This blog post has been contributed by Dr Carol Brennan Module Convenor for Tort law.
A fundamental component of damages in the negligence action for personal injury (in addition to pain and suffering) is that of lost earnings; that is the money which the claimant was prevented from earning in the future, due to their injury.
Damages for birth injuries account for more than a third of the £3.1billion paid out by the NHS in 20251. The actual number of claims is comparatively small however in severe cases, the amount of one settlement could be in the range of £30-40 million. This would reflect the fact that a claimant who was injured at birth may require a lifetime of high-level care and support, perhaps unable to earn a living. The judge performs this complex calculation with the assistance of an actuarial device known as the Ogden tables. As with many types of compensation, there is a strong level of uncertainty in that the court can only speculate how long the claimant would have lived, or what their earning capacity would have been. It has been said that the one certainty is that compensation will either be too much or too little.
The position on loss of earnings for a child injured at birth has been that they are only entitled to loss of earnings compensation for their projected lifespan, not for ‘lost years’ – that is the full life they would have lived if uninjured. The House of Lords decision in Pickett v British Rail Engineering (1980) AC 135 permitted loss of earnings payments for ‘lost years’ for those who were adolescents or adults at the time of injury. However in Croke v Wiseman (1982) 1 WLR 71 the Court of Appeal held that those injured at birth or as very young children were not entitled to such compensation, the main reason being that they did not have, and never would have dependents.
The claimant CCC had suffered catastrophic injuries due to deprivation of oxygen at birth, resulting in cerebral palsy requiring a high level of care and with a life expectancy of 29 years. Her loss of earnings compensation, based on 29 years, was initially calculated by the trial court at £160,000. Her appeal argued that the much higher number of lost years should have been the basis of the calculation. In CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5, the Supreme Court agreed by a majority of 4-1, overruling Croke as being wrongly decided.
The majority felt there had been nothing in the decision in Pickett barring claims by children. Compensation was for the individual claimant only and so it was not for the courts to take a policy decision to distinguish between those with and without dependents. Were that to be the case, it would affect many adult claimants as well. A secondary reason for the decision in Croke was the complexity of calculating the earning capacity when the claimant is only a baby as compared to an adult. This was a strong factor in the dissenting position in CCC. However the majority felt that it was an arbitrary line to separate babies from older children and additionally, if the courts were willing to speculate on earning capacity during the claimant’s lifetime – here 29 years – why not do so for the ‘lost years’ as well? (The projected life expectancy for a woman in the UK is currently 85 years.) The case was referred back to the High Court for a decision on the additional £800,000 the family were requesting.
It cannot be ignored that Lady Rose in her dissent hinted at the impact of the decision on NHS coffers. Although welcomed by patients’ advocates, this ruling will have a significant effect on increasing the settlements that the NHS will have to make with claimants. Of course, the deterrence objective of negligence law must be kept in mind. As parliament’s public accounts committee recently said, ‘preventing harm from happening in the first place is the most effective way to reduce the widespread impact of clinical negligence.’