Sarwar v Ali & Ors

Life-expectancy evidence in a personal-injury claim should be assessed as a clinical judgment informed, but not determined, by epidemiological statistics. Where the evidence accounts for injury-related and individual mortality factors, a reduced-years approach may fairly adapt historical data to present conditions. The court should avoid double counting when selecting the discount-rate multiplier. If the expert assessment has already incorporated most risks affecting the claimant’s life expectancy, the appropriate multiplier is ordinarily derived from the relevant fixed-term table rather than the whole-of-life table.

The claimant, aged 17 when seriously injured in an uninsured road accident, sustained C5 tetraplegia. Liability had been admitted against the driver, subject to a 25 per cent reduction for contributory negligence arising from failure to wear a seatbelt. The claimant sued the driver and the Motor Insurers’ Bureau.

The court was asked to give a preliminary judgment on the claimant’s life expectancy and the appropriate multiplier for future loss. The experts disagreed on the extent of the reduction in life expectancy and on whether the multiplier should be taken from Table 28, for a fixed term, or Table 1, for pecuniary loss for life.

1. Life expectancy. The statistical literature was an important starting point, but the issue was essentially one of clinical judgment. Statistics should inform the medical evidence and the court’s decision, not determine it mechanically. The court adopted the Frankel study as the starting point because it concerned the United Kingdom, while recognising that it required adjustment for changes in general life expectancy and for the claimant’s less severe injury and lack of ventilator dependence.
2. A reduced-years approach was fairer than applying a proportional percentage reduction to current general-population figures. The evidence indicated that improvements in the life expectancy of persons with spinal injuries had exceeded merely proportional improvements in the general population. The claimant’s position within the Frankel cohort justified a four-year adjustment.
3. The court considered the claimant’s physical and socio-economic circumstances. Positive physical factors substantially outweighed negative factors. The anticipated ability to purchase high-quality care and medical treatment also supported a further reduction in the calculated loss of life expectancy, although the court treated the Krause research with caution and did not accept its full effect.
4. The resulting reduction was 13 years. The claimant’s further life expectancy was therefore assessed at 49 years, to age 72.
5. Multiplier. The decisive question was whether the expert assessment had already taken account of general mortality risks and individual factors unrelated to the spinal injury. It had considered the claimant’s medical and family history, weight, smoking and drinking history, susceptibility to disease and attitude to exercise. Using Table 1 would therefore risk double counting negative factors and under-recognising positive factors.
6. Although accidental death and certain diseases had not been separately assessed, there was no evidence enabling a reliable combination of Tables 28 and 1. Applying the reasoning in Royal Victoria Infirmary v B (A Child), [2002] Lloyd’s Law Rep. (Med.) 282, the court selected Table 28. The multiplier for 49 years at a discount rate of 2.5 per cent was 28.42. The discussion of Tinsley v Sarkar, [2006] PIQR Q1, was distinguished because that case involved estimates of loss of life from specified factors rather than a comprehensive clinical assessment.