Abstract
The Claimant was injured at birth on 4 March 1997. He suffers from cerebral palsy. Liability was admitted by the Defendant pre-action. The matter proceeded to trial on quantum only and was heard in October 2006 when the Claimant was nine years old. Life expectancy was agreed to the age of 41 years. Future loss of earnings for the Claimant's lifetime was agreed at £260,000. The total award for all heads of damage was £4,619,912. A final order has not been made as the parties have agreed to adjourn the case pending the ultimate outcome on indexation in Thompstone and related cases.
The lost years' earnings were in respect of the period from 41 to 65 years of age. The award of £42,402 was calculated using one-third of the agreed multiplicand for future earnings of £20,000 and a multiplier of 6.36. The Claimant cross-appealed against the calculation, and in particular the deduction for contingencies of 20% applied to the multiplier.
On the Defendant's appeal, the Court of Appeal confirmed that it was bound by the principle of stare decisis to follow the previous Court of Appeal decision in Croke v Wiseman [1982] 1 WLR 71, in which the court had held that a claim by an infant for the lost years was impermissible as there were not and never would be any dependants who would require those damages.
In the present case, the Court of Appeal indicated that in its view the decision in Croke was not consistent with the earlier House of Lords authorities on lost years (Pickett v BREL [1980] AC 136 and Gammell v Wilson [1982] AC 227). Gage LJ was of the view that the decision in Pickett was to allow claims for the lost years and not to restrict them to adult wage earners. Where in Pickett the House of Lords referred to difficulties in respect of claims by infants or young children, Gage LJ concluded that those were difficulties of assessment, which could not be said to apply in this case, given that it had been possible to assess (and agree) the loss of earnings during the Claimant's lifetime. The Court of Appeal could not however distinguish the present case from Croke and concluded that it was therefore bound to allow the Defendant's appeal. Gage LJ added ‘the error, if error it be, must be corrected by the House of Lords’.
The court also gave its judgment on the cross-appeal, although as the appeal was allowed, it was not necessary to do so. The Claimant submitted that there was no place for judicial impression in reaching a discount for contingencies of 20%, but rather the judge should have followed the 5th edition of the Ogden tables, which suggested a discount of only 5%. Since the trial, the 6th edition of the tables had been published which suggests an entirely different method of calculating the discount, which in this case indicated a discount of 10%. In submissions the Defendant proposed 10% as a compromise, which the Claimant conceded. However, the court indicated that although the Ogden tables provide a helpful framework, there was still room for further judicial impression. In particular, Gage LJ emphasized the need to assess damages for the lost years ‘justly and with moderation’ and indicated that he thought the resulting compromise figure of £47,702 was, if anything, high.
Dr Simon Taylor QC and William Latimer-Sayer (instructed by Parlett Kent) appeared for the Claimant. Martin Spencer QC (instructed by Hempsons) appeared for the Trust.
Comment
This is a useful decision from the Defence perspective. Having to pay an additional £40,000–£50,000 on every brain-damaged baby case would have cost the NHS many millions of pounds per annum. Such an award would arguably have been inherently unfair because it would have represented an entirely speculative figure for loss of earnings, many years hence, which the Claimant might have benefited from had he lived until then (which he will not, if predictions are correct). The Claimant side argued forcefully for 100% compensation, and no-one can sensibly argue against that, but claims for the ‘lost years’ in such circumstances arguably go beyond 100%. The position is very different in the case of an adult with an established pattern of employment, where ‘lost years’ claims are quite properly accepted by the courts if the Claimant's life expectancy has been significantly reduced by negligence.