Life Expectancy, Statistics and Table 28?

By Simon Readhead QC

High expectations are the key to everything. Samuel Moore Walton was
explaining how he built Wal-Mart from a single store in Rogers, Arkansas in
1962 into the worlds largest retailer but his observation also applies to
damages in personal injury cases where a high life expectation will
significantly increase the size of the award. Life expectancy is less
important (but not redundant) where periodical payments are available to
meet part of the claim for future loss, usually care and case management.
However, in most personal injury cases and particularly when assessing
general damages and other heads of loss including accommodation, life
expectancy and the appropriate life multiplier remain very important. The
argument often advanced is that lawyers and judges frequently over
estimate both by ignoring or misunderstanding the relevant statistics.

In Royal Victoria Infirmary (RVI) NHS Trust v B (A Child) [2002] EWCA Civ
348; [2002] PIQR Q10 the judge based his decision as to the Claimants life
expectancy partly on the medical evidence and partly on statistical
evidence from Professor Strauss, Emeritus Professor of Statistics at the
University of California.

The Court of Appeal considered the role of such statistical evidence. In the
view of Tuckey L.J. it was wrong to say that the court should not have
regard to relevant statistical evidence but it was also wrong to decide
expectation of life purely by reference tostatistics. In an appropriate
case statistical evidence may well provide a useful starting point for the
judge.

In Arden v Malcolm [2007] EWHC 404 (QBD) the Claimant suffered traumatic
brain injuries following a motor cycle accident. Tugendhat J. refused the
Defendant insurers permission to rely on evidence from Professor Strauss in
relation to life expectation because the clinician experts should be the
normal and primary route through which such statistical evidence should be
put before the court. It is only if there is disagreement between them on a
statistical matter that the evidence of a statistician .ought normally to
be required.

The publication of the 6th edition of the Ogden Tables on the 3 rd May 2007
seemed to offer further hope to the statisticians. This time the focus of
attention was the multiplier in cases where a Claimants life expectancy has
been reduced. Paragraph 20 of the Explanatory Notes (P20EN) to the Ogden
Tables specifically warns against using Table 28 to ascertain a reduced life
multiplier as this is likely to give a multiplier which is too high since this
approach does not allow for the distribution of deaths around the expected
length of life. For a group of similarly impaired lives of the same age, some
will die before the average life expectancy and some after; allowing for
this spread of deaths results in a lower multiplier than assuming payment
for a term certain equal to the life expectancy. Thus for a male with a 20
year life expectancy the formula suggested in P20EN (which is based on the
0% column in Table 1) produces a multiplier of 15.08 compared to 15.78 for
a term certain of 20 years using the 2.5% column in Table 28. In a case in
which annual care costs are assessed at 150,000 this is a difference of
105,000.

Surprisingly RVI is not referred to in P20EN. However, the statistical

approach suggested in P20EN has now been considered by the courts on 2
occasions. In Sarwar v Ali [2007] EWHC 274 (QB) the Claimant was a rear
seat passenger in a road traffic accident. Lloyd Jones J. declined to follow
the approach in P20EN in view of the fact that by far the greater
proportion of risks to this Claimants life have already been taken into
account by the experts in their assessment of life expectancy. The judge
concluded that the appropriate multiplier should be calculated by
reference to Table 28. A similar conclusion was reached in Burton v
Kingsbury [2007] EWHC 2091 (QB). The Claimant in that case was a front
seat passenger in a road traffic accident. Rejecting an argument based on
P20EN, Flaux J. quoted Tuckey L.J.s observation in RVI that the simple
answer to this point was that the quantification of (the Claimants)
expectation of life already took into account the chance that she might die
earlier or live longer and that she would almost certainly not die on the
predicted date. If one also had to take mortality into account in
determining the discount this would, as the judge said, be a double
discount.

Accordingly, in trying to achieve a degree of certainty lawyers and judges

should continue to use Table 28 in selecting the multiplier for a reduced life
expectancy at least where the medical experts have carried out a detailed
clinical assessment of the Claimant. Statisticians can console themselves
with the observation attributed to Darrell Huff, author of How to Lie with
Statistics published in 1954 and still the best-selling statistics book of all
time, that Statistics means never having to say youre certain.

Simon Readhead QC
Barrister
www.1chancerylane.com