Lost years explained: what the Supreme Court’s decision means north and south of the border

Serious incidents of clinical negligence and catastrophic accidents can significantly shorten a person’s life expectancy. In February 2026, the UK Supreme Court handed down a landmark decision in CCC v Sheffield Teaching Hospitals NHS Foundation Trust. In England and Wales, that decision brought child claimants into line with adults in relation to compensation for future loss of earnings during their ‘lost years’, overturning the long‑standing 1982 authority of Croke v Wiseman.

In England, ‘lost years’ claims have long formed part of an adult claimant’s compensatory package. The principles were developed judicially following the House of Lords decision in Pickett v British Rail Engineering Ltd [1980] AC 136, where a factory worker contracted mesothelioma and suffered a loss of anticipated life expectancy. That decision was affirmed in Gammell v Wilson [1982] AC 27. Both decisions found that damages for pecuniary losses during the lost years were recoverable in English law, and that recovery was not conditional upon the claimant having dependants.

However, later in 1982, the Court of Appeal in Croke v Wiseman [1982] 1 WLR 71 excluded very young children from this head of loss. The case concerned a child injured at the age of 21 months, resulting in permanent disability and a reduced life expectancy. While the court awarded damages by reference to lifetime earnings based on likely average earnings absent injury, it refused a separate award for lost years, citing the difficulty of assessment and the absence of dependants.

As a result, claims in England and Wales on behalf of children proceeded on this basis for over four decades.

The sad circumstances behind CCC involved an 11-year-old child diagnosed with cerebral palsy following a severe brain injury caused by clinical negligence during birth. Her life expectancy has been reduced to 29. It was agreed that, had she enjoyed a normal life expectancy, she would have been employed to age 68 and would have received a pension. The claimant sought £823,506 for financial loss during her lost years.

At first instance, the High Court judge accepted the factual basis for the claim but declined to award damages for lost years, holding that they were bound by Croke v Wiseman. The claimant’s mother appealed directly to the Supreme Court.

The Supreme Court allowed the appeal. It held that neither Pickett nor Gammell restricted lost years claims to claimants with dependants, and that there was no principled basis for excluding child claimants from such losses where the loss could be proved. The Court rejected the idea that difficulty of assessment should operate as a bar to recovery; it is an evidential matter, not a rule of law.

The position in Scotland

The position in Scotland has long differed from that in England and Wales. The exclusion of very young children from claims for financial loss during their “lost years” arose from an English Court of Appeal decision and was never binding in Scotland.

In Scotland, claims proceed on the principles of compensatory damages in delict. Where a person’s life expectancy has been shortened because of another’s fault, the person’s own pecuniary losses are, in principle, recoverable subject to proof and proper assessment. There has been no bar based on the age of the injured party, nor any requirement for dependants. Instead, the focus is on: (1) whether the loss is sufficiently established in evidence; and (2) how it should be quantified, taking account of contingencies and uncertainties. The availability and quantification of “lost years” in Scotland are also set out in a clear statutory framework.

Claims for financial loss during the lost years are governed by section 1 of the Damages (Scotland) Act 2011. The Act provides two distinct elements of compensation:

• Solatium (general damages), which may include compensation for the injured person’s awareness of their reduced life expectancy; and
• Patrimonial loss, comprising economic loss from the expected date of death to the date when the injured person would otherwise have been expected to die (the “lost period”).

In quantifying patrimonial loss for the lost period, the court estimates what the injured person would have earned and may add relevant benefits. The statute then applies a fixed deduction of 25% to reflect living expenses during that time, subject to the court’s discretion to apply a different percentage to avoid a manifestly and materially unfair result. This statutory approach replaced the more individualised assessment required under section 9 of the Damages (Scotland) Act 1976, promoting simplicity and consistency following Scottish Law Commission recommendations.

Is there now any difference?

While the Supreme Court’s decision largely aligns the conceptual approach to entitlement north and south of the border, differences remain in the quantification of lost years claims.

As noted, Scots law applies a 25% deduction to reflect living expenses (subject to judicial adjustment in exceptional cases). In England and Wales, by contrast, living expenses are generally deducted on a conventional basis of around 50% for adult claimants unless displaced by evidence. It appears likely that a similar conventional approach will now be applied to child claimants following CCC, although this may give rise to future argument. In the absence of evidence about a child’s likely spending patterns, it may be challenging to justify departure from a conventional percentage. That issue will fall to be considered when CCC is remitted to the trial judge to determine whether lost years damages should be awarded on the facts and, if so, how the claim should be quantified.

Conclusion

Accordingly, the Supreme Court’s decision in CCC represents a significant expansion of recoverable damages in catastrophic injury cases involving children in England and Wales. In Scotland, it is best understood as confirmatory rather than transformative. It aligns English law with an approach already familiar in Scots practice, where the focus has been on evidential sufficiency and structured quantification when establishing whether a claim for lost years can be made on behalf of any injured person.

Insurers and litigators dealing with claims for young claimants in England will need to reconsider reserves to reflect the decision. Those operating cross‑border should remain alert to continuing differences in quantification, particularly deductions for living expenses and the statutory framework in Scotland.

If you would like to discuss any of the topics raised in this blog, please contact our Insurance team or your usual Brodies contact.