CCC v Sheffield NHS Case Review: Supreme Court opens the door for “lost years” claims by young children, but what happens next?

On 18 February 2026, the Supreme Court handed down its decision in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5.  In a 4-1 ruling, the Supreme Court held that the long-standing authority from the Court of Appeal which limited the ability of young children to recover damages for “lost years” in catastrophic personal injury cases was wrongly decided.

Damages for future loss of earnings are routinely awarded to claimants, including children, for earnings lost during their expected lifetime.  Additional damages for earnings lost as a result of reduced life expectancy may also be awarded under the separate heading of “lost years.”  The Court of Appeal had previously held that young children could not recover damages for lost years because the assessment of future earnings lost and future expenses saved is too speculative in the case of young children.

This note considers the key takeaways from the Supreme Court’s judgement confirming that young children can recover damages for lost years and what it means for personal injury and clinical negligence litigation going forward.

 

Background

The claimant in CCC, aged 8 at the time of trial, brought a personal injury claim against the defendant health authority for failing to prevent hypoxic brain injury during her birth.  The defendant admitted negligence and the claim proceeded to a trial on quantum in the High Court before Ritchie J.

The parties agreed that the severe spastic cerebral palsy which the claimant suffered from since birth would result in her life expectancy being reduced to 29 years.  The parties also agreed the claimant’s loss of earnings to the age of 29 would be £160,000.

In addition to loss of earnings, the claimant’s schedule of loss reflected a further £823,506 in damages for “lost years”. The defendant pleaded that this “lost years” claim was not recoverable under the principles set out by the Court of Appeal in Croke v Wiseman [1982] 1 WLR 71.

In Croke, the Court of Appeal held that damages for lost years could not be recovered by a young child because the court’s assessment would be too speculative, and damages should therefore be limited to lifetime loss of earnings.

The parties agreed that Ritchie J was bound by the decision in Croke.  The claimant was granted permission for a leapfrog appeal to the Supreme Court to consider whether Croke was wrongly decided.

The claimant argued that Croke was inconsistent with prior authority from the House of Lords in relation to the assessment of future loss, in particular the decisions in Pickett v British Rail Engineering Ltd [1980] AC 136 and Gammell v Wilson [1982] AC 27.

A majority of the Court (4 to 1) found that Croke was wrongly decided and allowed the appeal.  Lord Reed (joined by Lord Briggs), Lord Burrows and Lord Stephens (also joined by Lord Briggs) penned separate concurrences but agreed that Croke was inconsistent with Pickett and Gammell and should be overturned.  Lady Rose dissented.

 

Recoverability for lost years under English law – as established in Pickett and Gammell

Recoverability of lost years was established authoritatively by a majority of the House of Lords in Pickett.  Recovery by children for lost years was not precluded in Pickett, with each of Lords Scarman and Salmon recognising it as a possibility.  However, each of Lord Wilberforce, Lord Salmon and Lord Scarman acknowledged, obiter, the difficulties young children could have proving their losses given the speculation and uncertainty involved.

Gammell extended Pickett to recognise the right of a deceased’s family or estate to make a claim for lost years.  In Gammell, Lord Scarman observed, again obiter, that the assessment of lost years for young children may ordinarily be so distant and speculative as to preclude an award altogether.

 

The Court of Appeal decision in Croke

In Croke, the claimant was 7 years old at the time of trial and had suffered a catastrophic injury at age 21 months.  His life expectancy had been reduced to 40 years and he claimed for lost years, amongst other heads of loss.

The Court of Appeal unanimously held the claimant could not recover for lost years, thus setting a precedent limiting the ability of young children to recover compensation for lost years that stood for more than four decades.

In Croke, Griffiths LJ held that loss of earnings could reasonably be assessed with reference to the national average wage, but assessment of damages for lost years – including the additional assessment of living expenses saved – was too speculative.  Griffiths LJ considered that there was a principled policy basis for distinguishing between adult and child claimants, in particular the interest an adult claimant has in providing for surviving dependants.  Lord Denning MR (dissenting) held not only that lost years were not recoverable, but also that the claimant could not recover even loss of earnings during his expected survival period.

 

The majority decision by the Supreme Court in CCC: overturning Croke

Lord Reed found that Croke was wrongly decided insofar as it turned on the fact that the claimant, being a young child, did not have 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”([49]).  For recovery to be linked to the presence or absence of dependants, he held, would be inconsistent with fundamental principles of tort law and was expressly rejected in Pickett – a point Lord Burrow also emphasised in his concurrence.

The purpose of compensation in tort is to restore the claimant, as best as possible, to their position had the tort not been committed.  Lord Reed refers to the same at [57]-[58] as the “general compensatory principle” of tort.  His view is that the principle requires a claimant to be compensated for pecuniary loss suffered as a result of a reduction in life expectancy, regardless of whether they were injured as a young child or had surviving dependants.

In response to the point in Croke that assessing lost years in such circumstances requires undue speculation, Lord Reed states that “even in the case of an adult claimant, the future is uncertain and subject to countless contingencies”, but “difficulty of assessment is no reason for awarding no damages or merely nominal damages.” ([55]-[56]). Lord Stephens concurred (at [154]): “The difficulties in assessment do not detract from the simple proposition that a probable loss has been sustained and must be assessed.”

In response to their Lordships’ concerns voiced in Pickett and Gammell that lost years claims for young children create certain evidential difficulties, Lord Reed emphasises: “The court has to assess damages as best it can on the available evidence.” ([58])

Lords Reed and Burrows also point to practical issues with giving effect to the restriction created by Croke – citing examples where the claimant was an adolescent, or where the claimant was injured as an infant but brought the claim as a young adult.

 

Tools at the court’s disposal to assess damages for lost years

Courts are now equipped with much more sophisticated tools to assess damages for lost years than they were at the time of Pickett and Gammell.  Lord Reed notes that this includes the use of actuarial tables and Ogden multipliers.  It also includes, in assessing an appropriate multiplicand: “evidence about the education achievements, occupations and attitudes of the claimant’s parents and siblings, and evidence about the average earnings of a suitably tailored category of individuals.” ([60])

The toolkit now available to courts assessing a claim for lost years was also cited by Lord Burrows when he declined the respondent’s invitation to find that lost years awards to children would always involve excessive speculation.  Citing the now commonplace use of these tools in assessing loss of future earnings, Lord Burrows reasoned that there could not be any “insuperable objection” to the same tools being used for assessing a claim for lost years.  Lord Burrows went so far as to say (at [142]):

“Indeed, in light of the more sophisticated method of assessment that is now used in personal injury cases, it seems extremely unlikely that a court will consider that, where there has been a reduced life expectancy, a claim for lost years by a young child cannot be proved.” (emphasis added)

In light of such considerations, Lord Stephens notes (at [162]): “It would…be extraordinary not to make an award for the lost years’ damages on the basis that the claim was speculative.  I also consider that uncertainty should not lead a court to making in appropriately parsimonious awards.”

Lord Reed is careful to note (at [60]) that having regard to evidence of a claimant’s “range of likely outcomes, based on family circumstances and attitudes” does not signal the court falling into “mere prejudice or stereotyping”.  Rather, in doing so, the court is making the best assessment it can based on an individual claimant’s particular circumstances.

Lady Rose dissenting, noted that forecasting based on statistical analysis, relied on “evidence about other people” being used to model, or, in her words, “guess” future earnings and expenses (see [178]).  There is a risk of unfairness, notably, she says (at [192]), to defendants – if courts increase awards when claimants come from successful families, but then fall back on average figures when claimants come from unsuccessful ones.

Lady Rose holds (at [205]) that damages for lost earnings should be limited to the survival period, “at least where there is no evidence before the court as to the claimant’s earning capacity or individual characteristics”.  She found that this was a clear distinction with adults who have a history of earnings and expenses enabling a properly informed award for lost years.

The dissent of Lady Rose must, however, be read in the overall context of the judgment, particularly the point made by Lord Reed at [7(3)], where he notes that all members of the Supreme Court in CCC agree that: “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.”

Her other point of dissention seemed more fundamental, that to overrule Croke “contradicts a fundamental principle of tort law which is that the loss to be compensated is the loss suffered by this individual claimant” ([165]).  Insofar as this point of dissent is developed at [204] Lady Rose continues:

“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.”

 

Horizon scanning – areas for further legal development

In their judgments, both Lords Reed and Burrows note that the Supreme Court was called, in the present case, to consider the narrow question of whether Croke was wrongly decided.  Both judges indicate that there are topics which would benefit from fuller ventilation, should the appropriate case arise.

 

Conceptual soundness of lost years

According to Lord Burrows, whether the concept of compensation for lost years which emerged from Pickett has sound justification at all is something which would benefit from consideration by a seven-person court:

“I am of the view that a reconsideration of Pickett and Gammell is called for.  As the political realities mean that it is most unlikely that this will be taken up by the Legislature, even after a review by the Law Commission, it is to be hoped that, following on this decision, there will be an opportunity in a future case to consider Pickett afresh with a seven-person court and full submissions on its merits and demerits.” ([144])

Lord Burrows identifies the most fundamental issue with lost years as being “whether there is any convincing justification for treating a lost years award as compensating a pecuniary loss of the injured claimant.” ([145])

For Lord Burrows, there is conceptual difficulty in framing lost years as compensating the claimant’s own loss when there can be no loss to a claimant after death.

Lord Reed notes at [5] that “the court heard no argument as to the basis on which damages for pecuniary losses during the lost years are awarded”, which gets at the same conceptual point.  The conceptual basis for an award for lost years is something which Lord Reed agrees “would be desirable to clarify when the opportunity arises”.

Defendants may be encouraged by their Lordships’ questioning the soundness of lost years as a concept.

One solution to the vexing question of how a claimant can be compensated for lost years after their death could be found in a construct described in the judgement of Lord Reed which has seen favour in other common law jurisdictions: human life as a capital asset.

 

Human life as a capital asset

In his judgment, Lord Reed surveyed the approach to recovery for lost years in other jurisdictions and noted (at [43]) that, in both Australia and Canada, the approach is to allow recovery for lost years based on the construct that the ability to earn a living is a capital asset which experiences an immediate diminution in value upon injury – an approach adopted by Lord Wilberforce in Pickett, where he described such earnings capacity as an “asset of present value” with a value that could be assessed.

This construct is cited by Lord Burrows (at [147]) as a potential answer to the question of how lost years can properly be viewed as compensating the claimant’s own loss when there can be no loss to a claimant after their death.  As Lord Burrows notes, however: “…it may be difficult conceptualising humans this way.”

 

Lost years as third-party loss

Lord Burrows also raises the question of whether Pickett may best be understood as allowing a claim for lost years as a means of compensating dependants.

If the claim for lost years is not framed as relating to diminution of a capital asset, it may instead be framed as compensating dependants for their loss – restoring them, not the claimant, as best as possible to the status quo ante.

As Lord Burrows points out (at [149]), this would not only depart from the basic purpose of compensation in tort, being to restore the position of the claimant, but it would also carry with it similar issues as arise in claims for gratuitous care, where damages must then be held on trust for the third party assessed to suffer the compensable loss.

 

Key takeaways for litigants

This case forms a major development in the law on damages in personal injury and medical negligence litigation.  It to some extent alters that very distasteful maxim in relation to personal injury damages, that it is cheaper to kill than it is to maim.  Given the amount of maternity-based litigation currently being faced by NHS institutions, this judgment could have significant ramifications for the value of any liabilities arising.

CCC has been remitted to Ritchie J to assess the claimant’s damages for lost years.  Both claimants and defendants will be watching how this and other cases involving child claimants are assessed.  As Lord Reed notes in the introduction to his judgment at [6], the method for assessing damages for lost years in cases involving young children is something the court heard little argument on.

In assessing damages for lost years, the court will need to form a view based on the best evidence available as to a claimant’s likely earnings and living expenses had the claimant’s life expectancy not been diminished by injury.

Claimants will want to present evidence of likely educational qualifications and the type of employment obtained but for their injuries much as they already do in the case of living claimants or adult fatal cases.

It will benefit claimants if they can demonstrate family achievement above the mean or intergenerational class mobility, for example siblings who have obtained higher educational or professional achievements than their parents.  In such cases, claimants may argue that they would have been likely to achieve in step with their successful families or vertically mobile siblings had they not suffered injury.  Of course, defendants will seek to challenge such evidence with their own employment, actuarial or other experts.

Claimants may seek to minimise the living expenses avoided which get netted off from their awards, while defendants will argue that courts should take a broad-brush approach and make more aggressive reductions based on a claimant’s expected living expenses.  In his concurrence, Lord Stephens notes (at [158]) that claimants will fall on a spectrum “from miserliness through frugality and moderation to profligacy”, when it comes to what they are expected to spend on their living expenses.  It is the role of the trial judge, he says, to assess where on that spectrum a given claimant falls.

Critically, as highlighted by Lord Burrows (at [133]), the deduction of living expenses from a lost years award will typically be greater than personal expenses calculated under the Fatal Accidents Act 1976.  This is because, under the 1976 Act, the analysis focuses on expenses which the claimant would have spent on himself, whereas for purposes of the lost years calculation the court will look at the claimant’s pro rata contribution to his family expenditures more broadly.

While courts may assess loss of earnings with the assistance of sophisticated statistical analysis and reports from actuaries and employment experts, it remains to be determined whether the more “broad brush” approach taken to assessing living expenses saved which prevails in claims for lost years made by adults will also be adopted by courts assessing lost years claims by children.  If courts adopt an individualised assessment of a claimant’s earning potential, why not adopt a more bespoke assessment of their expected living expenses saved?

In CCC, the schedule of loss presented by the claimant for the trial on quantum included the standard “broad brush” reduction for living expenses of 50%, however defendants may consider that child claimants would be even less likely to limit their expenses to 50% of their income than adult claimants.

Data from the Office of National Statistics indicates that pensioners spend a materially greater proportion of their pensions on living expenses than is accounted for in the broad brush approach adopted by many courts currently.  Defendants will want to develop a body of evidence demonstrating just how high living expenses are and how little will be left as disposable income, both generally and in a claimant’s individual case.

 

Conclusion

The Supreme Court decision to overturn Croke and confirm that young children may recover compensation for lost years will be welcome by claimants.  Claimants may also be emboldened by the comments of the majority, which indicate that they expect courts should have little difficulty finding this head of loss has been proven (to some extent) in cases where injury has resulted in reduced life expectancy.

It is reasonable to expect that the Supreme Court’s decision will impact how claimants and defendants approach employment, actuarial or other expert evidence, schedules and counter-schedules of loss.  Also, ADR and settlement in fatal or life-limiting claims involving children may now become a more protracted, involved and financially more significant process.  Personal injury practitioners will watch closely for the sums that High Court Judges award, as claims for lost years by young children begin to make their way through the system.

 

 

Analysis and review produced by Stuart Brady and Clark Gard of Farrar’s Building.  Stuart has a medical negligence specialism and Clark accepts instructions across the core areas of Chambers.  For further information, please contact the Clerking Team.

 

---

• Share article:

---