This Insight considers the implications of the Supreme Court decision in CCC, how the Court arrived at its decision and the potential for further litigation.
Issue: Whether a claim for lost years can be advanced regardless of whether a claimant has dependants.
Approach: Whether the decision of the Court of Appeal in Croke v Wiseman was inconsistent with legal principle or whether it should be upheld on policy grounds.
“Lost years” damages in personal injury and clinical negligence claims compensate claimants for earnings they are unlikely to receive because negligence has shortened their life expectancy, usually calculated net of their own living expenses. The current discussion concerns whether such damages should be limited to claimants with actual or likely dependants, and whether claims by children are too speculative because their future earnings cannot reliably be assessed. It points to the importance of contingencies in relation to future loss and the likelihood the Supreme Court will return to this issue in the future.
The Supreme Court’s decision in CCC (by her Mother and Litigation Friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust confirms that lost years damages are recoverable as the claimant’s own pecuniary loss regardless of dependants, and that the need to make predictions about education and career prospects is not, of itself, a principled bar to recovery.
The legal foundation for lost years claims was established in Pickett v British Rail Engineering. In that case, the claimant was a married man with dependants whose life expectancy had been significantly reduced by negligence. The House of Lords was most likely motivated by potential injustice if compensation were denied: the claimant had lost the ability to provide financial support to his wife and children during the years he would otherwise have lived. The decision recognised that the claimant’s earning capacity had value and that the destruction of that capacity constituted a compensable loss. The House of Lords did not expressly limit recoverability to claimants with dependants, although some of the reasoning focused heavily on preventing dependants from suffering financial disadvantage.
The position regarding young child claimants was addressed in Croke v Wiseman. That case involved a catastrophically injured child who would never have dependants. The Court of Appeal rejected the claim for lost years damages. Lord Justice Griffiths reasoned that awards for mature claimants could be justified because the damages would ultimately support dependants after death, whereas in the case of a child with no future dependants the court should not speculate about hypothetical future beneficiaries. The court also considered the assessment of such claims too speculative because it required assumptions about the child’s future education, career, earnings, and spending habits. Following Croke, claims for lost years damages by young children were generally regarded as barred.
CCC fundamentally altered that position. The claimant suffered severe spastic cerebral palsy as a result of negligent treatment at birth, which reduced her life expectancy to 29 years rather than a normal lifespan. The parties agreed that, but for the negligence, she would likely have obtained qualifications, entered employment, worked until retirement age, and received a pension. The trial judge considered himself bound by Croke, but the Supreme Court granted a leapfrog appeal to determine whether that decision should stand.
Delivering the leading judgment, Lord Reed held that the reasoning in Croke was inconsistent with legal principle. He stated that there was “no reason of legal principle” why a claimant’s entitlement to damages for their own pecuniary loss should depend on the existence of dependants. Lost years damages compensate the claimant’s own loss rather than the losses of others, and the way in which damages may later be used is irrelevant to recoverability. The court reaffirmed the traditional compensatory principle stated in Livingstone v Rawyards Coal Co: damages should place the claimant, as nearly as possible, in the position they would have occupied had the tort not occurred.
The Supreme Court also rejected the argument that claims by young children were too speculative to assess. Lord Reed observed that courts already engage in substantial speculation when assessing future losses in personal injury cases involving children, particularly future loss of earnings claims. Modern litigation routinely requires courts to evaluate likely educational attainment, career prospects, and earning capacity. The availability of actuarial tables and statistical evidence makes such assessments more manageable than they were at the time of Pickett and Croke. The court concluded that the difficulty of assessing damages is not itself a reason for denying recovery.
Lord Burrows emphasised that courts assessing future losses do not apply a strict balance of probabilities approach. Instead, they assess damages proportionately to the claimant’s chances of achieving particular outcomes, provided the claim is not entirely speculative or fanciful. He therefore agreed that the speculative nature of child lost years claims did not justify a complete bar on recovery.
Lady Rose dissented. She accepted that there were logical inconsistencies in allowing ordinary future earnings claims for children while denying lost years claims, but argued that policy considerations justified maintaining the distinction. In her view, there were strong policy reasons against compensating earnings that the claimant would never personally need because they would be dead during the lost years. She also expressed concern about the extensive speculation involved, particularly the reliance on assumptions based on social class, parental success, and educational background. She noted the unfairness to Defendants that children from affluent families might receive larger awards because courts assume they will replicate their parents’ success, while children from poorer backgrounds are often assessed using averages.
The decision has major implications for clinical negligence and personal injury litigation because it substantially increases the damages potentially recoverable in catastrophic injury cases involving children. In CCC itself, the claimant’s ordinary future earnings claim was valued at approximately £160,000, whereas the lost years claim exceeded £800,000. The judgment therefore increases financial exposure for defendants, particularly the NHS and insurers.
Despite allowing the appeal, members of the majority indicated that the broader principles governing lost years damages may require reconsideration. Lord Reed noted uncertainty about the conceptual basis of such claims, specifically whether they compensate future lost income directly or instead compensate the immediate destruction of earning capacity as a capital asset. Lord Burrows went further, suggesting that the Supreme Court should reconsider the entire principle established in Pickett. He questioned whether a claimant can truly suffer pecuniary loss after death and observed that lost years damages sit uneasily with ordinary compensatory principles.
CCC therefore represents both a major expansion of recoverable damages and a possible starting point for wider reconsideration of the law relating to lost years claims.nalysis of the dependency, and consideration of how it is most appropriately valued, will often be critical to strategy.
Hayley McLorinan specialises in personal injury work across a broad spectrum of claims, including catastrophic injury, public and occupiers’ liability, defective premises, road traffic accidents, Highways Act matters, food poisoning, Animals Act, and product liability. She has extensive experience in employers’ liability claims, with particular expertise in industrial disease and psychiatric injury, complemented by her background in employment law.
