Where a claimant has a reduced life expectancy as a result of a tortious injury, he is entitled to claim damages in respect of his net loss of income in the years between his anticipated death, and the age that to which he would have lived but for the injury (“the lost years”).

There are three stages to assessing damages under this head:

a. The court must assess the claimant’s likely annual income over his life time (net of tax and national insurance); this may involve assessing a different net annual income for particular periods, for example for the period following retirement;

b. Calculate a multiplicand (or multiplicands) by making an assessment of the percentage of the Claimant’s income which he would have spent on his personal living expenses, and deduct that from the net income figure; again different living expense percentages could be applied to different periods; in practice in almost all the reported cases a deduction of 50% is made throughout the whole of the lost years period;

c. Apply a multiplier derived from the Ogden tables discounted to reflect early receipt.

Until recently such claims were subject to two main restrictions:

a. No claim can be made for lost years damages by the estate of an injured person who has since died: section 4 of the Administration of Justice Act 1982 – this remains the case

b. No claim could be made by child claimants: see Croke v. Wiseman [1982] 1 WLR 71

The Decision in CCC v. Sheffield Teaching Hospitals [2026] 2 WLR 385

The Supreme Court reviewed the authorities and decided that there was no reason in principle why (living) child claimants should not be able to seek damages for their loss of income in the lost years.

The claimant in CCC suffered a severe brain injury at birth. Liability was admitted. Her claim came before the Andrew Ritchie J in 2023 when she was 8 years old. The parties agreed that the Judge was bound by Croke v. Wiseman and therefore no “lost years” award could be made. However at a subsequent hearing he granted permission for a “leap-frog” appeal the Supreme Court on the issue.

Following a hearing in February 2026, by a majority of 4 to 1 (Lady Rose dissenting) Croke v. Wiseman was overruled.

The Supreme Court made no assessment of the appropriate level of damages instead remitting the case back to the High Court.

However some of the judgments contained comments suggesting that the approach to the assessment of the reduction for living expenses should be different in the case of a child claimant. Lord Burrows stated that in the case of a child claimant there might usually be a higher percentage deduction for living expenses (paragraph 150). Lord Stephens advised that “suitable moderation” was required as a result of the uncertainties but went on to say “that uncertainty should not lead a court to making inappropriately parsimonious awards.” (paragraphs 158 and 162).

However Lord Reed’s view was that the calculation for child claimants was no different from adult claimants:

“Once the probable income has been assessed, the appropriate deduction to make in respect of living expenses need not present any greater difficulties in the case of a claimant who is a child than in the case of an adult. In practice, in cases brought by adults, a conventional percentage is generally applied to the net earnings on a rough and ready basis. There is no reason why a similar approach cannot be applied in cases brought by children, as is the practice in other jurisdictions.” (per Lord Reed at paragraph 62)

The decision in JBX v. Frimley Health NHS Foundation [2026] EWHC 2294 (KB)

This was the first occasion on which the court was required to make an assessment of a “lost years” claim in respect of a child.

At age 8 JBX suffered a hypoxic brain injury as a result of severe asthma attack. He was left profoundly disabled. The attack could have been avoided had he been prescribed steroids. Liability was admitted. JBX was left with very significant disabilities both physical and mental: he required 24-hour care, would never work and was not expected to live beyond age 26.

The case came before Andrew Kinnier KC sitting as a Deputy High Court Judge in May 2026 for an assessment of damages. JBX was almost 17 (so arguably could have pursued a lost years claim regardless of the decision in CCC).

The claimant’s case (both for his loss of earnings, and for his lost years claim) was that his projected loss of earnings should be based on those of his father who was a successful salesman earning a six-figure salary. The defendant contended that given the uncertainties of what the claimant would earn, the claim should be based on average earnings.

In respect of the discount for living expenses the claimant contended for usual deduction of 50%. The defendant argued for a deduction of 90%.

The claimant’s pleaded case was for about £2million. The defendant (having initially denied the claim completely) advanced a figure of £128,000.

After a lengthy judgment, in which the judge reviewed all the relevant authorities, he found for the Defendant on the issue of average earnings, but applied the usual discount for living expenses of 50%, rather than the much higher figure contended for by the Defendant. The award ultimately made was for £741,000.

The Judge also made a finding on JBX’s likely retirement age had he survived, which is relevant to all future loss of earnings assessments for young claimants. The claimant argued that as JBX would not have reached retirement age until 2079, the Judge should not base the calculation on the current state pension age of 67 or 68, but should instead assume that the retirement age will have increased to (at least) age 70 by that date. The Judge accepted this submission.

JBX was represented at trial by David Tyack KC and Nigel Spencer Ley.