Supreme Court overturns Croke v Wiseman to allow recovery of lost years damages for children

CCC (by her mother and litigation friend MMM) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent)

The Supreme Court has today determined that a young, severely injured child claimant can recover damages for financial loss caused by her inability to work during the years of expected life she had lost due to the defendant’s negligence (known as “lost years” damages). The 1982 decision by the Court of Appeal in Croke v Wiseman is overturned.

Background

The claimant, now 10 years old, suffers from cerebral palsy after sustaining injury from hypoxic ischaemia before and during her birth.

Her life expectancy is reduced to age 29. Had the claimant had not been injured, she would have had a normal life expectancy. At trial it was agreed that she would probably have gone to college and obtained paid employment until age 68 at which time she would have claimed a pension. Her loss of earnings to age 29 had been agreed.

The claimant had also sought damages of £823,506 for financial loss during her lost years.

It was common ground that the trial judge was bound by the well-established precedent in Croke v Wiseman CA [1982] 1 WLR 71, which held that lost years damages could not be recovered in cases where the claimant was a young child. This was on the basis that such claims by severely injured children were speculative and that they were unlikely to have dependants. This contrasts with adult claimants with reduced life expectancy who could be compensated. The decision has long been criticised by claimant representatives as being unjust.

The claimant was subsequently granted a leap-frog certificate to appeal directly to the Supreme Court on this specific issue.

The Supreme Court decision

By a majority of four to one the claimant’s appeal was allowed and the decision in Croke was overturned on the following reasoning:

1. The general principle that damages are intended to place the claimant in the position he/she would have been had the negligence not occurred applies as much to a claimant injured as a young child as it does to one injured as an adult. The court cannot exclude recovery of damages based on a claimant’s age.
2. It is not always possible to quantify a claimant’s loss precisely. For a child claimant this can be difficult to assess due to difficulties in forecasting the child’s loss of earnings. However, that is true of adult claimants also and the court must do the best it can on the available evidence. The fact that it is difficult should not deprive a child of compensation.
3. These evidential difficulties have reduced significantly given the availability of actuarial evidence such as the Ogden Tables or data on average earnings.
4. In this case the available evidence enabled the parties to agree a lifetime loss of earnings to age 29. There was no reason why the same evidence could not be used to assess likely income in the lost years.
5. If young children are to be excluded from claims for lost years damages, it was unclear where the line should be drawn between those claims and ones for older children or adults.

The appeal was dismissed and the case remitted to the trial judge to assess the lost years damages.

Inevitably the damages for such claimants will now increase, and insurers reserves will need to be reviewed to reflect the decision.

Click to access the Supreme Court press summary and judgment.