“Lost years” claims may be heading to the Supreme Court

Following the decision in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023], the issue of “lost years” claims for children could be heading to the Supreme Court.

CCC concerned a now 8-year-old Claimant who has cerebral palsy. The Defendant admitted that it was responsible for failing to prevent the Claimant suffering severe chronic partial hypoxic ischaemia before and during her birth, which caused the cerebral palsy. As part of the judgment Mr Justice Ritchie gave the Claimant permission to appeal the “lost years” aspect of her claim to the Supreme Court.

For adult claimants who have a reduced life expectancy due to negligence, the House of Lords ruled that a claim can be made for earnings that the Claimant would have earned during the period of their life expectancy that has been “lost” because of the injury (Pickett v British Rail [1980]). 

For children, the position is different due to the decision in Croke v Wiseman [1982] that any loss of earnings can only be claimed up until the date that the Claimant is expected to live to and not for any income from work or pensions that they would have accrued after this date. The Court of Appeal’s reasoning behind this was that “there was no prospect of the Claimant having child dependants in the future”. This ruling has proved contentious and arguments have long been made that children should be compensated for their “lost” earnings. 

In Iqbal v Whipps Cross University NHS Trust [2007] the Court of Appeal raised the question of inconsistencies in these approaches but said that this is a matter for the Supreme Court. Permission was given in Iqbal to appeal to the Supreme Court, but the appeal was settled. In CCC, Mr Justice Ritchie highlighted these inconsistencies and gave permission to leapfrog appeal straight to the Supreme Court, bypassing the Court of Appeal 

If the appeal is allowed by the Supreme Court, and it is decided that children are entitled to claim for “lost years” the implications could be very far reaching for defendants facing significantly increased compensation awards.