Courts should not lightly depart from precedent and actuarial & statistical tools, such as those based on the Ogden tables, as this case shows.
Facts / Background
The Claimant was the widow of her late husband, Mr Price. Mr Price was employed by Marston’s as a chef in the kitchen of the Copper Penny public house. He tripped over a raised metal strip on the floor of his workplace and fell against furniture, sustaining injury. He subsequently developed an infection from which he died aged 60. The Defendant admitted liability.
A three day trial took place in Swansea County Court. Judgment was handed down in draft and the trial judge asked the parties to agree the figures arising. The parties were unable to do so. A figure could not be agreed for the multiplicand for lost services. A further hearing was listed to determine the matter.
Following the trial judge’s ruling, both parties appealed.
- The Defendant appealed against the factual finding that the fatal infection was caused by the fall.
- The Claimant appealed against two aspects of the Judge’s ruling on quantum.
Thus, there were three issues on appeal:
- Whether the trial judge was wrong to find that Mr Price’s fall was the cause of his infection and, therefore, the cause of his death from infection (the Defendant’s appeal);
- Whether the judge erred in his decision on Mr Price’s life expectancy; and
- Whether the judge erred in his assessment of financial dependency.
On appeal, the Griffiths J:
- Dismissed the Defendant’s appeal.
- Allowed both limbs of the Claimant’s appeal.
This article discusses the Claimant’s appeal.
The Claimant’s Appeal
Ground 1 – Life Expectancy
There was a difference between the experts (Professor Almond and Dr Bodansky) regarding Mr Price’s life expectancy.
- Professor Almond stated a life expectancy of 8 years.
- Dr Bodansky proffered a life expectancy of 8-10 years.
The trial judge clearly preferred the evidence of the Claimant’s expert, Professor Almond. At paragraph 36 of the judgment, the trial judge stated as follows:
Professor Almond, using Lancet information made a reduction in life expectancy of 8 years due to obesity. He concluded the 8 year figure out of the range was appropriate where obesity developed over time. Dr Bodansky, placing a range of 8 to 10 years, relied solely on statistics. I prefer the evidence of Professor Almond in this regard as he has advanced reasons for positioning at the lower end of the range to which Dr Bodansky did not have a detailed response. Similarly I prefer his evidence with regard to the impact of treatment on sleep apnoea.
With the greatest of respect to the trial judge (who is not named in the transcript of the appellate judgment), the conclusion that followed at paragraph 50 might then be described colloquially as somewhat perplexing, where it was held as follows:
Given my view of the evidence of Dr Bodansky on sleep apnoea I would make no reduction from the baseline figure because of that. I have had much more difficulty with the question of obesity. In some ways obesity will form part of the overall population figures, however there is clearly a difference of some significance as both the Claim and Defence experts accepted. Providing a range, it seemed to me, was a more realistic approach on the part of Dr Bodansky but then he was not able to answer questions about the impact of when obesity began. Professor Almond was much firmer on eight years, but it seemed to me that was a rather dogmatic position. In the end I felt that a reduction at the middle of the range probably reflected reality. That was a period of 9 years leaving an age of 76.5 years as life expectation. (…)”
Mr Justice Griffiths found categorically that “the judge’s figure of 9 years is not supported by his assessment of the witnesses or by his own reasoning.”
Ground 2 – Dependency Assessment
The trial judge found that, in essence, the evidence was not sufficient for the Court to do anything other than take a broad brush approximation in relation to the dependency claim.
The judge accordingly awarded £10 per week up and until age 73. He found that no loss had been proved beyond the age of 73.
The Judge’s approach to the dependency assessment up to age 73 was a significant departure from the Coward v Comex / Harris v Empress line of authority. As was noted by the High Court, this gave a figure that was much lower that the Defendant’s admitted alternative scenario (in the event that any loss was proven).
Upholding the Claimant’s appeal that this was wrong, the High Court held that the court should not: “start from scratch and ignore the tools that earlier cases have provided to accomplish a task which is necessarily based on counter-factual and hypothetical speculation about what would have happened if the fatal accident in question had not occurred. The point of actuarial and statistical tools such as those based on the Ogden tables and of the two thirds / one third rule of thumb is that they counterbalance the uncertainties that would exist in a single case, were it to be looked at in isolation, by averaging over countless examples from other similar cases in order to produce a result which is reliable notwithstanding the uncertainties of the case. It is precisely because the task is difficult and speculative that these tools have been developed, and are of such value. They are not, lightly, to be discarded, especially if an unconventional approach leads to a result which does not seem correct or fair.”
Griffiths J acknowledged that exceptions to the usual approach can be made in exceptional cases, but this was not an exceptional case. The lack of precise evidence was, as the above quote recognises, a distinct facet of fatal accidents litigation. Indeed, on the contrary (and quite trenchantly) it was held as follows: “[The trial judge] departed from the established method and then complained that he did not have the evidence to allow him to do so reliably. That was a compelling reason for him not to depart from the established method in the first place.”
The multiplicand was then replaced with the conventional two thirds, one third position.
Beyond the age of 73, the Judge’s finding that no loss had been proved was upheld on the basis that he was entitled find that the Claimant had not discharged the burden of proving what was necessary.
Comment
Those instructed for Defendants will doubtless lament the fact that this could be criticised as a Claimant failing to prove their case, but the Court making their case for them. However, that would be over-simplifying matters considerably.
The fact is that tools such as a Coward v Comex calculation are the norm to be applied as the Defendant rightly admitted in its Counter-Schedule. This decision follows a trend that exceptional means exceptional and courts must spell out why it considers such a matter to be the exception to the rule.
To summarise the thrust of the appeal judgment bluntly, the tools and tests are there for a reason and the established method is there to be used – as long as there is at least some evidence of loss to which the tools can be applied.
However, those tools cannot rescue a Claimant who has failed to prove any loss at all, but relies on pure speculation. The Claimant in this case simply did not prove a loss beyond age 73. Better evidence in relation to that period might significantly have increased the overall damages.
It is decisions such as these that bring certainty to litigation. Long may they continue.
The judgment can be accessed on Bailii.
Author: Henry King, 12KBW
