James Stitt

The United Kingdom Supreme Court recently delivered judgement in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5. This appeal concerned the question of whether seriously injured young children with a shortened life expectancy could claim damages for future loss of earnings beyond the date of their anticipated death. This type of loss is known as damages for “lost years”.

Prior to CCC, lost years jurisprudence had evolved in an incoherent manner, with some benches placing importance on factors which other benches considered irrelevant. The area was beset with the struggle to identify and apply consistent legal principle. The case law was replete with unresolved tensions, thus the question of lost years damages for children, and lost years damages more broadly, was ripe for review.

Pickett and Gammell

The first true lost years case to reach the highest court was Pickett v British Rail Engineering Ltd [1980] AC 136. It followed a number of conflicting decisions in the lower courts during the 1950s and 1960s. The appeal concerned, amongst other heads of loss, a lost years claim by a 53-year-old man with a dependant wife and two children. He had contracted mesothelioma from exposure to asbestos at work. His life expectancy had been reduced to less than one year by the date of trial. The claim for lost years damages failed at first instance, a holding which was repeated at the Court of Appeal (following precedent), but then reversed at the House of Lords, who held lost years claims were permissible.

The ratio for the court’s reversal was derived from common law principles, influenced by a case from the High Court of Australia, Skelton v Collins (1966) 115 CLR 94, where the court declined to follow the old English authorities (see Oliver v Ashman [1962] 2 QB 210) which they believed had departed from the general principle of compensatory damages, that “anything having a money value which the plaintiff has lost should be made good in money. This applies to that element in damages for personal injuries which is commonly called ‘loss of earnings.’ The destruction or diminution of a man’s capacity to earn money can be made good in money. It can be measured by having regard to the money that he might have been able to earn had the capacity not been destroyed or diminished. … what is to be compensated for is the destruction or diminution of something having a monetary equivalent … I cannot see that damages that flow from the destruction or diminution of his capacity to [earn money] are any the less when the period during which the capacity might have been exercised is curtailed because the tort cut short his expected span of life.” (per Windeyer J, p 129 in Skelton).

What is almost as important is what the justices did not hold as necessary elements of a lost years claim. The concern for how lost years damages might provide for dependants was an influential factor, but it was held as not essential that the plaintiff making a lost years claim have dependants. Passages in Pickett by Lords Wilberforce (pp. 147,149-150), Salmon (p. 154), Edmund-Davis (p. 162) and Russell (p. 166) explicitly ruled out a distinction in law between plaintiffs who did or did not have dependants who might be expected to ultimately benefit from a lost years award.

This ruling addressed an injustice (characterised as such by Lord Salmon, p. 152), as a seriously injured plaintiff with an unaffected life expectancy could claim for future loss of earnings and pension for the remainder of his projected life. By contrast, a plaintiff who suffered a similar injury, but who had his life expectancy reduced by the tort, would be denied damages for loss of earnings past the date of his projected death despite not just losing his earnings, but his life too. In Pickett’s case, denial of the claim would have meant a man who had worked all his life, and suffered injury that dramatically shortened his life expectancy, would have had no loss of earnings damage award for the last decade or so of his working life, a salary on which his non-working wife depended. A Fatal Accidents Act 1976 claim would have been open to his widow, but at that time FAA dependants’ claims had to give credit for anything she had already received from the estate, and this would be set off against any damages awarded under the FAA claim, the net effect being the widow would lose out financially unless a lost years claim brought by her husband was successful.

Pickett was closely followed in the House of Lords by Gammell v Wilson [1982] AC 27 which affirmed Pickett and extended its effect by ruling a lost years claim could be brought by the estate of a deceased victim of the tort under s.1 of the Law Reform (Miscellaneous Provisions) Act 1934. Legislative changes reversed the effect of section 1 not long after judgment in Gammell, but the central ratio remained that lost years claims were permissible, irrespective of the plaintiff’s age or the existence of dependants.

Gammell was followed by the High Court decision of Connolly v Camden and Islington Area Health Authority [1981] 3 All ER 250. This plaintiff, four years old by trial, had sustained brain damage shortly after birth due to a negligent overdose of anaesthetic. His life expectancy was reduced to 27.5 years. Comyn J held, that following Pickett and Gammell, a lost years claim was possible, and he could envisage circumstances where a substantial award could be made – such as for an only son set to inherit a successful family business. However, in the instant case there was no such compelling evidence of future lost years earnings before him, thus this element of the claim failed not because the law forbade it, but for the failure to prove the loss.

Croke v Wiseman

This was the background against which the Court of Appeal decided Croke v Wiseman [1982] 1 WLR 71. The plaintiff in this case was a seven-year-old boy who had sustained severe brain damage when he was 21 months old due to an act of clinical negligence. His life expectancy was reduced to 40. On the question of lost years, the ratio of Griffiths LJ (with whom Shaw LJ agreed) attributed the decisions of the House of Lords in Pickett and Gammell to the existence of dependants, contrasting this with the plaintiff at issue who, as a young child, had no dependants and would never produce any. Lord Denning MR took an even more restrictive view and considered both lifetime and lost years loss of earnings claims to be too speculative in the case of a young child and therefore no award should be allowed for either claimed loss. The court in Croke held that young severely injured children could not claim damages for future loss of earnings for the period beyond their projected life expectancy because they did not have, nor would they ever produce, dependants which might have benefitted from lost years damages.

Croke stood unchallenged since 1982 despite a raft of decisions which have expressed doubts about the ruling. One such case is Iqbal v Whipps Cross University NHS Trust [2007] EWCA Civ 1190, where the plaintiff sustained dystonic tetraplegic cerebral palsy caused by negligence during his birth. Looking at the lost years question, Gage LJ concluded the reasoning of Griffiths LJ in Croke was not consistent with Pickett and Gammell, noting the irrelevance of dependants that had been so established in the earlier cases, yet interpreted as a “holding of principle” in Croke. Despite this observation, the court was bound by precedent and thus compelled to deny the lost years claim and to leave any substantial change in the law to the House of Lords or Parliament. The plaintiff in Iqbal was granted permission to appeal but the case resolved through settlement before any arguments could be tested in the highest court.

CCC v Sheffield Teaching Hospitals NHS Trust

The issue finally reached the UKSC in late 2025 in the form of CCC v Sheffield Teaching Hospitals NHS Trust. It was another case of clinical negligence, where the plaintiff suffered severe chronic partial hypoxic ischaemia during her birth, which caused her to develop cerebral palsy. The defendant NHS Trust did not dispute liability and the case proceeded on quantum only. The cerebral palsy left the plaintiff requiring constant care and reduced her life expectancy to 29 years. She was eight years old at the time of trial. Her loss of earnings up to age 29 were agreed, and the figure was approved by the trial judge. The parties also agreed the law, as it stood following Croke, would prevent the plaintiff from claiming any loss of earnings damages for her lost years. For the plaintiff, this meant there could be no recovery for her lost earnings between age 29 and her projected retirement age of 68, and no claim for pension loss thereafter.

The court had been asked only to rule on the correctness of Croke. The UKSC held, by a majority of 4 to 1, that Croke was incorrectly decided and should be overturned. 

The following points can be distilled from the majority judgements in CCC:

1. lost years claims are permissible, irrespective of the age of the plaintiff and the existence of dependants;
2. such losses are to be calculated in the same manner as loss of earnings prior to the projected date of death, with a deduction for living expenses; and
3. plaintiffs are entitled to have the court quantify their full loss notwithstanding the forensic difficulty that may present.

After analysing the authorities and teasing out the rationes decidendi, Lord Reed (with whom Lord Briggs agreed) and Lord Burrows concluded Croke was wrong in legal principle and inconsistent with the relevant authorities.

As discussed above, the reliance of the court in Croke on the existence of dependants as essential to a lost years claim is plainly at odds with Pickett and Gammell. Lord Reed noted there may be a rational basis for drawing such distinctions for reasons of social policy, but it is for Parliament to legislate on the matter and not for the judiciary [51].

Lord Burrows [94-97] observed the court in Pickett, with the exception of Lord Wilberforce, did not rule out lost years awards in cases of young child plaintiffs, rather such awards could in principle be made but they would face steep hurdles in proving the loss, allowing for remoteness and paucity of evidence as to future likely earning prospects.

Lord Reed [52-58] rejected the argument that assessing damages for an injured child was a matter of speculation. Noting that while the future is uncertain and subject to countless contingencies, claims for future loss are always for something which is uncertain and that uncertainty is something which is taken into account by the court when making its assessment. The role of the court includes assessing damages as best it can on the available evidence. The court will not draw an arbitrary line between young children, adolescents and adults as such distinctions have no basis in legal principle [63].

Both Lord Reed [59] and Lord Burrows observed [116-122] that the practice on proving loss has developed substantially since the 1980s, with the introduction of actuarial evidence, in the form of the Ogden Tables, which has been continually refined and anointed with judicial approval in Wells v Wells [1999] 1 AC 345. Such actuarial evidence should not be adhered to slavishly but rather is an authoritative starting point which can be departed from to take into consideration special factors of the case. A broad brush approach to future loss (as in Smyth v Manchester or Blamire cases) is still employed in cases of where such uncertainty exists that the more scientific Ogden Tables approach is inappropriate.

Lord Stephens, in his concurring judgement [152-163] emphasised “the duty on judges to assess damages in circumstances where a cause of action has been established and a loss has been sustained”. Lord Stephen’s judgement addressed a number of objections raised on behalf of the Trust who argued the lost years earnings and pension claim were too speculative for the court to assess. This argument was roundly rejected on similar grounds to those Lord Burrows had cited regarding the increased sophistication in the practice of proving loss.

Lady Rose, dissenting, argued for a principled distinction between adult and child plaintiffs [164-165]:

More change on the horizon?

Both Lord Reed and Lord Burrows suggested the whole question of lost years damages may be ripe for reappraisal. The court in CCC was not asked to look at whether Pickett should be overturned, thus the court’s holding was made on the assumption that the concept of lost years damages was legally sound. 

Lord Burrows noted [145 and 150]:

Lord Reed [5] raised a fundamental question about what precisely the lost years award was to compensate:

Concluding reflections

The development of lost years damages, like much of the common law, has been piecemeal, characterised by bursts of jurisprudence punctuating long periods where the law has lain ostensibly settled but for the right case to come along. It is easy to sympathise with a plaintiff like that in Pickett, who in late middle age, and with a dependant wife and two children, found out he had months to live. To deny lost years damages on such facts feels unjust. Yet one can also understand how 40 years ago, in a pre-Ogden landscape, the courts would be hesitant to extend such damages to young children on which nobody was, or would be, financially dependent. Further, due to the extreme youth of the typical plaintiff at the time of the injury, no evidence could be produced to support a likely career trajectory particular to that individual plaintiff. The question of dependents was of course a red herring which led the court into error in Croke and the actuarial and statistical sciences have developed such that forecasting the retirement income of a brain damaged infant is considered no longer purely speculative (Lady Rose’s dissenting opinion excepted).

It remains for a future court to resolve the outstanding questions about how the loss is to be characterised – an immediate diminution of the plaintiff’s ability to earn or compensation for future loss, and if the latter how would that be justifiable to continue after death when other heads of compensation cease upon death? I note the former was preferred by Windeyer J in Skelton, which itself was influential on the court in Pickett. Both options will no doubt present conceptual difficulties. For now, practitioners will welcome the certainty provided by the majority in CCC, notwithstanding it is unlikely to be the last word on the subject.

James Stitt is a barrister in Northern Ireland whose practice includes personal injury and clinical negligence litigation.