Applying for Bespoke Life Expectancy Evidence: Chaplin v Pistol & Allianz Insurance Plc [2020] EWHC 1543 (QB)

On 16 June 2020, judgment was handed down in Chaplin v Pistol & Allianz Insurance Plc [2020] EWHC 1543 (QB), a case where the dispute between the parties regarded quantum of damages and the need for specific expertise on life expectancy.

In 2016, the claimant in this case sustained very traumatic injury with tetraplegia, following a road-traffic accident (RTA). He was left wholly dependent on others for care needs.

It was accepted that the claimant’s life expectancy had been ‘significantly reduced’, but to what exact extent? This question was of paramount importance, as the claimant was just 28-years-old at the date of the accident and was already earning a 6-figure salary. A 7-figure damages award was therefore riding on the determination of life expectancy.

From November 2018 to May 2020, medical experts, specialising in neurology and neurorehabilitation, produced multiple independent reports which attempted to (1) measure the claimant’s percentage of ‘normal life expectancy’, by comparing his state of consciousness against cohorts of brain injury sufferers, whose survival data was depicted in clinical publications, and (2) extrapolate the claimant’s life expectancy (in years and months) from the Expectation of Life (Ogden) Tables / National Life Tables.

Admittedly, Dr. Liu (for the claimant) and Professor Collin (for the defendants) were ‘not far apart’ in their final estimations of life expectancy, which were laid out in the joint report (dated 9 June 2020):

‘The experts find that their estimates are quite close, with Professor Collin suggesting 30 - 35% of normal life expectancy, and Dr Liu suggesting 35 - 40% of normal life expectancy, and they have decided to refer the Court to their individual reports and predictions. Professor Collin’s predictions span a range of 14.4 years (Collin; National Life tables) to 19 years (Collin; Ogden) and Dr Liu’s span a range of 19 – 23 years. (Liu; Ogden) They agree the risk of seizure continues to diminish, currently about 8%, reducing to 2% at ten years and continuing to fall slowly’.

On 21 May 2020, the defendants sought permission to rely on the evidence of a specialist life expectancy expert (Professor Strauss), with Professor Collin having earlier disclosed that:

If the Court requires an accurate estimate based on more detailed stratification of the survival data, then it would be extremely helpful if … Professor David Strauss [having been an author of the clinical material cited in this case] … could be approached to provide … greater detail’.

Although this application was set to fail, given that the defendants had previously been refused permission to rely on evidence from Professor Strauss at an earlier stage of proceedings (at the 2nd CMC before Master Eastman, on 18 July 2019) without appeal and without a ‘relevant or sufficient change in circumstances’ thereafter, Mr. Justice Jay provided some insightful commentary regarding circumstances where supplementary expert evidence can be deemed ‘reasonably required’, for the purposes of CPR 35.1. This commentary is of course relevant to all manner of personal injury claim.

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It had been the High Court judge’s broad experience that medical experts were ‘usually well able to apply and interpret quite complex statistical evidence which can be admitted as hearsay (particularly if set out in a published paper which has been peer-reviewed) without the need to call probative or explanatory evidence’.

For guidance on when statistical evidence may be allowed, he made reference to Master Davison, at paragraph 19 of the judgment in Dodds v Arif [2019] EWHC 1512 (QB), which we analysed in edition 287 of BC Disease News (here):

‘… 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 v 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’.

Did Chaplin satisfy those conditions?

Jay J considered that the experts were in ‘substantial agreement’, as illustrated by the joint report. Further, that whilst there may have been ‘differences of nuance or emphasis’ between the experts, they were able, ‘without qualification or equivocation, to proffer evidence’ and were therefore  ‘well-qualified to explain their respective positions to the court without the need for formal evidence from a statistician’.

It was also remarked that claimant Counsel had been correct to underscore Professor Collin’s use of the conjunction, ‘if’ (emboldened and underlined in the quotation above), in her final report. Such conditional language entitled the judge to conclude that this was not an invitation for ‘specific input’ from Professor Strauss because it was ‘required’, but merely for the reason that it would be ‘desirable because it would produce greater confidence in the conclusions of the court’.

‘Desirable’ as it may be, Jay J stressed that courts are ‘well used’ to deciding the outcome of cases based on evidence which is ‘adequate but not optimal.

As such, the defendant’s application was refused on the facts. Bespoke life expectancy evidence was not ‘reasonably required’, for the purposes of CPR 35.1.

Full text judgment can be accessed here.