Lost Years and Child Claimants


 

The “Lost Years” Head of Loss for Child Claimants

 

 

In personal injury claims we know that if an adult with dependants is seriously injured and as a result of this negligence life expectancy decreases then he is able to claim for the lost earnings in the years where he otherwise would have been expected to still have been working/ in receipt of pension had the accident not occurred. The loss of earnings will be decreased to take into account the amount of money that the Claimant would have spent on himself had he been alive, but nevertheless the head of loss is expected.

 

But what happens when the Claimant is a child?  For example, take X. X is 10 when he is involved in a road traffic accident and suffers serious injuries. As a result of that accident, X’s life expectancy is reduced from 83 to 43. He is a child, he has not yet embarked on a career and he has no dependants. Should X be able to recover for his estate the loss of earnings and/or pension that he would have earned had the accident not substantially decreased his life expectancy?

 

This blog briefly explores the arguments which could and have been raised in support of a lost years claim, why and how Defendants have argued against it and the approach that the Courts have taken thus far, including an analysis of this topic in the recent case of JR V Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 (QB) (25 May 2017).

 

 

How can a Claimant argue for Lost Years?

 

Some of the arguments which have been raised in the cases which will be explored below are as follows:

 

  • Since the case of Pickett v British Rail Engineering[1] it is permissible to make a claim for lost years;
  • These claims are not restricted to adult Claimants only;
  • These claims are not restricted to those with dependants only;
  • Judges in the High Court are not necessarily bound by Croke v Wiseman[2];
  • The principle of 100% recovery of damages enables a child to recover compensation for loss of earnings in the lost years.

 

How can a Defendant argue against it?

 

Some of the arguments raised by Defendants and/ or noted by Judges in the cases cited below are as follows:

 

  • The Claimant will not go on to have any dependants and thus this head of loss is too speculative;
  • The Claimant has not yet embarked on a career and thus to try and quantify loss of earnings is too speculative and/or the head of loss is too remote;
  • This head of loss is excessive;
  • The head of loss will not benefit the Claimant.

 

 

How have the Courts approached lost years?

 

 

  • Pickett v British Rail Engineering

 

This case did not concern a child Claimant but is noted as the authority which allowed adult Claimants to successfully make a claim for lost years.

 

In this case, the Claimant contracted mesothelioma and as a result his life expectancy was shortened to only one year. The Claimant submitted that had he not contracted the disease he would have continued to work for several years more and thus should be awarded loss of earnings for the period he would have been likely to survive but for the negligence.

 

This argument was accepted although Lord Scarman interestingly concluded that “ damages for loss of future earnings (and future expectations) during the lost years are recoverable, where the facts are such that the loss is not too remote to be measurable.” [3]

 

  • Gammell v Wilson[4]

 

The topic of lost years came before the Court again in the case of Gammell v Wilson.

 

In Gammell the Claimant was fifteen and had been killed as a result of negligent driving by the Defendant. At first instance the Judge had commented that had he lived, the Claimant would have been a reasonable wage earner. He deducted money which represented the Claimant’s own living expenses and then awarded compensation for loss of earnings in the lost years. The Defendants argued that lost years should not have been compensated for and the matter was raised at appeal. At appeal the award for loss of earnings during the lost years was maintained.

 

In addition, Lord Scarman went further and commented on young children:

 

In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award – not even a “conventional award” – should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime at the age of five, might have a claim: it would depend on the evidence.”[5]

 

The scene had been set by Pickett and Gammell; loss of earnings claims for the lost years can be difficult to quantify but they were certainly a valid head of loss. However the case of Croke v Wiseman was about to alter this.

 

  • Croke v Wiseman

 

Croke v Wiseman is the case most often referenced in relation to lost years and it is the case which the Court followed in the case of Whipps Cross v Iqbal.[6]

 

In the case of Croke v Wiseman the Claimant was nine years old at the date of trial. As a result of medical negligence when he was 21 months old he suffered catastrophic brain damage, he was blind, he was paralysed in all four limbs, he could not stand and he was unable to talk.

 

When making his decision on whether a claim for lost years was permissible Lord Justice Griffiths said the following:

 

“In the case of a child, however, there are no dependants, and if a child is dead there can never be any dependants and, if the injuries are catastrophic, equally there will never be any dependants. It is the child that will be dependent. In such circumstances, it seems to me entirely right that the Court should refuse to speculate as to whether in the future there might have been some dependants for the purpose of providing a fund of money for persons who will in fact never exist.”[7]

 

As a result, Lord Justice Griffiths awarded the Claimant money to represent loss of earnings during his lifetime but gave no award for lost years.

 

  • Whipps Cross University NHS Trust v Iqbal

 

In this case, the Claimant was also nine years age at the date of the trial. As a result of negligence at birth the Claimant suffered from dystonic tetraplegic cerebral palsy. The Claimant was not able to walk or stand unaided and had no independent mobility aside from some ability to roll from side to side. His speech was severely dysarthic and he was generally fed through a gastrostomy tube.

 

On appeal the Court found that whilst Croke v Wiseman was inconsistent with previous decisions (Pickett and Gammell) that they didn’t find the circumstances of the case “so rare and exceptional”[8]that they shouldn’t follow the decision in Croke v Wiseman.  As a result, a Claim for lost years was rejected.

 

  • Totham v Kings College Hospital NHS Foundation Trust[9]

 

In the case of Whipps v Iqbal the Court had found itself bound by the case of Croke v Wiseman and the same pattern was to follow in Totham v Kings College Hospital. They too concluded that they were bound by the decision but their comments as to how they would have approached lost years had they not been bound were interesting.

 

The Claimant in Totham v Kings College Hospital was seven years old at the date of Judgment and had suffered negligence at birth. As a result of that negligence it was difficult for the Claimant to sit or to move without help. She was unable to walk without assistance and unable to propel a wheelchair manually although she enjoyed physical activities and approached them with enthusiasm and determination.

 

Mrs Justice Laing noted that “she must follow Croke”.[10] However she also commented that she considered “that the decision in Croke is inconsistent with the principle of full compensation.”[11] In addition, Mrs Justice Laing noted that “there is no rational basis for allowing such claims by adults, but refusing to allow them when made by children.”[12]

 

Whilst it was clear Mrs Justice Laing was bound by Croke v Wiseman it was clear that had it been able to the Court would have awarded damages to the Claimant for lost years. It was also noted that this issue “should be resolved by the Supreme Court.”[13]

 

  • JR v Sheffield[14]

 

The issue of lost years has again come to the Court’s attention in the recent case of JR v Sheffield. This case of course has attracted comment due to the decision in relation to accommodation given the new discount rate (see our previous blog here). However the Court also allowed a claim for lost years. The Claimant was injured as a result of the Defendant’s negligence at his birth, but by the time the claim came to trial the Claimant was 24.

 

As a result of the negligence the Claimant has severe spastic cerebral palsy and significant cognitive impairment. His speech is slurred and he has no effective movement of the lower limbs. He can feed himself but requires food and drink to be prepared.

 

The Claim was brought sometime after the negligence occurred; “some 20 or more years after the event”[15] but “proceedings were brought within time i.e. within 3 years of JR’s majority.”[16] As a result the Claimant was not a minor at the time of trial but the age of 24. In the Judgment it is noted that JR “already engages in social activity.. he intends to resume college studies where he will interact socially.[17]The Judge commented that “there is a good prospect that JR will enter into a long term relationship of some kind giving rise to dependency.”[18]

 

The Judge agreed that the “policy considerations which led to the decision in Croke do not apply to JR. He is not a catastrophically injured child. He is a 24 year old man who can engage with others.”[19]

 

As a result Mr Justice William Davis argued JR fell under the considerations in Pickett and Gammell and allowed a claim for lost years.

This case of course must be distinguished from Croke v Wiseman, Totham v Kings College and Iqbal v Whipps Cross on the basis that JR had reached adulthood by the time that the case came to trial. However the Claimant was subjected to the negligence when he was an infant and before he had the opportunity to embark on any career. Despite this the Judge allowed a claim for lost years and did not find the loss too speculative or remote. The Judge also used the fact that whilst the incident occurred when JR was an infant he is now 24 and thus this case falls outside the authority of Croke v Wiseman.

 

Whilst this does show a change of direction and possible scope for child Claimants to recover loss of years the topic is yet to come in front of the Supreme Court and until it does there is unlikely to be definitive certainty on this matter.

 

Lois Norris

Legal Assistant to Gerard McDermott QC

 

 

Readers should note that this is not intended to be definitive legal advice but rather comment on case law relating to the lost years head of loss in personal injury claims.

[1] [1980] 1 AC 136.

[2] [1982] 1 WLR 71.

[3] [1980] 1 AC 136 at page 170 [E]

[4] [1982] 1 AC 27

[5] 1982] 1 AC 27 at page 78 [E]

[6] Whipps Cross University NHS Trust V Iqbal [2007] EWCA Civ 1190

[7] [1982] 1 WLR 71 at page 82 [F]

[8] [2007] EWCA Civ 1190 at page 16 [64]

[9] [2015] EWHC 97 (QB)

[10] [2015] EWHC 97 (QB) [46]

[11] [2015] EWHC 97 (QB) [46]

[12] [2015] EWHC 97 (QB) [47]

[13] [2015] EWHC 97 (QB) [48]

[14] [2017] EWHC 1245 (QB)

[15] [2017] EWHC 1245 (QB) [34]

[16] [2017] EWHC 1245 (QB) [34]

[17] [2017] EWHC 1245 (QB) [36]

[18] [2017] EWHC 1245 (QB) [36]

[19] [2017] EWHC 1245 (QB) [33]