Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 75
“Lost years” claims by child
claimants permitted by the
Supreme Court
by Jonathan Fuggle, Partner at Browne Jacobson.
In CCC v. She昀케eld Teaching Hospitals NHS
Foundation Trust, Mr Justice Ritchie granted the
claimants permission for a leapfrog appeal to
the Supreme Court on the issue of whether loss
of earnings in the so called “lost years” could be
recovered by a child. The case came before the
Supreme Court on 11 and 12 February 2025.
The Supreme Court’s decision
In a decision handed down by Lord Reed, on 18
February 2026, the Supreme Court found by a
majority of 4 to 1 (Lady Rose dissenting) that Croke
v Wiseman was wrongly decided and that the
claimant’s appeal should be allowed.
Lost years damages can now be recovered in cases
where the claimant is a young child, just as they can
in cases where the claimant is an adolescent or adult.
What are the “lost years”?
As a result of a shortened life expectancy, a claimant
may su昀昀er future 昀椀nancial losses. The issue before
the Supreme Court was whether child claimants can
claim for the loss of earnings they may su昀昀er after
their likely death (the so called “lost years”).
Reasons for the decision
•
There was no principled basis for
distinguishing between claimants with and
without dependants: The majority (Lord Reed)
held that lost years damages compensate the
claimant for her own loss, not anyone else’s.
Her right to damages does not depend on how
she might choose to use them or whether she
has dependants. Whilst Parliament could make
such distinctions for policy reasons, the courts
must not create arbitrary categories based on
the presence or absence of dependants.
•
Speculation and assessment di昀케culties do not
justify denying compensation: Damages are
compensatory and intended to place a claimant
in the position they would have been in but for
the negligence. This principle applies equally to
children and adults. The court cannot exclude
recovery because of a claimant’s age.
•
Uncertainty is inherent in all future loss
claims: Courts must do the best they can on the
available evidence.
•
Courts routinely award damages to child
claimants for loss of earnings during their
lifetime: If this is possible, there is no principled
reason why the same evidence and approach
cannot be used to assess earnings during the
lost years (with appropriate deductions for
living expenses).
Adult claimants
In both Pickett v British Rail Engineering Ltd [1980]
AC 136 (“Pickett”) and Gammell v Wilson [1982] AC
(“Gammell”) the House of Lords found that an adult
claimant can recover damages for loss of “昀椀nancial
expectations” during the lost years.
The House of Lords decided that these were
pecuniary losses because the claimant had been
deprived of the opportunity of distributing the
income in the way they desired. The unfairness to
dependents by not allowing recovery for income
in the lost years was considered the principle
social reason for permitting recovery. Recovery
was possible regardless of the actual existence of
dependents. The only caveat was that the loss should
not be considered too remote to be measurable.
Child claimants
Whilst recovery of loss of earnings in the lost years
has been permissible by adult claimants, recovery by
child claimants has been barred since the decision
of the Court of Appeal in Croke v Wiseman [1982]
1 WLR 71 as such claims were considered to be too
speculative.
EXPERT WITNESS JOURNAL
73
APRIL 2026
