A recent case involving a young child, Eva Totham, highlights a gap in the law that affects children who have suffered very serious brain injury, to the point that they are no longer expected to live up the age at which they would normally have expected to retire.
Eva very sadly was deprived of oxygen at birth and suffers from cerebral palsy. Her mother, on her behalf, sued the NHS Trust who were responsible. This is the type of case we see only too often at PotterReesDolan.
Adults in this position can claim damages for what is known as the ‘lost years’. In child cases, however, no such award is possible following a 1982 decision of the Court of Appeal (1).The point was considered in 2007 (2) when the Court of Appeal held that they had to follow the earlier case even though it was inconsistent with two House of Lords cases. They gave leave to appeal to the House of Lords but the appeal was settled.
In Eva’s case, the judge also considered the 1982 decision to be inconsistent (and basically wrong) but it is Court of Appeal authority and would need to be overturned in the Supreme Court.
The judge quite rightly noted that the Trust’s negligence means that Eva is very sadly expected to live for a much shorter time than she should have done and she will not earn the salary and pension that she would have earned. She has been deprived of those earnings during the ‘lost years’ and should be compensated for that loss.
There is no rational basis for allowing such claims by adults, but refusing to allow them when made by children. The Supreme Court needs to put this right as soon as possible.
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(1) - Croke (A Minor) v Wiseman [1982] 1 W.L.R. 71(2) - Iqbal v Whipps Cross University Hospital NHS Trust [2007] EWCA Civ 1190, [2008] P.I.Q.R. P9