This article is published as part of Capsticks’ Medical malpractice insurance: mid-year review 2025.

• Potential for larger schedules of loss in catastrophic injury cases 

In CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB), permission was granted for a leapfrog appeal to the Supreme Court, for a determination on whether a child with reduced life expectancy (to age 29) can recover damages for the loss of earnings from age 29 to the end of her working life – a ‘lost years’ claim. The hearing is expected to take place in 2025, but no date has been given yet. 

Comment: Current law, which does not permit recovery of damages for the years a claimant has ‘lost’ due to a reduced life expectancy, is based on the 1981 Court of Appeal decision in Croke v Wiseman. If Croke is overturned, reserves for cases where there is a reduction in life expectancy will need to be reviewed and are likely to increase. Further information on the High Court decision in CCC can be found in Medical Malpractice Insurance Forward View 2024 

• Might we see a refinement of factual causation in consent cases? 

A dental case which is said to be one of the first applications of the Supreme Court decision in McCulloch (2023), may predict a further refinement to causation in consent cases.  In Winterbotham v Shahrak [2024] EWHC 2633 (KB), reasonable alternatives to the treatment proposed were at the crux of the case. The Claimant sought treatment for a partially erupted wisdom tooth. The Defendant recommended extraction. Unfortunately, the inherent risk of lingual nerve damage occurred. The Claimant alleged that the Defendant had not warned her of this risk or the alternative procedure of coronectomy. The Bolam/ Bolitho test was applied to the issue of reasonable alternatives, as per McCulloch. The judge determined that the Claimant had not given her consent and her claim succeeded on causation based on the ‘but for’ test. An obiter comment applying the Australian case of Wallace v Kam (HCA 2013) is of interest as Wallace is authority for a Claimant having to prove that the undisclosed risk which materialised would have been decisive in them not undergoing treatment. Whether this gains traction with judges here remains to be seen.

How Capsticks can help  

Capsticks aims to be the firm of choice for medical malpractice insurers. We advise and support on all aspect of claims ,inquests and associated proceedings. Our experts are routinely instructed to assist and support insurers and their insured.

If you have any queries about the insights and their impact on your organisation, please contact Majid Hassan, Cheryl Blundell, Ed Mellor, or Sarah Bryant. 

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