A girl suffered catastrophic brain injury at birth through admitted NHS negligence, reducing her life expectancy to 29. The Supreme Court, by a majority, overruled Croke v Wiseman, holding that young children can recover damages for pecuniary losses during the ‘lost years’.
Background
The claimant, CCC, suffered a severe hypoxic brain injury during her birth on 6 February 2015, resulting in severe spastic cerebral palsy. The defendant Trust, which runs the Royal Hallamshire Hospital in Sheffield, admitted negligence, and judgment on liability was entered on 14 August 2020. The claimant is entirely dependent on others, there is no prospect of improvement, and her life expectancy was agreed at 29.
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At the quantum trial before Ritchie J, the parties agreed that, uninjured, the claimant would have had a normal life expectancy, was likely to have gained GCSEs and higher qualifications, would have worked to around 68 and would have received a pension thereafter. Loss of earnings to age 29 was agreed at £160,000, on the basis that she would have entered work similar to that of her aunts (a senior procurement specialist and a staff nurse) or her mother (a beautician). There was unchallenged evidence of a hard-working family background and of a brother doing well academically. The claimant sought £823,506 for the lost years, calculated from net earnings of £34,262 per annum and net pension of £17,500 per annum, less a 50% deduction for living expenses.
Both parties accepted that the judge was bound by Croke v Wiseman [1982] 1 WLR 71, which barred lost years awards to young children. Ritchie J therefore made no assessment of lost years damages but awarded a lump sum of £6,866,615 and periodical payments of £394,940 per annum. He granted a leapfrog certificate under section 12(1) of the Administration of Justice Act 1969, and the Supreme Court gave permission to appeal.
The issue
The principal question was whether Croke v Wiseman was consistent with the House of Lords’ decisions in Pickett v British Rail Engineering Ltd [1980] AC 136 and Gammell v Wilson [1982] AC 27, whose reasoning was not challenged. The court heard no argument on whether lost years damages compensate the future non-receipt of income or an immediate diminution of earning capacity viewed as a capital asset. Lord Reed described that as a matter it would be desirable to clarify when the opportunity arises.
The parties’ arguments
For the claimant, Mr Baker KC argued that Croke was inconsistent with Pickett and Gammell. He sought an award on the conventional multiplier/multiplicand approach, under deduction of living expenses. For the Trust, Mr Rees KC did not ask the court to overrule Pickett. His primary submission was that lost years claims by young children are inherently speculative and incapable of quantification, particularly because of the need to estimate living expenses decades ahead. In the alternative, he argued for a small conventional award for loss of choice, by analogy with Rees v Darlington Memorial Hospital NHS Trust.
The authorities
Oliver v Ashman [1962] 2 QB 210 had denied lost years damages generally, relying on a dictum in Benham v Gambling. Pickett overruled it, although some of their Lordships made obiter remarks about young children. Lord Wilberforce suggested that “neither present nor future earnings could enter into the matter”. Lord Salmon said only “a minimal sum could properly be awarded”. Lord Scarman said the objection “will be taken care of in the ordinary course of litigation: a measurable and not too remote loss has to be proved before it can enter into the assessment of damages”. In Gammell, Lord Scarman added that for a young child “no award – not even a ‘conventional’ award – should ordinarily be made”, subject to exceptions such as a child television star, but “in all cases it is a matter of evidence and a reasonable estimate based upon it”.
In Croke, the majority (Griffiths LJ, with Shaw LJ agreeing) allowed lifetime earnings but refused lost years damages on social policy grounds, namely the absence of dependants. Griffiths LJ said:
“In such circumstances, it seems to me entirely right that the court should refuse to speculate as to whether in the future there might have been dependants for the purpose of providing a fund of money for persons who will in fact never exist.”
In Iqbal v Whipps Cross University Hospital NHS Trust [2007] EWCA Civ 1190, the Court of Appeal followed Croke because it was bound to, but considered it inconsistent with Pickett and Gammell.
The Court’s reasoning (majority: Lord Reed, Lord Briggs, Lord Burrows, Lord Stephens)
Dependants are irrelevant as a matter of principle
Lord Reed held that the majority reasoning in Croke “is inconsistent both with legal principle and with the relevant authorities”. The lost years claim is for the claimant’s own loss, and the claimant’s right to damages does not depend on how they might be used. He adopted Holroyd Pearce LJ in Oliver v Ashman:
“There is no condition that he should spend or use the damages. They are his to save or to spend or to dissipate in any useful or useless manner that he may choose. His needs or his ability to use his damages are, as it seems to me, irrelevant to their assessment.”
Four of the five Law Lords in Pickett had expressly rejected any dependants requirement. Lord Salmon, for example, said “the law can make no distinction between the plaintiff who looks after dependants and the plaintiff who does not”. Lord Reed accepted that a distinction based on dependants might rationally be drawn for reasons of social policy. However, absent any legal principle justifying it, doing so “lies within the domain of the legislature rather than the courts”. Lord Burrows likewise concluded that the ratio of Croke conflicted with Pickett and Gammell. He added that the reasoning “proves too much”, since many adults also have no dependants.
The compensatory principle and difficulty of assessment
Rejecting the speculation argument, Lord Reed relied on the compensatory principle in Livingstone v Rawyards Coal Co. He held that it “applies just as much where the claimant was injured as a young child as where the claimant was injured as an adult. The court cannot properly exclude the recovery of compensatory damages, as a matter of principle, on the ground of the claimant’s age.” Every claim for loss of future earnings concerns something uncertain, and “the law does not insist on proof that events would in fact have taken a particular course”. Relying on Ratcliffe v Evans and One Step (Support) Ltd v Morris-Garner, he held that difficulty of assessment is no reason for awarding no damages or only nominal damages. He concluded:
“The evidential difficulties caused by the defendant, in inflicting a severe injury on a young child, should not be allowed to deprive the child of just compensation. The court has to assess damages as best it can on the available evidence.”
The obiter views in Pickett and Gammell that awards to children are too speculative were therefore held to be inconsistent with the general compensatory principle.
Developments in assessment
Since Wells v Wells [1999] 1 AC 345, the use of the Ogden Tables has eased the selection of multipliers. Statistical evidence of average earnings, tailored by reference to the educational achievements, occupations and attitudes of the claimant’s family, is now commonly used, as in Australian and Canadian practice. Lord Reed held that such evidence “is not mere prejudice or stereotyping”. He distinguished the approach in Connolly v Camden and Islington Health Authority, which had countenanced awards to sons of businessmen and farmers but not to the son of a plasterer. The parties’ own agreement on the claimant’s education, career, retirement and pension illustrated that proof was achievable.
Living expenses and line-drawing
The argument based on living expenses was described as “unpersuasive”. A conventional, rough-and-ready percentage deduction can be applied to children as it is to adults. Lord Reed also observed that, because the distinction between young children and others has no basis in principle, “the court cannot draw a line”. Lord Burrows noted that lost years awards had already been made to adolescents, and that the respondent did not suggest a 16-year-old was precluded.
Lord Stephens’ concurrence
Lord Stephens emphasised the judicial duty to quantify loss notwithstanding forensic difficulty, citing Mastercard v Merricks. He identified an “inherent contradiction” in the respondent agreeing earnings to age 29 while asserting that the period afterwards was too speculative. He illustrated the resulting incoherence with identical twins injured in the same accident: the twin with the shorter actual life expectancy, and so presumably the graver injury, would receive less. He held that the living expenses deduction should be a reasoned rough-and-ready assessment of where on the spectrum “from miserliness through frugality and moderation to profligacy” the claimant would fall, rather than an automatic conventional percentage. He also held that Connolly ought to have produced a lost years award, and that uncertainty should not lead to “inappropriately parsimonious awards”.
Lord Burrows on proof of loss and the future of Pickett
Lord Burrows explained that loss is assessed proportionately to the chances, subject to a de minimis cut-off for fanciful or entirely speculative loss. He anticipated a multiplier approach based on the Ogden Tables with a high percentage deduction for living expenses. He accepted that a court may be entitled to adopt a broad-brush approach where it has “no real alternative”. Writing alone on this point, he called for a future seven-justice reconsideration of Pickett. He identified two questions: whether a lost years award can convincingly be treated as a loss of the claimant, given that “Wages in heaven should not be awarded when they are not needed on earth” (McGregor), and whether such awards should be confined to compensating dependants.
The dissent (Lady Rose)
Lady Rose would have dismissed the appeal. She accepted that dependants could not be the distinguishing feature. However, she identified a principled distinction: for adults there is evidence of the individual’s own characteristics, whereas for an infant the court must rely on assumptions drawn from gender, family background and social class. In her view, this contradicts the principle that the loss compensated is that of the individual claimant, and she relied on the ‘take your victim as you find him’ principle in Smith v Leech Brain. She considered that the Ogden Tables assist only with the multiplier, not the multiplicand. She also warned of unfairness to defendants where successful families inflate awards. Relying on McLoughlin v O’Brian, she held that the boundaries of liability may be fixed by policy. Survival-period earnings were justified by the claimant’s genuine need for care funds during her life, but no such need exists in the lost years. In her view, the line drawn in Croke was correct.
Practical significance
The decision removes the bar on lost years claims by young children. Recovery now depends on ordinary principles of proof of loss rather than on the claimant’s age or the existence of dependants. Practitioners should expect claims supported by tailored earnings evidence drawn from family background, Ogden-based multipliers, and substantial, reasoned deductions for living expenses, with broad-brush assessment available where appropriate. The NHS and other defendants face materially increased exposure in catastrophic birth injury cases. The conceptual basis of lost years awards remains unresolved: both Lord Reed and Lord Burrows flagged the point, and Lord Burrows signalled that Pickett itself may be revisited in a future case.
Verdict: Appeal allowed by a 4–1 majority (Lord Reed, Lord Briggs, Lord Burrows and Lord Stephens; Lady Rose dissenting). Croke v Wiseman was overruled insofar as it refused damages for the lost years to a young child, and the case was remitted to the trial judge to assess damages for the claimant’s lost years.
Source: CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5
