Lost years claims for children – an ultimately fair but long overdue decision

The principle of restitution in personal injury and medical negligence claims is ultimately a fair one – compensation aims to put the victim of the negligence in the position they would have been in, but for that negligence. That is why yesterday’s decision of the Supreme Court in the case of CCC (by her mother and litigation friend MMM) v Sheffield Teaching Hospitals Foundation Trust  is not only very welcome but is also long overdue.

Children who have sustained catastrophic brain injury at birth can very sadly have life limiting conditions. In this case, failures on the part of the defendant to manage the claimant’s mother’s labour caused the claimant to suffer chronic partial hypoxic ichaemia resulting in cerebral palsy and a significant reduction in the claimant’s life expectancy to the age of 29 years.

Prior to this landmark ruling, children who had sustained life changing injury as a result of negligence were only able to claim future loss of earnings and pension income for the duration of their likely life expectancy, even though that life expectancy may have been shortened due to the negligence. So before yesterday’s decision, the claimant’s loss of earnings claim in the case of CCC would not have been calculated beyond the age of 29 years, even though but for the negligence, she would likely have lived and worked beyond 29 years. Loss of pension income would not even have featured. In short, the law would not have allowed her to make any financial loss claim in relation to the years she had lost as a result of the negligence, known as the “lost years” claim.

Contrast this with the position for adult claimants with a reduced life expectancy due to negligence, who have typically been allowed by law to claim loss of earnings and pension income for the duration of their likely life expectancy, but for the negligence. So, for argument’s sake, had an adult lived to 82 years, the average anticipated age of the population and worked to the current retirement age of 66 years but for the negligence, but their injuries caused by the negligence had reduced their life expectancy to 50 years, then an adult claimant could have claimed loss of earnings and pension income from the age of 50 to 66 years (the “lost years” claim), whereas until yesterday, rather unfairly, a child claimant could not have done so.

Thanks to yesterday’s decision, now children, as well as adult claimants can claim for the lost years caused by negligence, squarely putting both in the position they would have been in but for the negligence. This is completely in keeping with the principle of restitution and puts an end to the rather illogical and unfair distinction that has prevailed between children and adults in this area.

Critics may argue that the system is flawed and unfair because, like future loss of earnings claims for catastrophically injured children, the “lost years” claim will be calculated on the basis of parents’ earnings and education and is  “speculative”. The unfairness point is rather an issue that society needs to address, as the principle of restitution is fundamentally a fair one. A child’s loss of earnings claim will by its very nature be speculative if injuries are sustained at such an early stage of life. That is not the child’s fault and indeed, denying them a lost years claim entirely  only adds insult to injury particularly given the complex and evolving needs that arise from injuries caused by negligence at birth and their far reaching impact. The Court considered this and held that calculating the lost years claim is no more difficult than calculating the loss of earnings claim in the years of survival i.e. there is no additional challenge associated in calculating the lost years claim.

Of course, this will mean that compensation award levels will rise. But claims only happen because mistakes are made, often in the context of maternity care and when they happen, they can have profound and life-changing consequences for the children involved and their families. The focus must be on reducing instances of avoidable harm by learning from mistakes to ensure they are not repeated and that standards of care and patient safety improve, whilst fairly compensating those who have suffered through no fault of their own to ensure their complex and lifelong needs can be met.

This blog was written by Caroline Klage, Head of the Brain Injury Division and Claudia Hillemand, Head of the Child Brain Injury team at Bolt Burdon Kemp LLP.