Iqbal v Whipps Cross University NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gage,LORD JUSTICE LAWS |
| Judgment Date | 20 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1190 |
| Docket Number | Case No: B3/2007/0085/QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2007 |
[2007] EWCA Civ 1190
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Sir Rodger Bell
HQ03X03492
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Gage and
L0rd Justice Rimer
Case No: B3/2007/0085/QBENF
Martin Spencer QC (instructed by Hempsons) for the Applicant
Simon Taylor QC and William Latimer-Sayer (instructed by Parlett Kent) for the Respondent
Hearing dates: Thursday 11 October and Friday 12 October 2007
Judgement
Introduction
This appeal raises the question of whether a young child, grievously injured at birth, is entitled to damages for the “lost years”, and if so how such damages should be calculated.
The background facts can be comparatively shortly stated. The claimant was born on 4 March 1997. He was aged 9 at the date of the trial in December 2006. He suffers from dystonic tetraplegic cerebral palsy resulting from the defendant's admitted negligence at the time of his birth. His agreed life expectancy is to age 41. The trial before Sir Rodger Bell, sitting as a deputy High Court Judge, was in respect of damages only.
The judge summarised the claimant's injuries and medical condition in the following terms:
“The combination of physical disability and learning difficulty is devastating. His cerebral palsy means that his movements are characterised by voluntary fluctuations of muscle tone. He is floppy at rest but his tone becomes stiffened when voluntary movements are attempted. He suffers from abnormal, curved, “windswept” posture. He will never walk or stand unaided, and he has no independent mobility apart from some ability to roll from side to side. Dr Rosenbloom, paediatric neurologist, expressed the unchallenged view that Khazar's motor abilities have plateaued, perhaps for the last two years. Khazar is wholly dependent on 24-hour care for all activities of daily life. He is doubly incontinent, and he is fed through a gastrostomy tube, save for a little oral feeding for texture and taste. All this is permanent. There will be no major functional improvement. He has epilepsy and has suffered convulsions, although these will probably continue to be reasonably controlled and occasional. He has permanent learning difficulties, probably towards the lower end of moderate, but with considerable variation in skills. The exact extent of his cognitive disability is difficult to judge because of his physical difficulties and his limited functional speech, but Mr Albert Reid and Dr Richard Lansdown, psychologists, do not expect a significant improvement in intellectual, cognitive functioning. There may be a plateauing now of his rate of learning. There is nothing wrong with Khazar's vision and hearing and he is able to say several single words but his speech is severely dysarthric. He tends to communicate by eye pointing and using signs, with a sign book at school. Those who know him well, most obviously his parents, but also his regular carers, understand best and most readily what he means. He has some ability to reach out and operate switches and controls. He is demanding of attention, but in Dr Rosenbloom's view his personality is one area where he will continue to mature.”
By his judgment the judge awarded the claimant a total sum of £4,619,912 damages expressed as a lump sum but subject to any application for part of it to be by way of periodical payments. There was a measure of agreement between the parties on a number of items of damages making up the total sum. It is unnecessary to refer to any of the constituent elements of the total sum not the subject of this appeal and cross-appeal save to note that future loss or earnings were agreed in the sum of £260,000. In reaching this agreement the parties were aided by the agreed evidence of two psychologists that but for his injuries the claimant would probably have obtained five GCSEs. There was also evidence of the earning capacity of his parents.
One of the disputed items was the claim for damages for the lost years. This was a claim for damages in respect of earnings which it was claimed, but for the defendant's negligence, the claimant would have earned in the period from age 41 to age 65, at which age he would have retired. In respect of this claim the judge awarded the claimant £42,402 calculated by a multiplier of 6.36 applied to a multiplicand of £6,667 (the latter representing 1/3 rd of the agreed net earnings of £20,000). It is the award of this sum which is the subject of the appeal and cross-appeal. By the single ground of appeal the defendant contends that the judge erred in law in making any award in respect of the lost years. In the cross-appeal the claimant contends that the sum awarded by the judge was too low.
The background to lost years claims
For many years lost years claims have been surrounded by controversy. In Pickett v BREL 1980 AC 136 Lord Wilberforce described such claims as “part of a complex of law which had developed piecemeal and which is neither logical nor consistent.” The appeal in this case is the latest stage in the development of this area of the law relating to personal injury claims.
Before Oliver v Ashman 1966 2 QB 210 there were two conflicting lines of authority in respect of claims for prospective loss of earnings for the period of a claimant's working life which would have lasted but for the injuries he sustained (the lost years). One line of authority, of which Harris v Brights Asphalt Contractors Ltd 1953 1 QBD 617 is an example, held that no claim could be made for loss of earnings in the lost years. The other line of authority, of which Pope v D. Murphy & Son Ltd 1961 1 QBD 224 is an example, held that such claims were permissible. Each of these two cases involved claims made by adult plaintiffs.
In Oliver v Ashman the Court of Appeal came down on the side of Pope v D. Murphy & Son Ltd. This is the starting point for the consideration of the issues in this appeal. The relevant facts in Oliver v Ashman are as follows. The plaintiff, a young boy aged 20 months, suffered brain damage resulting from injuries sustained in a road traffic accident. The accident was caused by the admitted negligence of the defendants. As a result of his injuries the plaintiff's expectation of life was reduced from about 60 years to about 30 years. Parker CJ, the trial judge, awarded the plaintiff £11,000 damages. In doing so he held that in the assessment of these damages the fact that the plaintiff's expectation of life had been reduced should be ignored. The un-itemised sum of £11,000 was taken to include an element of damages for losses in the lost years. The Court of Appeal held that Lord Parker was wrong to ignore the fact that the plaintiff's expectation of life had been reduced. The head note reads:
“Held, that where a plaintiff's expectation of life had been shortened there was no ground for distinguishing between a claim brought by a living plaintiff and a claim brought on behalf of a dead plaintiff in respect of loss of earnings during the years of which he had been deprived; lost wages during the “lost years” were only an ingredient of loss of expectation of life and were not to be valued as an item on their own, but since in the present case the assessment of damages for loss of wages during the “lost years” could not have been a substantial sum, its correct inclusion as a separate item was not a ground for reducing the award.”
It is clear from the judgments in Oliver v Ashman that the court based its decision on two sentences in the speech of Viscount Simon LC in the House of Lords in Benham v Gambling 1941 AC 157.
Following Oliver v Ashman it was thought that no claim could be entertained for compensation for loss of earnings in the lost years. This state of affairs persisted until the decision of the House of Lords in Pickett. Pickett forms a central part in the submissions of both parties in this appeal and I shall return to it later in this judgment. However, before doing so I shall set out in summary form the submissions of the parties.
The submissions of the parties
The defendant's submissions can be summarised as follows. First, it is submitted that a claim for the lost years by a young claimant with no earnings record and no dependants is too remote to be capable of being compensated by an award of damages. Secondly, such a claim is not justified by the decision of the House of Lords in Pickett. Thirdly, in any event, the trial judge, and it is submitted this court, are bound by the decision of this court in Croke v Wiseman 1982 1WLR 71 which it is contended held impermissible a claim for lost years in respect of a young child.
The claimant's submissions are as follows. First, since Pickett claims for lost years are permissible. Secondly, such claims are not restricted to adult claimants with or without dependants. Thirdly, the principle of 100% recovery of damages for a victim of a tort enables a child to recover compensation for loss of earnings in the lost years. Fourthly, neither the judge nor this court is bound by Croke v Wiseman.
In the course of their submissions Mr Martin Spencer QC and Mr Simon Taylor QC referred to a number of authorities and citations from text books and articles in legal journals. However the focus of their submissions centred on Pickett, Gammell v Wilson 1982 AC 227 and Croke v Wiseman to which I now turn.
Mr Pickett, a railway vehicle builder, contracted mesothelioma by inhaling...
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