THE principle of compensatory damages for tort victims is beguilingly simple. As Lord Blackburn explained in Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25 (H.L.), the court awards “that sum of money which will put the party who has been injured […] in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation” (p. 39). This counterfactual enquiry is very difficult in practice where the claimant has been catastrophically and permanently injured, as “what will happen?” and “what would have happened?” are both unknowable at trial. But where the catastrophic injury has also reduced the claimant’s life expectancy, the enquiry is conceptually difficult as well. This is the “lost years” conundrum: if an injured claimant with reduced life expectancy would have earned money during years when they will now, ex hypothesi, be dead, should they recover compensation for the income they will not now earn in those lost years, even though they will not be around to spend it?

The House of Lords in Pickett v British Rail Engineering Ltd. [1980] A.C. 136 (“Pickett”) decided that an adult claimant with mesothelioma whose life expectancy was greatly reduced could claim damages for his pecuniary loss during the lost years, calculated as his net income subject to a (scrupulously compensatory) deduction for the living expenses he would, ex hypothesi, not need to incur. A subsequent Court of Appeal decision, Croke v Wiseman [1982] 1 W.L.R. 71 (“Croke”), held that Pickett did not apply to child claimants with reduced life expectancy. In CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5, [2026] 2 W.L.R. 385 (“CCC”) the Supreme Court had to decide (following a leapfrog appeal from the High Court) whether Croke should be overruled and Pickett applied to a child claimant.

The claimant in CCC suffered a severe brain injury as a consequence of hypoxia during her birth, resulting from clinical negligence for which the defendant health authority accepted responsibility, leaving her entirely dependent on others, with no prospect of improvement. Her life expectancy was agreed to be 29. Indeed, much was agreed between the parties. In particular: on the law, Pickett was not challenged and was assumed to be correct; and, on the facts, the defendant accepted evidence that the claimant would have gained GCSEs and proceeded to further education and would have earned £160,000 by the age of 29 (lost income for child claimants is routinely calculated and awarded on this basis – see e.g. Iqbal v Whipps Cross University NHS Trust [2007] EWCA Civ 1190, [2008] P.I.Q.R. P9). As Lord Reed said, the only “issue which the court has to decide is the correctness of the decision in Croke v Wiseman that lost-years damages cannot be awarded to a young child” (at [8]).

By a majority (Lady Rose dissenting) the Supreme Court held there was no reason of principle why Pickett should not be applied to child claimants, so Croke was overruled and CCC remitted to the High Court for lost-years damages to be assessed.

The Court of Appeal in Croke had purported to distinguish Pickett by emphasising that the House of Lords’ justification for awarding lost-years damages was to enable the adult claimant to make provision for his existing dependants, whereas a severely injured child did not have and never would have any dependents. (As an aside, the adult claimant in Pickett had died by the time of the House of Lords hearing, so their Lordships had to worry about whether the lost-years claim survived for the benefit of his estate, alongside a new claim for lost dependency arising under the Fatal Accidents Act 1976. This potential for double recovery has since been ruled out by statute – claims for income after death now do not survive for the benefit of a deceased’s estate.) Concern about a claimant with dependants who would lose their source of support following the claimant’s death was the “driving policy” concern in Pickett (CCC, at [114] (Lord Burrows)). However, none of their Lordships in Pickett regarded the existence of dependants as essential for recovery. For example, Lord Salmon said “the law can make no distinction between the plaintiff who looks after dependants and the plaintiff who does not” (p. 154). Lord Reed in CCC observed that “a rational distinction might be drawn in cases of this kind, for reasons of social policy, between persons with dependants and persons without dependants. However, in the absence of any legal principle which could justify drawing such a distinction, doing so for reasons of social policy lies within the domain of the legislature rather than the courts” (at [51]).

The principal justification for Croke, relied on by the defendants in CCC, was that it would ordinarily be impossibly speculative to assess lost-years damages for young children, though exceptionally this might not apply to a child who worked. This was expressed in Gammell v Wilson [1982] A.C. 27 (H.L.) (awarding lost-years damages to a 15-year-old who had started work at 14), where Lord Scarman opined:

The majority of the Supreme Court in CCC dismissed this justification for several reasons. The randomness of a “child television star exception” highlights that there is no reason of principle to deny lost-years claims to child claimants, especially as the means of assessing future pecuniary loss have become more objective and sophisticated since the authorities from the 1980s, with the routine use of the actuarial Ogden Tables. The clinching argument was that child claimants are routinely awarded damages for future pecuniary loss during their expected lifetimes, by taking evidence of their close family members’ levels of education and earning capacity, so it should not be any more speculative for lost years. The only additional concern in lost-years claims is assessing the appropriate deduction for living expenses, but as Lord Burrows explained, “there is normally a rough and ready percentage reduction made to the multiplicand for the after-death period as a method of deducting for living expenses” (at [134]).

Lady Rose disagreed:

Lady Rose acknowledged the logical force of the argument that damages for future pecuniary loss are awarded to very young children, but nonetheless thought an important line should be drawn:

The majority judgments and Lady Rose’s dissent are all impeccable examples of private law judicial reasoning. But there are limits to what judges can consider and (to the present author at least) looking at CCC in its broader social context generates unease. It is orthodox and trite that the common law requires tortious compensation to be paid only to tort victims, while the defendant’s identity and source of funds is ignored. Adults tend to be injured by their employers or by drivers, both compulsorily insured, whereas negligence claims by infants are generally based on obstetric negligence by the NHS, as in CCC. The NHS Resolution has reported that, in 2024–25, the NHS (funded by the taxpayer) paid out £1.3 billion to meet obstetric negligence claims, over 40 per cent. of the clinical negligence compensation paid in that year (NHS Resolution, Annual Report and Accounts 2024/25 (London, HC 1065, 61)). The effect of CCC will be to increase that figure substantially, in order to give the estate of an unfortunate child claimant a considerable windfall when the child’s reduced life expectancy sadly comes to pass. A decent, empathetic person will feel nothing but overwhelming sympathy for CCC and her devoted family and carers. But what of another child (e.g. BBB) born with an equivalent severe disability, also wholly dependent on others with no prospect of recovery, whose disability was congenital and not caused by negligence? As a society, are we comfortable that CCC’s compensation will exceed what she can possibly need in her curtailed lifespan, while BBB and his equally devoted carers must rely on social security benefits? The taxpayer funds both sources and there can only be so much to share out. Of course, the Supreme Court cannot solve this moral dilemma; it can only apply the law. But within the silo of available private law principles, it is surely right at the very least, as Lord Burrows alone suggested, to revisit whether there is any justification for lost-years damages if the claimant has no dependants. If not, Parliament must intervene.