Lost years damages for child claimants
An overview of CCC (by her mother and Litigation Friend MMM) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent) [2026] UKSC 5.
The Supreme Court confirmed that child claimants could be awarded lost years damages in personal injury claims.
Accordingly, the appeal succeeded and the case was remitted to the trial judge to assess damages for the Claimant’s lost years.
“Lost years damages”
“Lost years” refers to the time between a claimant’s reduced life expectancy, as a consequence of their injury, and their life expectancy pre-injury.
The damages which may be awarded to compensate for those lost years is the sum of the claimant’s loss of earnings and loss of pension, minus their living expenses, over the course of those years.
Background
Liability was admitted. The Defendant failed to prevent the Claimant from suffering a hypoxic brain injury at birth, which resulted in her suffering from cerebral palsy.
The parties agreed that the Claimant’s injuries would reduce her life expectancy to age 29.
The parties also agreed that the Judge was barred from making an award for lost years damages because it was bound by the Court of Appeal decision in Croke v Wiseman [1982] 1 WLR 71.
The Judge declined to assess damages for lost years but granted a certificate for a leapfrog appeal to the Supreme Court to review the correctness of Croke v Wiseman.
The basis of the appeal to the Supreme Court
Whether the bar on lost years claims for children (as per Croke v Wiseman) was inconsistent with the earlier House of Lords’ authorities of Pickett v British Rail Engineering Ltd [1980] AC 136 and Gammell v Wilson [1982] AC 27.
Judgment
In CCC v Sheffield Teaching Hospitals NHS Foundation Trust, the majority found that Croke v Wiseman was inconsistent with Pickett and Gammell.
Previous authorities
Pickett and Gammell recognised the evidential difficulties of proving and assessing lost years damages for child claimants.
Pickett rejected the proposition that lost years damages were confined to claimants with dependants and Gammell attached no significance to the presence of dependants for the purpose of awarding lost years damages.
In conflict with those decisions, the court in Croke v Wiseman barred child claimants from being awarded lost years damages because of the absence of dependants who would benefit from the damages.
Assessing loss
In the present case, the Supreme Court acknowledged the difficulty in assessing lost years damages for a child claimant compared to an adult claimant. However, it was held that the difficult nature of the assessment would not act as a bar to recovery.
Loss of earnings
When calculating a child claimant’s loss of earnings, the majority in the Supreme Court found that judges would be assisted by evidence in relation to a child claimant’s particular situation, including; the child’s educational achievements, the occupation and attitude of the claimant’s parents and siblings, and evidence concerning the average earnings of a suitably tailored category of individuals.
Reliance on such evidence, which can be unrelated to the characteristics of the individual claimant, was a key criticism of Lady Rose’s dissenting judgment.
Living expenses
When calculating the deduction for living expenses for adult claimants, a conventional percentage is generally applied to the net earnings on a rough and ready basis. The majority held that a similar approach could be applied to child claimants[62].
Where the multiplier approach is used to calculate lost years damages, Lord Burrows anticipated that a high deduction from lost earnings for living expenses would be applied in child claimant cases to reflect the high degree of uncertainty involved [141-142].
Calculating lost years damages
The multiplier approach is the usual method for calculating lost years damages for adult claimants. Lord Burrows anticipated that this approach would usually be adopted in child claimant cases [150].
“To calculate damages for the lost years, it is usual to apply a multiplier derived from actuarial tables known as the Ogden Tables, reflecting the number of lost years (ie the difference between the claimant’s actual life expectancy and the life expectancy which the claimant would have enjoyed but for the injury), but discounted so as to allow for the fact that a lump sum is being given now instead of periodical payments over those years (and also to allow for any contingencies not already taken into account), to a multiplicand reflecting the net annual loss during that period (ie the loss of annual income net of tax, and after deduction of the claimant’s probable living expenses).” [7(4)]
Comment
This decision appears to reflect the purpose of compensation: to restore a claimant to their pre-injury position.
Unsurprisingly, there will be less direct evidence of the earning capabilities of a child claimant. Conversely, the older the claimant, the more established they will be in their career, and the more likely they will be able to adduce evidence to assist in quantifying their lost years damages.
The difficulty in assessing lost years damages for child claimants is mitigated by evidence of the claimant’s family’s circumstances and attitudes. This will provide courts with a helpful starting point.
Attempts to distinguish between the damages recoverable by adult and child claimants would arguably be artificial and risk undercompensating a child claimant.
Key Takeaways
Child claimants can claim for lost years damages.
The absence of dependants is not fatal to such a claim.
Evidence of a child claimant’s family’s earnings potential and attitude will inform the court’s assessment of such damages, especially where there is no direct evidence as to the claimant’s individual earning potential.
The Judgment is available here.
