Lost years claims: no longer a lost head of loss for catastrophic paediatric injury claims

The longstanding, and controversial, decision in Croke v Wiseman which made lost years claims irrecoverable for child claimants has now been overturned by the Supreme Court, fundamentally changing the approach taken to damages claims involving child claimants who have been injured by clinical negligence and who have a reduced life expectancy. While a significant and costly change, the decision does bring child claims in line with the lost years claims that can be brought by adult and teenage claimants.

Under Croke v Wiseman a child claimant could not recover for financial losses caused by their inability to work during the years of expected life they have lost due to a defendant's clinical negligence – in other words, claiming for the lost years (and lost earnings and pension) from the actual injured life expectancy to the uninjured life expectancy.

In CCC v Sheffield Teaching Hospitals NHS Foundation Trust, CCC suffered a severe brain injury at birth in 2015, reducing her life expectancy to 29 years.  As a result of the Supreme Court’s decision, CCC (and similar child claimants) can now claim for loss of earnings up to age 29 (her injured reduced life expectancy) and for the earnings she would have received from age 29 until her normal retirement age (agreed as 68) and pension thereafter.  While the Court noted that lost years claims must be determined on the facts of each case (including in CCC which has been referred back to the High Court), the CCC judgment opens the gates to significantly increased damages awards for claims involving catastrophic injuries in young claimants.

The majority judgment set out the following key points as to why lost years damages are recoverable:

1. Lost years damages compensate the claimant for their own loss, not anyone else's, and therefore the previous concerns raised in Croke v Wiseman about a young, seriously injured claimant having no dependants is not relevant. 
2. Assessing a lost years claim is not too speculative. Any claim for future pecuniary loss will include future uncertainties, even with an adult claimant. Courts already award damages to child claimants for lifetime loss of earnings and therefore there is no reason why lost years earnings cannot be assessed using the same tools: the Ogden tables, statistical evidence of average earnings, evidence about family circumstances and likely educational trajectory and conventional percentage deductions for living expenses.
3. Where there is a concern that lost years damages cannot be precisely quantified, courts are required to assess damages as best they can on available evidence. Evidential difficulties caused by the defendant should not deprive the child of compensation.
4. If young child claimants were excluded due to evidential uncertainty in quantifying lost years damages, it would be unclear where to draw the line between young children, older children, and adults.

The CCC  judgment overturns a 40 year precedent and will result in both current and future claims attracting increased damages in already high-value clinical negligence claims involving child claimants. In practical terms, there will need to be earlier and more detailed investigation and scrutiny of the family’s full educational and employment history. There will also be increased reliance on educational psychologists and it is very likely that expert opinion in the field of employment, labour or economic consultancy will need to be obtained in these claims. 

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