Age must never be a barrier to fair compensation

Please note that a version of this article was first published in AvMA Lawyers Service Newsletter in July 2026. Details of AvMA can be found here.

I recently settled an intricate vision loss claim for a retired bank manager who was 67 years old at the time he was injured. He had a complex medical background including diabetes and leukaemia. Beyond the unusual nature of the case, it was additionally significant due to the successful inclusion of lost earnings despite my client’s age and his retirement status. There was also a successful challenge to the Defendant’s position on life expectancy and an effective use of impact statements at mediation.

Factual background

This clinical negligence claim concerned Mr DH, who suffered devastating consequences following what should have been a routine left eye cataract surgery performed at a UK Eye Hospital in September 2021.

Mr DH had an extensive medical history including Type 1 diabetes. By 2010 he had developed severe non-proliferative diabetic retinopathy in both eyes. Then in 2018 he was diagnosed with Acute Myeloid Leukaemia (AML), necessitating a bone marrow stem transplant. Following the procedure, Mr DH developed Graft Versus Host Disease (GvHD) a serious complication of bone marrow transplants where donor immune cells (graft) attack the recipient’s body (host).

Against this background, in 2021 Mr DH noticed his vision had become more blurred. Investigations revealed that he had developed proliferative disease with multiple areas of retinal ischaemia apparent in the left eye along with bilateral cataracts. He was listed for left eye laser treatment to stabilise his proliferative disease and cataract surgery to improve his overall vision.

At that time Mr DH was under the care of two ophthalmic services at the Defendant Trust – the External Disease service for his GvHD diagnosis and the Medical Retina service for diabetic cataracts. He underwent the left eye cataract surgery under the care of the Medical Retina service in September 2021. The negligence arose in the post-operative treatment.

Following surgery, the treating doctor failed to review and consider Mr DH’s medical history, specifically his diagnosis of Graft Versus Host Disease. As a result, Mr DH was incorrectly prescribed post-operative Ketorolac 0.5% eye drops. While Ketorolac is routinely prescribed for diabetic patients undergoing cataract surgery, it is contraindicated for patients with a diagnosis of GvHD.

As a direct result of the negligence, Mr DH suffered a left eye epithelial defect leading to corneal perforation. He was diagnosed with endophthalmitis and subsequently lost vision in his left eye. The severity of the injury ultimately necessitated the removal of his left eye in April 2024.

The loss of his left eye had a catastrophic impact on Mr DH’s life. Previously Mr DH was the branch manager of a bank. As a result of his leukaemia diagnosis and being unsure when he might have been able to return to work, Mr DH had decided to voluntarily retire at state pension age. However, the bank he worked for encouraged him to return at any time when he felt well enough. Notably, the bank had no enforced retirement age.

It was Mr DH’s evidence that once the leukaemia had been treated and was in remission there was a 75% chance that he would have returned to work. He estimated that this would have taken place around the Autumn of 2022, probably for two and a half days a week, with a flexible homeworking arrangement. He would then ideally have retired at age 72. It was Mr DH’s evidence that this plan was now impossible due to his sight loss.

Procedural aspects

Liability in this claim was admitted early, allowing it to be progressed more swiftly. A Letter of Notification was served in November 2022 with a Letter of Response including an admission then being served the next month, without a formal Letter of Claim ever being provided. This demonstrates the potential benefits of sending a Letter of Notification before a formal Letter of Claim is ready. Given the complexity of Mr DH’s medical history and the nature of his injuries, quantum expert evidence was required in relation to care and occupational therapy, ophthalmology, and life expectancy.

Witness statements were obtained from Mr DH, his wife, one of his sons, his former line manager at the bank and the overall head of Human Resources at the bank regarding their policy for persons working beyond retirement age and how well thought of Mr DH was within the firm. We were unable to settle this claim in the pre-action period and proceedings were issued in August 2024. Our expert and factual evidence, along with a Schedule of Loss, were served before a Mediation (Trust Mediation were instructed).

Practice points

This case provides several valuable practice points for those handling clinical negligence claims.

Challenge to life expectancy evidence

The Defendant sought to include expert evidence that our client’s life expectancy was atypical and significantly shorter than average. We opposed this. A Master at a Case Management Conference heard our respective arguments and ordered the Defendant to disclose their report (from a Professor of Medicine). This gave us the opportunity to respond, and we subsequently instructed our own expert geriatrician.

The Defendant’s expert had estimated Mr DH’s life expectancy at 75.4 years (only a few years from his age at the time the report was served). A standard life expectancy as per the Ogden tables had been reduced by 3.6 years due to Mr DH’s diabetes and by a further 7 years for his being an ex-smoker. This report was not received well by my client and appeared not to be in line with his general health and presentation.

However, our expert provided a contrasting view with life expectancy estimated at 79.5 years. This assessment was based on reductions from average life expectancy for diabetes, ongoing alcohol use (2 glasses of wine a day, at the top of NHS recommended intake), and factors relating to the GvHD. Notably, our expert also made adjustments based on data revealing life expectancy to be higher in more affluent areas.

Our expert examined Mr DH in person to finalise his report. This enabled him to consider his general fitness and led to him make an assessment that Mr DH’s life expectancy was higher than he may otherwise have concluded. I would suggest that this in person assessment made his evidence more persuasive than that of the Defendant’s expert.

The issue of life expectancy and the strength of our expert’s report was key since the valuation of the claim varied significantly depending on which life expectancy evidence was preferred.

Loss of earnings claims despite age

A highly contentious aspect of this claim was the inclusion of loss of earnings. In formulating the arguments as to why such a claim was appropriate, despite the unusual circumstances, I secured a witness statement from Mr DH’s former manager who confirmed that Mr DH was likely to have been able to return to the bank had he not lost his sight.

The claim was then presented on a 50% loss of a chance basis, acknowledging the lack of certainty that Mr DH would have restarted work in any event. This element of the claim was heavily disputed by the Defendant but nonetheless we persisted given the credibility of our witness evidence.

Mediation Tactics and the Value of Impact Statements A mediation took place in January 2026. At the mediation, Mr DH and his wife read out detailed impact statements. These personal accounts of the impact of the injury proved persuasive. Specifically, they helped demonstrate the reality of Mr DH’s situation and his genuine intention and ability to return to work but for the injury. The Defendant was thus persuaded to include some lost earnings within their valuation of the claim. I worked alongside specialist clinical negligence barrister Shahram Sharghy (1 Crown Office Row), whose involvement provided valuable support in advancing the claim and preparing the matter for mediation.

The claim settled for £400,000 which represented a pragmatic resolution that took into account the competing life expectancy evidence and the contested nature of the loss of earnings claim, while recognising the devastating impact of the injury on Mr DH’s quality of life.

In conclusion, my key reflections are to consider:

• pursuing loss of earnings claims on a loss of a chance basis even where age is a factor;
• proactively addressing life expectancy evidence with well-instructed experts who examine the claimant in person; and
• utilising impact statements at mediation to convey the human consequences of the injury and persuade defendants to adopt a more realistic approach to valuation.