‘Lost years’ claims: Judgment awaited in leapfrog appeal to the Supreme Court

The Supreme Court recently heard a ‘leapfrog’ appeal in the case of CCC (by her Mother and Litigation Friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [UKSC 2023 / 0111] (CCC) in relation to the recoverability of future loss of earnings by child claimants whose life expectancy has been reduced (‘lost years’ claims).

Who can currently bring a ‘lost years’ claim?

It was established by the Court of Appeal decision in Pickett v British Rail Engineering (1980) that adults whose life expectancy has been reduced due to negligence can recover damages for future earnings that they would have received between their current estimated date of death and their estimated date of death absent the negligence (the period of ‘lost years’).

However, since the decision in Croke v Wiseman (1982), child claimants have not been able to recover future loss of earnings where their life expectancy has been reduced by negligence. This is on the basis that ‘lost years’ claims by children are speculative and they are unlikely to have dependants.

There have been several unsuccessful attempts to overturn this decision, but this is the first case to have reached the Supreme Court. In those other cases the Court of Appeal was bound by its own precedent in Croke (it is for that reason that a ‘leapfrog’ appeal was necessary in CCC). The Court of Appeal considered the issue in Iqbal v Whipps Cross University Hospital NHS Trust (2007) where the defendant’s appeal against the award of a ‘lost years’ claim was successful. The Court of Appeal commented that although the (then) House of Lords decision in Pickett did not restrict a claim for lost years to adults with dependants, there were references in Pickett to the difficulty of proving future loss of earnings for a young child in the context of a ‘lost years’ claim. 

Appeal to Supreme Court

On 11 and 12 February 2025, the Supreme Court heard an appeal by a severely injured child claimant in the case of CCC v Sheffield Teaching Hospitals NHS Foundation Trust on the recoverability of damages for the ‘lost years’. The claimant in CCC was granted permission to bypass the Court of Appeal. The trial judge declined to quantify damages pending the appeal but indicated that, based on first principles, he would have awarded compensation for the ‘lost years’ had he not been constrained by the existing precedent in Croke v Wiseman.

The Supreme Court’s judgment in CCC, which is currently awaited, will provide clarity on the recoverability of ’lost years’ claims by children and the basis of calculation of quantum in such claims. If the claimant’s appeal in CCC succeeds, defendants will face claims by children for higher compensation awards in the future, although it remains to be seen how those will be calculated (if allowed) given the difficulties of proof referred to in both Pickett and Iqbal.