Children injured by NHS errors at birth can now claim ‘lost years’ damages following a landmark Supreme Court ruling.
For more than forty years, children have only been entitled to compensation (also referred to as “damages”) for loss of earnings for the years they are expected to live. It was a Court of Appeal judgement from 1982, Croke v Wiseman, that has prevented very young children from claiming damages for life lost due to negligence because the court treated such claims as speculative and linked to dependency principles.
By contrast, adolescents and adults whose life expectancy is significantly reduce have long been entitled due to injury is entitled to claim compensation for the income they would likely have earned during the years they won’t get to live.
On Wednesday 18th February, the Supreme Court in CCC v Sheffield Teaching Hospitals effectively overturned this by ruling there is “no basis in law” for treating injured children differently purely because of their age.
The decision was made in favour of a child with severe cerebral palsy whose loss of earnings and pension compensation only accounted for their reduced life expectancy rather than any years of life lost due to negligence.
The child at the centre of this case is an 11-year-old girl who sustained a severe hypoxic brain injury at birth due to negligent failures during labour. Liability was admitted by the defendant NHS trust, Sheffield Teaching Hospitals NHS Foundation Trust.
A settlement was reached of around £7m, plus annual periodical payments of around £395,000 for lifelong care. The total figure included loss of earnings only calculated up her reduced life expectancy of 29.
Her parents appealed the settlement, arguing that compensation should reflect the full working life she had probably been denied - including earnings to retirement age and pension income thereafter - owing to the negligence.
It was agreed by both parties that she would have enjoyed a normal life expectancy, worked until aged 68 and received a pension for the remainder of her life: up to age 85 based on the average life expectancy of women.
In a four to one majority, the Supreme Court agreed that children can, in principle, recover lost years damages in the same way as adults and should not need to prove they would have had dependants in later life.
Potential additional damages, estimated to be in the region of £800,000 to cover that 40-year age gap, will now be debated and assessed back at the High Court.
The ruling takes immediate effect and is likely to influence future high-value birth injury negligence claims, which already account for a substantial proportion of the NHS’s clinical negligence expenditure.
Caroline Moore, managing director of Medical Solicitors, welcomed this decision. She said: “It is high time this change came about. There have been many past injustices to injured and vulnerable claimants who have not received this important figure in their settlements but are left needing care and financial support for life.
“Some of these claimants will have outlived their reduced life expectancy. Any additional sums such as this can help provide additional future protection and security.”