The widely anticipated ruling of the Supreme Court on the issue of ’lost years damages’ in medical negligence cases involving children with life-altering injuries has been released. In this article, Anita Jewitt, Head of Medical Negligence, and Guy Pomphrey, Medical Negligence Partner, review the Supreme Court’s decision in CCC v Sheffield Teaching Hospitals NHS Foundation Trust (CCC).
Background
In clinical negligence cases, if it is established that negligent medical treatment has caused an avoidable injury, the parties must quantify how much compensation is payable to the claimant.
Establishing whether a claimant’s avoidable injuries have caused a reduction in their life-expectancy is part of this process. Sadly, children with severe injuries and disabilities, such as those with Cerebral Palsy, may suffer a marked reduction in their life expectancy, for example, because of epilepsy (causing seizures) and/or a significant reduction in mobility and function.
The difference between this estimated life expectancy and the life expectancy a child would have enjoyed had they not been injured is a key component. In addition, using statistical and expert evidence, the legal teams will assess what a child’s career would have looked like had they not been injured to estimate annual lifetime income, including earnings and pension, minus living expenses.
Combining estimated life-expectancy with estimated annual income allows lawyers to assess a child’s likely ‘lost years’ income, which typically forms a sizeable part of the compensation.
A controversial issue
Young child claimants with profound injuries have historically only been able to recover their lost income until their estimated life expectancy. They were not allowed to recover their lost earnings beyond this age; in other words, for the years between their estimated life expectancy and when they would have otherwise lived had they not been injured. These are the ‘lost years’.
This has been a controversial issue. The courts were bound by the 1981 case Croke v Wiseman. One of the key points from this case was that the court found that a young child’s claim for lost years damages was too speculative. This sat rather uncomfortably with the approach adopted for injured adults, who were able to recover lost years compensation.
CCC v Sheffield Teaching Hospitals NHS Foundation Trust
CCC was a tragic case where the claimant sustained a severe hypoxic brain injury at birth due to admitted substandard medical care. Her estimated life expectancy was only until age 29.
Both legal parties agreed that had she not suffered this devastating brain injury, she would have enjoyed a ‘normal’ life expectancy and would have worked until the usual retirement age.
The issue for the Supreme Court was whether it was still bound by the Croke v Wiseman decision, which held that it was too speculative for a child to recover compensation for their lost years.
By a majority of four to one, the Supreme Court decided that:
- Lost years damages are recoverable in principle for children in clinical negligence cases.
- There is no legal basis for excluding young children from such claims.
- The assessment of damages should follow ordinary compensatory principles, based on the available evidence.
Interestingly, Lady Rose’s dissenting concerns that lost years claims for young children remained too speculative were rejected on the basis that there is inherent uncertainty in all future loss claims. Developments in statistical evidence of average earnings were also noted.
Comment
This is clearly a positive outcome for child claimants with life-changing injuries and one that rectifies a legal anomaly that enabled adults but not children to claim lost years damages.
It will increase the amount of compensation the NHS pays out in child injury cases. This may mean that the entire lost years damages field is challenged, including the key 1980s case of Pickett v BRE, which established that adults may seek compensation for lost years.
Ultimately, the ruling in CCC aligns with the foundational principle of tort law that an injured party should be placed in the position he or she would have been in had the injury not occurred.
Stewarts’ legal team
Stewarts has a leading team of experienced birth injury and paediatric injury lawyers.
Click here for more information about the authors: Anita Jewitt and Guy Pomphrey.
