The Supreme Court on Young Children & Lost Years

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The Supreme Court has this week ruled that young children with reduced life expectancy caused by negligence are entitled as Claimants to seek damages for losses suffered during their ‘lost years’.

The decision in CCC (by her mother and litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 resolves a fundamental inequality in the previous state of the law, leading to potentially higher awards for pecuniary losses in birth and child injury claims.  Lord Reed gave the leading judgment.

Five Supreme Court Justices heard the case of a child whose severe brain injury was negligently caused by hypoxia at birth.  Her life expectancy was reduced to 29 years. 

The issue was whether her recoverable loss is limited to earnings she would have made up to the age of 29, or whether she could claim for earnings lost over a whole working life until retirement – i.e. for earnings from her ‘lost years’. 

Four Judges reached agreement that she could recover for such a claim, with Lady Rose dissenting. 

The majority’s decision resolves a decades-old tension in the authorities on the issue of whether young child claimants can seek damages for losses during years lost through life-shortening injury.

The Court of Appeal drew attention to this unfairness as long ago as 2007 when Simon Taylor KC and William Latimer-Sayer appeared for the Claimant in Iqbal v Whipps Cross University Hospital NHS Trust [2007] EWCA Civ 1190.

The Court of Appeal in that case and Ritchie J. at first instance in CCC held that they were bound by the decision of a previous Court of Appeal in Croke v Wiseman [1982] 1 WLR 71 that no award for lost years can be made for claimants who were young children. 

The Claimant/Appellants’ team deserves for huge credit for taking their case to the Supreme Court and resolving decades of uncertainty.

The Supreme Court held that Croke v Wiseman is inconsistent with the leading authorities on lost years claims. The errors in Croke stemmed from a misinterpretation of Pickett v British Rail Engineering Ltd [1980] and Gammell v Wilson [1982].  Pickett and Gammell gave no basis for the proposition in Croke that a Claimant with no dependants cannot make claim for losses during years lost through injury. Lord Reed clarified that the loss suffered during a Claimant’s lost years is the Claimant’s own loss. At [49] he held 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 Supreme Court also made clear that the difficulty in quantifying loss should not stymie a Claimant’s right to claim for damages.  In Pickett, Lord Wilberforce remarked on the difficulties of assessing damages for young children when they can bring limited evidence of what their life earnings could have been. Whereas adult claimants can show a history of earnings as evidence for a ‘lost years’ claim, a young child can only speculate. In Gammell, Lord Scarman said that only a child television star may have an evidentiary basis which was more than speculative. In CCC the Supreme Court confirms that difficulty in assessing damages is not a sufficient reason to bar a claim for earnings in the lost years. To find to the contrary usurps the function of the law of damages in negligence: the role of the court is to put the Claimant in the position they would have been in had it not been for the negligence. Unless a head of claim is judges to be de minimis (fanciful or entirely speculative), a Claimant has a right to have damages assessed by the court. Lord Burrows held that ‘the availability and assessment of lost years damages turns on the normal need to prove loss’. In proving that loss, the Court has pointed to the significant developments to damages assessment in modern litigation. [§114] Whether through actuarial tables or a more sophisticated approach to statistics, today’s child claimants can evidence and quantify their losses with greater precision than at the time of Pickett, Gammell and Croke.

CCC resolves a longstanding tension in the law. In Iqbal, the Court of Appeal was bound by its earlier decision in Croke. All claimants injured as young children can now claim damages for the earnings they would have earned had it not been for the negligence that curtailed their life expectancy.