Sarwar v Ali & Ors

This is a claim for personal injuries arising out of a road traffic accident which occurred on the 29^th September 2001.  The Claimant, who was aged 17 at the time of the accident, was a rear seat passenger in a car driven by the First Defendant.  The First Defendant, who was uninsured, lost control of the car whilst travelling at speed on a shallow bend.  The car left the road and collided with a hedge. The Claimant was ejected through the back window sustaining multiple and severe injuries.  He was rendered a C5 tetraplegic. 

Liability has been admitted and judgment has been entered against the First Defendant on the basis of a 75:25 apportionment in favour of the Claimant, the reduction for contributory negligence arising from the fact that the Claimant was not wearing a seatbelt.  At the hearing before me there are two main issues, quantum and the form of the award (including the appropriate index to which any periodical payments for future loss should be linked).  The First Defendant did not appear.  Counsel for the Claimant and the Second Defendant, the Motor Insurers’ Bureau have requested that I should deliver a preliminary judgment on the life expectancy of the Claimant and on the appropriate multiplier.  I propose to follow that course because it will assist in relation to the remaining issues.

The Claimant was 17 years of age at the date of the accident.  He attained the age of 23 years on the 30^th January 2007.  The parties are agreed, therefore, that he should be treated as a 23 year old for the purposes of the calculation of life expectancy.  It is also agreed that the life expectancy of a 23 year old male in the general population is a further 61.7 years.

In addition to the factual evidence as to the Claimant’s condition, I have heard expert evidence from two experts, Mr. F. Derry, a Consultant Surgeon on Spinal Injuries at Stoke Mandeville Hospital, called on behalf of the Claimant and Mr. A. N. Tromans, a Consultant Surgeon on Spinal Injuries at the Salisbury District Hospital, called by the Second Defendant.  Mr. Derry is the Claimant’s treating consultant. Mr. Derry concludes that, as a result of his injuries, the life expectancy of the Claimant is reduced by 9 years; on this basis his life expectancy is a further 53 years to age 76.  Mr. Tromans concludes that as result of his injuries, the Claimant’s life expectancy is reduced by 20 years; on this basis his life expectancy is a further 42 years to age 65. 

On the face of it, both experts agree on the correct approach to the issue of life expectancy.  Both consider it as appropriate to start with an examination of the epidemiological studies and surveys and then to arrive at a clinical judgment using those studies as a basis but taking specific account of the Claimant’s injuries and the positive and negative factors in his case.

Both experts rely on a paper published in 1998 by Frankel and others, Long-term survival in spinal cord injury: a fifty year investigation. This paper is an examination of long term survival of a population based sample of spinal cord injury survivors in Great Britain over a period of 50 years prior to January 1^st 1991.  It is limited to those to have survived at least one year following injury.  In Table 4 of this paper, smoothed projected life expectancies show that the life expectancy of a 20 year old male in the general population is 54.16 further years.  However, in the case of tetraplegic ABC, a category which includes the Claimant, this is reduced to 33.57 years, a reduction in life expectancy of 20.59 years.

Mr. Derry approached the matter on a reduced years basis.  He took as his starting point the reduction of 20.59 years derived from the Frankel paper.  He then adjusted that reduction to reflect the fact that the Claimant’s injury is lower than others included in the ABC tetraplegic cohort and the fact that the Claimant is not ventilator dependant.  Mr. Derry considered that the appropriate increase is 4 years because the Claimant’s injury is at C5 and he is not ventilator dependant.  Accordingly, the reduction in life expectancy was adjusted to 17 years (rounded up).  He then made a clinical judgment applying positive and negative factors in the Claimant’s case including socio-economic factors.  In this regard he relied upon a paper published in the United States in 2004 by Krause and others, Health Status, Community Integration and Economic Risk Factors for Mortality after Spinal Cord Injury.  On this basis he made a further adjustment of 8 years leading to the conclusion that the Claimant’s reduction in life expectancy is 9 years.  He then applied this reduction to the current average life expectancy of a 23 year old male in the population at large, i.e. 61.7 further years, giving a further life expectancy in the case of the Claimant of 53 years.

Mr. Tromans calculated the Claimant’s reduced life expectancy by a percentage reduction method.  He took as his starting point the Frankel paper which shows in Table 4 that a 20 year old male in the tetraplegic ABC category has a life expectancy of 33.57 further years as opposed to 54.16 further years in the population at large, a reduction of 38%.  He also considered other more recent literature regarding the life expectancy of tetraplegics.  A paper published in Australia in 1998 by Yeo and others, Mortality following Spinal Cord Injury, gave a reduction in life expectancy of 31% in the case of a 25 year old in the relevant Frankel classification.  This paper was based on an Australian sample.  Mr. Tromans noted that the life expectancy for a 25 year old in the general population was low in this table.  He referred to a paper published in the United States in 2000 by Strauss and others: Long-Term Mortality Risk after Spinal Cord Injury which gave a reduction of life expectancy in the case of a 25 year old male C5-C8 tetraplegic as 29.16%.  He also referred to a study published by the University of Alabama in June 2005 which gave a reduction in life expectancy for a 20 year old suffering a C5-C8 lesion as 28.86%.  The last two studies were based on population samples in the United States.  Mr. Tromans agreed that the cohort identified in the Frankel study included individuals more severely injured than the Claimant.  He also accepted that that study showed that the difference in life expectancy between persons suffering high and low level tetraplegic injuries was four years.  Having established a range of reductions, Mr. Tromans considered the positive and negative factors pertaining to the Claimant’s case.  However, he did not agree with Mr. Derry’s evidence as to the extent to which socio-economic circumstances were a positive factor on life expectancy.  In this regard he relied on two further documents which questioned the validity of the conclusions in the Krause study.  Mr. Tromans concluded in the light of all these considerations that in order to ascertain the Claimant’s life expectancy the average number of remaining years for a 23 year old male in the general population must be reduced by 32%.  Applying this to 61.7 further years gave a further life expectancy of 42 years (rounded up).

While it is clearly important to have regard to the statistical evidence in the published papers, I consider that the issue which I have to decide is essentially a question of clinical judgement.  As Sir Anthony Evans observed in Royal Victoria Infirmary v B (A Child) [2002] Lloyd’s Law Rep. (Med.) 282 at p289:

“It would be wrong to allow a statistician or an actuary to do more than inform the opinions of the medical witnesses and the decision of the court, on what is essentially a medical or clinical issue.”

It will be noted that the range in the reductions in life expectancy derived from the various papers is between 28% and 38%. The papers published since the Frankel paper are based on more recent samples and draw more favourable conclusions in relation to life expectancy. However, I agree with both experts that it is appropriate to take Frankel as a starting point.  That study relates to the position in the United Kingdom while the other studies to which I have referred relate to the position in other jurisdictions and may be affected by different conditions, for example in relation to standards of care.

The Frankel paper does, however, suffer from the disadvantage that it is now some 15 years old.  Since 1992 the life expectancy of the population at large in the United Kingdom has increased very significantly.  The life expectancy for a 20 year old male in the population at large has improved from 54.16 years (Frankel) to 64.9 years (Facts and Figures 2006, p115), an improvement of 10.74 years.  Clearly some account must be taken of this improvement in assessing the life expectancy of the Claimant.  However, an issue arises here in relation to the different approaches adopted by Mr. Derry and Mr. Tromans.  Is it appropriate to conclude that a person with the Claimant’s injuries would benefit to the full extent from the improvement of life expectancy in the general population (Mr. Derry’s approach) or is it appropriate to conclude that a person with the Claimant’s injuries would benefit in proportion to the improvement in life expectancy of the general population and to apply the appropriate percentage reduction of life expectancy to the current figures of the general population (Mr. Tromans’s approach)?  Mr. Burton QC, on behalf of the Claimant, submits that Mr. Tromans’s method of percentage reduction gives rise to a “pessimism bias” which skews the result against the Claimant.  Mr. Burton complains that on Mr. Tromans’s approach the Claimant is not properly credited for the full increase in life expectancy that the population as a whole enjoys. Mr. Methuen QC, on behalf of the Second Defendant, on the other hand submits that while there may be substance in the pessimism bias point there is no evidence to support it in this case.

The question is essentially whether the life expectancy of persons with the Claimant’s injuries has improved at the same rate or a greater or lesser rate than the rate of life expectancy of the population at large.  One would clearly expect there to have been some improvement in the life expectancy of tetraplegics, having regard to the improvement in life expectancy of the general population.  There is before the court no up to date study on the position in United Kingdom, hence the dependence of both experts on the Frankel paper.  However, when the matter was raised with Mr. Tromans in cross examination he accepted not only that over the last fifty years there had been a dramatic improvement in the life expectancy of those with spinal cord injuries, but also that the improvement in the life expectancy of those with spinal injuries was greater than in the general population. In his view the gap was closing although he considered that this trend had been less dramatic in recent years. Moreover, notwithstanding the fact that the other papers to which I have referred are based on outcomes in other jurisdictions where different conditions may apply, it is significant that they all disclose reductions in life expectancy considerably lower than that disclosed by the Frankel paper. In particular the Strauss paper, based on research in the United States, suggests a reduction in life expectancy from the population at large in the case of a 20 year old with a C5 injury of 27.5%. In these circumstances, I conclude that the increase in life expectancy of those with spinal injuries considerably exceeds an increase which is merely in proportion to the conclusions of Frankel and that, accordingly, a reduced years approach more fairly adapts the results of the Frankel research to present conditions.

The Claimant is a C5 tetraplegic.  The Frankel study proceeds by reference to a cohort comprising ABC tetraplegics.  Account must be taken of the fact that the Claimant’s injuries are less severe than those of many others in the cohort.  Moreover, unlike some in that cohort, the Claimant is not ventilator dependant.  Both experts agreed that the literature suggests that the level of the Claimant’s injury and the fact that he is not ventilator dependant made a difference of about 4 years on the figures in the Frankel paper. This is borne out by the paper by Strauss and others, Long-term Mortality Risk after Spinal Cord Injury and by a paper published by the National Spinal Cord Injury Statistical Centre, Birmingham, Alabama. In his evidence Mr. Tromans  accepted that, as a result, the Frankel paper was “skewed against the Claimant by a factor of 4 years”.  Accordingly, I consider that in applying the conclusions of the Frankel paper to the Claimant it would be necessary to adjust the Claimant’s life expectancy by 4 years in order to take account of his position in the cohort identified in the Frankel paper. It is immaterial whether this is done at a separate stage or as part a wider consideration of positive and negative factors in the Claimant’s case.  Mr. Derry adjusts the Claimant’s life expectancy by 3.59 years on this basis. However, on Mr. Tromans’s approach the corresponding percentage adjustment to the reduction in life expectancy would be 6.5%; in fact, Mr. Tromans concludes, having regard to all considerations, that the reduction in the Claimant’s life expectancy is 32%, an adjustment of 6%.

Mr. Burton also submitted that further allowance should be made for the fact that the Claimant has survived for over 5 years since his injury.  He points to the fact that the Frankel study excluded those who died within the first year.  He suggests that the Claimant’s cohort may well have included people who died in years 2 to 5.  Mr. Derry considered the length of survival since the accident without complication to be an important factor.  Mr. Tromans said that it was not particularly significant.  In this regard Mr. Tromans referred to the paper by De Vivo and others, Recent trends in mortality and causes of death among persons with spinal cord injury, a US study which concluded that ventilator dependant subjects were the only group to show actual gains in life expectancy between the first and fifth years.  There was no other evidence before me in relation to this matter.  In the circumstances, I consider the allowance already made for the Claimant’s position in the cohort to be fair.

 Although I have addressed in some detail the arguments advanced before me in relation to the application of the statistics contained in the published studies, I emphasise that the use of such statistics is no more than a starting point. The court is not engaged in a mechanical exercise and what matters is the clinical judgment of the experts on the facts of this particular case.

Here, the experts disagreed as to the positive and negative factors in the Claimant’s case and their impact on his life expectancy.  The relevant considerations fall into two general categories: physical factors and socio-economic factors, although these are not wholly discrete categories.  Mr. Derry increased the Claimant’s life expectancy by 8 years by reason of these factors.  It is not clear to what extent Mr. Tromans has been influenced by these factors in making his adjustment of 6%.  Mr. Tromans emphasised a number of negative factors.  Moreover, it is clear that Mr. Tromans did not agree with Mr. Derry as to the extent to which socio-economic circumstances have a positive effect on life expectancy.

So far as the physical factors are concerned the following are negative factors.

The following positive factors have been identified

Having regard to all these considerations I consider that the positive physical factors substantially outweigh the negative physical factors.

Mr. Derry also drew attention to a number of socio-economic considerations which, in his view, justified an increase in life expectancy.  In this regard he relied on a paper published in the United States in 2004 by Krause, De Vivo and Jackson, Health Status, Community Integration and Economic Risk Factors for Mortality after Spinal Cord Injury.  This paper evaluated life expectancy on four different models.  Model 4 added favourable income and insurance assumptions to favourable health and community integration assumptions and resulted in an overall increased life expectancy of 8.1 years over Model 1 in the case of a 25 year old tetraplegic.  It was partly on this basis that Mr. Derry concluded that the life expectancy of the Claimant should be increased by 8 years.

In this regard Mr. Derry drew attention to the following positive socio-economic considerations in this case.

Mr. Tromans disagreed with Mr. Derry’s evidence as to the extent to which such socio-economic circumstances are a positive factor on life expectancy.  In particular he did not accept the conclusions of the Krause paper.  Mr. Tromans drew the court’s attention to two further documents commenting on the Krause paper and the relevance of socio-economic factors to mortality and life expectancy among persons with spinal cord injuries.  The precise provenance and status of these further documents is unclear.  The first is headed “Appendix A.  Updated research on “favourable economics”: A letter to the Editor. The effect of economic factors of longevity in SCI: Update study of Krause at al.”  This document is signed by Strauss, De Vivo, Brooks and Paculdo.  I note that Dr. De Vivo was a co-author of the Krause paper.  This document states that the authors have recently been able to update and expand the database used in the Krause study by adding more patients and increasing the length of the follow up of original patients.  On this basis there was found to be a substantial reduction in the findings on life expectancy.  The letter accepts that further research will be needed but concludes that the positive effect of favourable economics on life expectancy is somewhat less than previously estimated in the Krause paper.  The second document, entitled “Comments on the Paper by Krause et al” was written by Dr. Strauss and is dated 29^th September 2005.  Dr. Strauss concludes that the Krause study is valuable and provides support for the very plausible hypothesis that those near the poverty level or without good insurance should have a much shorter life expectancy than many others.  The author observes that it may also be true that those with large settlements have better life expectancy than that of persons with adequate, though more modest, resources.  However, he considers that the Krause study offers no evidence either for or against this proposition.

These two further papers must be treated with a certain degree of caution because of their uncertain status.  It does not appear that they have been subjected to peer review or published.  However, they do suggest that the Krause study should not be taken as a definitive statement of the impact of such socio-economic considerations on life expectancy in tetraplegics and that further research is needed in this area.  Moreover, there may be difficulties in the direct application of the results of Krause’s research in the United States to the situation prevailing in the United Kingdom.  Nevertheless, I consider that there is force in the submission that such socio-economic factors are likely to have a favourable impact on the life expectancy of the Claimant.  I did not understand Mr. Tromans to deny them any effect.  While I am unable to accept that their impact is likely to be as dramatic as the Krause paper contends, I nevertheless consider that these favourable factors should be given weight in assessing life expectancy in the present case. In this regard I attach particular importance to my finding that the Claimant will use his award to purchase high quality care and medical services.

Accordingly, applying the methodology of Mr. Derry and adopting the statistics of the Frankel paper as a starting point, I accept the opinion of the experts that the resulting reduction in life expectancy of 20.59 years must itself be reduced by 4 years to take account of the particular injuries suffered by the Claimant. Here I am content to take Mr. Derry’s figure of 17 years reduction in life expectancy. Having regard to the preponderance of positive physical factors in this case and the advantages flowing from the socio-economic factors identified above, I consider that the reduction in life expectancy must be further reduced. I have already referred to the fact that Mr. Tromans in applying a 32% reduction in life expectancy has made no positive allowance for these further factors if it was his intention to adjust the Frankel figures by 4 years. I consider that these further factors reduce the reduction in life expectancy by a further 4 years resulting in a reduction of life expectancy of 13 years. Accordingly, I conclude that the Claimant is expected to live another 49 years to age 72.

A further dispute between the parties relates to the translation of my conclusion in respect of life expectancy into an appropriate multiplier.  For the Claimant, Mr. Burton maintains that the appropriate multiplier is to be derived from Table 28 which provides multipliers for a set term.  On behalf of the Second Defendant, Mr. Methuen, however, maintains that the appropriate multiplier should be derived from Table 1 (or, if the life expectancy is to age 65, more conveniently from Table 9) containing multipliers for pecuniary loss for life.

For the Claimant, Mr. Burton submits that Table 28 applies as a matter of principle because, given the way spinal experts express their opinions, it is correct to treat the Claimant as living for a term certain to a particular age.  He distinguishes between a situation such as the present where experts are attempting to give a clinical judgment as to the age to which an individual is likely to live, in which case he submits Table 28 is appropriate, and a situation where experts are attempting to give an average deduction in respect of people with similar injuries to the Claimant from the average normal life expectancy, without making any allowance for non injury-related factors, in which case he accepts that Table 1 would be the correct Table to use.  Mr. Burton submits that in the present case the experts were exercising their clinical judgment as to the best estimate of the age to which the Claimant is likely to live and that in doing so they took full account of the Claimant’s non-smoking, non-drinking family history.

For the Second Defendant, Mr. Methuen submits that the statistical evidence and the clinical judgment of the experts in addressing the issue of life expectancy does not take account of the mortality risks facing the general population i.e. the risks that do not arise from the consequences of the Claimant having suffered a spinal cord injury.  He submits that a determination of life expectancy provides an additional number of years for which it is anticipated that the Claimant will survive, compared to the additional years for which a similar aged individual in the general population will survive. In particular, he submits that no account has been taken of the possibility of the Claimant dying prematurely as a result of a fatal accident or a fatal disease unrelated to his injuries. 

To my mind the critical consideration here is not the precise form in which the experts expressed their opinions but, rather, whether they have taken account of factors relating to mortality generally in arriving at their conclusion on life expectancy.  In Royal Victoria Infirmary v B (A Child) [2002] Lloyd’s Law Rep. (Med.) 282 the Court of Appeal considered which Table was appropriate in the case of a child suffering from severe hypoxic ischaemia insult and spastic quadriplegia.  The life expectancy having been determined, the question was whether the discount should have been simply for accelerated receipt in accordance with the equivalent of Table 28, as the judge decided, or whether it should also have included a discount for mortality to reflect the fact that the Claimant would not live to exactly her life expectancy.  Tuckey L.J. with whom Thorpe L.J. and Sir Anthony Evans agreed on this point, concluded:

“22.

The simple answer to this point, one would have thought, was that the quantification of B’s 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.”

On the other hand in Tinsley v Sarkar [2006] PIQR Q1, Leveson J, as he then was, considered the appropriate Table to apply in a case where he had ascertained the appropriate reduction in life expectancy for certain specific causes, smoking, addiction to alcohol and drugs, the prospect of self-harm and the consequences of epilepsy and the additive effects of brain injury.  There the judge accepted the argument that Table 1 covers a cohort which includes those who smoke so that there was a real risk that there was a measure of double counting because smoking was also more specifically taken into account by reference to the reduction.  However, as no evidence was put before him to help him undertake the exercise of analysing the statistics and given the very modest difference in multipliers, he was not prepared to ‘second guess’ the calculation of the Tables and contented himself with the figure from Table 1.

It appears that the judge in Tinsley only heard evidence in relation to the specific factors bearing on life expectancy.  There the experts were not giving a clinical view as to the Claimant’s life expectancy, taking into account all his positive and negative risk factors.  They were simply estimating the average loss of life arising from those specific negative factors when compared to the average life expectancy of the population as a whole.

I consider that in the present case the experts, in assessing the life expectancy of the Claimant, have taken account not only of the consequences of his spinal injury but have also factored into their assessment a wide range of other individual factors particular to the Claimant not arising from his spinal injury.  These include his general medical history and that of his family, his weight, the fact that he does not smoke or drink, the extent of his susceptibility to heart disease or diabetes and his attitude to exercise.  In these circumstances, if Table 1 were used it would lead to double counting in respect of the negative factors and would lead to under-recognition of the effect of the positive factors.  Mr. Methuen is correct in submitting that the assessment of life expectancy did not take account of the risks of accidental death or certain other diseases.  In the light of that fact I have given careful consideration to the question whether I should arrive at the appropriate multiplier by employing a combination of Table 28 and Table 1.  However, in view of the fact that by far the greater proportion of risks to this Claimant’s life have already been taken into account by the experts in their assessment of life expectancy, and in the absence of any evidence as to what apportionment between Tables would be appropriate, I conclude that the appropriate multiplier should be calculated by reference to Table 28.  Under Table 28 the appropriate multiplier for a term of 49 years, applying a discount rate of 2.5%, is 28.42.