LOST YEARS AND INFANT CLAIMANTS Geoffrey Brown

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1 LOST YEARS AND INFANT CLAIMANTS Geoffrey Brown Claims for loss of income during a claimant s lost years have given rise, in their time, to both conceptual and practical difficulties. The conceptual difficulties revolved around the need to identify and formulate the loss in a form which could be deemed to be recoverable in law, while the practical difficulties have largely stemmed from the courts unwillingness to become too far involved in speculation. In most people s eyes, it is plainly right that proper compensation should be paid in respect of income which a claimant will be denied the opportunity to earn through his lifetime having been foreshortened by a defendant s negligence. This is a consideration which evidently weighed quite heavily with Lord Wilberforce, when in Pickett v British Rail Engineering 1 the House of Lords decided to open to the way to the making of such claims by injured adults, for he said: I am convinced that a rule with enables the lost years to be taken account of comes closer to the ordinary man s expectations than one which limits his interest to his shortened span of life. Whilst in Gammell v Wilson 2 the House of Lords did not perceive the same considerations of justice to apply to a claim by an injured adult s estate, and they made their decision to apply the same approach to such claimants with misgivings, they clearly had no qualms about the justice of the Pickett decision. Indeed, Lord Diplock described it as having righted an obvious injustice. The gain achieved for living claimants in Pickett was, however, a limited and qualified one (while the decision in Gammell in relation to estate claims was reversed by Parliament). Even in relation to adult claimants, it allowed for recovery only in relation to the amount which might be deemed to have been lost after deduction of an estimated 1 2 [1980] 1 AC 136. [1982] 1 AC 27 at p.78. 1

2 sum to represent the victim s probable living expenses during those years 3. Moreover, the House of Lords expressly limited their decision to adult claimants. Although it might be thought to be only right that the same principle should apply to claims by children (even if the value of any claim might be lower), the courts have generally demonstrated a marked caution in their approach to such claims and a strong resistance to making awards in favour of younger claimants. The question whether it is right for the courts to remain so resistant to claims by younger children has arisen in two recent decisions at first instance, Iqbal v Whipps Cross University NHS Trust 4 and Lewis v Royal Shrewsbury Hospital NHS Trust 5, in which different answers were given. To put this difference of view into context, one needs to look back to the previous case law. Prior to the House of Lords decision in Pickett it had appeared to be settled law that a claim for loss of earnings in the lost years could not be maintained. The Court of Appeal had reached such a conclusion in Oliver v Ashman 6 on the basis (subsequently held to be erroneous 7 ) that such claims were precluded by a previous decision of the House of Lords 8. Up to that point, there had been a divergence of view between first instance judges as to whether such claims were maintainable. Whilst in one case Slade J had taken the view that they were not 9, in another Streatfield J had taken the view that they were 10. The trial Judge (Lord Parker CJ) had preferred the latter view and had made an award which included compensation for loss of income in the lost years. Moreover, he had done so in relation to a claim by a claimant aged only 4 at the date of trial and with a residual life expectancy of 30 years (albeit that it can only have represented a small part of the overall award). 3 Per Lord Wilberforce in Pickett at p.151. In relation to the working out of this principle see Harris v Empress Motors [1984] 1 WLR 212 and Phipps v Brooks [1996] PIQR Q [2006] EWHC 3111 (QB). 5 Birmingham District Registry, HHJ MacDuff. 6 [1961] 3 WLR By the House of Lords in Pickett. 8 Benham v Gambling [1941] AC Harris v Brights Asphalt Contractors Co Ltd [1953] 1 QB Pope v D Murphy & Sons [1961] QB

3 It is not clear what view the Court of Appeal might have taken in Oliver in relation to the making of an award to such a young claimant in that case, had they not deemed all such claims to be impermissible. It does, however, appear that Holroyd Pearce LJ might have been inclined to uphold it. In his judgment, he said, of the divergence of view at first instance: Both judges answered differently a question to which there is no wholly satisfactory solution. Each view can produce in certain circumstances commonsense results and each can produce apparent injustices. That of Streatfield J would seem, perhaps, more apt for the case of a living plaintiff, that of Slade J for an action by executors. This may be thought to show notable prescience in relation to the direction which the law would ultimately take. It also suggests that he was inclined to favour the approach of Streatfield J in relation to living claimants, without giving any indication that he would exclude children. For his part, Willmer LJ made it clear that he would not have been in favour of allowing any claims for loss of earning in the lost years by any claimants, be they adults or children. His view was all such claims were too speculative to be entertained, but that has been held to go too far 11. If, then, he had been constrained to accept that his blanket objection was not maintainable, he might have been prepared to accept that such awards could be made in at least some claims brought by children. It does, however, appear likely that he would not have been prepared to contemplate any substantial award on the facts of that case ( any figure arrived at would have to be so heavily discounted as to be reduced almost to vanishing point ). In Pickett the House of Lords went to great care to make clear that their decision concerned only adult claimants. Mr Pickett, indeed, was 51 years old, in exceptionally good health and in settled employment, when his accident occurred. In terms of any 11 See Pickett, particularly per Lord Edmund-Davies at p

4 speculation required, his case could therefore be said to lie at the opposite end of the spectrum to Master Oliver s. Their Lordships ruled that the Court of Appeal had been wrong in Oliver to regard the making of lost years claims as precluded by their previous decision. Accordingly, the way was clear for them to decide whether such claims should be allowed. A crucial question to be considered was how any loss associated with the claimant being precluded from earning during his lost years was to be categorised and whether it took a form which would be and was recoverable by him in law. The challenge was laid down by the respondents in argument: what did the plaintiff lose? Lord Wilberforce rose to the challenge by asking himself whether the claimant had an asset of present value for the loss of which he should be compensated. His answer, in effect, was that a person in possession of attributes (good health and settled employment) with which he would have been able to achieve earnings in such years did have such an asset and that the claimant was accordingly entitled to be compensated for damage thereto. In Gammell, Lord Scarman identified the underlying principle as being: that the damages should be fair compensation for the loss suffered by the deceased in his lifetime. In the same vein, Lord Edmund-Davies identified the task involved in assessment of lost years claims as being to provide compensation for loss of a particular kind suffered by an injured person during his lifetime. Thus, the loss in question could be and was categorised as a loss which the claimant would himself suffer during his lifetime but was this something of which the Claimant needed to be in possession? A further question which was considered in Pickett was whether any loss might be too speculative to warrant an award. Their Lordships, perhaps not surprisingly, did not take such a view of Mr Pickett s claim (and may, indeed, not have been invited to do so). What they did do, however, was to express some strong sentiments in relation to the speculation that could be involved in other cases, particularly where minors might be involved. In this regard, there appear to have been two alternative shades of opinion in relation to claims by young children. Either no award could be made or no more than a minimal sum could be awarded. 4

5 Lord Wilberforce took the first line, going so far as to say that in the case of a young child neither present nor future earnings could enter into the matter, while also suggesting that in the case of an adolescent just embarking on the process of earning the value of lost earnings might be real but would probably be assessable as small. Lord Salmon, on the other hand, envisaged the possibility of a minimal award ( in such a case, the lost earnings are so unpredictable and speculative that only a minimal sum could properly be awarded ). This was in line with the view which had been expressed by the Law Commission 12. Even then, however, Lord Salmon made it clear that he felt that on the facts of Oliver any such sum would be so minimal that it could be disregarded. In Gammell, Lords Diplock and Scarman also subscribed to the first view. Lord Diplock was of the opinion that in cases where there was no history of steady pre-accident employment, the judge would be faced with a task that is so purely one of guesswork that it is not susceptible of solution by the judicial process. Lord Scarman said: In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award not even a conventional award should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime at the age of five, might have a claim: it would depend on the evidence. In Croke v Wiseman 13 the Court of Appeal declined to make any lost years award to a claimant aged 21 months at the date of his injury and 7½ at trial, whose life expectancy was put at 20 to 40 years. In so doing, Griffiths LJ raised another difficulty in relation to such cases. In his view, the court could and should refuse to speculate as to whether, if the accident had not occurred, the infant might in adult life have acquired dependants, for whom he might have wanted to provide a fund of money, saying that it would involve entering into the realm of speculation about an impossible and hypothetical situation. This led him to refuse any award for the lost years. Shaw LJ ostensibly agreed with his approach Working Paper No. 41, paragraph 57. [1982] 1 WLR 71. 5

6 This approach appears to have been founded on a perception that a claimant who will not in fact have any dependants does not suffer any substantial injustice if he is not compensated in respect of money he might notionally have spent on people he will not in fact need to support. In such cases, Griffiths LJ suggested, the court would be faced with a particular difficulty: Not only does it have to assess what sum the plaintiff might have been earning, but it also has to make an assessment of the sum that would not have been spent on the plaintiff s own living expenses and would have, therefore, been available to spend upon his dependants. In the case of a living claimant of mature years whose life expectation has been shortened and who has dependants, there are compelling social reasons for awarding a sum of money that he knows will be available for the support of his dependants after his death. It was this consideration that led to the result in Pickett s case. In Lewis, HHJ MacDuff QC explained the rationale of the decision, as it appeared to him. He noted that in Pickett there would have been a stark injustice in denying lost years compensation, given that Mr Pickett in fact had dependants to support and that his death was imminent. In Croke, by contrast, there were not and would not be any dependants to be supported. In the Judge s view, there was therefore just as much a saving in relation to any money which the claimant might have spent on any dependants as in relation to any money that he might have spent on himself. He, in any event, viewed the decision as authority for the proposition (which was therefore binding upon him) that it is wrong for a court to speculate as to possible future dependants who will never exist. He also made it clear that he considered both the views expressed in Pickett and the approach taken in Croke to be as relevant today as when those cases were decided. In Iqbal, on the other hand, Sir Rodger Bell felt it was open to him not to follow the Court of Appeal s decision, seemingly on the basis that it had been made on practical grounds as perceived by them at the time (i.e. about 25 years ago) and which (he perceived) no longer held good. He also regarded it as anomalous that no compensation should be payable to an infant claimant on the basis that he would have no dependants, when awards could be made to adults on whom no-one was dependant. In Lewis, 6

7 however, HHJ MacDuff QC did not consider there to be any anomaly in this regard. In his view, a lost years award could properly be made to an adult who had no dependants, if and in so far as the court were to accept that he would have spent his income in other ways, e.g. on charitable causes, or would have saved it, but there would not be the evidence to support such an approach in the case of a child. One might also ask whether the approach taken by Griffiths LJ is in keeping with the views expressed in Pickett. In that case, Lord Salmon said: the law can make no distinction between the plaintiff who looks after dependants and the plaintiff who does not. In the same vein, Lord Edmund-Davies indicated that the matter under consideration was the entitlement of a claimant to recover lost years compensation regardless both of whether he has dependants and of whether or not he would (if he has any) make any provision for them out of any compensation awarded to him or his estate. Further, it does appear to be generally accepted that awards can properly be made in favour of older children. At least in some cases, there may be no prospect of them having any dependants. An example of this was Housecroft v Burnett 14, in which the claimant was denied the happiness and fulfilment of marriage and the joy of motherhood, but where it was nonetheless accepted that she could be compensated for loss in her lost years. She was aged 16 at the date of her accident, about 19 at the date of trial, and she was considered to have a residual life expectancy of around 27 years. Whilst the Court of Appeal considered that compensation for the lost years could properly be assessed by simply making a small adjustment to the multiplier for future loss of earnings 15, they nonetheless thereby accepted that some compensation was properly payable. In Iqbal, the claimant was injured at birth. At the time of trial he was aged 9 and had a residual life expectancy of 31.5 years. Sir Rodger Bell, while not feeling able to infer that but for his injury he would have been likely to have had dependants in the future, concluded that an award in respect of the lost years could and should be made. He took [1986] 1 All ER 332. By a small adjustment, they had in mind increasing the multiplier that would otherwise have been appropriate to her reduced life expectancy by an increment of 0.5 or

8 as a multiplicand one third of the agreed figure for the claimant s projected earnings. The multiplier which he applied to this was the appropriate Odgen multiplier for the period represented by the lost years, with a modest discount (2.34%) for the normal risk of mortality during the Claimant s predicted lifespan. By such means, he arrived at an award of 42,402. In Lewis, on the other hand, HHJ MacDuff QC concluded that no award could or should be made to an 11 year old claimant, who had also suffered injury at or around the time of her birth. So, whose view should be preferred? This may be one of those points, to which one s heart and one s head might give different answers. One s heart might be with Sir Rodger Bell. On the other hand, one s head might be inclined to doubt whether his approach can properly stand with the views expressed by the House of Lords in Pickett and Gammell or with the Court of Appeal s decision in Croke. GEOFFREY BROWN 39 Essex Street. 8