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Arden v Malcolm, High Court, 2 March 2007

5 April 2007
The issues

Life expectancy – whether the statistical report by Professor Strauss should be admissible in evidence – expert evidence.

The facts

The Claimant was riding a motor bike down a market in Norfolk when she was hit by a car driven by the Defendant and as a result of which she suffered serious injuries including functional blindness and traumatic brain injury. When the pleadings were served the only report that the Claimant relied on was a report from a consultant in rehabilitation medicine. Later a report was disclosed by Dr Hardie, a Consultant Neurologist, who advised that, with a reasonable level of care and supervision, there would be no significant reduction in the Claimant’s life expectancy. A month later Professor Trimble reported on the instructions of the Defendant and his report was silent about the Claimant’s life expectancy. In November 2005 Dr Hardie and Professor Trimble met for the purposes of a joint statement. They confirmed that in their view the Claimant’s life expectancy was normal. Meanwhile the Claimant, as had been acknowledged by the experts, had suffered secondary physiological changes, including excessive weight gain. The Defendant sought to rely upon a report of Professor Strauss. Professor Strauss did not see the Claimant personally but produced a statistical report based on assumptions about the Claimant. His assumptions included the traumatic brain injury and the Claimant’s obesity. His calculations indicated that the Claimant’s life expectancy was 8.7 years less than for a female of the same age in general population. The Defendant submitted that the effect of Professor Strauss’ report was to reduce the value of cost of care by some £330,000.00. At Case Management the Defendant sought leave to rely upon this report. The Judge refused the Defendant’s Application.

The Defendant appealed.

The decision

The Court should not interfere in Case Management decisions made by a Judge who had applied the correct principles and who had taken into account matters which should be taken into account and left out of account matters which were irrelevant (see Royal & Sun Alliance Insurance v T & N Ltd). Amongst the Judge’s reasons for refusing the Application was that there had been no proposal to the Claimant for the joint instruction of an expert. This was not well founded. A party was not bound to propose the joint instruction of an expert, although that might well be the course which a Judge considered to be the right one.

The parties arguments in these circumstances needed to be addressed afresh. There was another reason for addressing the issue afresh, and that was because of some confusion between the existing experts as to what they had meant by the simple statement in the joint statement that the Claimant’s life expectancy was normal, which cause the Trial Judge some difficulties.

It was in the spirit of the decision of the Court of Appeal in Royal Victoria Hospital v B that the clinical experts should be the normal and primary route through which statistical evidence should be put before the Court. It was only if there was disagreement between them on a statistical matter that the evidence such as a statistician such as Professor Strauss ought normally to be required.

Permission to adduce the report of Professor Strauss refused.

Application dismissed.

Counsel was invited to agree a form of Order relating to questions and directions to be given to Dr Hardie and Professor Trimble.

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