A recent Supreme Court decision marks a significant shift in how compensation is calculated for children who have suffered life changing injuries as a result of medical negligence. The ruling recognises the full extent of what has been taken from injured children — not only their health, but also their future opportunities. Lucy Mellor and Chloe Murphy explain what this ruling means for children and their claims for compensation:

Case Synopsis

In this case that has sparked the ruling, a child (known as “CCC”) was deprived of oxygen due to mistakes made during her birth and sustained what is known as a “hypoxic brain injury”. As a result, she has severe cerebral palsy. She is fully dependent upon others for her care needs and she will not be able to work in the future and support herself. Crucially, her life expectancy has been reduced. She is not expected to live beyond 29 years old.

The Defendant is an NHS Trust responsible for the management of the hospital in which CCC was born. The Defendant admitted that it was responsible for the negligence which caused CCC’s brain injury.

The parties agreed that, if CCC had not been injured, she would have had a normal life expectancy. They also agreed that she would likely have gained GCSEs and other qualifications leading to paid employment. They agreed that she would have worked until the age of 68 and, thereafter, she would have received a pension for the remainder of her life, referred to as “the lost years”.

What are “the lost years”?

In cases where a person’s life expectancy has been reduced as a result of negligence and they will die prematurely, this potentially opens up the door for them to make a claim for “lost years”. A claim for lost years allows a Claimant to seek compensation for the income that they would have earned during those years had they been able to work. A deduction is a then applied to reflect their likely living expenses (food, utilities, etc).

In CCC’s case, it was agreed that by the time that CCC reaches the end of her life at 29, she will have lost out on £160,000 worth of employment related income. What was not agreed, however, was whether CCC had a claim for the income that she would have obtained during her “lost years” (i.e. had she continued to work until age 68 and received a pension thereafter).

What was the law?

The law applicable at the time of CCC’s claim was over 40 years old. It drew a sharp and, quite frankly uncomfortable, distinction. It meant that adults and adolescents with a pre-existing work and educational history could claim for “lost years”, but children could not. The law failed to reflect that injured children are denied the opportunity to build a career, support a family, and accumulate financial security. Some might argue that this was a form of “reward” for a Defendant who injured a child rather than an adult.

CCC’s lawyers asked a judge in the High Court to decide whether this law was fair. The judge did not feel that it was fair but High Court judges are duty bound to apply the law until it is changed by a higher Court. The judge, therefore, permitted CCC to appeal to the Supreme Court.

The Supreme Court is the highest court in the English and Welsh judicial system. Decisions made by the Supreme Court have the ability to overrule law made previously.

The Supreme Court decision

Supreme Court judges heard the arguments put forward in CCC’s case and, by a majority of 4 to 1, agreed that a child Claimant does have a valid claim for “lost years”. They decided that compensation for employment related income (including pension) should be calculated on the basis of the child’s likely life expectancy had the negligence not happened, rather than their actual life expectancy as a result of a Defendant’s negligence. The Court’s decision puts injured children on parity with injured adults.

Injuries sustained by children within the healthcare system will frequently have profound and devastating effects, both on the child themselves and their families. The child will often be left with permanent and life changing injuries, as in the case of CCC, and their families often have to place their whole life on hold.

In the lead judgment Lord Reed, president of the Supreme Court said “The claimant is entitled to be placed in the position he or she would have been in if the tort had not been committed.”

As clinical negligence lawyers, we spend much of our time fighting to ensure that injured patients, and their families, are properly compensated for the harm caused by negligent medical treatment. Every so often, a judgment comes along that fundamentally reshapes what it means for a person to be “properly compensated”.

Why this ruling matters for injured children and their families

We welcome the recent Supreme Court’s decision, which demonstrates a pivotal shift in how the Courts view compensation for child Claimants. It reflects modern understandings of fairness, autonomy, and economic reality. It also restores a sense of humanity to an area of law that had, for too long, treated children as an exception.

With this new approach, children injured by NHS incidents can now expect to receive just and fair compensation that reflects the full extent of their lost opportunities and future earnings. The implications of this ruling are profound in holding the NHS further accountable in addressing the long-term care needs of these injured children.

Now, parents and guardians can seek compensation that reflects the full extent of their child’s loss. It makes them equal to adult Claimants and recognises that the deprivation of a child’s entire future should be given as much importance as an adult’s. The Court’s ruling not only helps to further alleviate the financial burden on families but also recognises the long-term impact of medical negligence, especially in cases involving severe conditions like cerebral palsy or disability resulting from other types of birth injuries.