The Royal Victoria Infirmary v B (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir Anthony EVANS |
| Judgment Date | 14 March 2002 |
| Neutral Citation | [2002] EWCA Civ 348 |
| Date | 14 March 2002 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2001/1412 |
[2002] EWCA Civ 348
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE—
QUEEN'S BENCH DIVISION—
NEWCASTLE UPON TYNE DISTRICT REGISTRY
(HIS HONOUR JUDGE LANGAN QC sitting as a Deputy High Court Judge)
Lord Justice Thorpe
Lord Justice Tuckey and
Sir Anthony Evans
B3/2001/1412
MICHAEL de NAVARRO QC and BRADLEY MARTIN
(instructed by Eversheds of Newcastle upon Tyne NE1 1XX) appeared for the appellant
MISS ELIZABETH-ANNE GUMBEL QC and HENRY WITCOMB
(instructed by Watson Burton of Newcastle upon Tyne NE99 1YQ)
appeared for the respondent
TUCKEY LJ:
This is an appeal by the Defendant hospital authority from the judgment of HHJ Langan QC sitting as a High Court Judge in Newcastle. The then seven-year-old Claimant (B) claimed damages for severe cerebral palsy caused by the Appellant's admitted negligence. The only issue the Judge had to decide was the multiplier to be applied to the agreed cost of future care (£150,000 per annum) for the rest of her life. This involved deciding B's life expectancy and then discounting that number of years to produce the multiplier. The Judge decided that B "should be treated as a child who will live to the age of twenty five years". This meant that the cost of future care would be incurred over a period of 17·42 years. So for this period and taking a discount rate of 3% the Judge applied Ogden Table 38 ("multipliers for pecuniary loss for term certain") which produced a multiplier of 13·61.
The Appellant says that the Judge was wrong on both counts. Firstly it says he should not have decided how long B was expected to live, but "the average number of remaining years of life of a cohort of individuals with (her) age and condition". This statistical approach was derived from the evidence of Professor Strauss, Emeritus Professor of Statistics at the University of California. Using this approach Professor Strauss said B's life expectancy was an additional 14·9 years. Secondly, the Appellant says that the Judge should not have used Ogden Table 38 but, based on Professor Strauss's evidence, a whole life multiplier which took account of the fact that B might die earlier or live longer than her life expectancy. This produced a multiplier of 10·5. So the Appellant says that the Judge awarded £466,500 too much.
The facts as agreed or found by the Judge can be shortly stated. B was born on 5 October 1993. When she was twelve weeks old she developed a bronchiolitic illness which resulted in her admission to the Appellant's hospital in Newcastle. There she suffered a severe hypoxic episode, the consequences of which have been devastating. She is quadriplegic, cannot sit up or roll over, has no useful movement of her hands and suffers from muscle spasm which is partially controlled by drugs administered by a pump inserted in her spinal column. She is cortically blind, cannot speak and gives little indication that she understands what is going on around her. Feeding is very difficult and there is a significant risk that she will require a gastrostomy so that she can be fed by tube. She is doubly incontinent and totally dependent upon others for her care.
As well as Professor Strauss the Judge heard evidence about B's expectation of life from two consultant paediatricians. He preferred the evidence of Dr. Kovar called on behalf of the Defendants. Dr. Kovar's opinion, based on seeing B at hospital and at home, published information by Professor Strauss among others and his clinical experience and judgment was that on the balance of probabilities B would not live beyond the lower end of an age range of twenty five to thirty five. Whether or not B was tube fed was the principal factor affecting survival although there were other uncertainties as well. Hence the range. The Judge described Dr. Kovar's approach as "holistic" and one which inspired confidence. He accepted Dr. Kovar's assessment of twenty five to thirty five years as correct and continued :
"It is fair to say …….. that Dr. Kovar acknowledged that his wide range of twenty five to thirty five came from Professor Strauss's published work, that his own particular input was to place B at the bottom of the range, and that—I quote Dr. Kovar's oral evidence—"If a court came to the conclusion that the right range was Strauss's twenty two to twenty five I would be at the lower end of that. I would have to move down." For reasons which I gave when dealing with Professor Strauss's evidence, I am not persuaded that a range should be selected purely by reference to his statistical work. In my judgment, sufficient weight is given to that work and to Dr. Kovar's understandable caution by placing B at the bottom and not just in the lower part of the Kovar range."
I have already referred to Professor Strauss's definition of life expectancy. He said it was impossible and unnecessary to predict the survival time of an individual. He had compiled a database for everyone who has received services for developmental disabilities from the State of California between 1980 and 1996. There were 40,000 cases of cerebral palsy of which 923 were children who had attained B's age and were tube fed. He had interrogated his data base and constructed a life table which showed that B's life expectancy was an additional 14·9 years if she was tube fed and 17·8 years if she was fed by others. If one took the median, as opposed to the average age, the figures were 10·5 and 14·4 additional years.
The Judge criticised Professor Strauss's evidence because it ignored the individual claimant, downplayed the role of the clinician to an unacceptable degree and was too mechanistic. The characteristics by which Professor Strauss identified his cohort were unrefined and too narrow in scope. He concluded that :
"Those criticisms …….. are in my judgment sufficient to demonstrate that it would be wrong, at least in this case, to depart from the conventional manner of determining life expectancy. This is done by reference to general life tables in the ordinary run of cases and on the basis of medical evidence in the special type of case like B's.
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 on, the work of the doctor."
Ogden Table 38 only discounts for accelerated receipt. Professor Strauss contended that a further discount should be made for mortality within the life expectancy determined by the court. The Judge rejected this contention for reasons of convention (the suggestion was quite novel), authority ( Thomas v Brighton HA [1999] AC345) and principle (it amounted to a double discount which meant that if B survived exactly to her life expectancy she would receive less than she had been deemed to require for her care).
Mr. De Navarro QC for the Appellant has mounted a full-scale attack on the Judge's conclusions. I have already referred to two of the reasons why he says that Judge was wrong. But his first reason is the Judge should not have preferred Dr. Kovar's evidence to that of Professor Strauss. He submits that the Judge overlooked or took insufficient account of the fact that Dr. Kovar's range (as opposed to his position within the range) was not based on clinical judgment but on Professor Strauss's work and that he accepted at trial that if that work showed the range to be lower (22 to 25 years) then his clinical judgment was that B was at the lower end of that range. Dr. Kovar had accepted that interrogation of Professor Strauss's database was the appropriate starting point and "the best we have got". Furthermore Dr. Kovar's range of 25 to 35 was based on a mathematical error.
In support of these submissions we were shown passages from the evidence of the Claimant's paediatrician, Dr. Lloyd, whose evidence at trial was that the range was twenty-five to twenty eight. The Judge however recognised that this was a coincidence and did not place reliance on this evidence in reaching his conclusion. For this reason I do not think it helps us either to refer to Dr. Lloyd's evidence. The simple question we have to answer is whether it was open to the Judge to reach the conclusion he did based on the evidence of Dr. Kovar. This is not the same question as whether he should have preferred the evidence of one of the Appellant's experts to that of the other. That is one of the curious features of this case. The Appellant needed Dr. Kovar's evidence to refute Dr. Lloyd's evidence that the outlook for B was optimistic so her expectation of life was at the top of any range. The Appellants however did not need Dr Kovar to contradict Professor Strauss, but if they called him, on the face of the reports exchanged before trial, that is what he would do. The real question is whether he maintained the views expressed in his reports at trial.
We have been taken through the transcript of Dr. Kovar's evidence. There are admittedly passages where he comes close to admitting that he would defer to Professor Strauss's data base in determining the range and that his clinical assessment was only relevant as to where B fell within that range, but he did not say this in terms. Given that he was the Appellant's expert, if that really was his view, one would have expected him to say so clearly from the outset of his examination-in-chief and he did not.
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