How Should the Law Compensate Someone Whose Life has been Shortened by Medical Negligence?.

This difficult question sat at the centre of the recent Supreme Court decision in CCC v Sheffield Teaching Hospitals NHS Foundation Trust. The case concerned a child (CCC) who, due to medical negligence, had suffered a hypoxic brain injury at birth, resulting in severe cerebral palsy and a reduced life expectancy of age 29.

Both parties were able to agree that if the negligence had not occurred, she would have gone on to live a normal life of standard duration and would have engaged in employment until retirement age.

Key legal issue

Whilst the parties agreed on the likely loss of earnings up to age 29, there was disagreement whether she should also be able to claim for her lost earnings during her “lost years.” This concept simply refers to the period in which the injured party would have lived (and therefore mostly worked) had the negligence not shortened her life.

The trial judge was bound by the precedent set in earlier cases which previously barred children from being able to claim for lost years earnings. In Pickett v British Rail Engineering (1980) it was established that a claim for lost years earnings for an adult with dependants could succeed. However, in Croke v Wiseman (1982) it was later confirmed that this could not be extended to apply to cases involving young children.

These earlier judgements had previously been concerned with both practicality and social policy. Firstly, it was considered that assessing the value of lost earnings for a young child was simply too speculative and difficult to accurately estimate. Courts have also previously considered that adult claimants may have dependants who rely on them financially, whereas catastrophically injured children do not, and would never have dependants.

Upon the facts raised in this modern-day case, the trial judge in CCC v Sheffield permitted an exceptionally rare “leapfrog” appeal to the Supreme Court to assess on this technical point.

Precedent

In a 4-1 majority, the Supreme Court overturned the previous precedent, thereby allowing the child to claim for lost earnings for the duration of her life as if the negligence had not occurred. Lord Reed determined that there was no justification for drawing a distinction between those who did and did not have dependants. Additionally, the purpose of compensation should be to put the injured party back in the position they would have been if the negligence had not occurred.

Practical implications

Courts shall now be under a duty to assess what catastrophically injured children would have earned, had their life expectancy not been shortened. With modern age advances in technology and statistical assessments, times have moved on since those earlier cases and parties should now be in a better position to make a more accurate judgement on the likely earning position. It appears likely that in comparable cases, more advanced expert evidence surrounding employment and financial forecasting may be required.

Whilst claimant legal costs may rise further as a result, damages awards should also see an increase where there is sufficient evidence of the child’s probable earning capacity. It is hopeful that this development will lead to fairer compensation for children and their families facing devastating circumstances.

If you or a loved one has been affected by medical negligence, our specially trained team are here to listen to your experience and help you explore your legal options.