So-called ‘lost years damages’ can be recovered in cases where the claimant is a young child, the Supreme Court ruled today.
In CCC v Sheffield Teaching Hospitals & Anor justices decided by a majority of four to one to allow the claimant’s appeal and provide some clarity on the scope of claims by children.
The decision effectively overturns the long-established precedent of Croke, in which the Court of Appeal held that lost years damages could not be recovered by claimants who would never have dependants.
In lead judgment, Lord Reed said the law does not insist on proof that events would in fact have taken a particular course. ‘The claimant is entitled to be placed in the position he or she would have been in if the tort had not been committed,’ he said. ‘That general principle applies just as much where the claimant was injured as a young child as where the claimant was injured as an adult. The court cannot properly exclude the recovery of compensatory damages, as a matter of principle, on the ground of the claimant’s age.’
Lost years damages is compensation for the net earnings a person would have made during the years of life they have lost or are likely to lose.
In this case, the claimant suffered a severe brain injury during her birth in 2015 resulting from clinical negligence for which the defendant health authority has accepted responsibility. The claimant has since been entirely dependent on others and her life expectancy is agreed to be 29.
The court was asked to decide whether Croke was consistent with the earlier decisions of the House of Lords in Pickett and Gammell, which established that damages for lost years were recoverable in principle.
Lord Reed said it was inconsistent with legal principle and the relevant authorities to say that children should be denied compensation based on the absence of dependants.
He added: ‘The claim for lost years is in respect of the claimant’s own loss, not in respect of anyone else’s, and his or her right to damages is not in any way dependent on how they might be used.’
The case was remitted to the trial judge to decide whether lost years damages should be awarded on the facts of the case, and if so what the value of that award should be.
The defendant NHS trust had argued that assessing lost years damages for young children was too speculative. Lady Rose, giving a dissenting opinion, agreed with this proposition, saying that where there is no evidence before the court as to the claimant’s earning capacity or individual characteristics, damages should not extend to the lost years.
James Drysdale, medical negligence partner at Sheffield firm Taylor Emmet which represented the claimant, said the decision had ‘put right a historic injustice’.
He said: ‘If your life has been significantly shortened by someone else’s negligence then I think most people would regard it as fair that amends should be made for that. Why should a child’s life be any different?'
In assessing damages, he said, the court's role is to do its best to put the injured person back in the same position they would have been but for the negligence. 'This does not amount to a “lottery win” for the injured person. The damages are equivalent to the money they would have had if they had not been the victim of negligence, children included.’
But defendant lawyers warned that the ruling will lead to more expensive claims and a greater financial burden on the health service.
Joe McManus, from the Forum of Insurance Lawyers’ catastrophic claims sector focus team, said: ‘Any expansion of recoverable damages will need to be carefully managed to ensure awards are based on robust evidence and remain proportionate, particularly given that the cost of many of these claims is borne by a publicly funded healthcare system with finite resources.’
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