Are restrictions to “lost years” claims set to be challenged?

The controversial and longstanding implications of Croke v Wiseman [1982] WLR 71 CA may be set for challenge following Mr Justice Ritchie’s judgment in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 KB.

By way of background, in Croke the Court of Appeal held that child claimants are not permitted to bring a claim for “lost years” in the event that their life expectancy is reduced as a result of negligence. The ruling distinguished the earlier Court of Appeal decision in Pickett v British Rail Engineering [1980] AC 136 which held that where life expectancy is reduced, a successful claimant can recover for the loss of earnings and pension they would have received for the period between their estimated date of death as a consequence of negligence and their estimated date of death absent negligence (the “lost years” period).

Typically, when a “lost years” award is made, the sum of the losses calculated is discounted by an arbitrary 50% in an attempt to value income less living expenses in the period from when the claimant will be deceased. Such awards are controversial as the claimant would be, by the very nature of the award, deceased and would have no ongoing losses. The award, therefore, is more akin to a dependency award. Crucially, the claimant does not need to evidence actual dependants at the time of the calculation.

The decision in Croke not to allow child claimants to bring a “lost years” claim (despite often having many decades lost from their life expectancy) was based upon the Court of Appeal being unwilling to allow an award for theoretical dependants when it was unlikely/impossible for the claimant to bear children, and where the calculation for future loss of earnings was so speculative given the young age of the claimant. The ruling has long been contentious, not least where a child claimant is unable to bring such a claim despite nearing maturity.

In JR v Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 QB a 24-year old claimant brought a “lost years” claim and Mr Justice Davis, sitting in the High Court, sought to distinguish Croke. Notably, JR was not a child, but it was contested that he would not father children given the extent of his injuries. Justice Davis held that, even if the claim had been brought whilst the claimant was a child, his age would not on its own make a “lost years” claim impermissible as this could create the absurd scenario in which claimants delay pursing a claim until maturity is reached. Justice Davis further interpreted Pickett as not requiring the claimant to show that he has, or will have, dependants. The “lost years” claim was allowed and appealed. Shortly before the appeal was heard the claim settled out of court and the Croke/Pickett implications not tested further.

In the recent case of CCC, whilst finding for the claimant but accepting the court was bound by the decision in Croke and refusing the “lost years” claim for the 8-year old claimant, Justice Ritchie allowed the claimant’s subsequent appeal and granted permission to leapfrog to the Supreme Court to address the permissibility of “lost years” claims for children and to challenge the longstanding implications of Croke. Importantly, however, the Supreme Court must still agree to hear the case as a High Court judge cannot unilaterally enter a case to the Supreme Court’s list.

Should the appeal be heard and the Supreme Court determine that child claimants are as entitled to “lost years” claims as adult claimants, defendants will face the prospect of significantly larger compensation awards in the future.