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Liverpool Victoria Infirmary v B (a child), Court of Appeal, 18 March 2002

18 February 2002
The issues

Fatal Accidents – Ogden Tables – Multipliers

The facts

The Claimant suffered from severe cerebral palsy and was 7 at the time of Trial. The Defendant had admitted negligence. An issue arose as to the multiplier to be applied for the agreed costs of future care. Relying on Claimant’s evidence (an expert Clinician) the Judge decided the Claimant’s life expectancy as 25 years. The Judge then applied Ogden Table 38 (multiplier for pecuniary loss for terms certain) at a discount of 3% arriving at a figure of 13.61. The Defendant relied upon the evidence of Professor Strauss, a Statistician who had interrogated his database as to a group of comparable age and disabilities of the Claimant. On the basis of his evidence, the additional life expectancy should have been 14.9 years. The Defendant appealed the Judge’s decision, arguing firstly that he should not have relied upon a Clinician against a Statistician and that the Statistician’s evidence was the more reliable.

The Judge should not have used Ogden Table 38 but a whole life multiplier taking account of mortality risk and which would have produced a multiplier of 10.5.

The decision

1. Whilst the Statistician’s evidence was both relevant and admissible, the Judge was entitled to prefer the evidence of the Clinician. (Thorpe LJ dissented taking the view, which seems strongly arguable to say the least, that the approach should be to begin with the statistical approach and adjust that as necessary to take account of the balance of other clinical factors in the case).

2. No discount for mortality risk was required. Once expectation of life had been determined, the only discount that would be applied was a discount for accelerated receipt. Expectation of life was to be treated as a certainty and no further discount was required. Therefore the use of Ogden Table 38 was appropriate.

Permission is being sought to appeal to the House of Lords.

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