The Supreme Court Allows Lost Years Claims for Children in CCC

Lizanne Gumbel KC and Rajkiran Arhestey

CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5

Introduction

The Supreme Court has finally provided the answer to a question which has vexed many clinical negligence practitioners, particularly those who act in claims for children with serious injuries:

Can a young child claimant recover damages for financial loss caused by her inability to work during the years of expected life she has lost due to the defendant’s clinical negligence (“lost years damages”)?

The answer is yes.

This decision has been long awaited. The logic of the decision of the Court of Appeal in Croke v Wiseman [1982] 1 WLR 71 has been difficult to reconcile with other cases but has governed the decision of first instance judges since 1982. Attempts at challenging it have generally resulted in compromises as the amount involved in a lost years claim alone will usually not justify the costs of an appeal. It is therefore good that this position has finally been clarified.

The key points are:

1. It is not logical to treat children with reduced life expectation differently from young adults with reduced life expectation. The principles should be the same.
2. Calculation of loss of earnings in the lost years is no more difficult to calculate than in the years of survival. In CCC, the calculation of earning capacity up to age 29 years was entirely based on statistics and speculation and the same uncertainty would apply to the loss of earnings in the lost years.
3. The deduction for living expenses in the lost years is no more difficult for a child than an adult [69].
4. The need for dependants is not a requirement for adults so there is no reason why it should be a requirement for a child [49].
5. The quantification of damages is often by necessity speculative particularly in respect of loss of earnings [55].
6. The Supreme Court may revisit Pickett and Gammell and lost years claims more broadly if given the opportunity [144].

It is useful to note at [61] that Lord Reed endorsed the assessment of loss of earnings for a brain damaged baby being based on:

“…the evidence available, including evidence about the claimant’s family background, has enabled the parties to reach agreement, as explained earlier, about the educational qualifications which she would have obtained but for her injuries, the type of employment which she would have entered after completing her education, the age at which she would have retired, and the fact that she would have received a pension from the date of her retirement until the date of her death. The parties’ agreement also extends to the claimant’s loss of lifetime earnings, based on evidence of average earnings of women in the range of employments which was considered appropriate in the light of the claimant’s family circumstances.”

Factual and procedural background

The Claimant, CCC was a child, now aged 10 with a life expectancy of 29, who brought a claim against the Defendant alleging that failures in the management of her mother’s labour led to her suffering severe chronic partial hypoxic ischaemia leading to cerebral palsy (‘CP’). Liability was admitted and so the only issue between the parties was quantum of damages.

The parties agreed that if CCC had not suffered injury she would have: (i) had a normal life expectancy (ii) obtained degree-level qualifications (iii) worked until age 68 (iv) received a pension. Loss of earnings to age 29 was agreed at £160,000.

In a lengthy judgment dated 12 July 2023, [2023] EWHC 1770 (KB), which was summarised in QMLR here, Ritchie J dismissed the Claimant’s claim for lost years [172] but subsequently gave permission for a leapfrog appeal to the Supreme Court:

“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. The conflicting case law and principles on assessment are not a matter for off the cuff judgments.”

What is a lost years claim?

Let’s say a claimant’s life expectancy is reduced from 85 years to 55 years due to the defendant’s negligence. But for the negligence, the claimant would have worked until they were 68 and then would have received a pension for the remainder of their life. As a consequence of the negligence, the claimant will work until they are 55 but likely then die, and so they will lose the income which they would have received had they worked until age 68 (a further 13 years) and their pension. The House of Lords confirmed in Pickett v British Rail Engineering Ltd [1980] AC 136 that adult claimants could claim damages for the loss incurred during these ‘lost years’.

The issue in CCC was whether young child claimants could make the same claim.

The Supreme Court’s judgment

Lord Reed gave judgment with Lord Briggs agreeing. Lord Burrows gave a concurring judgment. Lord Stephens also gave a concurring judgment with which Lord Briggs also agreed. Lady Rose dissented.

It is helpful to set out the issues which were not in dispute and/or which were not argued:

1. The reasoning in Pickett v British Rail Engineering Ltd [1980] AC 136 (“Pickett”) and Gammell v Wilson [1982] AC 27 (“Gammell”) was not disputed. The Defendant did not ask the Court to revisit lost years claims more broadly. Rather the Defendant submitted that the position should continue as it was, i.e. that lost years awards can be made save for young children [69].
2. There was no argument on the basis on which damages for pecuniary losses during lost years are awarded: in particular, whether they are intended to compensate for the non-receipt in the future of economic benefits which, but for the injury, the claimant would have received during the lost years, or whether they are intended to compensate for the immediate diminution in the claimant’s earning capacity, viewed as a capital asset [5]. Lord Reed noted that it would desirable to clarify this matter when the opportunity arises, as it may have implications for the damages recoverable in some cases.
3. There was little argument on the method by which damages for the lost years should be assessed. Counsel for the Claimant argued for the multiplier/multiplicand approach whilst counsel for the Defendant argued that no award was to be made because the loss was too speculative but, if such an award was to be made, a small conventional award to signify a loss of choice would be appropriate, drawing an analogy with “wrongful birth” cases [6].

Judgment of Lord Reed

Lord Reed noted [7] that the following propositions were agreed by all members of the Court:

1. Pickett established, and Gammell confirmed, that damages for pecuniary losses during the lost years are recoverable in English law.
2. Although the reasoning in Pickett may have been influenced by a concern about the position of the claimant’s dependants, on the assumption, subsequently questioned in Gregg v Scott [2005] UKHL 2; [182] that no dependants’ claim under s.1 of the FAA 1976 could subsist after the injured party had recovered damages for his injury, Pickett and Gammell do not restrict lost years damages to claimants who have, or may in future have, dependants.
3. Lost years damages are in principle available to claimants who were injured during early childhood, provided that the loss can be proved in accordance with normal principles.
4. To calculate damages for the lost years, it is usual to take the multiplier/multiplicand approach using the Ogden Tables.

Previous authorities

Lord Reed then went on to consider the authorities in some detail. He considered Pickett which concerned an adult claimant and authoritatively established the recoverability of damages for loss of earnings during the lost years and noted that, in that case, such an outcome was regarded as desirable in the interests of justice because the appeal proceeded on the assumption that an award in favour of the victim of the tort in respect of their own loss would bar any subsequent claim by their dependants under s.1 of the FAA 1976. Therefore, if the damages recovered by the victim of the tort did not include damages for the lost years, then their dependants would be left without provision after their death [15].

However Lord Reed went on to note that the decision was reached on the basis of common law principles and after considering the relevant authorities [16]. He observed that two strands of thinking could be seen in the judgment in terms of the conceptual basis of the award.

1. Lord Wilberforce focused on an immediate diminution of earning power, viewed as a capital asset: he described the victim’s capability to earn a living throughout their pre-injury working life as “an asset of present value”, and as an interest with a value which could be assessed. On that approach, the loss is immediate and is suffered by the living claimant [17].
2. Lord Salmon and Lord Scarman appear to have viewed the award as compensation for the non-receipt of a revenue stream which would have accrued in the future, analogous to a conventional award for loss of future earnings. Lord Reed noted that this approach seems to treat the loss as being suffered at a time when the claimant will have died and so it has led to debate over whether awards for lost years have a logically coherent basis. He also noted that approach adopted may also have implications for other economic benefits which the claimant would or might have received during the lost years if they had then been living [17].

Lord Reed noted that in Pickett the Law Lords commented obiter on the position of young children, noting the difficulties in assessment of such an award. However there was no determination that such an award could not be made [22].

Lord Reed then went on to consider Gammell v Wilson which decided that a victim’s right to recover damages in respect of the lost years in accordance with Pickett could be asserted in a claim brought after their death on behalf of their estate, under s.1 of the Law Reform (Miscellaneous Provisions) Act 1934 [23]. One of the deceased in Gammell was a 15 year old boy. Lord Scarman commented obiter that, in relation to young children, such claims may run into difficulties of assessment and evidence [24].

Lord Reed then went on to note that, after Gammell, the LR(MP)A was amended so as to prevent claims being made on behalf of the estates of deceased victims in respect of loss of income during the lost years: Administration of Justice Act 1982, section 4(2). However, it remained possible for claims for loss of earnings during the lost years to be brought by living victims [25].

Lord Reed noted that in the subsequent decision of Connolly v Camden and Islington Health Authority concerning a young child no award was made for lost years on the basis of difficulty of assessment of the claim [26].

Lord Reed then went on to consider Croke v Wiseman which concerned a claim brought on behalf of a child who had been injured at 21 months [27-34].

1. Lord Denning considered that no award should be made for either ‘conventional’ loss of earnings during life or lost years as both awards were too speculative.
2. Griffiths LJ considered the conventional loss of earnings during life could be awarded but not lost years for policy reasons. He said that it was appropriate to make lost years awards for adults as they would have dependants who could benefit from the award, but the same logic did not apply to child claimants and, if the child was dead or very disabled, there would never be any dependants in the future. Conventional loss of earnings claims, however, would help provide for the injured child’s living expenses whilst they were living.
3. Shaw LJ agreed with Griffiths LJ and awarded only loss of earnings but not the lost years. However he commented that (i) the approach to compensation ought to be uniformly applied and (ii) the assessment of damages should not depend on the age of the claimant.

Lord Reed also referred to a decision of the Privy Council in Jamil Bin Harun v Yang Kamsiah [1984] AC 529 which was not cited to the Court but was a decision made three years after Gammell in which a young brain-damaged child recovered loss of earnings, but it was noted that her life expectancy was not affected [35].

Lord Reed also noted that in two more recent cases the courts had been bound by Croke v Wiseman but questioned whether it was consistent with Pickett and Gammell, and whether it was really so difficult to assess such damages for young children when loss of earnings claims can be quantified [40-41]. In one case where the claimant was likely to enter into a relationship and therefore have a dependants, Croke v Wiseman was distinguished.

Lord Reed also noted that in Australia and Canada awards for lost years were made and assessed.

As to Croke v Wiseman, Lord Reed found that the decision that no award for the lost years should be made where the claimant was a young child because of the absence of dependants was inconsistent both with legal principle and with the relevant authorities [48].

He commented at [49] that “there is no reason of legal principle why a claimant’s ability to obtain an award in respect of his own pecuniary losses should depend on the existence of dependants. The claim for lost years is in respect of the claimant’s own loss, not in respect of anyone else’s, and his or her right to damages is not in any way dependent on how they might be used.” He noted that in Pickett the Law Lords expressly stated that the award for lost years was not contingent on a claimant having dependants [50]. He acknowledged that whilst it may be rational, for social policy reasons, to distinguish between claimants who had dependants and those who do not, that was a matter for the legislature and not the courts in the absence of any legal principle which would justify that distinction [51].

Lord Reed also noted that a claimant was entitled to compensation and that could not be contingent on their age [53]. Furthermore, whilst the loss may be difficult to assess precisely, that was not a basis for not awarding damages [56, 58]. Furthermore, there have been significant developments since Pickett and Gammell in the assessment of damages, including the use of the Ogden Tables [59] and statistical evidence as to average earnings [60].

He also rejected the argument that awards for the lost years in the case of child claimants involved a greater degree of speculation than awards for loss of lifetime earnings because of the need to estimate the claimant’s probable living expenses. He commented that estimating a child’s living expenses should not be any harder than estimating an adult’s and in adult cases a conventional percentage is generally applied to the net earnings on a rough and ready basis [62].

Finally, he commented that it would be difficult to know where to draw the line in terms of ‘young’ children versus ‘older’ children [63].

Lord Burrows (concurring)

Lord Burrows concurred for similar reasons to Lord Reed. He noted, as did Lord Reed, that in Pickett the decision was not contingent on the claimant having dependants: “it is clear and very important to appreciate that, in terms of the law laid down, the House of Lords did not restrict lost years damages to situations where the injured claimant has, or will have, dependants. To the contrary, four of the five Law Lords expressly rejected the proposition that lost years damages were so restricted” [89].

Lord Burrows commented that in Pickett what the Law Lords actually said in relation to young children was that proving a lost years claim would require proving loss and, on the particular facts, an award could be made to a young child but it would likely be minimal. They did not say that, as a matter of law, there could be no lost years award to a young child [95].

Lord Burrows also noted that in Gammell an award for lost years was upheld in the case of a claimant aged 15. He noted that “despite grave concerns about the degree of speculation involved, their Lordships, as in Pickett, are best interpreted as having regarded the availability and assessment of lost years damages as turning on the evidence and the normal need to prove loss” [100]. The Law Lords did not attach significance to whether the deceased did or did not have dependants [104].

He also considered Connolly v Camden and Islington Area Health Authority [1981] 3 All ER 250, finding that on a close reading it was entirely consistent with Pickett and Gammell and did not exclude lost years claims for children, but rather on the facts the judge found that the loss was not proved and so assessed the claim as nil [109].

Lord Burrows then went on to consider in some detail how pecuniary loss is calculated generally in personal injury claims noting:

1. The courts do not apply a balance of probabilities approach to proof of such loss. Rather the loss is assessed proportionate to the chances [117].
2. The difficulty of assessment is not itself a bar to recovery but there is a de minimis cut-off where the loss claimed is on the facts merely fanciful or entirely speculative [117].
3. The conventional approach is the multiplicand/multiplier method [118] and the Ogden Tables and is much more sophisticated than at the time of Pickett, Gammell and Croke.
4. In some circumstances, broad brush assessments may be appropriate e.g. Smith v Manchester and Blamire awards [122].

Lord Burrows identified four features of the post-Croke case-law:

1. The courts have expressed dissatisfaction with the position but been obliged to follow Croke.
2. There have been awards for adolescents.
3. There has been a decision in which the claimant was injured at birth but was age 24 by the time of trial and so an award was made. He was likely to have a dependant but the judge stated this was not relevant.
4. The courts have clarified how to deduct living expenses in lost years claim and the deduction of living expenses is calculated differently as between a claim for lost years damages and a dependency claim under the 1976 Act [123].

Lord Burrows concluded that Croke should be overturned as inconsistent with Pickett and Gammell [136].

He noted that [137], as well as the difficulties already mentioned, a further difficulty with the reasoning in Croke is that, if the key issue is whether the claimant has dependants, why should adult claimants with no dependants be able to recover?

He did not accept the Defendant’s argument that the calculation of loss for young children was too speculative given the increasing sophistication of calculation methods [138], he also noted that it would be impossible to find a cut-off point between ‘young’ children and ‘older’ children (the Defendant did not deny that a 16 year old could made a lost years claim) [139] and he also noted that children can make loss of earnings claims which are also difficult to assess [140].

Lord Burrows did query whether Pickett should be revisited with a seven-judge court [144] and, in particular, with two issues in mind:

1. “The first and most fundamental is whether there is any convincing justification for treating a lost years award as compensating a pecuniary loss of the injured claimant. Lost years damages are controversial when viewed as compensating the claimant’s own loss because they cut across the normal principle that there can be no loss to the claimant suffered after the claimant’s death. The claimant can suffer no pecuniary loss (or non-pecuniary loss) once he or she is dead. As it is put in McGregor on Damages at para 41-119, “Wages in heaven should not be awarded when they are not needed on earth.” It follows that there is a strong argument that it is difficult to justify the lost years award when viewed as compensation for a loss of the claimant. Hence, the former view taken, that there should be no lost years damages, by Slade J in Harris v Brights Asphalt Contractors Ltd and by the Court of Appeal in Oliver v Ashman.” [145]. He acknowledged that one rationale for making a lost years award is to treat the claimant as an “objective capital asset whose life expectancy and hence value and earning capacity have been diminished by the injury. Viewed in this way, a loss of earning capacity may be said to have been suffered by the claimant, while alive.” However he was uncomfortable with conceptualising a human being in this way [147].
2. “The second issue is whether Pickett should be reinterpreted as allowing lost years claims only as a means of compensating dependants. That is, if there are and will be no dependants, no lost years damages should be awarded, even if the claimant is an adult. Put another way, if one were to recognise the force of what has just been said above on the first issue, might Pickett nevertheless be regarded as correct on its facts because there were dependants who would lose out if there were no lost years damages awarded? This fits with the explanations of the policy justification given in Pickett itself (see paras 86-89 above). There are also more recent obiter dicta of Lord Phillips in Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176, at paras 178-182 that may be said to offer some support for this approach (although this was not mentioned in any of the other four judgments). Furthermore, this view has the strong support of McGregor on Damages at para 41-119: “The point of principle is that the lost years award does not apply where there is no real prospect of dependency … That applies as much to adults as it does to children.” [148]. However he acknowledged that this would contradict the compensatory principle and may lead to practical problems – would it be held on trust for the dependants and what would happen if there were no dependants at trial but there were at a later date [149]?

Lord Stephens (concurring)

Lord Stephens concurred and added a few words to “emphasise the duty on judges to assess damages in circumstances where a cause of action has been established and a loss has been sustained” [152].

He commented at [154] that: “The difficulties in assessment do not detract from the simple proposition that a probable loss has been sustained and must be assessed. The assessment of the loss calls for moderation with due regard to the vicissitudes of life, but the obligation remains to assess the loss and to award compensation for the undoubted loss which has been sustained. Indeed, claims for loss of earnings made by young children who have sustained personal injuries affecting their ability to work are routinely assessed by the courts despite acknowledged difficulties in carrying out that assessment. Such assessments are standard and commonplace.”

In particular, he noted that it was accepted that loss of earnings could be assessed until age 29, but the Defendant argued that it was then too speculative to assess lost years after the Claimant’s death [156]. The Defendant’s response was that it was too difficult to quantify living expenses which was rejected by Lord Stephens as such an assessment can be made on a rough and ready basis [158]. He commented: “there is a spectrum in respect of the amount spent by an individual on his or her own living expenses. The spectrum ranges from miserliness through frugality and moderation to profligacy. A rough-and-ready discount should not be arbitrary or artificial so caution must be applied to simply always using a standard or conventional percentage discount. The basic rule of the common law is that a claimant is entitled to have the court assess the discount even if it is on a rough-and-ready basis. So, the task of the trial judge is to decide on the facts of the case on a rough-and-ready basis whereabouts in that spectrum the claimant will fall and then to apply the appropriate percentage discount. The assessment of the discount feeds into the assessment of lost years damages. The overall assessment calls for suitable moderation. In this case it will be a matter for the trial judge to determine the appropriate rough-and-ready percentage deduction for living expenses.” [158].

Lady Rose (dissenting)

Lady Rose dissented, finding that adult claimants were in a genuinely different position as “the court has before it some evidence of the individual characteristics and abilities of the person whose loss is being compensated” [164].

Lady Rose revisited the authorities before noting at [192]: “There is a risk of unfairness to defendants in that their liability is likely to be increased where the family of the claimant is successful but the court may prefer to fall back on published average earnings figures where the family is unsuccessful. A court may therefore be invited to assume that a child will follow in its family members’ footsteps if its parents and siblings are gainfully employed. But if the claimant’s father has spent most of his adult life in prison and his brother has lived on social security benefits, it would be difficult for the court to dismiss the claim for loss of earnings on the assumption that the claimant would have followed a similar path.”

She acknowledged the addition of the Ogden Tables but commented that did not help at all with the real issue in such cases which is calculation of the appropriate multiplicand [195]. She also accepted that the deduction to be made for living expenses was difficult [197].

She then addressed the argument that if a loss of earnings award is made for a child it would be illogical to not make a lost years award at [199]:

“In my judgment, the difference in approach which has been adopted in the previous authorities can be justified in principle and should not be abandoned for the sake of consistency. The members of the House of Lords in Pickett did not regard it as illogical that they awarded Mr Pickett lost years earnings but said that no such award should be made for a young child: see the passages I have set out earlier at paras 173, 174 and 176 above. I agree with the other members of the panel that the distinguishing feature cannot be that Mr Pickett had dependants whereas an infant has no dependants and no immediate prospect of dependants. But the references to dependants in Pickett are nonetheless important since they show how the decision in Pickett was driven by policy concerns, as Lord Burrows has explained at paras 86-88 above. Its rationale was to provide a fund for the claimant’s dependants, on the assumption that no dependants’ claim could follow upon the injured party’s claim. According to Lord Wilberforce, that assumption – that the dependants’ claim would be excluded – “provides a basis, in logic and justice, for allowing the victim to recover for earnings lost during his lost years” (p 146). Accordingly, as Lord Wilberforce said at p 151, “the basis, in principle, for recovery lies in the interest which [the claimant] has in making provision for dependants and others, and this he would do out of his surplus”. Similarly, in the later case of Gregg v Scott [2005] 2 AC 176 Lord Phillips emphasised at para 180 that the rationale of the decision in Pickett to allow damages for loss of earnings during the lost years was that “[o]nly in this way could provision be made for the loss to be suffered by the dependants” [underlining added].

She commented that policy reasons have been used to “temper the pursuit of logic and consistency in this area of the law” and limit the recovery of damages, pointing to McLoughlin v O’Brian [1983] 1 AC 410.

In terms of the relevant policy reasons justifying drawing the line between recoverable survival period earnings and lost years earnings, she referred to the financial burden on the NHS or insurers [202] and also noted that a loss of earnings claim can be justified as providing for the injured claimant’s needs while they are alive, a justification which does not apply to lost years claim as the claimant would be dead.

Accordingly, she concluded at [204]: “In my judgment the line drawn by Griffiths and Shaw LJJ in Croke v Wiseman is the correct line; the claimant has a need for a sum of money to pay for their care during the survival period and that need is met by the award of lost earnings. That can be regarded as a justified exception to the general rule that loss must be proved on the basis of the characteristics of the individual claimant and not on the characteristics of some different person or of the average member of some cohort to which they may belong. But a claimant has no such need during the lost years.”

She therefore would have dismissed the appeal on the basis that damages for lost earnings, at least where there is no evidence before the court as to the claimant’s earning capacity or individual characteristics, should be awarded up to the end of the survival period and should not extend to the lost years [205].

Overall whilst this is good news for Claimants for the time being the future remains uncertain and the Supreme Court may yet look at the need for lost years claims at all. For the time being at least the distinction between children and adults in respect of lost years claims has been removed.

Paul Rees KC of 1COR acted for the Defendant in this case. He did not contribute to this article.