Supreme Court Removes Bar On Lost Years Damages For Young Children: CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5
19th Feb 2026
In CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 (“CCC v Sheffield Teaching Hospitals”), the Supreme Court has held by a majority that a young child whose life expectancy has been shortened as a result of negligence is not barred in principle from recovering damages for pecuniary losses during the so-called “lost years”. In doing so, the Supreme Court has overruled the Court of Appeal’s decision in Croke v Wiseman [1982] 1 W.L.R. 71 (“Croke”), which for four decades had imposed a restriction on lost years damages in claims by young children.
The landmark decision resolves a long-recognised inconsistency in the authorities and brings claims by young children back in line with the compensatory principles applied to adolescents and adults. The judgment is also notable for the Court’s observations on the conceptual foundations of lost years damages more broadly, potentially signalling further litigation before the Supreme Court down the line.
The facts of the case
The Claimant, a child, had suffered a serious brain injury as a result of hypoxia during her birth. The Defendant admitted that the hypoxia resulted from clinical negligence on its part.
Due to the brain injury, the Claimant’s life expectancy was reduced to 29 years. But for the Defendant’s negligence, she would likely have lived a normal lifespan and been able to gain qualifications, enter paid employment, and eventually receive some form of pension – assumptions on which the parties agreed.
The parties were able to agree the value of the Claimant’s loss of earnings up to the age of 29, i.e., her loss of lifetime earnings. The matter in dispute concerned whether the Claimant was entitled to any award for pecuniary losses during the lost years, i.e., the additional years of life that she would have enjoyed but for the Defendant’s negligence causing a reduction in her life expectancy.
At first instance, the parties agreed that the trial judge was bound by the decision of the Court of Appeal in Croke. In that case, the Court of Appeal held that, where a claimant was a very young child, damages for lost years were not recoverable in principle. Bound by Croke, the trial judge therefore declined to make any award in respect of lost years. However, given the acknowledged tension between Croke and earlier House of Lords authority, the judge granted a certificate for a leapfrog appeal to the Supreme Court so that the correctness of Croke could be determined.
The legal issue
The central issue before the Supreme Court was whether Croke was consistent with the principles established by the House of Lords in the earlier cases of Pickett v British Rail Engineering Ltd [1980] AC 136 (“Pickett”) and Gammell v Wilson [1982] AC 27 (“Gammell”).
The position in the law prior to CCC v Sheffield Teaching Hospitals
Prior to CCC v Sheffield Teaching Hospitals, the authorities produced an uneasy state of affairs.
In Pickett, the House of Lords held that a claimant whose life expectancy had been shortened as a result of negligence could recover pecuniary losses for his lost years. That decision itself overruled the earlier Court of Appeal authority of Oliver v Ashman [1962] 2 QB 210, in which it had been held that such damages could not be awarded. The House of Lords held that allowing such damages aligned with the long-established principles of the common law in relation to the assessment of damages, in that it compensated the claimant for the non-receipt of a revenue stream which would otherwise have accrued in the future or for an immediate diminution in the earning power that the claimant would otherwise have had. The principle established in Pickett was confirmed and developed in Gammell.
Neither Pickett nor Gammell concerned claimants who were young children. In Pickett, the possibility of claims for lost years damages by young children was considered obiter. Lord Salmon and Lord Scarman acknowledged the possibility of such claims, although the difficulties of proof and assessment were also noted. Indeed, Lord Wilberforce appeared to regard those difficulties as potentially insuperable. However, nothing in the judgment – nor in the judgment in Gammell – barred such claims.
Despite this, the Court of Appeal in Croke held that the principle established in Pickett and Gammell did not apply where the claimant was a young child. In that case, Griffiths LJ considered that there were compelling social reasons for making an award for the lost years in the case of a mature claimant, namely that the damages would be available to support dependants after the claimant’s death. Those considerations, he held, did not apply to a young child who had no dependants and, in cases involving the death or catastrophic injury of that child, would never have any. He therefore considered that a distinction should be drawn between damages for loss of lifetime earnings and damages for the lost years. The result was a categorical rule: where the claimant was a young child, lost years damages were not recoverable.
The law was therefore left in a position where, on the one hand, the House of Lords in Pickett and Gammell had established that a living claimant could recover damages for pecuniary loss during the lost years. That loss was to be treated as the claimant’s own loss, and the assessment was to be carried out on the application of the normal principles and practice on proof of loss. On the other hand, Croke imposed a blanket exclusion for young children.
The effect of Croke was that a claimant’s entitlement to damages for the lost years depended not on the nature of the loss, but on the claimant’s age. This approach sat uneasily with the compensatory principle underlying Pickett and Gammell. It created a seemingly arbitrary distinction between different categories of claimant: a young adult or adolescent with a shortened life expectancy could recover damages for the lost years, but a very young child could not, even where the reduction in life expectancy was caused by the same type of negligence.
These difficulties were acknowledged in a number of subsequent cases. In Whipps Cross University Hospital NHS Trust v Iqbal [2007] EWCA Civ 1190, for example, the Court of Appeal observed that Croke appeared inconsistent with the earlier House of Lords decisions but considered itself bound by it. Permission to appeal to the House of Lords was granted, but the appeal settled before it could be heard.
The issue therefore remained unresolved. Until now.
The decision of the Supreme Court in CCC v Sheffield Teaching Hospitals
By a majority of four to one, the Supreme Court allowed the appeal and overruled Croke.
The majority held that the ratio decidendi of Croke was incorrect because it was in conflict with the law as laid down in Pickett and Gammell.
The case has been remitted to the trial judge to determine whether, on the facts, an award for the lost years should be made and, if so, in what amount.
The reasoning of the majority
The starting point for the majority was the fundamental principle that damages in tort are compensatory. A claimant is entitled, so far as money can achieve it, to be placed in the position that he or she would have been in had the tort not occurred.
The Supreme Court considered that this principle did not admit of any age-based exception. If a claimant had suffered a real economic loss, the Court could not exclude recovery as a matter of principle simply because the claimant was young.
The majority rejected the argument that lost years damages depended on the existence of dependants – as had been considered in Croke. The loss in question was the claimant’s own loss, representing the earnings the claimant would have received but for the shortened life expectancy – as established in Pickett. The right to damages did not depend on whether those earnings would be used to support others.
As well as relying on Croke and the argument in relation to dependants, the Defendant in CCC v Sheffield Teaching Hospitals sought to argue that a further reason to deny the award of damages for pecuniary loss for lost years to claimants who were young children was that the assessment of those damages was too speculative.
The Supreme Court rejected this argument. It emphasised that courts routinely assess future earnings in cases involving children. Indeed, the sum for the Claimant’s loss of lifetime earnings had been agreed by the parties in CCC v Sheffield Teaching Hospitals itself. The fact that a precise assessment is difficult does not justify denying recovery altogether. To do so would be inconsistent with the general compensatory principle established in Pickett and confirmed in Gammell. Instead, where exact quantification is not possible, courts must make the best assessment it can on the available evidence.
The majority further noted that modern statistical tools, including the Ogden Tables, have significantly reduced the evidential difficulties that had concerned the Court of Appeal in Croke. In adult cases, deductions for living expenses are often made on a conventional percentage basis, and there was no reason why a similar approach could not be adopted for claims involving children.
A further difficulty outlined with Croke was the absence of any clear boundary between claimants who were too young to recover lost-years damages and those who were old enough. The majority considered that this lack of coherence undermined the reasoning in Croke and pointed away from the existence of any principled age-based bar.
Taking all of these points together, the Supreme Court overruled Croke, categorically (re-)opening the door for child claimants to bring claims for damages for lost years.
The dissent
Lady Rose dissented. She considered there to be a principled distinction between adult claimants, such as in Pickett, and claimants injured at or shortly after birth. In adult cases, courts ordinarily has evidence of the claimant’s individual characteristics and working history, enabling findings about what that person would probably have achieved. In cases involving very young children, there may be no such evidential foundation, and the court is instead required to proceed by assumptions based on factors such as gender or family background. In her view, that approach sits uneasily with the principle that tort compensates the loss suffered by this individual claimant.
She accepted that courts routinely award loss of earnings during the child claimants’ lifetimes but considered that there are policy reasons for doing so, since the claimant will in fact live and incur expenses during that period. Those reasons did not, in her view, justify extending liability into the lost years. Nor did the use of actuarial tools resolve the difficulty, since they assist with the multiplier rather than the evidential basis for the multiplicand.
For those reasons, she would have upheld Croke and confined recovery to earnings during the claimant’s lifetime.
Practical implications
The immediate effect of the decision is to remove the categorical bar on lost years claims in cases involving young children. Such claims are now recoverable in principle, subject to the normal principles and practice on proof of loss.
In practical terms, this decision will result in the routine inclusion of lost years claims in schedules of loss in catastrophic injury cases involving children.
Further questions opened by the Supreme Court
It appears, however, from the judgment in CCC v Sheffield Teaching Hospitals that this area of law is far from settled.
In his judgment, Lord Burrows called for a reconsideration of Pickett and Gammell. Counsel for the Defendant did not invite the Supreme Court to overrule Pickett or Gammell. Accordingly, once the Court concluded that Croke was inconsistent with those authorities, it was bound to apply the law as established in Pickett and Gammell: namely that damages for pecuniary losses during the lost years are, in principle, recoverable by all claimants, including young children.
Lord Burrows observed that the position in law regarding lost years damages appears to sit uneasily with the general principle that a claimant cannot suffer loss after death.
In a similar vein, Lord Reed observed that it would be desirable to clarify the precise basis upon which lost years damages are awarded: whether they are to be understood as compensation for the non-receipt of future economic benefits or as an immediate diminution in earning capacity treated as a capital asset. In Pickett, both of these strands of reasoning can be seen in the judgment speeches.
These questions remain outstanding and will likely lead to some interesting cases in the coming years.
Conclusion
The Supreme Court’s decision in CCC v Sheffield Teaching Hospitals resolves a long-standing inconsistency in the authorities by removing the age-based restriction introduced by Croke. Young children are no longer barred, as a matter of law, from recovering damages for lost years.
At the same time, the Court’s observations about the conceptual difficulties underlying lost years damages suggest that the principles established in Pickett may yet be reconsidered. The decision therefore both settles one issue and signals the potential for further development in this area of the law.
A copy of the judgment can be found here.
Colleen Cumbers is a barrister at Crown Office Chambers. She accepts instructions across Chambers’ core areas of practice, including personal injury, clinical negligence, and industrial disease. For instructions, please contact the clerks at clerks@crownofficechambers.com.
