CCC v Sheffield Teaching Hospitals NHS Foundation Trust

A child whose life expectancy is shortened by personal injury may recover damages for pecuniary loss during the lost years. Recovery does not depend on the claimant’s age or on the existence or prospect of dependants. The claim concerns the claimant’s own loss.

Where substantial loss has occurred, uncertainty about future earnings or living expenses does not justify refusing compensation. The court must make the best assessment reasonably possible from the available evidence and legitimate judicial knowledge. Average earnings, actuarial tables, family circumstances and a suitably moderated deduction for living expenses may assist. Croke v Wiseman [1982] 1 WLR 71 was overruled.

The appellant suffered catastrophic brain injury through admitted clinical negligence at birth. Her life expectancy was reduced to 29 years. The parties agreed damages of £160,000 for earnings lost during her expected lifetime, but agreed that Croke v Wiseman [1982] 1 WLR 71 prevented an award for earnings and pension lost after her anticipated death.

Ritchie J assessed the other damages in [2023] EWHC 1770 (KB). He subsequently granted a certificate for a leapfrog appeal in [2023] EWHC 1905 (KB). The central issue was whether the exclusion of lost-years damages for young children was consistent with Pickett and Gammell.

1. By a majority, the appeal was allowed and the case remitted. Lord Reed gave the leading judgment. Lord Briggs and Lord Stephens agreed with it, and Lord Burrows reached the same conclusion in a separate judgment. Croke v Wiseman [1982] 1 WLR 71 was overruled.

2. Pickett and Gammell establish that damages for pecuniary loss during the lost years are recoverable. They do not make recovery dependent on existing or prospective dependants. The award compensates the claimant’s own loss, and entitlement is unaffected by how the claimant may use the damages.

3. The compensatory principle applies equally to adults and children. A child suffers actionable damage when the injury occurs. The court may not exclude recovery merely because forecasting the child’s education, employment, earnings or living expenses is difficult. Where substantial loss is established but cannot be measured precisely, the court must assess it as fairly as possible from the reasonably available evidence.

4. The assessment may use statistical evidence concerning suitably tailored occupational groups, evidence about the educational achievements, occupations and attitudes of parents and siblings, and actuarial multipliers. Such evidence may assist an individual assessment and is not inherently stereotyping. Living expenses may be estimated by a moderated percentage deduction. Lord Burrows added that a broad-brush award may be used where there is no real alternative.

5. The majority rejected the distinction drawn in Croke between earnings lost during a child’s surviving lifetime and those lost afterwards. Neither the absence of dependants nor the additional calculation of living expenses supplied a principled basis for denying the latter claim.

6. Lady Rose dissented. She considered that, without evidence of the particular child’s abilities or earning potential, an award based on family background or cohort averages would cease to compensate the individual claimant. In her view, policy justified earnings damages during the survival period because those funds met the child’s continuing needs, but not an extension into the lost years.

1. United Kingdom Supreme Court: By a majority, allowed the leapfrog appeal, overruled Croke v Wiseman [1982] 1 WLR 71, and remitted the assessment of lost-years damages to the trial judge.
2. High Court: In [2023] EWHC 1905 (KB), Ritchie J declined to assess lost-years damages because he was bound by Croke, but certified the issue for a leapfrog appeal under section 12(1) of the Administration of Justice Act 1969.
3. High Court: In [2023] EWHC 1770 (KB), Ritchie J approved the agreed £160,000 award for earnings lost to age 29 and assessed the remaining damages.