Monday, 27 October 2014

When Is A Claimant Atypical?

By Killian Garvey, Kings Chambers Pupil

For the purposes of determining life expectancy, when is a claimant atypical?

The usual order of things, when assessing quantum, is to determine a claimant’s life expectancy by reference to the Ogden Tables. Indeed, use of the those tables was endorsed by the House of Lords in Wells v Wells, where Lord Lloyd of Berwick stated that, ‘the tables should now be regarded as the starting-point, rather than a check’.

Tables 1 and 2 provide ‘Multipliers for pecuniary loss for life’ for males and females. These multipliers are based on the projected mortality rates of the United Kingdom as a whole. However, they do not account for all claimants. Indeed, as paragraph 5 of the Explanatory Notes to the Ogden Tables states, these multipliers can be modified ‘where there is clear medical evidence in an individual case to support the view that the individual is atypical, and will enjoy longer or shorter expectation of life.’

In theory this seems logical. In practice, however, this leaves lawyers in the difficult position of trying to determine when an individual is atypical. Of course they will not be alone in this; the lawyer will likely have medical evidence either supporting or refuting this proposition. But at what point should a lawyer instruct a medical expert to assess this? And what threshold is a medical expert meant to apply to this claimant?

Consider, for instance, a claimant with a body mass index of 40. Clearly this person would be classed as being clinically obese. But are they atypical? Do the Ogden Tables apply to them?

You may notice that this article has thus far posed a number of rhetorical questions, whilst not providing any answers. Unfortunately this is indicative of the law on this issue. These questions have not been properly addressed in any reported decisions at present, which leaves the lawyers faced with these questions guessing as to the answer.

So at the risk of posing yet another question: where should the threshold be set for determining when a claimant is atypical?

The writer’s view is that the courts should adopt a conservative approach to this question, by setting the threshold relatively high. The reasons for this are threefold:
-          The Ogden Tables are generated by reference to the UK’s average population. Thus, this includes, on the one hand, smokers, drinkers and obese people, all of whom might have reduced life expectancies, and on the other hand, health-obsessed yoga-practicing vegans, who may have increased life expectancies. The Ogden Tables, therefore, account for most people, meaning that they should only be deviated from in exceptional circumstances. Doing otherwise would render them obsolete.
-          If the threshold for claimants being atypical was set relatively low, then it would become commonplace for lawyers to instruct medical experts on life expectancy. Not only would this exponentially increase the cost of litigation, it would also arguably lead to unnecessary satellite litigation concerning the admissibility of life expectancy evidence.
-          Legal certainty is an underlying principle in all litigation. Adding another variable as to what multiplier should be applied would only serve to undermine this in personal injury litigation.

So, if the threshold for claimants being atypical should be set high, then how high? And how should this expressed?

It would seem that the difficulty one faces with answering these questions is that however this threshold test is expressed, it will need to remain relatively vague. The courts cannot realistically stipulate specific guidance in answer to these questions. For example, take the claimant considered above with a BMI of over 40. Is it reasonable to deviate from the Ogden Tables with this claimant simply because of their BMI? What if they were a fit rugby player with a family history of relatives who live to well over 100? Presumably not in those circumstances.

The alternative is to only allow deviation from the Ogden Tables where the medical evidence indicates that the claimant’s reduction in life exceeds a certain period (eg. 8 years). Arguably though, this would only lead to a plethora of experts being asked to state that the claimant’s life expectancy is over 8 years below (or above) average.

It is submitted, therefore, that this issue must be determined on a case-by-case basis. Beyond stating that the threshold for deviating from the Ogden Tables should be set relatively high, ultimately it is heavily reliant upon the discretion of the judge trying the action. And inevitably this judge will end up applying the test referred to by Stuart-Smith LJ in Cadogan Estates Ltd v Morris:

‘This seems to me to be an application of the well know elephant test. It is difficult to describe, but you know it when you see it’.

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