Compensating for ‘lost years’ – It’s time to iron out the inconsistencies

Can the law finally be made fair for injured children?

Claiming compensation for ‘lost years’ within cases for personal injury and clinical negligence is an area which many find highly confusing. As it stands the law allows adult and adolescent claimants to recover compensation for sums they would have earned had they not been injured and their life expectancy reduced.

However, injured children are not allowed to claim in the same way. After decades of frustration for claimants and lawyers alike, as a result of the recent case of CCC v Sheffield Teaching Hospitals NHS Foundation Trust, the Supreme Court now has an opportunity to make the law in this area clear, fair and logical.

Understanding the complexities

Those who bring successful claims for medical negligence can claim for a variety of financial losses. These often include loss of earnings and loss of pension. They can also claim for purchases they will need to make in the future, such as equipment and the cost of care. However, ‘lost years’ claims are a special case.

Lost years are those years that would have been lived had the negligence not occurred and a claim can be made for earnings from various sources that would have been accrued during that period. Such claims are reduced by the amount a person would have spent on day to day living expenses.

Essentially, what can be claimed is the estimated amount of savings from the period that could have been passed on in a will. The usual formula adopted is to reduce earnings in the period by 50 percent. However, arguments can be made as to why the percentage deduction should be greater or lesser, based on the lifestyle of the relevant person.

Conceptually, lost years claims can be difficult to understand. Why should there be a claim for years after the person will have died and not need any income? Broadly, the law attempts to put a person back into the position they would have been in had they not been injured. In this particular scenario, the law takes into account an individual’s financial estate at their death.

The leading case for such claims is Pickett v British Rail (1980), which was appealed to the House of Lords. The case was about a 51-year-old victim of mesothelioma, who had dependents and was awarded compensation for lost years income. Although not relevant to this particular case, the House of Lords judgment supported the argument that lost years claims could be made regardless of whether a claimant had dependents or not and regardless of choices they might make in a will.

Yet, as matters stand, a child who is injured and has a decreased life expectancy as a result cannot make a lost years claim. In 1982, the Court of Appeal decided in Croke v Wiseman that a seven-year-old boy, whose life expectancy was limited to between 20 and 40 years, could not bring a claim. The court felt it difficult to quantify such a claim, not knowing what the child might have potentially earned, and stressed the lack of dependents.

However, in another 1982 case, Gammell v Wilson, lost years claims were allowed to be brought on behalf of a 15-year-old boy as well as a man of 22.

An illogical dividing line?

Understandably, the law in this area has long been considered by many to be illogical and unfair, with children losing out on compensation when the lines being drawn appear arbitrary. Indeed, in 2007 a judge awarded a lost years claim to a 9-year-old girl in the case of Iqbal v Whipps Cross University Hospitals NHS Trust. The reasoning given was that Croke was ‘made on practical grounds as they were perceived to be nearly a quarter of a century ago’ and matters had moved on with the advent of more scientific ways of assessing future damages. But, on appeal, the Court of Appeal stated that, despite there being inconsistencies between Croke and both Pickett and Gammell, they were bound by the decision in Croke since only a higher court can overturn the decision of a lower court. It is left to the Supreme Court, or Parliament through legislation, to resolve the inconsistencies. Yet, to date, no case has made it through the door of the Supreme Court.

‘Leaping’ to a decision?

In the case of CCC v Sheffield Teaching Hospitals NHS Foundation Trust, heard in the High Court, the claimant, an eight-year-old girl who won her case for negligence resulting in cerebral palsy, included sums for lost years. However, although it was accepted that the Court was bound by Croke, the claimant’s lawyers requested permission for a leapfrog appeal to the Supreme Court. A leapfrog appeal is a relatively rare form of appeal whereby a case heard in the High Court can be appealed directly to the Supreme Court, essentially skipping the Court of Appeal.

In order for this to be allowed there are particular criteria, including that the point of law is of general public importance. The Supreme Court itself also has to grant permission.

In CCC the judge allowed the leapfrog appeal, noting that the claimant has a realistic chance of showing that the inconsistencies in the law bring it ‘into potential disrepute’. The judge also said that by simply asking the question - ‘Where does the age dividing line start?’ - reveals the potential unfairness, and posed the question: ‘If 8 is too young and 15 is old enough to receive damages for lost years, is the cut-off point age 12? If so, why?’

A further ‘potentially illogical’ inconsistency was highlighted that a child claimant who simply waited until they were 15 to start their court case could claim for lost years.

The judge agreed that this was a point of general public importance which could affect many children every year.

What the Supreme Court should do now seems obvious to us!

Further information

If you have any questions, please contact James Bell or Harriet Humphrey in our Medical Negligence and Personal Injury team. 

About the authors

James Bell is the head of our Medical Negligence and Personal Injury practice and joined the firm in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence cases for over 20 years.

Harriet Humphrey joined the Medical Negligence team as a Professional Support Lawyer in January 2023 having previously been a practising solicitor since 2011.