Lost Years claims for medical negligence involving children
A major change in medical negligence cases has come about this week following a Supreme Court ruling stating that children whose life expectancy is shortened as a result of medical negligence can now claim damages for lost income and earnings in the ‘lost years.’
The ruling overturns a 45-year precedent and comes after a case (CCC v Sheffield Teaching Hospitals NHS Foundation Trust) which states that compensation should now include the lost income between expected time of death and normal retirement age.
Commenting on the changes, Medical Negligence Solicitor, Daniel Phelps, said:
“This opens the way for a substantial increase in compensation for children whose life expectancy has been cut short and brings with it a consistent and fair approach when considering cases of this type.”
“However, comments in the ruling might suggest that the courts will perhaps want to look into the whole principle of lost years claims and we could see this whole principle being challenged in the future.”
Child Medical Negligence claims
The ruling sees child claimants being treated in the same way as adults in the future. Previously children who had suffered medical negligence at birth or early childhood could not claim for potential income in the ‘lost years’ because the courts viewed such claims as too speculative.
“The courts’ decisions for many years have been based on a 1981 case (Croke v Wiseman) and prevented the recovery of lost future earnings for children, but now we see the system brought right up to date with children and adults treated the same,” added Daniel.
Lost Years claim
The case in the Supreme Court concerns a young girl whose life expectancy has been reduced to age 29 after she suffered a catastrophic hypoxic brain injury at birth due to negligence. The Trust admitted failures in her care.
The Court was asked to consider whether a young child can recover damages for loss of earnings and a pension had they lived to their full life expectancy, and had it not been jeopardised by the defendant’s negligence.
It was noted that:
- The child may have done her GCSEs and other further qualifications leading to paid employment, a 68 year retirement age and a subsequent pension.
- The compensatory principle applies equally to claimants, whether injured as young children or adults.
- Any difficulty in quantification does not justify denying compensation; courts must act on the best evidence available.
- Developments in actuarial and statistical evidence reduce the force of the speculation argument.
- Courts routinely assess future losses for child claimants who are unable to work.
It was held that there should no longer be a distinction between adult and child claimants when considering entitlement to ‘lost years’ damages.
The case will now return to the High Court for assessment of damages in light of the new legal position.
“Having a child injured at birth through medical negligence is devastating enough for families and the compensation claims system can often appear daunting and confusing. This ruling finds ‘no basis in law’ for children to have their claims treated differently and brings cases involving children into line with adolescents and adults.”
“It will do doubt increase compensation awards, but at the same times brings some clarity and provides for a fair and comprehensive system,” added Daniel.
How can we help?
For legal advice on childbirth negligence cases contact our Medical Negligence Solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk
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