Children can seek damages for 'lost years' following medical negligence, Supreme Court rules

It comes after a test case involving an 11 year old child, whose family sued Sheffield Teaching Hospitals.

Children can receive damages for the years of their life that will be lost because of medical negligence, the Supreme Court has ruled, overturning a more than 40-year-old legal ruling.

The UK's highest court found on Wednesday that a 1981 Court of Appeal judgment, which stated children cannot receive damages despite adults and teenagers being allowed to do so under the law, was "incorrect".

The decision comes after an 11-year-old child, known only as CCC, sued Sheffield Teaching Hospitals NHS Foundation Trust in 2020 after she was diagnosed with cerebral palsy following a severe brain injury, which was caused by clinical negligence by the trust and left her requiring 24-hour care.

In 2023, a High Court judge ordered the trust to pay CCC around £6.8 million in damages, which included some £2.7m that had already been paid, but stopped short of ordering it to pay further damages for the years of CCC's life that would be lost because of the negligence.

CCC's mother then took the case to the Supreme Court on her behalf, with the challenge heard over two days in February last year.

By a four-to-one majority, the Supreme Court allowed the appeal and ordered that the case be sent back to the High Court so "lost years" damages could be assessed.

In his ruling, Lord Reed, with whom Lords Briggs, Burrows and Stephens agreed, said: "One might observe that the attempt to exclude claims for the lost years where they are brought by young children invites the question where the line is to be drawn.

"In reality, because the distinction sought to be drawn between claims by young children and claims by older children or adults has no basis in legal principle, the court cannot draw a line.

"Whatever the age of the claimant, it has to assess just compensation as best it can on the material which is reasonably available."

In the High Court ruling in 2023, Mr Justice Ritchie said that CCC suffered a severe shortage of oxygen to the brain before and during her birth, which caused cerebral palsy.

He continued that she "has suffered a significant effect on her senses", that her "ability to communicate is pretty much destroyed", and her "lack of mobility is at a very high level", with her life expectancy reduced to 29.

While the trust admitted in 2019 that it was responsible for the negligence, its lawyers told a hearing in June 2023 that it should pay just over £3.3m in damages, while lawyers for CCC argued that she should receive around £9.2m in damages.

This included £823,506 in damages for the "lost years" of her life, claiming that she should be paid around £17,000 for each year of her working life that was lost, and £8,750 for each lost year of her retirement, assuming she would have a normal life expectancy.

Mr Justice Ritchie awarded CCC a total of £6,866,615, which included the costs of care and equipment, but declined to order that the trust pay "lost years" damages, stating that there was "conflicting case law and principles" on the issue.

But Lord Reed said the 1981 Court of Appeal ruling, which found that children could not receive damages on the basis that they did not have any "dependents", was "inconsistent... with legal principle".

In a judgment disagreeing with the majority ruling, Lady Rose said that assessing "lost years" damages for children could "push the court into uncomfortable territory" and went against the principle that "the loss to be compensated is the loss suffered".

She continued that damages "should not extend to the lost years" where "there is no evidence before the court as to the claimant's earning capacity or individual characteristics".