Arden v Malcom

The issue in this appeal is whether the Defendant in this personal injury action may rely upon a statistical report on life expectancy. On his instructions a report dated 21^st August 2006 has been prepared by Professor Strauss, Emeritus Professor of Statistics at the University of California. At a case management conference on 11^th September 2006 His Honour Judge O’Brien refused permission to the Defendant to rely upon it. Leave to appeal was given subsequently on a paper application to the High Court.

On 1^st April 2002 the Claimant was riding a motor bicycle in Downham Market, Norfolk when she collided with a car driven by the Defendant. As a result she suffered serious injuries which include the following, as described in the Particulars of Claim served in March 2003. She suffered severe diffuse traumatic brain injury and atrophy of the left optic nerve due to injury in the fracture in the base of her skull. She was functionally blind immediately after the accident and this was ascribed to her brain injury. In the Particulars of Claim it is stated that there had by then been modest improvement but that the Claimant is expected always to need twenty four hour supervision in view of her poor sight and cognitive impairment. It is said that she will not be able to manage her own affairs, and she is a patient.

The only medical report served with the Particulars of Claim is one dated 28^th October 2002 by Dr. Kirker, Consultant in Rehabilitation Medicine. The pleading states that the Claimant will rely upon further medical reports to be served before a trial and the Schedule of Special Damages states that details of the claim in respect of care and other matters will be supplied in due course.

On 28^th April 2005 a report upon the Claimant was written by Dr Richard Hardie, Consultant Neurologist on the instructions of the Claimant’s solicitors. In his summary and conclusions, Dr Hardie includes the following:

“8.

Medical advisors should be invited to review likely causes of her weight gain and initiate appropriate interventions to bring this under control because of the adverse risk to her future health….

12.

Provided the Claimant receives a reasonable level of care and supervision, and effective steps are taken to control her weight, I would not anticipate a significant reduction in the Claimants life expectancy”.

In the body of the report Dr Hardie records that the Claimant’s pre-injury weight was documented in July 1997 at 57 kg, giving her the body mass index of 20.9. He notes that the Claimant has gained a considerable amount of excess weight since the injury. At the date of the examination, 1^st April 2005, he stated that “she was obviously obese weighing around 90 kilos”. In a letter dated 13^th June 2005, he comments that this means that her weight has increase by more than 50% since the accident, with a BMI of over 33, i.e. in the obese range and associated with an increased health risk.

The following month, on 19^th May 2005, the Claimant attended Professor Trimble, Professor of Behavioural Neurology and Consultant Physician of Psychological Medicine. He had been instructed by solicitors for the Defendant. He says nothing in his report about the Claimant’s life expectancy.

Dr Hardie and Professor Trimble met on 30^th November 2005 to discuss the Claimant’s case. They noted a number of points of agreement and there were no areas of disagreement. They agreed on matters relating to her neurological and psychiatric condition. They agreed that she needs ongoing care. They noted that she had suffered secondary physiological changes including excessive weight gain. The eighth and last paragraph of the joint statement reads: “We believe that her life expectancy is normal”. They signed the statement on 20^th December 2005 and 4^th January 2006 respectively.

On 18^th April 2006 witness statements were signed by the Claimant’s husband, and by a friend of very long standing. Both of these remark upon the Claimant’s gain in weight.

On 2^nd May 2006 a Rehabilitation Cost Report was prepared by Caroline Ferber, Brain Injury Case Manager, on instructions from the Defendant. This refers to the Claimant’s weight gain. She also estimated that the cost of future care, assuming the absence of the Claimant’s husband, would be about £100,000.

The report of Professor Strauss sets out the assumptions about the Claimant upon which his analysis is based. He is a statistician. He did not see the Claimant personally. His assumptions include the traumatic brain injury suffered in the road accident on 1^st April 2002, and the Claimant’s obesity. From records reviewed, and on the assumption that the Claimant’s weight would not significantly change over the remainder of her life, he produced calculations of her life expectancy, taking into account his assumptions. He cites a substantial number of documentary sources, for many of which he is himself one of the authors. He sets out numerous factors which he states he has explicitly not taken into account, these being factors which are specific to the Claimant and her personal and family circumstances. He indicates that such factors, if taken into account, can lead to some adjustment to the reported life expectancy, although he himself has not attempted any such adjustment. He concludes that the Claimants life expectancy arrived at in this way, is 8.7 years less than for a female of the same age in general population.

A case management conference took place on Monday 11^th September 2006, Mr Russell of counsel, who appears for the Claimant, gave the judge a brief introduction and then said:

“……A few minutes ago my learned friend was given instructions to disclose an experts report in a new field of expertise for which there has been no warning or notice or reference in the correspondence. Probably the most sensible way forward, because it affects the way the case is to be managed hereafter, is if he makes such application to your Honour as he sees fit for leave to rely upon such expertise….”

The judge had last seen the case on 22^nd March. Mr Brown for the Defendant apologised that no warning had been given in advance of the application he was about to make. He noted that there was at that time no schedule of loss and that the care reports had not been exchanged until July or August. He submitted that on the basis of Miss Ferber’s evidence the potential reduction in life expectancy indicated by Professor Strauss could reduce the value of the cost of care by some £330,000. He passed up the report to the judge stating that he had no copies of it. Neither counsel then had a copy of the report for the purpose of their submissions.

The judge gave a short judgment on this application before proceeding to the other matters which required consideration that day. The substance of it is as follows:

“2 The basis for obtaining [the report] is an observation by one of the Claimant’s experts entering a reservation as to the question as to expectation of life in respect of an obesity problem suffered by the Claimant reduced from being a very active woman to a very inactive one. But the matter was addressed by the neurologists and neuropsychiatrist experts and in their joint report they both were of the opinion that there was no effect on life expectancy. What happened then is that the Defendant without any reference to the Claimant, went off to this expert in May 2006, and obtained the report of 22 August, only revealed to anybody this morning.

3 That question of no warning being given could, of course, be alleviated by my insisting this application be adjourned, whether that be for half an hour, or a couple of weeks, so that the Claimant have an opportunity to give full deliberation to this report.

4 This application is made in the context of a case where liability was agreed back in June 2004, with a 50% reduction being made for contributory negligence. Everything that had to be done since that time involves the question of the quantification of these damages. It seems to me that there are objections to the admission of this report, firstly that there is already agreement about the jointly appointed experts on the issue. Secondly, it is made far too late in the quantification progress, at 2 ¼ years after they began. Thirdly, that there was no proposal to the Claimants for the joint instruction of an expert in this field.

5 The best I think that any Defendant in this case could hope to achieve would have been an order for the instruction of a joint expert in the circumstances. I am not sure that even that would have succeeded. It is true that, even taking a minimum basis of the care costs of about £55,000 a year and taking a reduction of the multipliers result of the reduction in life expectancy of about 3, that there could be about £165,000 at stake on this application.

6 I bear that in mind but it seems to me nonetheless that this application, as I say made without notice and made without any attempt to get a joint expert, is one which really, if I allowed it , would be driving a coach and horses through the general intention of the Civil Procedure Rules and I refuse the application”.

In his submissions Mr Russell had submitted that this was a classic case for there to have been a joint expert. He complained that if leave were given as asked it would be necessary for the Claimant to instruct an expert with the further delay and costs that that would involve. He submitted that it was too late to raise the issue of life expectancy, given that the obvious first port of call was their own neurologist, Professor Trimble. He submitted that if Professor Trimble was asked and responded that he did not know, then in those circumstances it would be appropriate for the court to consider directing that there should be a join report on this matter, or perhaps that Dr Hardie and Professor Trimble could review it by way of questions. He submitted that that should be the first step. In reply, Mr Brown again invited the judge to allow the evidence in, but as a fall back position he asked that there be a joint expert on life expectancy. The possibility of the matter being pursued by way of questions or further instructions to Dr Hardie or Professor Trimble was not further canvassed in argument, and is not the subject of any directions in the order that was drawn up.

The Judge and Mr Russell are clearly entitled to considerable sympathy for the situation in which they each found themselves. It is regrettable that no notice had been given of the existence of the report, but I do not know why that happened as it did, and I do not cast any blame on Mr Brown.

Before me the Defendant is represented by Mr Christopher Purchas QC leading Mr Brown. He notes that, apart from questions of delay and costs, it is not submitted that the Claimant would suffer prejudice from the introduction of this new evidence. On the other hand the Judge accepted that there could be £165,000 at stake on the application. He submits that the significance of the point of life expectancy did not really become apparent until the report of Ms Ferber putting the annual cost of care at about £100,000. This is very much greater than the figure in the report of Miss Gough for the Defendant. He rejected the criticism in para 2 of the judgment to the effect that the Defendant had not referred to the Claimant before going off to get the report. He submitted that it was not until the Defendant had such a report that they would be in a position to know whether there was a point worth raising at all. There is nothing in the rules which prevents a litigant asking for such expert advice at their own expense without disclosing that fact to the other side.

Relevant provisions of the Civil Procedure Rules include the Overriding Objective (which I need not set out), and the following from Part 35;

“35.12

(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –

(a)

identify and discuss the expert issues in the proceedings; and

(b)

where possible, reach an agreed opinion on those issues.

(2)

The court may specify the issues which the experts must discuss.

(3)

The court may direct that following a discussion between the experts they must prepare a statement for the court showing –

(a)

those issues on which they agree; and

(b)

those issues on which they disagree and a summary of their reasons for disagreeing. ...

(5)

Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.”

It is not in dispute that the proper approach to appeals from case management decisions can be found in the judgment of Chadwick LJ in Royal & Sun Alliance Insurance v. T&N Limited [2002] EWCA Civ 1964 paras 37-38:

“We were reminded, properly, by counsel for T&N that these are appeals from case management decisions made in the exercise of his discretion by a judge who, because of his involvement in the case over time, had an accumulated knowledge of the background and the issues which this court would be unable to match. The judge was in the best position to reach conclusions as to the future course of the proceeding. An appellate court should respect the judge’s decision. It should not yield to the temptation to “second guess” the judge in a matter peculiarly within his province.

I accept, without reservation, that this Court should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

Mr Purchas QC also referred to Cobbold v London Borough of Greenwich (unreported 9^th August 1999) in which Peter Gibson LJ said “there is always prejudice when a party is not allowed to put forward his real case, provided that it is properly arguable”. This, submitted Mr Purchas QC, applied just as much to expert evidence as to the amendment of a pleading. In addition he referred me to the judgment of Neuberger J (as he then was) in Cosgrove v. Pattison (unreported 27^th November 2000). Neuberger J said this:

“In my judgment although it would be wrong to pretend that this is an exhaustive list, the fact has to be taken into account when considering an application to permit a further expert to be called are these. First the nature of the issue or issues; secondly the number of issues between the parties; thirdly the reason the new expert is wanted; fourthly the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly the delay, if any, in making the application, seventhly, any delay in the instructing and calling of the new expert will cause; eighthly, any other special features of the case; and finally and in a sense all embracing the overall justice to the parties in the context of the litigation….

Standing back and looking at the justice between the parties, I ask myself two questions…. First, if the appellants are not entitled to call [the new expert] and they lose the case, will they have an understandable sense of grievance judged objectively?... secondly, if the appellants are entitled to call [the new expert] and won, would the respondents have an understandable sense of grievance, judged objectively? ”

Turning to the reasons given by the judge in his judgment Mr Purchas QC made the following submissions. First, the fact that there was already agreement by jointly appointed experts on the issue was not a bar to the calling of Professor Strauss. CPR 35.12(5) provides that where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement. In this instance the Defendant had good reason not to wish to be bound by the agreement, so the submission went. It is clear from the joint statement that Dr Hardie and Professor Trimble had not taken into account the statistical material referred to by Professor Strauss.

In this respect events have moved on since the judgment of 11^th September 2006. Mr Purchas QC referred me to a letter dated 23^rd October 2006 from Professor Trimble to the Defendants solicitors referring to Professor Straus’s report. It includes the following:

“I preface this statement by saying that I am no expert on matters of life expectancy, although like anybody else in the field I am familiar with the literature, but I am not an epidemiologist, and the mathematics of calculating reduced life expectancy as you will see from his report is complicated. However, I think you should go along with the reduction he has suggested. He is one of the known experts in this field. … fat people tend to stay fat, if you are fat you tend to have increased morbidity and increased mortality”.

Mr Purchas QC addressed the second reason given by the judge, namely that it was far too late in the quantification progress at 2 ¼ years after they began. As to this he submitted that there is plenty of time for both parties to deal with the statistics or a joint expert to be instructed. Even now, although the trial date provisionally mentioned in the order made on 11^th September 2006 is the first available date after 1^st April 2007, there is doubt about whether that date can be kept for reasons unrelated to this application.

Then Mr Purchas QC turned to the third reason given by the judge namely that there was no proposal to the Claimants for the joint instruction of an expert. He submits that there is no requirement in principle, or in practice, for the Defendant to make such a proposal. It is not in all cases that statistical evidence of life expectancy is relevant in a brain injury case.

Mr Purchas QC submitted that there were matters which the judge had failed to take into account. The care evidence had been disclosed only about one month before, and, as he put it, had significantly increased the value of the claim. Second the Claimant had still not served a meaningful schedule of loss. Third, further evidence was still being gathered in relation to other issues. Fourth, insufficient weight was given to the significance of Professor Strauss’s statistics and the opinion he derived from them.

For the Claimant Mr Russell stressed the proper approach to appeals from case management decisions as already referred to above. He repeated his submission made below that this is a case in which there are already a number of different experts who have been instructed and it is a burden for a private litigant to be put in a position of having to instruct a further expert. The issue is one of proportionality and the judge was best placed to decide where the line should be drawn as to what experts should be permitted.

Mr Russell’s main submission, as it seemed to me, was that the application was at best premature. He submitted that the clinicians should be the expert witnesses who gave primary evidence of life expectancy and there is no need for an extra tier of evidence relating to statistics. Commenting on Professor Trimble’s letter, of October 2006, he submits that both experts omitted to deal with life expectancy statistics in the joint statement. But he departed from the position adopted by the judge, namely that there is already agreement by jointly appointed experts on the issue. He submitted that, even at this stage, the Court could direct that questions be put to the experts pursuant to CPR 35.6(1)(a), and that the court could give directions and could specify the issues which the experts must discuss pursuant to CPR 35.12(1) and (2). He accepted that this was possible in the light of developments that have taken place since the joint statement was agreed at the end of 2005.

Further on this point Mr Russell informed me that in the further hearing before the judge which took place on 4^th December 2006 the Order included the following at paragraph 4:

“Both parties have permission to disclose further evidence from the expert neurologists following further examination, if appropriate by 2^nd February 2007. Neurologists shall confer and produce a further joint statement by 16^th February 2007”.

Mr Russell explained that the Claimant was not trying to keep out statistical evidence of the type to which Professor Strauss refers, but that her position was that they should be adduced through the neurologist experts, at least unless and until those experts disagreed on a statistical matter. Mr Russell referred to me to Royal Victoria Hospital v. B (A Child) [2002] EWCA Civ 348; [2002] PIQR Q10. In that case the issue before the judge had been to decide the multiplier to be applied to the agreed cost of future care for the rest of the child’s life. Statistical evidence had been admitted from Professor Strauss. Tuckey LJ said this:

“15 I should perhaps add that the passage which I have quoted … in which the judge referred to his criticisms of Professor Strauss’s evidence suggests that the judge thought that acceptance of Professor Strauss’s evidence would be a departure from the conventional manner of determining life expectancy. If he had meant by this that the court should not have regard to relevant statistical evidence he would have been wrong. But I do not read his judgment this way. What he is saying is that it would be wrong to decide the expectation of life purely by reference to Professor Strauss’s statistics. ….”

Mr Purchas QC referred to the following passage later in that judgment:

“20… In an appropriate case such evidence may well provide a useful starting point for the judge, but if it is to serve this purpose Professor Strauss or any such expert should be required to give evidence if his report is not agreed. Such evidence, together with medical evidence should provide a satisfactory interdisciplinary approach to the resolution of issues of the kind which arose in this case”.

Mr Russell also referred to what Evans LJ said at para 36, namely that evidence of a statistician is both relevant and admissible and the judge must take account of all the evidence including this when deciding what assumption he should make as to the future life span of the Claimant. He added:

“38 the judge also said and I agree:

“I accept that statistics are a useful tool in the hand of the clinician but where reliable medical evidence is before the court, they should not displace the expertise of the clinician. They provide, rather, a useful background to and cross check the work of the doctor”.

39 I would add only this. I doubt whether such a clear distinction exists, between “statistical” and so called “clinical” evidence, as Mr de Navarro asserted in his attractively presented submissions. When a doctor gives expert evidence, the court relies on the witness for a professional opinion which takes account of contemporary knowledge and expertise, not limited to his or her own personal experience but including reports of the experiences of other doctors and other published material. The published material clearly includes statistical information such as was produced by Dr Strauss, though not, of course, the individual assessment made by him in the present case. Whether or not such an assessment has been made, the court must still rely primarily in my judgment on expert medical witnesses before reaching a conclusion in the particular case. 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”.

In addition Mr Russell submitted that the order sought in the Appellant’s Notice, section 7, is that “there be permission to rely on the expert report of Professor Strauss”. “The expert report”, he submits, is not the same as “an expert report”, so the reference is to the report dated 21^st August. But this report, he submits, suffers from a number of deficiencies. It is not addressed to the court and it does not comply in other respects with the requirements of a report to the court under CPR 35. I do not find it necessary to address these submissions. If this were the only point, I would regard the point as technical, in the sense that the deficiencies are remediable, and would I think almost certainly be remedied.

Having heard the submissions of Mr Russell, it seems to me that the position in substance now is not the position as it appeared to the Judge to be in September 2006. A reader of the judgment, and of the Order drawn up on the basis of it on 11^th September 2006, would be left with the understanding that the evidence in relation to statistics and life expectancy was concluded by the brief statement in paragraph 8 of the joint report of the two experts agreed at the end of 2005. But the position adopted by both parties before me is that the position on such evidence is not closed, but rather the question is how it is to be further addressed or explored. For the Defendant it is submitted that it should be pursued through the admission of evidence in the form of a report (not necessarily the report dated 21^st August 2006) of Professor Strauss. For the Claimant it is submitted that the issues should be pursued, at least in the first instance, through further questions or directions addressed by the parties or by the court to the two existing experts, Dr Hardie and Professor Trimble. Accordingly, neither party is submitting that it is too late in principle to raise the issue, providing it is done in the appropriate way.

In my judgement Mr Purchas QC is correct to submit that the third reason given by the judge is not well founded. A party is not bound to propose the instruction of an expert, although of course that may be the course which the judge considers to be the right one. On the other hand, the Judge was right that, under the CPR, reports such as the one in question should not be produced on the day of a hearing in the circumstances in which this report was first produced by the Defendant.

In these circumstances I must address the contentions of the parties afresh. There is a further reason for doing so. So far as Dr Hardie is concerned, having regard to the passages in his report, in particular paragraphs 8 and 12 of the Summary and Conclusions, the simple statement in paragraph 8 of the joint statement (“we believe that her life expectancy is normal”) could leave the trial judge in some difficulty in understanding what he meant. Likewise the difference between that paragraph in the joint statement and the contents of the letter dated 23^rd October 2006 could leave the trial judge in some difficulty in understanding what now is the position of Professor Trimble on life expectancy. Of course either or both of these experts could be called to give oral evidence, but that is to be avoided if at all possible. In order to avoid that necessity, some questions or directions will need to be put or given to the experts.

The real issue comes down to this. Should the court give permission to adduce a report from Professor Strauss at this stage, or should the statistical material to which he refers first be raised in the form of a question or direction to the existing experts, with the possibility of a report from Professor Strauss being left to be decided a future application, in the event that the question and directions route does not resolve the matter. Mr Purchas QC submits that this is not a practical way of proceeding, and that permission should first be given to rely on the report of Professor Strauss. I have regard to his great experience in cases such as this. It may be that in the end he will be proved right. But I am not convinced that giving permission now is necessary if justice is to be done.

In my judgment it is in the spirit in the decision of the Court of Appeal in Royal v Victoria that 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, such as Professor Strauss, ought normally to be required.

Had Mr Russell not explained the Claimant’s position as he has explained it, I would have been minded to accept the submissions of Mr Purchas QC that, on the approach indicated by Neuberger J, the Defendant ought to be permitted to advance his case on life expectancy along the lines indicated in Professor Strauss’s report. A substantial sum is at stake on the issue, the issue can be addressed without undue prejudice to the Claimant, or undue delay, it is an issue that can in principle be the subject of separate expert evidence, and the Defendant would objectively have an understandable sense of grievance if they were not permitted to advance the point at all. But that is effectively not in issue. It is the means, not the point of principle, that is in issue.

Accordingly, I reach the same conclusion as the judge reached, namely that permission to adduce the report of Professor Strauss should be refused, although I do so by a rather different route. Given the circumstances in which the parties came to make their submissions on 11^th September, and the Judge to give his judgment on that date, it is no reflection on the Judge at all that my views should differ from the judge in the way that they do. Accordingly I would dismiss the application as it is framed in the Appellant’s Notice, and invite counsel to agree, if possible, a form of order relating to questions and directions to be given to Dr Hardie and Professor Trimble.