Dodds v Arif & Anor

In personal injury claims, life expectancy is ordinarily addressed through the Ogden Tables. Bespoke evidence is justified where the injury itself affects life expectancy, or where clear evidence shows that the claimant is atypical. The normal and primary route is evidence from the clinical experts. Statistical or actuarial evidence is ordinarily a starting point for their clinical assessment. A separate life-expectancy expert will not usually be permitted unless the clinical experts cannot offer an opinion, require specialist input, or disagree about the use of statistical material. The experts may choose the methodology, including a top-down or bottom-up approach.

The claimant, a protected party aged 75, suffered a moderate or severe traumatic brain injury after being struck by a car. Her neurologist considered that her life expectancy was unlikely to be significantly reduced unless she developed epilepsy. The defendants instructed Professor Bowen Jones, a specialist in mortality and life expectancy, to provide bespoke actuarial evidence reducing the claimant’s estimated life expectancy.

At a case management conference, the claimant opposed permission for that report. The issue was whether life-expectancy evidence was required and, if so, whether it should come from a specialist life-expectancy expert rather than the clinical experts.

1. Permission refused. The defendants were refused permission to rely on Professor Bowen Jones’s report. Life-expectancy evidence was required because the claimant’s head injury had affected, or potentially affected, her life expectancy. The requirement did not depend on showing that she was atypical within the meaning of the Ogden Tables’ Explanatory Notes.
2. Where an injury affects life expectancy, or where the claimant is shown to be atypical, the clinical experts are normally the primary route for evidence. Life expectancy is principally a medical or clinical issue. Statistical evidence is ordinarily a useful starting point, to be assessed through clinical judgment on the particular facts.
3. The ordinary approach is to obtain supplementary evidence or answers from the clinical experts. A separate life-expectancy expert is not ordinarily required unless the clinical experts cannot offer an opinion, state that they require specialist input, or disagree about the correct use of statistical material.
4. The proposed report did not meet that threshold. Although Professor Bowen Jones was a clinician, his report was primarily actuarial and statistical, and his specialism was endocrinology and diabetes rather than neurology. The appropriate first step was to obtain clarification from the claimant’s neurologist.
5. The methodology used by an expert is a matter for the expert, subject to the court’s evaluation. An expert may use a top-down approach starting with the Ogden Tables, or a bottom-up approach starting with the effect of the injury.
6. The court added that parties should canvass the instruction of a potentially controversial expert with each other. This was good practice, although the rules did not make it mandatory. The cost of the proposed report was wasted and avoidable.