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What is a “lost years” claim and are they the answer to a lack of capital for purchase of accommodation in birth injury claims?
By Paul Rumley
The recent case of Totham  represents a significant reigniting of the debate about “lost years” claims, which in turn could provide additional lump sum capital to children with severe birth injuries, such as cerebral palsy, to make up the regular shortfall in capital to purchase appropriate homes for them in medical negligence cases.
A “lost years” claim has traditionally been allowed in cases where someone has died as a result of negligence. In summary, it is a claim for the loss of earnings and associated pension, for the years the person did not live, i.e. their “lost years”.
However, when it was previously attempted to apply this to cases of severely brain damaged children, i.e. that they should be compensated for the loss of earnings and pension during the years they would not live because their lives were cut short by the negligence of the Defendant, the argument did not succeed . This was on the basis that a “lost years” claim was intended to provide for actual or likely children, and that it was too speculative to base such a claim upon a family a severely disabled child would never have.
The Claimant, Eva Totham suffered a grade 2 hypoxic ischaemic brain injury at birth and so suffered from cerebral palsy. The Claimant was severely disabled and it was estimated that her life expectancy was reduced to 47 years of age.
But for the admitted negligence around the time of her birth which caused the Claimant’s injuries , it was accepted that the Claimant would have lived to the age of 93.6 years.
A “lost years” claim for loss of earnings and pension from 47 years of age to the anticipated life expectancy, to 93.6 years (the Claimant’s probable life expectancy but for the negligence) was made but was resisted by the Defendant on the basis of the case law.
The Judge was bound by the previous case of Croke because it was made by a higher Court, however she also spent 7 paragraphs of her judgement explaining why she believed that the previous case law was incorrect:
1. The justification for the previous case law, i.e. that it was related to adults who might have children to support but could not apply to a severely disabled child who would never have children, was no longer appropriate;
2. That it was inconsistent with the principle of an impaired person receiving full compensation.
In essence, the Judge was quite rightly pointing out that a Defendant should not benefit from their own negligence by not paying damages for loss of earnings and pension for the years the Claimant will not live as a result of that very act of negligence.
The Judge went as far as to set out exactly how much money she would have awarded for the “lost years” elements of the claim if she had been able to do so – she would have awarded approximately £32,700 per year to 70 years of age, i.e. loss of earnings, plus £12,000 per year for the remainder of the otherwise to-be expected life expectancy of 93.6 years of £12,000 per year, i.e. loss of pension.
Finally, the Judge very actively encouraged the Claimant to appeal what she believed to be the incorrect historic case law, all the way to the Supreme Court.
Some commentators – and indeed I have had experience of one Judge so far – doubt the strength of this judgement and therefore the viability of “lost years” claims on behalf of severely disabled children. However, that would appear to “fly in the face” of the very common sense approach which this judgement reveals. As above, why should a Defendant not have to pay compensation for reducing someone’s life expectancy through negligence, in terms of the earnings and pension rights they would otherwise have acquired? It also does not take proper account of the effort the Judge went to, in order to set out exactly how much money she would have awarded if she had been able to do so, and the very active encouragement given to an appeal upon this issue all the way to the Supreme Court.
Even more than that however is that, because of the way in which a claim for appropriate accommodation is calculated on behalf of a severely disabled Claimant in these circumstances where the Claimant has a reduced life expectancy , the full costs of accommodation is never allowed as part of a claim. That in turn means that a severely disabled child has to use other heads of financial loss, to make up the shortfall. However, as the figures in the Totham case reveal, if a further significant lump sum were to be awarded for “lost years” in respect of loss of earnings and pension that would go a very long way towards making up that shortfall in funding.
I am very strongly of the opinion that Totham represents a very important development in terms of the compensation awarded to children left very severely disabled as a result of negligence at the time of their birth and hope to see a case taken to appeal to clarify the law at the earliest opportunity.