PROVING THINGS 238: THE ABSENCE OF EVIDENCE ON LIFE EXPECTANCY LEADS TO A PREDICTABLE RESULT

October 6, 2022 · by · in Damages, Expert evidence, Personal Injury

There are several reasons I want to look at the judgment of David Allan KC (sitting as a Deputy High Court Judge) in  Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (KB). The first reason relates to the defendant’s attempt to argue that the claimant had a reduced life expectancy. An argument, it turns out, based on no real evidence.  It also perhaps, begs the question, why experts, who expressly disavowed any expertise in life expectancy issues, were giving evidence on this issue in any event.

“No witness claiming to have expertise on the issue of life expectancy has given evidence in the present case.”

 

THE CASE

The claimant brought an action for clinical negligence. It was admitted that the defendant was negligent and consequently the claimant had suffered a below knee amputation of his right lower leg. One issue that the judge had to determine that was whether the claimant had a reduced life expectancy.

THE JUDGMENT ON LIFE EXPECTANCY

The judge observed that he had made a ruling on life expectancy during the case. He gave his reasons for finding that there was no evidence of any impaired life expectancy.

    1. I heard oral submissions from counsel part way through the expert evidence. I was invited by counsel to make a finding on life expectancy so as to assist and simplify the final submissions on quantum. Following oral submissions I announced my conclusion that the Claimant should be treated as an individual with an average life expectancy, without reduction. I did not provide reasons at that stage for my conclusion on life expectancy, but now do so.
    1. The Defendant contended for a reduction in life expectancy of 3 years. In support of this submission the Defendant relied on the evidence of Professor Kulkarni. In his oral evidence Professor Kulkarni stressed that he was not an expert on life expectancy. He confirmed in evidence that there was no reliable study of below-knee amputees indicating that the amputation resulted in a loss of life expectancy. In his report of February 2021 Professor Kulkarni referred to what he called ‘a guesstimate’ which was a decrease in life expectancy of 4 to 6 years. He relied on two factors supporting a decrease, namely impaired mobility and an excessive BMI. In the joint statement of April 2021 Professor Kulkarni again referred to his opinion on life expectancy being a ‘guesstimate’ and suggested a decrease of 3 to 4 years. In his oral evidence Professor Kulkarni conceded that to carry out a proper assessment of life expectancy one would need to consider both plus and minus factors. This was not an exercise he had carried out as he did not hold himself out as an expert on life expectancy. In the medical records the Claimant’s BMI is recorded at various times as being in the region of 30. Mrs. Utting, in her assessment of January 2021, referred to the Claimant having a BMI of 31, placing him in the ‘obese’ category. Professor Kulkarni referred in his oral evidence to an Oxford study where a BMI of 30 or above was classed as moderate obesity and had an effect of reducing life expectancy by 3 years. When asked why he had not produced a copy of the Oxford study Professor Kulkarni stated that it was because he was not putting himself forward as an expert on life expectancy.
    1. Dr. Sooriakumaran, in the joint statement, commented that he would not regard a BMI of 30 as significant for the Claimant’s life expectancy. In young individuals with above average muscular build, BMI is often not diagnostic of body fatness or overall health. He accepted that he was not an expert on life expectancy but in giving an opinion he relied on his experience over many years in rehabilitation and his reading of the literature. He said one should not focus just on one factor. It is necessary to look at all relevant factors when considering life expectancy. The fact that the Claimant has always been a non-smoker and that his alcohol intake is moderate, are positive factors to be taken into account.
    1. No witness claiming to have expertise on the issue of life expectancy has given evidence in the present case. Professor Kulkarni concedes that his various estimates of a reduction in life expectancy are not based on his having expertise on this issue. He accepts, and Dr. Sooriakumaran agrees, that to produce an estimate of life expectancy on which the court can rely would require an expert to weigh up both negative and positive factors in an individual case. That has not been done. At various times the Claimant’s BMI has been recorded at below 30. For example in March 2020 it was recorded in his medical records as being 27.9. This would be in the overweight category but there is no evidence that this level of BMI indicates a reduction in life expectancy.
  1. My conclusion is that there is no satisfactory evidence to suggest the Claimant should be treated as someone with a reduced life expectancy. There is no reliable epidemiological evidence that below-knee amputation leads to a reduction in life expectancy. No expert in life expectancy has assessed the relevant factors, both positive and negative, in the case of the Claimant. In these circumstances I conclude that the Claimant has an average life expectancy for a male person of his age. The parties agree that if the Claimant has an average life expectancy then the full life multiplier is 63.60.