illustrated by Thomas v Brighton HA [1999] AC345. The assessed life expectancy already allowed for the possibility of earlier or later death. A further mortality discount would therefore amount to double discounting and could leave the claimant without sufficient funds before the age to which the court had assessed that she would live.
5. Thorpe LJ dissented on the first issue. He considered that statistical evidence should provide the starting point, with medical experts refining it through clinical assessment. He would have allowed the appeal in part. He agreed with the majority on the multiplier issue.

• Court of Appeal (Civil Division): dismissed the hospital authority’s appeal from the judgment of HHJ Langan QC sitting as a Deputy High Court Judge. Costs were to be assessed and leave to appeal was refused.