The Supreme Court’s decision in CCC
The Supreme Court by a majority, after deliberating for a year, have decided that a young child can claim damages representing loss of income in the “lost years”. In so doing, the majority have overruled the previous decision of the Court of Appeal in Croke v Wiseman that claims by young children are too speculative. They considered, to paraphrase lengthy discussion, that claims for lost income resulting from loss of life expectation made on behalf of young children are no more or less speculative than many other claims for damages.
The problem with “speculation” in damages claims
Correcting injustice is clearly a justifiable description of the outcome. Excluding young children on the basis of speculation when others with equally speculative claims are allowed to recover represented inconsistency in the law. Clearly the law must operate consistently within a legal framework. However, the interests of justice also require a discussion as to whether the correct framework has been identified.
Damages for lost years appear initially anomalous. The jurisdiction developed essentially because a dependent of a person with a shortened life expectation could not maintain a claim for damages after the premature death of that person if there had been a lifetime claim. This created a clear prospect of injustice when dependents were not compensated .
The origins of lost years damages
Whether persons without dependents can claim is obviously more controversial. The appeal in CCC proceeded in the Supreme Court on the basis that the court was bound by its earlier decision in Pickett v British Rail Engineering on this point. The court was not asked to overrule its previous decision.
It is worth considering the effect of the successful appeal. The claimant, who was severely injured at birth as a result of the Defendant health trust’s breach of duty, was aged eight at the assessment of damages in 2023. She recovered nearly £7 million in a lump sum and a periodical payment order of just under £400,000 . Whilst her life expectation was assessed to age 29, the periodical payment order would continue until her death. The aim of the assessment, which at face value appears to have been achieved, was to ensure that all the claimant’s very considerable needs were adequately catered for in her lifetime. The sum, therefore, to be awarded now by way of damages for the lost years will, on reasonable assumption, not be required to provide for the claimant in her lifetime. The claim, as pleaded, was for over £800,000. The judge, Mr Justice Ritchie, commented that the likely award was going to be significantly lower, but nonetheless clearly of some substance. The sum would therefore be invested. Whilst there is no certainty in the financial markets, they have in recent years proved remarkably robust to the extent of being able to avoid damage from the antics of the current American President. The likelihood, therefore, is that a very substantial sum will pass in the claimant’s estate on her death . The damages will be payable by the NHS. It is not unreasonable to consider that the payment of these damages will reduce the sums available for healthcare.
A difficult question: Should claimants without dependants recover?
Notwithstanding that the appeal proceeded on the narrow focus of consistency, there was a discussion of the issue of whether persons without dependents should recover damages for lost years. Lord Reed considered that if there was to be any change, this was a matter for legislation as it was an issue of “social policy”. This could be considered a rather narrow view of the Supreme Court’s jurisdiction.
Lord Burrows indicated that the case of Pickett merited reconsideration and this could be achieved through a seven-judge hearing of the Supreme Court. This cannot bappen unless and until a suitable case is identified and pursued in litigation. In other words, the Supreme Court cannot, on its current approach, express a view inconsistent with a previous decision unless and until there is another specific case in which so to do.
Lord Burrows also considered the possibility of legislation, but thought this was not likely because of “political realities”. This is an interesting and tactful expression. Presumably, Lord Burrows had in mind the apparent inability of current parliaments to enact meaningful legislation. The focus appears to be more on posture and spin rather than serious law-making.
The legislative reality
A reasonable example of this inertia is the failure to progress the recommendations of the Law Commission in relation to the reform of surrogacy law. The Law Commission’s report of March 2023 was the result of a five-year consultation. It was generally welcomed by those active in this complex area. The position, as understood, is that the prospect of the legislation recommended in explicit terms in the report remains “under consideration”.
Where does this leave lost years claims?
The debate about whether persons without dependents should recover damages for the lost years is a significant and complex one where different views can clearly be taken. It is not clear when or where this will be resolved. The only thing that could be stated with any confidence is that it will not be any time soon.
