Controversial case law going back more than 40 years and bitterly opposed by personal injury lawyers will be tested in the Supreme Court.

The Court of Appeal decision in Croke v Wiseman, from 1981, on so-called ‘lost years’ compensation, has been contended by claimant lawyers ever since and regularly cited by judges who say their hands are tied by it.

Lost years refers to the potential income of a child after the date of their calculated life expectancy. Currently, severely injured children can claim for loss of earnings only up to the point at which they are expected to live, but lawyers argue they should also be compensated for the work and pension they would have accumulated after that date.

The claimant in CCC v Sheffield Teaching Hospitals NHS Foundation Trust has now been granted permission to challenge Croke in the Supreme Court and potentially overturn the current restriction on children’s right to claim for future losses.

Lawyers in CCC had claimed for £823,506 for lost years in addition to £224,000 for loss of earnings. Mr Justice Ritchie declined to assess the damages for lost years, saying this was ‘not a matter for off the cuff judgments’.

This element of the decision will leapfrog to the Supreme Court with claimant lawyers hoping that judges will finally overturn the restriction on infant claims.

John McQuater, immediate past president of the Association of Personal Injury Lawyers, said it was right and appropriate to look again at this issue. ‘The ruling in Croke is inconsistent with judicial authority, with many judges citing that were they not bound, they would have allowed for injured children to claim loss of earnings for the portions of their lives which have been cut short by negligence,' he said. 

‘The judgment has been widely criticised over the years as being out-of-step with the principle of full compensation and being in conflict with the notion of treating everyone equally. A child’s lost years are distinguished and devalued, while an adult would be compensated.’

The judgment in CCC was noteworthy for several other features, not least that it was the first quantum-only cerebral palsy case to go to trial in more than six years.

James Drydale

Drydale: 'An important case that brings clarity on many issues'

The claimant, now eight, suffered severe chronic partial hypoxic ischaemia before and during her birth, and now requires two care workers to provide 24-hour care.

The judge awarded a full gratuitous care claim with zero deduction. In other cases there have been deductions where family members are carers, but Ritchie outlined the strain the claimant’s mother had been under and made a full award.

The trial also featured a ‘day in the life’ video, shot over a 24-hour period, to demonstrate the child’s care needs and providing evidence of the benefits of hydrotherapy.

The judge awarded a lump sum of £6,866,615 and an index-linked periodical payment of £394,940 per year.

He was also highly critical of the costs analyses of defendant experts who gave evidence. Ritchie said one purported care and occupational therapy doctor instructed by the defence gave evidence that was ‘flimsy and unimpressive’ and he was not an expert in constructing, designing and managing care packages for children with cerebral palsy.

Another defence expert had stopped NHS practice with cerebral palsy children 18 years ago and gave evidence on hydrotherapy that was ‘out of date’ and not  ‘well informed or balanced’.

James Drydale, solicitor for the claimant, from Sheffield firm Taylor Emmet, said: 'It is pleasing that all the intense focus we have put into this will not only change a little girl’s life but will also assist other families and their lawyers pursue cases like this. This is an important case that brings clarity on many issues commonly seen in these complex cases but that don’t often come before the court.'


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