Supreme Court expands “lost years” claims

The principle of restitution in personal injury and medical negligence claims is ultimately a fair one – compensation aims to put the victim of the negligence in the position they would have been in, but for that negligence. 

But until the long overdue decision of the Supreme Court in the case of CCC (by her mother and litigation friend MMM) v Sheffield Teaching Hospitals Foundation Trust on 18 February 2026, this principle, rather unfairly, did not fully apply to children who had sustained catastrophic brain injury at birth and very sadly have life limiting conditions. Thankfully, the Court has ruled that it now does.

In this case, the defendant’s failures to manage the claimant’s mother’s labour caused the claimant to suffer chronic partial hypoxic ichaemia resulting in cerebral palsy and a significant reduction in her life expectancy to the age of 29 years. 

Prior to this landmark ruling, children who had sustained life changing injury as a result of negligence were only able to claim future loss of earnings and pension income for the duration of their likely life expectancy, even though that life expectancy may have been shortened due to the negligence and their resulting catastrophic injuries. 

So before the Court’s decision on 18 February 2026, the claimant’s loss of earnings claim in the case of CCC would not have been calculated beyond the age of 29 years, even though but for the negligence, she would likely have lived and worked beyond 29 years. Loss of pension income would not even have featured. In short, the law would not have allowed her to make any financial loss claim in relation to the years she had lost as a result of the negligence, known as the “lost years” claim.

Contrast this with the position for adult claimants with a reduced life expectancy due to negligence. They have, for as long as I can remember, quite fairly been allowed by law to claim loss of earnings and pension income for the duration of their likely life expectancy, but for the negligence whereas until the decision on 18 February 2026, rather unfairly, a child claimant could not have done so. 

So, for argument’s sake, if an adult claimant would have lived to 82 years (the average anticipated age of the population) and worked to the current retirement age of 66 years but for the negligence, but their injuries caused by the negligence reduced their life expectancy to 50 years, then the adult claimant can claim loss of earnings and pension income from the age of 50 to 66 years (the “lost years” claim).

Thanks to the Court’s landmark decision in CCC, now children, as well as adult claimants can claim for the lost years caused by negligence, squarely putting both in the position they would have been in but for the negligence, completely in keeping with the principle of restitution.

In practice, the principle established by the Court on 18 February 2026, that children may now make “lost years” claims will only apply to ongoing cases that have not yet concluded and future cases. It cannot be applied retrospectively to cases that have already concluded and where full and final settlements of compensation have been approved by the court.

The decision will be of particular benefit to children who have complex needs, but who, due to shorter life expectancy, have historically struggled to raise sufficient funds through their compensation to purchase and adapt a property to meet those needs and to facilitate the smooth running of their care and therapy packages. 

Typically, what can be claimed in terms of accommodation for a claimant is impacted negatively by a significantly reduced life expectancy and so in some cases, this head of loss may not yield enough funds to stretch to the purchase and adaptation of a permanent property, particularly in cases where a claimant is not recovering compensation in full, for example, there may be a compromise on liability of less than 100%. Renting is for most people an imperfect solution, but it is even more of a challenge for children with complex needs and their families. 

Suitable rental stock is not readily available as more landlords are abandoning the rental market. Tenants can be at the mercy of landlords for essential repairs and maintenance, which can be hugely problematic for children with complex needs who require warm, dry and safe properties. Also, there is the risk that landlords may not be amenable to the significant and bespoke adaptations required to suit a tenant with complex needs and even if they are, there is no guarantee that the tenant will be able to stay in the property long-term. Crucially, there is no security of tenure and the constant fear of eviction only compounds the stress and anxiety typically felt by parents caring for a child with complex needs. 

However, potential funds yielded by a lost years claim may enable some claimants to access a pot of funds that was previously not available, and which could be used to contribute to the purchase and adaptation of a long-term property which will better meet their needs and provide both security and peace of mind.

In cases that are compromised at less than 100% on liability, typically due to litigation risk and where a claimant will receive less than the full value of their claim, there will always be a shortfall in meeting their needs. 

So, for example, if a claim is compromised at 80%, the claimant will only achieve 80% of their claim, which in practical terms, will mean there will be a 20% shortfall on all heads of claim, including care and therapies, specialist equipment, assistive technology, a specialist vehicle and transport costs,  specialist activities and holidays and now, additionally, the lost years claim. 

Even if the lost years claim is claimed or recovered at less than 100%, what is claimed can nonetheless be used to help plug the shortfall in funding the other heads of claim and could be key for meeting essential needs, such as specialist care.

Being able to successfully make a lost years claim will provide much needed flexibility and more choice to child claimants with a significantly reduced life expectancy. 

Of course, the impact of this decision is that compensation award levels for children with reduced life expectancy will rise. But the decision is a fair one in the circumstances and is in keeping with the principle of restitution. It ends the unfair and illogical position before 18 February 2026 where child and adult claimants were treated differently.

Finally, we must not lose sight of the fact that claims only happen because mistakes are made, often in the context of maternity care. When they happen, they can have profound and life-changing consequences for the children involved and their families. The focus must be on reducing instances of avoidable harm by learning from mistakes to ensure they are not repeated and that standards of care and patient safety improve. In the meantime, those who have suffered through no fault of their own should be properly compensated to ensure their complex and lifelong needs can be met.