“172. Future lost savings in the lost years The Claimant claimed her lost income in her lost years at half of£34,262 npa until normal retirement age and, in addition, one half of£17,500 npa for loss of pension during her retirement. No submissions were made on this head of loss. Both parties agreed I am bound the decision of the Court of Appeal in Croke v Wiseman[1981] 3 All ER 852 . I was asked to assess the damages in case the Claimant appeals to the Supreme Court by leapfrog. I decline to do so in the light of the agreement that I have no power to make the award. The conflicting case law and principles on assessment are not a matter for off the cuff judgments.”
“Leapfrog Appeals 1.2.17 Appeals in civil matters may exceptionally be permitted to be made direct to the Supreme Court under sections 12 to 16 of theAdministration of Justice Act 1969 ... These appeals are generally called leapfrog appeals. 1.2.18 Such appeals are permitted only if the relevant statutory conditions are satisfied and the Supreme Court grants permission. 1.2.19 The relevant statutory conditions are set out in section 12(3) and (3A) of theAdministration of Justice Act 1969 , …”
“12 Grant of certificate by trial judge. (1) Where on the application of any of the parties to any proceedings to which this section applies the judge is satisfied— (a) that the relevant conditions are fulfilled in relation to his decision in those proceedings [F1or that the conditions in subsection (3A) (“the alternative conditions”) are satisfied in relation to those proceedings], and (b) that a sufficient case for an appeal to the [F2Supreme Court] under this Part of this Act has been made out to justify an application for leave to bring such an appeal, F3... the judge, subject to the following provisions of this Part of this Act, may grant a certificate to that effect. (2) This section applies to any civil proceedings in the High Court which are either— (a) proceedings before a single judge of the High Court [F4(including a person acting as such a judge undersection 3 of the M1Judicature Act 1925 )], or (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5 (c) … (3) Subject to any Order in Council made under the following provisions of this section, for the purposes of this section the relevant conditions, in relation to a decision of the judge in any proceedings, are that a point of law of general public importance is involved in that decision and that that point of law either— (a) … or (b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the [F2Supreme Court] in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the [F2Supreme Court] (as the case may be) in those previous proceedings.” (a) that the relevant conditions are fulfilled in relation to his decision in those proceedings [F1or that the conditions in subsection (3A) (“the alternative conditions”) are satisfied in relation to those proceedings], and (b) that a sufficient case for an appeal to the [F2Supreme Court] under this Part of this Act has been made out to justify an application for leave to bring such an appeal, F3... (a) proceedings before a single judge of the High Court [F4(including a person acting as such a judge undersection 3 of the M1Judicature Act 1925 )], or (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F5 (c) … (a) … or (b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the [F2Supreme Court] in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the [F2Supreme Court] (as the case may be) in those previous proceedings.”
“Where by virtue of any enactment apart from the provisions of this Part of this Act, no appeal would lie to the Court of Appeal from the decision of the judge except with the leave of the judge or of the Court of Appeal, no certificate shall be granted under section 12 of this Act in respect of that decision unless it appears to the judge that apart from the provisions of this Part of this Act it would be a proper case for granting such leave.”
“The respondent, in an impressive argument, urged upon us that the real loss in such cases as the present was to the victim's dependants and that the right way in which to compensate them was to change the law (by statute, judicially it would be impossible) so as to enable the dependants to recover their loss independently of any action by the victim. There is much force in this, and no doubt the law could be changed in this way. But I think that the argument fails because it does not take account, as in an action for damages account must be taken, of the interest of the victim. Future earnings are of value to him in order that he may satisfy legitimate desires, but these may not correspond with the allocation which the law makes of money recovered by dependants on account of his loss. He may wish to benefit some dependants more than, or to the exclusion of, others - this (subject to family inheritance legislation) he is entitled to do. He may not have dependants, but he may have others, or causes, whom he would wish to benefit, for whom he might even regard himself as working. One cannot make a distinction, for the purposes of assessing damages, between men in different family situations.”
“My Lords, in the case of the adult wage earner with or without dependants who sues for damages during his lifetime, I am convinced that a rule which 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. The interest which such a man has in the earnings he might hope to make over a normal life, if not saleable in a market, has a value which can be assessed. A man who receives that assessed value would surely consider himself and be considered compensated—a man denied it would not. And I do not think that to act in this way creates insoluble problems of assessment in other cases.”
“... I prefer not to complicate the problem by considering the impact upon dependants of an award to a living plaintiff whose life has been shortened, as to which seesection 1 (1) of the Fatal Accidents Act 1976 ; Murray v. Shuter [1976] Q.B. 972 and McCann v. Sheppard [1973] 1 W.L.R. 540. For our present consideration relates solely to the personal entitlement of an injured party to recover damages for the "lost years," regardless both of whether he has dependants and of whether or not he would (if he has any) make provision for them out of any compensation awarded to him or his estate. With respect, it appears to me simply not right to say that, when a man's working life and his natural life are each shortened by the wrongful act of another, he must be regarded as having lost nothing by the deprivation of the prospect of future earnings for some period extending beyond the anticipated date of his premature death.”
“I recognise that there is a comparatively small minority of cases in which a man whose life, and therefore his capacity to earn, is cut short, dies intestate with nothing or has made a will excluding dependants, leaving all his money to others or to charity. Subject to the family inheritance legislation, a man may do what he likes with his own. Certainly, the law can make no distinction between the plaintiff who looks after dependants and the plaintiff who does not, in assessing the damages recoverable to compensate the plaintiff for the money he would have earned during the “lost years“ but for the defendant’s negligence. On his death those damages will pass to whomsoever benefits under his will or upon an intestacy. I think that in assessing those damages, there should be deducted the plaintiff's own living expenses which he would have expended during the "lost years” because these clearly can never constitute any part of his estate. The assessment of these living expenses may, no doubt, sometimes present difficulties, but certainly no difficulties which would be insuperable for the courts to resolve—as they always have done in assessing dependency under the Fatal Accidents Acts.”
“But in an action by the victim, brought and resulting in judgment during his lifetime, he can now, as a result of the decision in Pickett v. British Rail Engineering Ltd., obtain damages, not only including a sum for shortened expectation of life, but also including a sum referable to what he could have earned in the lost years: the years in which, by reference to his shortened expectation of life, it is to be assumed that he will not be able to earn anything. The first stage of the argument before us on this first issue is whether the decision of the House of Lords in Pickett's case expressly or by inference either decides, or by way of obiter dictum expresses the view, that a case such as the present falls to be decided in the same way as Pickett v. British Rail Engineering Ltd. [1980] A.C. 136: that is, that the plaintiff in his action under the Act of 1934 is entitled to recover damages referable to lost earnings in the lost years.”
“In my opinion, that view of the meaning and intention of section 1 (2) (c) of the Act of 1934 receives confirmation from the concluding words of the paragraph: "... except that a sum in respect of funeral expenses may be included." If the victim, before his death, brought his action and obtained judgment, I see no reason why, if he saw fit to claim it, he should not be entitled to recover damages for anticipated funeral expenses, if only on the basis of acceleration: just as he would be entitled to recover damages for the earnings of the lost years, as Pickett v. British Rail Engineering Ltd. has decided.”
“Where the deceased is as young as in these two cases (15 and 22 years respectively) the law requires the judge to indulge in what can be no better than the merest speculation about what might have happened to the deceased during a normal working life-span if he had not been prematurely killed.”
“My Lords, if the only victims of fatal accidents were middle-aged married men in steady employment living their lives according to a well settled pattern that would have been unlikely to change if they had lived on uninjured, the assessment of damages for loss of earnings during the lost years may not involve what can only be matters of purest speculation. But as the instant appeals demonstrate and so do other unreported cases which have been drawn to the attention of this House, in cases where there is no such settled pattern - and this must be so in a high proportion of cases of fatal injuries - the judge is faced with a task that is so purely one of guesswork that it is not susceptible of solution by the judicial process. Guesses by different judges are likely to differ widely - yet no-one can say that one is right and another wrong.”
“His brain does not function at all. He is blind. He is paralysed in all four limbs. He cannot stand. He cannot talk. He can only lie on his mother's lap or on the floor. Just like a baby of less than a year old. He has to wear nappies all the time for he is doubly incontinent. There is no hope of any improvement. He does know his mother's voice and shows he loves her, just as a baby does. He is totally dependent on her for everything— for feeding, washing, changing and dressing—just like a little baby.”
“I do not read those passages in the speeches of their Lordships in Pickett's case and Gammell v. Wilson [1981] 2 W.L.R. 248 in which they stress the difficulty of assessing an award of damages for the lost years in the case of a child as having general application to the claims of all children whose earning capacity has been diminished. In attempting to assess the value of a claim for the lost years, the court is faced with a peculiar 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 upon the plaintiff's own living expenses and would have, therefore, been available to spend upon his dependants. In the case of a living plaintiff 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. As a consequence of the decision in Pickett's case, the House of Lords in Gammell's case felt compelled to apply the same principle to a claim brought on behalf of the estate of the deceased person. If it could be shown that part of the deceased's income was available to be spent on his dependants, then a claim for that part of the income was available to cover the lost years of working life. In the case of a child, however, there are no dependants, and if a child is dead there can never be any dependants and, if the injuries are catastrophic, equally there will never be any dependants. It is that child that will be dependent. In such circumstances, it seems to me entirely right that the court should refuse to speculate as to whether in the future there might have been dependants for the purpose of providing a fund of money for persons who will in fact never exist. It was this consideration that led me in Kandalla v. British European Airways Corporation [1981] Q.B. 158 to refuse to assess a sum for the lost years in respect of two unmarried doctors by speculating as to whether or not in the future they would have married and set aside some part of their income for husbands or children. I refused to enter into the realm of speculation about an impossible and hypothetical situation.”
“25 In summary, in my opinion, the effect of Pickett is to hold that claims for loss of earnings in the lost years are permissible and that such claims are not restricted to adult wage earners with dependants. A claim by the estate of an adult or adolescent wage earner without dependants can clearly be made. I also have no doubt that Pickett does not as a matter of principle rule out claims made by the estate of deceased young children. The decision does however point to the difficulties of proof and assessment of such claims but those difficulties do not alter the underlying principle. These conclusions are in my judgment reinforced by the observations of Lord Scarman in Gammell v Wilson 1982 AC 27 .”
“35. In my judgment, Gammell makes quite clear, what might be said to be less clear from Pickett, that the age of a victim is not as a matter of principle relevant to the issue of whether or not a claim can be made for the lost years. Further, the lack of dependants cannot be a factor which defeats a claim for damages for loss of earnings in the lost years. When it comes to the assessment of damages for the lost years the issues are evidential and not matters of principle. In my view Gammell assists, by way of further explanation, the speeches of the House on this topic in Pickett.”
“45 …In my judgment, on any fair reading of the whole of the passage which I have cited above, Griffiths LJ was holding that claims for the lost years by a young child are not permissible. It seems to me that this is a statement of principle. The reason given for doing so is that the injuries are so catastrophic that there can never be any dependants. In my view, it is clear that Griffiths LJ regarded the absence of the prospective existence of dependants in the case of a young child as fatal to a claim for damages for loss of earnings in the lost years. Accordingly, it seems to me that this must be interpreted as a holding of principle and not a matter of evidence to be considered when assessing such damages.”
“46. Having reached the above conclusion, and after paying all due deference to the decision of such a distinguished constitution of this court, in my opinion the decision in Croke v Wiseman is not consistent with the decisions of the House of Lords in Pickett and Gammell. I would add that I find it difficult to accept that if it is possible to assess prospective future loss of earnings for the lifetime of a young child, even allowing for the difficulty of assessing the surplus, it is not possible to assess damages for the lost years.”
“64. However broad or narrow the test may be I am quite satisfied that in this case the court ought not to depart from the normal rule. Croke v Wiseman was decided after the court had been referred to both Pickett and Gammell. It is obvious from the judgments that the members of the court had heard full argument on those decisions. Although I have concluded that the decision is inconsistent with both Pickett and Gammell, I am not prepared to hold that the circumstances in this case are so rare and exceptional that this court is entitled not to follow it. Nor, even if permitted to do so, would I hold that the decision in Croke v Wiseman was manifestly wrong. I accept that this claimant may be reluctant to invest in the cost of an appeal to the House of Lords but in my judgment that is not a sufficiently strong reason to depart from the normal rule. In my view, the error, if error it be, must be corrected by the House of Lords.”
“45. In Iqbal v Whipps Cross University Hospital NHS Trust[2007] EWCA Civ 1190 the Court of Appeal held that the first instance judge in that case had been bound, and that it was bound, by Croke, but that Croke (and, in particular the reasoning I have just referred to) was inconsistent with two decisions of the House of Lords, Pickett v BREL[1980] AC 136 and Gammell v Wilson[1982] AC 227 . The Court of Appeal granted permission to appeal to the House of Lords but the appeal was then settled. 46. I must follow Croke. In the light of the views of the Court of Appeal in Iqbal, I make two points only. First, I consider that the decision in Croke is inconsistent with the principle of full compensation which I have already mentioned. Second, I respectfully agree with Rimer LJ in Iqbal that the policy justifications referred to in Croke (see above) are inconsistent with Pickett and Gammell. … 48. “Other things being equal, this is a point which should be resolved by the Supreme Court. It would save the parties time and costs if Eva were able to appeal directly to the Supreme Court, rather than having to appeal first to the Court of Appeal, which would again be bound to dismiss the appeal, as it did in Iqbal . No such appeal is possible in this case as the Trust will not consent to it. If those advising Eva wish to pursue it, they will have to appeal to the Court of Appeal first.”
““Croke v Wiseman[1982] 1 WLR 71 remains good law and is binding upon this Court. It is acknowledged that there has been some judicial “disquiet” in other authorities as to the effect of Croke in entirely depriving an infant C of any lost years claims. The inconsistency of Croke with the cases of Gammelland Pickett (per C’s schedule) was noted and considered by the Court of Appeal in Iqbal v Whipps Cross University NHS Trust[2017] EWHCA Civ 1190. The Court of Appeal considered that it was obliged to follow Crokeand disallowed the claim. Unless and until a decision of the Supreme Court intervenes (or there is some statutory reform), this Court is bound by the decision in Croke and no award under this head is permissible.”
"103. I do not accept the Claimant's submission that the test applied by the Supreme Court in relation to applications for permission to appeal to itself applies to applications for section 12 certificates.The sub-section requires the ascertainment of a “sufficient case” which, to my mind, entails a range of considerations, some merits-based, some discretionary. 104. I do not accept Mr Moon's submission that there would be some value in the Court of Appeal considering this issue. I have boldly stated that the Court of Appeal would be constrained to agree with me that it is bound by the majority in Gray. 105. Overall, I see some merit in the Claimant's core contention that it is disproportionate on the facts of her case to deny recovery on public policy grounds. However, I am not persuaded that she has made out a sufficient case that this is so. To my eyes, the key point is the manner in which the Supreme Court has looked at Gray in its subsequent jurisprudence, and in particular has failed to say anything about Lord Phillips' second reservation. 106. It follows that I must refuse to issue a certificate undersection 12 of the Administration of Justice Act 1969 . I also refuse permission to appeal to the Court of Appeal…"
“… the test for whether a sufficient case is made out involves a range of considerations, some merits-based and some discretionary. The case law indicates that Courts have granted permission in circumstances: The case law indicates that Courts have granted permission in circumstances: Where there is a novel statutory interpretation issue, it is undesirable in terms of cost and time for an application to be made to the Court of Appeal and it would be better for the Supreme Court itself to decide if it would be assisted by a fully reasoned judgment from the Court of Appeal, see Hodkin v Registrar General of Births, Deaths and Marriages[2012] EWHC 3751 (Admin) . Where there is a novel statutory interpretation issue that draws into question compatibility of UK law with EU law, where the issue was previously to be considered by the Supreme Court but was not because of an intervening CJEU decision and where many potential claims are involved see Moreno v MIB No 2[2015] EWHC 1142 (QB) at §10-12. 51. The Courts have not granted permission: Where there are no conflicting decisions and it is highly unlikely prior case law would be overthrown, see A NHS Trust v X[2021] EWHC 65 (Fam) . On the basis of the manner in which the Supreme Court has looked at the contested authority in its subsequent jurisprudence, see Henderson v Dorset Healthcare University NHS Foundation Trust[2016] EWHC 3275 (QB) .”