Children injured by NHS can claim damages for lifetime lost earnings, court rules

A Supreme Court ruling is likely to lead to significantly higher damages being awarded to children injured by medical negligence.

Until now, children have only been entitled to compensation for lost earnings – pay missed out on by not being able to work – for the years they are expected to live.

But the court, ruling on the case of a child who sustained a brain injury at birth, found that compensation should take into account the full working life she would have had if she had not been harmed at birth.

The decision could have large cost implications for the NHS. Its clinical negligence liabilities currently stand at £60bn, with two-thirds relating to maternity injuries.

The child at the centre of this case, born in 2015 at Sheffield Teaching Hospitals NHS Foundation Trust, is not being named.

During labour, monitoring indicated that her heartbeat was abnormal, but this was not acted on.

She was born with signs of oxygen deprivation, required resuscitation and later scans confirmed a severe hypoxic brain injury.

The Trust admitted failures in her care.

The girl has severe cerebral palsy, is unable to walk or talk, has severe visual impairment and epilepsy, and requires continuous 24-hour care.

In 2023, the High Court awarded a lump sum of £6,866,615 and an additional payment of £394,940 per year, linked to inflation.

This was to cover the cost of her care needs and for loss of earnings up to the age of 29, her life expectancy.

Wednesday's Supreme Court verdict, by a majority, has ruled that compensation should take into account her entire loss of earnings and pension for a full working life.

It said that the Trust and the family's lawyers were agreed that had the girl not been injured, she would have enjoyed a normal life expectancy, obtained GCSEs, worked until aged 68 and received a pension.

The additional damages will now be decided on at a later date - lawyers for the family claim it amounts to more than £800,000.

The girl's mother said in a statement that she felt "elated that my little girl has changed the law and that this will help lots of other children who have been injured through no fault of their own".

The ruling brings the law in cases involving children into line with adolescents and adults that have suffered life-shortening injuries, who were already able to claim for 'lost years'.

The court found there was "no basis in law" for injured children to have their claims treated differently.

Around 250 cases of brain injuries in childbirth are reported to the NHS in England annually.

Sir Geoffrey Clifton-Brown, a Conservative MP and chair of the Public Accounts Committee, told BBC Radio 4's PM programme that the NHS must do more to resolve cases through mediation.

"Very often... what people who have been wronged by the NHS want is a simple explanation and an apology, and their cases considered properly by the complaints procedure," he said.

When cases instead end up in court, he added, they can take years, be stressful for families and lead to significant legal fees for the NHS - money which would be better spent providing care.

The NHS must also "seriously learn lessons," Sir Geoffrey said, to reduce instances of clinical negligence happening in the first place, which cause "devastation" for a child and their family.