C suffered a severe brain injury as a consequence of hypoxia during her birth in 2015. The hypoxia resulted from clinical negligence for which D has accepted responsibility. C has been entirely dependent on others since the time of her birth. There is no prospect of improvement. Her life expectancy is agreed to be 29. [1]
parties agreed that if C had not sustained injury she would have had a normal life expectancy, that she was likely to have worked to the age of 68, and that she would have received some sort of pension for the remainder of her life. It was also agreed that she was likely to have gained GCSEs and higher qualifications from college or university leading to paid employment. The claimant’s loss of earnings to the age of 29 was agreed to be £160,000, on the basis that, but for her injury, she would have entered the workplace after further education in a similar line of work to her aunts or her mother. [2]
parties also agreed that J was barred from making any award for pecuniary losses during the lost years (ie the additional years of life which the claimant would have enjoyed if she had not been injured), by reason of the decision of the Court of Appeal in Croke v Wiseman [1982] 1 WLR 71 to the effect that such awards cannot be made in cases where the claimant is a young child. In the circumstances, J granted a certificate for a leapfrog appeal to this court to enable the correctness of the decision in Croke v Wiseman to be brought under review [3]
The principal question of law which the court has to decide is whether Croke v Wiseman is consistent with the earlier decisions of the House of Lords in Pickett v British Rail Engineering Ltd [1980] AC 136 (“Pickett”) and Gammell v Wilson [1982] AC 27 (“Gammell”), the reasoning in which was not challenged. [4]
Pickett established, and Gammell confirmed, that damages for pecuniary losses during the lost years are recoverable in English law. [7(1)]
Lost years damages are in principle available to claimants who were injured during early childhood, provided that the loss can be proved in accordance with normal principles. [7(3)]
the decision to refuse to award damages for the lost years in Croke v Wiseman was incorrect and should be overruled. The present appeal should be allowed [64]
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