Supreme Court to hear ‘leapfrog’ appeal on ‘lost years’ claims this week

The Supreme Court is set to determine whether child claimants can recover damages for ‘lost years’ in the 'leapfrog' appeal of CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] (CCC). The case challenges the long-standing precedent set in Croke v Wiseman [1982], which has historically prevented claims for lost future earnings where life expectancy of a child claimant is reduced; a distinction from adult claimants with reduced life expectancy.

Background

‘Lost years’ claims arise when a claimant’s life expectancy has been reduced due to negligence, allowing them to recover damages for earnings they would have received during the years they will no longer live (Pickett v British Rail Engineering [1980]). The principle is well established for adult claimants.

However, in Croke v Wiseman [1982], the Court of Appeal ruled that child claimants are not entitled to bring such claims, largely due to the speculative nature of future earnings and the assumption that they are unlikely to have financial dependents.

This distinction has been the subject of ongoing debate, particularly where a child claimant is close to adulthood at the time of their claim. In JR v Sheffield Teaching Hospitals NHS Foundation Trust [2017], the High Court considered whether Croke was still good law. While the claimant in JR was an adult by the time of trial, the Court noted that preventing a claim simply due to a claimant’s age at the time of injury could create an arbitrary barrier to compensation. The case, however, settled before an appellate court could formally address the issue.

The Appeal

In CCC, an eight-year-old claimant sought ‘lost years’ damages after clinical negligence significantly shortened their life expectancy. The High Court, bound by Croke, rejected the claim but granted permission for a ‘leapfrog’ appeal to the Supreme Court. This Court will now determine whether Croke remains good law or if child claimants should be entitled to 'lost years' damages on the same basis as adults.

Comment

A ruling in favour of the claimant would broaden the scope of claims brought against compensators, leading to increased damages awards in cases involving children with reduced life expectancy.

The case raises complex questions around the purpose of ‘lost years’ claims. Historically, these claims have been viewed as a form of financial redress rather than a direct reflection of actual loss. The Supreme Court’s decision will be instrumental in clarifying whether the underlying principles of Pickett should apply universally, or whether Croke remains a valid exception.

The Supreme Court hearing is scheduled for 11 and 12 February 2025.  

Kennedys will provide further updates following the Supreme Court’s judgment.