In a keenly anticipated Judgment the Supreme Court has today ruled that children are no longer excluded from “lost years” damages which have long been available to adults.

This puts right a historic injustice and brings children’s rights into line with adults’ rights in negligence cases.

To highlight the unfairness in the way the law worked, if someone was injured as a baby but waited until they were an adult to bring their case, they could then make a claim for lost years damages. This was felt to be illogical and unjust.

Case details

The case arises from a clinical negligence claim brought on behalf of a child, born in 2015 and referred to as CCC, who sustained a hypoxic brain injury at birth as a result of negligence by Sheffield Teaching Hospitals NHS Foundation Trust.

During labour, monitoring indicated that CCC’s heartbeat was abnormal, but this was not acted on. Concerningly the midwife left the room without checking the heart trace only returning far later. CCC was born with signs of oxygen deprivation, required resuscitation, and later scans confirmed severe hypoxic brain injury. The hospital Trust subsequently admitted that failures in her care around the time of birth caused this injury.

The negligence caused severe cerebral palsy and significantly reduced her life expectancy. She is unable to walk or talk, cannot eat orally and is tube-fed, has severe visual impairment and epilepsy, and requires continuous 24-hour care.

High Court proceedings

At trial in July 2023, it was agreed that without the injury CCC would have lived a normal working life. Substantial damages were awarded in a High Court quantum trial in 2023 to meet her lifelong care needs, the first quantum-only cerebral palsy case to go to trial in over six years. However, the court denied CCC compensation for the earnings she will never have, holding itself bound by the controversial Court of Appeal decision in Croke v Wiseman (1981), which prevented children injured at birth or in childhood from recovering future losses.

The Supreme Court Appeal

A leap-frog appeal was granted so that this issue could be considered directly by the Supreme Court. The decision has now determined that children whose lives are shortened by negligence should not be excluded from claiming compensation for the income they would have earned during their working lives.

Judgment Summary

Four law lords, with one dissenting, have agreed with the appellant’s arguments that the Court of Appeal in Croke v Wiseman, 45 years ago, was wrong to exclude children from lost years claims, affirming that this went against House of Lords case law. They have remitted the claim back to the High Court for the assessment of damages.

James Drydale, Partner, Clinical Negligence

The Supreme Court today has put right a historic injustice which set injured children’s rights in negligence cases at a lesser level than adults’ rights.

I welcome the excellent reasoning of the law lords who have set out that that the Court of Appeal’s decision in Croke v Wiseman (1981) is inconsistent with other case law. They have overturned this out of date and unjust decision.

If your life has been significantly shortened by someone else’s negligence then I think most people would regard it as fair that amends should be made for that. Why should a child’s life be any different?

The role of the Court in assessing damages is to do its best to put the injured person back in the same position they would have been but for the negligence. This does not amount to a “lottery win” for the injured person. The damages are equivalent to the money they would have had if they had not been the victim of negligence, children included.

I am personally absolutely delighted with the outcome today. It has taken a great deal of courage, late nights and hard work to reach this moment. I thank our barristers Richard Baker KC and Sarah Edwards from 7 Bedford Row Chambers who truly are the best in this field of law; as well as my whole team at Taylor Emmet Solicitors.

My inspiration throughout has been my client, a little girl whose injuries are of maximum severity but whose smile lights up every room.

Claimant’s Mother

I feel elated that my little girl has changed the law and that this will help lots of other children who have been injured through no fault of their own. To fight a case all the way to the Supreme Court has taken a huge amount of work and courage and I want to thank our legal team from the bottom of my heart.