Is the Supreme Court’s recent judgment correcting long-standing unfairness for injured children?

For more than four decades, a legal precedent from the 1981 case Croke v Wiseman prevented children from claiming compensation for the income they would have earned during the years of life they lost due to negligence.

The Supreme Court has now overturned that position in a recent judgment reported by the BBC. The focus of expert evidence will now shift towards what a child’s future could have been.

What is the impact of this judgement on families?

From my perspective, this is a landmark decision, and it fundamentally changes how damages are calculated for children with life-shortening injuries caused by medical negligence.

I have been practising for 40 years and in that time, many children have been prevented from recovering compensation for the income they would have earned but for the negligence.  

I have witnessed over the years how difficult it is for parents to hear that their child’s life expectancy has been reduced.

Parents have had to hear those figures, learn their child’s life expectancy and know it reduces the award their child receives. That has always understandably been very hard for families to accept.

Children are now being treated the same as adults. The core legal rule is that damages should put someone in the position they would have been in if the negligence had not happened. This ruling finally reflects that principle properly.

Does this judgement correct the gap between legal theory and reality?

We have a client with cerebral palsy whose life expectancy is reduced. His injury is not severe, but he has poor eyesight, impaired cognitive skills, cannot walk and has limited use of one arm.

Given his family background, he would likely have qualified for a profession such as law or accountancy. He worked as an IT assistant but lost his job during COVID and has not been able to return to work.

The previous approach did not reflect what he could have achieved over a full career.

Recognising a full working life ensures settlements provide financial security for the whole of the productive years that have been lost, not just the shortened life expectancy.

In this Supreme Court case itself, the change is estimated to increase damages by around £800,000.

This extra compensation is a necessity for many families. Caring for a child with a brain injury is physically and emotionally demanding and it affects the whole family, often turning their lives upside down.

Parents are exhausted by care and hospital appointments. There is little time for siblings. Holidays and housing decisions revolve around the injured child and families may have to move to find suitable accommodation. Proper compensation eases that burden.

Families want answers and accountability, often hoping for an apology, but financial support also becomes essential because they need it to care for their child.

What is the cumulative cost impact on the NHS?

Two-thirds of clinical negligence liabilities already relate to maternity injuries. With around 250 cases of brain injury in childbirth reported each year in England, adding lost years to these claims will increase overall liabilities.

The NHS’s total estimated liability for clinical negligence reached £60.3 billion by March 2025, according to the NHS Resolution Annual Report. This ruling adds a new, mandatory head of loss that must be factored into future actuarial estimates, likely pushing this provision even higher.

Many catastrophic injury claims take more than a decade to resolve, so the financial impact of this ruling will emerge gradually as existing and future cases are settled at higher values.

What should healthcare providers do in light of the judgment?

Following this Supreme Court ruling, I believe the main lesson for healthcare providers is to focus on preventing harm as much as possible by prioritising safe staffing, clear communication and consistent adherence to established clinical guidance.

Preventing avoidable injury must remain the priority, particularly in maternity care, where the consequences of mistakes can last a lifetime.

Get advice from our medical negligence experts

If your child has suffered injuries as a result of negligence and you would like to make a claim, get in touch with our team who can advise you whether or not you have a case, and if you do, what your options are.