Rowe v Dolman

An appellate court should not interfere with a trial judge’s assessment of life expectancy based on expert evidence unless an error of law or erroneous exercise of discretion is shown. The judge may assess competing opinions in the round, including the reliability of their methodology and the relevance of supporting research.

When choosing between a lump sum and periodical payments, the court must consider the scale of annual payments, contributory negligence, the parties’ preferences and relevant financial advice under Damages Act 2003 section 2(1) and Civil Procedure Rules rule 41.7. A lump sum may be preferred where reduced periodical payments would not meet essential care and accommodation costs.

The claimant suffered catastrophic injuries in a road accident for which the defendant accepted 80% responsibility. Following an assessment of damages before Simon J, the claimant was awarded £4,790,256 on 18 December 2007.

The defendant appealed the assessment of the claimant’s remaining life expectancy at 15 years and the decision to award damages as a lump sum rather than by periodical payments. The appeal from the decision identified as [2007] EWHC 2799 raised whether the judge had misunderstood respiratory expert evidence and properly exercised the discretion concerning the form of payment.

1. Appeals dismissed. The Court of Appeal upheld both the 15-year life-expectancy assessment and the lump-sum award.
2. The life-expectancy conclusion was a finding of fact. The judge was entitled to accept the evidence of three experts in the round and to find the defendant’s expert opinion over-pessimistic. That criticism was open to him, particularly because the expert could not demonstrate how the Fletcher curves produced the estimate of three to five years, and because the estimate depended on an unquantified premise concerning the extent of respiratory damage.
3. The judge was entitled to consider that the claimant had already outlived the earlier prognosis and that the expert had not examined him before his move to improved accommodation. The relevant assessment was his life expectancy in 2007, rather than a retrospective estimate from 1999 less the intervening period. Any rough edges in the judge’s reasoning did not undermine the conclusion, which was firmly supported by the other expert evidence.
4. As to the form of award, the judge correctly directed himself under Damages Act 2003 section 2(1) and Civil Procedure Rules rule 41.7. The scale of annual payments, the 80% reduction for contributory negligence, the claimant’s preference, the defendant’s reasons and relevant financial advice were material.
5. The reduced annual periodical payment would not meet the claimant’s care costs or total needs. Equity release would bridge the shortfall for only a limited period. It was therefore rational to prefer a lump sum with the prospect of maintaining the claimant in his own home for substantially longer. No error in the discretionary decision was shown. The formal order was: appeals refused.

• Court of Appeal (Civil Division): Appeals against the assessment decision of Simon J were dismissed. The judgment appealed from is identified as [2007] EWHC 2799.