Supreme Court judgment: damages for ‘lost years’ recoverable where claimant is a young child

The Supreme Court has today handed down its judgment in this ‘leapfrog’ appeal, allowing the claimant’s appeal by a majority of four to one.

Background

In CCC, an eight-year-old claimant sought ‘lost years’ damages after clinical negligence significantly shortened their life expectancy. The High Court, bound by Croke v Wiseman [1981], rejected the claim but granted the claimant in CCC permission for a ‘leapfrog’ appeal to the Supreme Court. 

In Croke, the Court of Appeal held that a living child claimant with a shortened life expectancy due to the defendant’s negligence could not claim damages for lost years during their lifetime, on the basis that to do so would be speculative. This is a distinction from adult claimants that have a reduced life expectancy as a result of negligence.

Decision

The Supreme Court determined that child claimants should be entitled to 'lost years' damages on the same basis as an adolescent or adult claimant.

Lord Reed stated that “[t]he decision of the majority of the Court of Appeal in Croke v Wiseman that no award for the lost years should be made where the claimant was a young child was based…on the absence of dependants.”

The majority of the Supreme Court held that the decision in Croke was “inconsistent both with legal principle and with the relevant authorities”. Lord Reed further stating that [t]he claim for lost years is in respect of the claimant’s own loss, not in respect of anyone else’s, and his or her right to damages is not in any way dependent on how they might be used.”

On the question as to whether Croke should be upheld “on the alternative basis that assessing lost years damages in cases where the claimant is a young child is too speculative” the majority of the Supreme Court rejected this argument based on the following five reasons: 

1. The general principle is that “the damages to be awarded for loss caused by tort are compensatory”. The claimants being “entitled to be placed in the position he or she would have been in if the tort had not been committed” and that “the court cannot properly exclude the recovery of compensatory damages, as a matter of principle, on the ground of the claimant’s age.”
2. Whilst a “precise assessment of the loss suffered is not always possible” the Court held that “where it is clear that the claimant has suffered substantial loss – as the injured child undoubtedly has – but the evidence does not enable it to be precisely quantified, the court must assess damages as best it can on such evidence as is reasonably available.” 
3. Developments in the law of evidence – including the use of the Ogden Tables and statistical evidence of average earnings – considerably reduce evidential difficulties experienced in the assessment of lost years claims by children.
4. The Court rejected the respondent’s submission “that awards for the lost years in the case of child claimants involved a greater degree of speculation than awards for loss of lifetime earnings because of the need to estimate the claimant’s probable living expenses.” The Court stated that “in cases brought by adults, a conventional percentage is generally applied to the net earnings on a rough and ready basis” and that there “is no reason why a similar approach cannot be applied in cases brought by children, as is the practice in other jurisdictions.” 
5. It is not clear where the line should be drawn between claims by those who are young children and claims by older children and adults. This as Lord Stephens highlighted “leads to incoherence”.

Whilst recognising a child claimants’ lifetime loss of earnings are regularly assessed by the courts, Lady Rose dissenting, pointed to the policy reasons for awarding damages for lost earnings during a child’s lifetime, that are not applicable in relation to lost years, namely the additional burden on the NHS in this case.

Comment

There is no doubt this judgment will have a significant financial impact on insurers managing catastrophic injury claims involving children. Of greater impact will be on NHS Resolution who manage birth injury related claims in the NHS.  NHS Resolution Chief Executive, Helen Vernon acknowledged before the Public Accounts Committee in November 2025 that a successful appeal in CCC would add significant damages to each child injury claim.  

Related article: Supreme Court to hear ‘leapfrog’ appeal on ‘lost years’ claims this week