On 18 February 2026 the Supreme Court of the United Kingdom (SC) delivered judgment in a case that turned on whether claims for loss of earnings and loss of pension, made by a young child, should be allowed for the so-called ‘lost years’, i.e. for those years by which the claimant’s life expectancy has been reduced by the defendant’s negligence. This is a point of pure principle.

The uncertainty on the point arises from two much earlier cases: a decision from the House of Lords (Gammell v Wilson [1982] AC 27, confirming its earlier decision in Pickett v British Railways [1980] AC 136, both of which are referred to below simply as Gammell) which allowed the recovery of ‘lost years’ claims by adults and another from the Court of Appeal (Croke v Wiseman [1982] 1 WLR 71) that refused to do in the case of young child claimants, the reasoning being that such a claim was simply too speculative.

The matter came to the Supreme Court by way of leapfrog appeal, a procedural step which was appropriate given the conflicting nature of the two decisions and their differing levels of precedential authority.

The Supreme Court allowed the child’s ‘lost years’ award, overturning the approach in Croke, and remitted to case to the High Court for valuation.

At the beginning of its decision, the Supreme Court is very careful to point out that it had “heard no argument as to the basis on which damages for pecuniary losses during the ‘lost years’ are awarded” and that it had “heard little argument as to the method by which damages for the ‘lost years’ should be assessed”. These limitations mean the decision is at a principled level only and does not provide any guidance on the basis of the ‘lost years’ awards or its calculation in practice.

The Supreme Court therefore proceeded on the basis that the reasoning in Gammell was not in issue. All of the Justices agreed on four broad points.

1. Gammell confirms that English law allows recovery of financial losses in the ‘lost years’,
2. It does not limit the availability of this head of loss to those who have dependants,
3. Child claimants may therefore recover for ‘lost years’ with the proviso that their losses must be proved subject to normal principles, and
4. The usual basis of calculating ‘lost years’ claims would be to derive an appropriate multiplier from the Ogden Tables, which will be discounted for accelerated receipt (and other contingencies) which will be applied to a multiplicand based on the proven net annual loss. Lord Burrows also explained that the deduction for living expenses in these claims would tend to be higher than in cases under the Fatal Accidents Act 1976. [He referred to previous claims for ‘lost years’ made by adolescents in which the deductions were 75% and 50% respectively.]

The majority of the Court (4:1, with Lady Rose dissenting) held that the law should not regard a ‘lost years’ claim made by a child as being too speculative (and it should be noted that this is not a question of remoteness). Five factors weighed in favour of this conclusion.

1. The role of damages is to put the claimant back in the position he or she would have been but for the accident. This must apply as much to claims made by children as by adults.
2. Precise quantification of ‘lost years’ claims is not always possible, but this is almost always the case for future losses generally in personal injury claims. The role of the court is to assess damages as best it can on the available evidence.
3. Difficulties that may have existed at the time of Croke in assessing how these awards might be calculated have fallen away to a significant extent nowadays, for example (a) in the use of actuarial (Ogden) tables to assess future losses and to allow for discounting and (b) with far more widely available statistical data relating to average earnings, in addition to taking into consideration family members’ education and circumstances (including those of any siblings).
4. Courts routinely award damages for lifetime loss of earnings for children, meaning it is difficult to see why it cannot award damages for earnings in the ‘lost years’ (noting that in the present case the parties were able to agree lifetime earnings to the reduced life expectancy of age 29).
5. If children are to be excluded from this award but the law allows claims by adults, it is extremely difficult, without arbitrary distinctions, to see where the line should be drawn.

In contrast, in her dissenting judgment Lady Rose would have barred a young child’s claim for financial loss in the ‘lost years’ if the court had no evidence about that child’s earning capacity or characteristics. In her view, taking a different approach to adult ‘lost years’ claims - in which there would be an evidence base of past earnings and performance - was justified to avoid the court entering the “uncomfortable territory” of having to make assumptions about a child’s earning capacity based on factors such as family circumstances/background, gender and social class. Allowing the award would offend the key principle of tort law to provide compensation for the actual loss suffered by the individual claimant.

As noted above, because of the way the case was presented, the Supreme Court had, in effect, to assume that Pickett and Gammell were correctly decided. Its decision is limited as a result, despite it allowing the claim on that basis.

Lord Burrows, in the majority, commented that “we have been faced with an acceptance that ‘lost years’ awards are valid” and added that “a reconsideration of Pickett and Gammell is called for’”. He said that “the political realities” meant it was very unlikely that Parliament would be interested in doing so and hoped that the Supreme Court itself might have the “opportunity in a future case to consider [the case law] afresh with a seven-person court and full submissions on its merits and demerits.”

His remarks come across as a clear recognition that there is further work to be done to explore the principles of ‘lost years’ claims, albeit in the right case and with a full panel of Justices. Any such further exploration would also need to consider fully Lady Rose’s thoughtful dissenting opinion, which runs to more than a quarter of the full fifty-seven-page judgment. 

Whether the law of ‘lost years’ claims develops further than the present case and via the process Lord Burrows describes would look to be a long way off and unlikely to happen (if at all) until well after the implications of this case have been much more fully understood.

In the meantime, reserves and payments in claims affected by the decision are likely to have to increase somewhat. In addition, there may be some risk of further costs in the event that the decision results in more extensive use of expert evidence - to value ‘lost years’ claims made by young children (those being over and above current charges for valuing lifetime loss of earnings in such cases).