Supreme Court Holds That Damages for Lost Years Can Be Awarded to Young Children

References in square brackets are to the paragraph numbers in the Supreme Court’s judgment.

In CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5, the Supreme Court allowed a leapfrog appeal and held that child claimants can recover damages where an actionable personal injury has reduced their expectation of life (“lost years”).

Facts

The claimant suffered a severe brain injury at birth in 2015 as a result of admitted negligence. Her life expectancy was agreed to be 29. [1]

The parties also agreed that, but for her injury, she would have had a normal life expectancy; worked to the age of 68; received a pension; obtained educational qualifications; and entered employment. Loss of earnings to the age of 29 were agreed. [2]

Both parties accepted that in light of Croke v Wiseman [1982] 1 WLR 71, no award for lost years could be made for child claimants. The trial judge, Ritchie J, declined to assess damages for lost years but granted a leapfrog certificate for the Supreme Court to consider whether Croke had been correctly decided (in his judgment granting a certificate for the leapfrog appeal at [2023] EWHC 1905 (KB) he did state that the actual value of the lost years award would be “substantially lower” than the sum claimed, as Lord Reed points out). [3, 77]

The appeal required consideration of the relationship between Croke and earlier decisions of the House of Lords. [4]

Judgment

The Supreme Court allowed the appeal (Lord Reed giving the lead judgment, with whom Lord Briggs agreed; Lord Burrows concurring; Lord Stephens concurring, with whom Lord Briggs also agreed; and Lady Rose dissenting). The Supreme Court held Croke was incorrect and overruled it. Lost years damages are recoverable by child claimants. The matter was remitted for assessment of the claimant’s lost year damages. [64]

Reasoning

The Court identified four propositions on which all members agreed.

• Pickett v British Rail Engineering Limited [1980] AC 135 established that damages for lost years are recoverable in English law, and Gammell v Wilson [1982] AC 27 confirmed that.
• Lost years damages are not restricted to claimants with dependants.
• Lost years damages are available to claimants who were injured during early childhood, provided that the loss can be proved in accordance with normal principles.
• When calculating lost years damages, the courts usually identify a multiplier derived from the actuarial Ogden Tables (this reflects the expected number of years of life the claimant has lost, discounted to allow for the fact that a lump sum is being given now instead of periodical payments over the lost years). The appropriate multiplier is then applied to the multiplicand which reflects net annual loss during the lost years (less the claimant’s probable living expenses). [7]

Against that background, the majority held that the reasoning in Croke, which denied recovery to young children on the basis that they had no dependants, was inconsistent with principle and authorities. [48–51] As a general principle, damages in tort are compensatory. [53] A claimant is entitled, so far as money can achieve it, to be placed in the position that they would have been in had the tort not occurred. There is no reason of legal principle why a claimant’s ability to recover lost years damages should depend upon the existence, or prospective existence, of dependants. The claim is for the claimant’s own loss, not that of others. [50–51]

The argument that assessment for a young child is too speculative was rejected. [58] The majority held that difficulty of quantification does not justify denial of recovery. The court must assess damages as best it can on the available evidence. [54–57] Developments in actuarial evidence and statistical earnings evidence have reduced the evidential difficulty of assessment of lost years claims by children. [59–61] Once earnings are assessed, deduction of probable living expenses presents no greater obstacle in a child’s case than in an adult’s. [62] Any exclusion based on age would require an arbitrary line unsupported by principle. [63]

Lady Rose dissented, concluding that there is a principled distinction between calculating damages for lost years for adult claimants (where there is evidence of individual characteristics and abilities) and young children (where the court must proceed on assumptions about future abilities, opportunities and earning capabilities). In the latter cases, she would confine recovery to the survival period. [164, 205]

Comment

This judgment makes the legal position on damages for lost years consistent between adult and child claimants. Lord Reed nevertheless signalled that the conceptual basis on which lost years damages are awarded may warrant reconsideration in a future appeal. [5] The judgments make it clear that the Supreme Court was not asked to overrule Pickett or to re-state what it laid down, and Lord Burrows goes further, and states that a reconsideration of Pickett and Gammell is called for, hoping that there will be an opportunity in a future case to consider Pickett afresh with a seven-person court and full submissions. [143–149].

It is already plain that questions will arise as to the correct calculation of lost years awards for child claimants, and no doubt those questions will be looked at in cases which arise following CCC.