Clinical negligence specialists Anthony Searle and Allegra Enefer analyse the Supreme Court’s landmark ruling on lost years damages for infant claimants in the case of CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5.
Introduction
On 18 February 2026, the Supreme Court allowed CCC’s appeal by a majority of four to one: [2026] UKSC 5, at [64], [150]–[151], and [163]. Croke v Wiseman [1982] 1 WLR 71 — the Court of Appeal authority that had, for forty-four years, barred lost years damages for young children — is overruled. The case is remitted to Ritchie J for assessment of the lost years claim.
The result had been widely anticipated. What matters for practitioners is not just the outcome but how the Court got there, what it left unanswered, and what the decision means for future cases.
What are ‘lost years’ damages?
Where a tortfeasor’s negligence shortens a claimant’s life expectancy, the claimant may claim for the pecuniary benefits they would have received during the years of life taken away — the ‘lost years’. In practice, this means the earnings (net of tax) that would have been generated during those years, less a deduction for the claimant’s own probable living expenses, on the logic that those expenses will never in fact be incurred. The result is sometimes described as the ‘surplus’: what the claimant would have kept, spent on others, or saved.[i]
The claim is well-established for adults. Pickett v British Rail Engineering Ltd [1980] AC 136 overruled the Court of Appeal’s earlier refusal to recognise the head of loss at all. Gammell v Wilson [1982] AC 27 confirmed the principle. What CCC resolves — definitively — is whether those principles extend to claimants injured as infants.[ii]
How CCC reached the Supreme Court
CCC suffered a hypoxic brain injury at birth in 2015 as a result of the defendant Trust’s admitted negligence. By the time of the quantum trial ([2023] EWHC 1770 (KB)), her life expectancy was agreed at 29 years. But for her injuries, she would have had a normal life expectancy, would likely have worked to 68, and would have received a pension thereafter. Her loss of earnings to age 29 was agreed at £160,000, approved by Ritchie J [171]. The lost years claim — the period from age 29 until what would have been her normal end of working life and beyond into retirement — was a different matter.
Both parties accepted that Ritchie J was bound by Croke. No submissions were made on the lost years claim, and the judge declined to assess damages even provisionally, observing that the conflicting principles were ‘not a matter for off the cuff judgments’ [172]. He was right on that. Following a further hearing, he granted a leapfrog certificate (see [2023] EWHC 1905 (KB), [2024] 1 WLR 1307).
The route through the Court of Appeal would have been pointless. Iqbal v Whipps Cross University Hospital NHS Trust [2007] EWCA Civ 1190 had already confronted Croke. The Court of Appeal considered Croke inconsistent with Pickett and Gammell, declined to follow it, and then held itself bound by it anyway. Gage LJ ended with the observation that ‘the error, if error it be, must be corrected by the House of Lords’ (at [64]). That correction has now been made.
The Supreme Court’s analysis
What all five Justices agreed
Before turning to the disagreement, the areas of agreement are striking. All five Justices accepted four propositions [7].
- Pickett established, and Gammell confirmed, that lost years damages are recoverable in English law.
- Those authorities do not restrict lost years damages to claimants who have, or may have, dependants.
- Lost years damages are in principle available to claimants injured in early childhood, provided the loss can be proved.
- The usual assessment methodology is ‘multiplier x multiplicand’ (net annual loss after deduction of living expenses), with the multiplier derived from the Ogden Tables.
Proposition (3) is, of course, the one that decides the appeal. But the unanimity on proposition (2) is equally telling: Lady Rose did not dissent on the issue of dependants. That part of Croke — always the weakest limb, in our view — was abandoned entirely.
Why Croke was wrong: the dependants point
Lord Reed (with whom Lord Briggs agreed) dismantled Croke’s central reasoning with care. Griffiths LJ’s essential move in Croke was to treat the existence of dependants — and the consequential social purpose of providing a fund for them — as the justification for lost years damages. No dependants, no purpose, no award.
Lord Reed identified two problems with this. It contradicts the compensatory principle, under which a claimant recovers for their own loss, not for losses sustained by third parties, and the award is not conditional on how it is used [49, 53]. And it was expressly rejected in Pickett: Lords Wilberforce, Salmon, Edmund-Davies and Russell each made clear, in terms, that lost years damages are available regardless of whether the claimant has dependants [50].
Lord Burrows, concurring, added a further objection: the reasoning in Croke ‘proves too much’ [137]. If the availability of the head of loss truly turns on whether there are or will be dependants, then some adults — the unmarried, the childless — would be in the same position. Nobody ever suggested that. The inconsistency reveals the underlying confusion.
The appropriate response, Lord Reed held, is that any policy distinction based on dependants is a matter for Parliament, not for courts to retrofit into existing doctrine [51].
Why Croke was wrong: the speculation point
The Defendant’s alternative case was that the assessment of a child’s lost years is simply too speculative to justify any award [52]. This is the argument that commands the most practical attention.
The majority dealt with it directly. Lord Reed’s starting point was orthodox: where a claimant has plainly suffered substantial loss, the difficulty of precise quantification does not justify awarding nothing. The court is required to assess damages ‘as best it can’ on the available evidence [57]. The evidential difficulties are generated by a defendant’s own negligence and cannot be used to deprive a claimant of compensation [58]. As Bowen LJ suggested Ratcliffe v Evans [1892] 2 QB 524, to insist on a standard of certainty that the subject-matter cannot satisfy would be ‘the vainest pedantry’ [56].
Lord Reed also made two more specific points about how the assessment landscape has changed since Croke was decided in 1982. First, the Ogden Tables — now an essential tool in any loss of earnings calculation — have materially reduced the difficulty of identifying an appropriate multiplier even where the loss will not arise until the ‘distant future’ [59]. Second, there is now considerable experience, in English courts and elsewhere, of using evidence about a claimant’s family background, educational attainment and parental occupations as a legitimate basis for estimating probable earnings — not as ‘prejudice or stereotyping’, but as the best available guide to what this particular claimant might have achieved [60].
In CCC’s case, that approach produced a concrete outcome: the parties were able to agree, on the evidence available, that CCC would have worked in a similar field to her mother and aunts, working to 68 and receiving a pension thereafter [2, 61]. As Lord Reed observed, ‘[t]he fact that professionally advised parties have been able to reach such an agreement is something to be borne in mind when considering assertions about the difficulties of proof in cases of this kind’ [2].
As for living expenses — the additional complication in lost years claims — Lord Reed saw no reason why conventional percentage deductions, routinely applied in adult cases on a rough-and-ready basis, could not similarly be applied in children’s cases [62]. Lord Burrows agreed, anticipating that the deduction would often be ‘high’ to reflect the degree of uncertainty involved [150(ii)]. Lord Stephens went further, emphasising that uncertainty should not drive courts towards ‘inappropriately parsimonious awards’ [162].
Lord Stephens also offered what may be the neatest illustration of why the Defendant’s position was untenable. Imagine identical twin sisters, both catastrophically injured at age 1 in the same accident; one’s life expectancy is reduced to 30, the other’s to 40. The forensic difficulty of estimating what they might have earned between age 30 and 40 — and what their living expenses might have been — is identical. Yet on the Defendant’s argument, the twin with the shorter life expectancy would recover nothing for that period. That outcome is ‘incoherent’ [160].
The dissent: where the future fights will be
Lady Rose’s dissent is sophisticated and deserves serious attention. She did not seek to revive Croke’s dependants reasoning, and she accepted the compensatory principle. Her concern was different and more fundamental.
Her position was that tort law compensates this claimant for their loss. For an adult claimant, there will be actual evidence about the individual: their work history, qualifications, earnings track record, and physical capabilities. Even if that evidence is limited, it is at least evidence about the person whose loss is being assessed. For a child — particularly a child injured at or near birth — there may be no such evidence at all. The court is then forced to derive the multiplicand not from the claimant’s individual characteristics but from the characteristics of others, including family members, statistical cohorts, and gender groups. Lady Rose found this ‘uncomfortable’ [164–166].
Her concern about forensic asymmetry is pointed. Courts may be drawn to uplifts where a child’s family is high-achieving, but will fall back on average figures where it is not. That creates an asymmetric exposure for defendants whose liability is determined less by what they did than by the socio-economic profile of the claimant’s family [192]. The rhetorical question she posed about the family in Gammell is sharp: if young Mr Gammell had been severely injured at birth rather than killed at 15, ‘would the court have been entitled to assume that because of his “Romany blood” he would have spent his working life fruit-picking and road-surfacing?’ [187]
Lady Rose would have drawn the line at the end of the survival period. Courts may (and do) assess lifetime earnings for catastrophically injured children: there is a practical social need for such an award, which can be used for care and support during the claimant’s actual life. The same practical necessity does not exist for earnings during the lost years, when the claimant will not in fact be alive to incur any expenses or needs at all [204].
The majority’s answer — that the difficulty of the exercise is a matter for quantification and moderation, not for withholding the head of loss altogether — is, in our view, convincing. There is also a more fundamental response to Lady Rose’s concern: the evidential difficulties she identifies are partly a product of the defendant’s own negligence. A tortfeasor who inflicts a catastrophic injury on a child at birth cannot then rely on the resulting absence of individualised evidence to reduce their liability. That is a version of the ‘eggshell skull’ principle applied to the evidential consequences of the tort, and Lord Reed was alive to it [58].
But Lady Rose’s dissent nonetheless identifies the real battleground for future cases: whether the evidence adduced to establish the multiplicand in a lost years claim is truly about this claimant, rather than a proxy constructed from family background.
Lord Burrows’ obiter: a flag for the future
The most significant passage for longer-term development is Lord Burrows’ obiter at [143–150(iii)]. Having agreed that Croke must be overruled, he expressed the view that a reconsideration of Pickett itself is called for — with a seven-Justice court and full submissions — to address two unresolved issues [144].
The first is ‘whether there is any convincing justification’ for treating a lost years award as compensating a pecuniary loss of the claimant at all. The claimant can suffer no loss once dead, and the theoretical response — treating earning capacity as a capital asset diminished by the injury during the claimant’s lifetime — does not sit entirely comfortably with how human beings are usually conceptualised in law [145–147]. The second is whether Pickett should be reinterpreted so that lost years claims are available only as a mechanism for compensating dependants — meaning that where there are and will be no dependants, no award should be made even to an adult [148].
The court in CCC expressly declined to rule on either point [5]. But the invitation is there in black and white. If the right case arises, these questions will matter for how the law treats pension losses and other economic benefits that might have accrued during the lost years.[iii]
What happens next for CCC?
The case returns to Ritchie J, who must decide both whether a lost years award is made out on the facts and, if so, its value.
On the first question, Lord Burrows anticipated that an award will indeed be made [151], and Lord Stephens described it as ‘extraordinary’ not to make any award once a reduced life expectancy has been established [162]. On these facts, that seems right. The agreed evidential basis — a close-knit family with a strong work ethic, a brother doing well academically with aspirations to read law, and aunts working as a senior procurement specialist and a staff nurse [2] — provides a more solid foundation than many child claimants will be able to construct.
On quantum, the parties were far apart. CCC’s schedule claimed £823,506, but Ritchie J himself (having heard all the evidence at the quantum trial) said the award would likely be ‘substantially lower’: [2024] 1 WLR 1307 at [45]. The key variables are the Ogden multiplier, the multiplicand (agreed in principle), and above all the living expenses deduction. With the existing case law ranging between 50% (in Eagle v Chambers) and 75% (in Wooding v Torbay DC), there is real scope for dispute. Ritchie J’s assessment will be closely watched.
What this means in practice
For claimant lawyers: Lost years claims should be considered in all cases involving infant claimants with reduced life expectancy. The head of loss is established; the question is proof. Build the evidential foundation early, including family background, parental and sibling occupations, and attitudes to education. Consider whether any expert evidence is reasonably required on these issues (e.g. from educational psychologists and/or employment experts). Address the living expenses deduction head-on rather than simply asserting a conventional figure. The UKSC signalled that the deduction will often be substantial, but it must be assessed on the facts rather than assumed [158]; a well-evidenced position on this point is worth having.
For defendant lawyers: The categorical bar to these claims is gone. The battleground is now quantum. Lady Rose’s dissent provides a structured critique of proxy-based evidence that is available even under the majority approach. Courts can and should scrutinise whether the earnings evidence is truly about this claimant. A high living expenses deduction is consistent with the majority’s own reasoning [150(ii)]. In cases where the evidential foundation is genuinely thin, a modest broad-brush figure could be more appropriate than a mechanistic calculation that produces a false sense of precision. Consider whether to challenge any request for expert evidence from the claimant’s legal team on the basis that it will not meet the test in CPR 35.1 and will be unlikely to take the lost years claim beyond speculation.
For all practitioners: Lord Burrows’ express invitation to revisit Pickett is not to be overlooked. It raises the possibility that the entire basis for lost years damages — not just the exclusion for children — could one day come before a seven-Justice court. The existing law cannot be taken entirely for granted. Lawyers on both sides should bear this in mind when advising their clients on lost years claims and the risks going forward.
Over the last decade, Anthony Searle has built a flourishing specialist practice in clinical negligence, acting for claimants and defendants in complex and high-value cases. He has significant experience in claims involving children. As Hon. Secretary of the Professional Negligence Bar Association, Anthony represents and promotes the interests of clinical negligence barristers on a national level.
Allegra Enefer is developing a busy practice in clinical negligence and healthcare law, acting for claimants and defendants in complex and sensitive cases. She is published on healthcare law in the International Journal of Law and Psychiatry, Bristol University Press, and the LSE Law Review.
[i] The living expenses deduction in lost years claims is calculated differently from the corresponding deduction in a dependency claim under the Fatal Accidents Act 1976. In a lost years claim, the deduction covers all of the claimant’s own living expenses, including a pro rata share of household expenditure. In a 1976 Act claim, only the amount spent exclusively on the claimant is deducted. This was settled by the Court of Appeal in Harris v Empress Motors Ltd [1983] 1 WLR 65, which overruled first instance decisions that had wrongly applied the 1976 Act methodology to lost years claims. In practice, both exercises are typically performed on a rough-and-ready percentage basis: see Lord Burrows at [133]–[134] and [141]. The mechanics are summarised in Kemp & Kemp: Quantum of Damages, Vol 1, paras 10-044–10-045.]
[ii] For a summary of the position before CCC, including the pre-appeal Kemp commentary on Croke and Iqbal, see Kemp & Kemp: Quantum of Damages, Vol 1, para 10-049.1.
[iii] McGregor on Damages (22nd edn), para 41-119. For the lost years methodology generally, see also Facts & Figures 2025/26, Section F2.