Financial Losses for 'Lost Years' Recoverable, Supreme Court Rules

In a case with profound implications for settlements in personal injury cases where a child's life expectancy is significantly reduced, the Supreme Court has ruled that damages can be awarded for loss of earnings in respect of the 'lost years' of a child's life, overturning a precedent dating back more than forty years.

The case concerned a girl who had suffered a severe brain injury caused by hypoxia during her birth as a result of medical negligence. She was entirely dependent on others and had a life expectancy of 29. The NHS trust responsible for her care had admitted liability. At the trial on the issue of damages, the parties had agreed that if she had not been injured she would have had a normal life expectancy and would likely have worked until the age of 68. Her loss of earnings to the age of 29 was agreed at £160,000 and that figure was approved by the High Court. It was agreed that damages could not be awarded for loss of earnings during the additional years she would have lived if she had not been injured, because of the decision of the Court of Appeal in Croke v Wiseman that such awards cannot be made in respect of young children. The High Court therefore declined to assess damages for the lost years, but granted a certificate for a leapfrog appeal to the Supreme Court.

The Court noted that the decision in Croke v Wiseman was based on the absence of dependants. However, there was no reason of legal principle why a claimant's ability to obtain an award in respect of their own financial losses should depend on whether they had any dependants. The claim for lost years is in respect of the claimant's own loss, not anyone else's, and their right to damages is not in any way dependent on how those damages might be used.

The Court rejected the argument that Croke v Wiseman could be supported on the basis that, where the claimant is a young child, the assessment of damages for the lost years is a matter of speculation. In the Court's view, difficulty of assessment was no reason for awarding no damages or merely nominal damages. Accordingly, where it is clear that a claimant has suffered substantial loss but the evidence does not enable that loss to be precisely quantified, the courts must assess damages as best they can on such evidence as is reasonably available.

The Court concluded that the decision to refuse to award damages for lost years in Croke v Wiseman was incorrect and should be overruled. Allowing the appeal, the Court remitted the case to the High Court for damages for the girl's lost years to be assessed.