Judgment was handed down by the Supreme Court on 18 February 2026 following an appeal heard on 11/ 12 February 2025 in which Sarah Pritchard KC was instructed by the Defendant (at first instance and on appeal).
The central issue in the appeal was whether Croke v Wiseman [1982] 1 WLR 71 was consistent with the earlier decisions of the House of Lords in Pickett v British Rail Engineering Ltd [1980] AC 136 and Gammell v Wilson [1982] AC 27 . At first instance the parties agreed that the judge could not make an award for pecuniary losses during the “lost years” (the additional years of life which the Claimant would have enjoyed had she not been injured) pursuant to the decision of the Court of Appeal in Croke which barred the award of such damages in cases involving young children. The trial judge declined to assess damages for the “lost years” but granted a certificate for a leapfrog appeal to the Supreme Court to enable the correctness of Croke to be considered. Permission to appeal to the Supreme Court was then granted.
By a majority (Lady Rose dissenting), the Supreme Court has allowed the appeal and overruled Croke. The case has been remitted to the trial judge to determine whether on the facts of this case a “lost years” award should be made, and if so, what the quantum of that award should be.
The decision of the Supreme Court will be welcomed by many – Croke has been repeatedly judicially criticised on the basis that it sits uneasily with the principles set out in Pickett and Gammell. By overruling Croke, the Supreme Court has confirmed that the compensatory principle in “lost years” cases applies without age-based exception.
The judgment makes clear that young children are not excluded from “lost years” awards simply because their future is hard to predict, but it provides no specific formula by which to now assess those awards. There is agreement that future living expenses must still be deducted as part of the “rough and ready” assessment process and, as conceded by the Appellant during the appeal hearing, a percentage deduction for those expenses could be “high” to reflect the high degree of uncertainty involved.
Interestingly (and perhaps unexpectedly) the majority acknowledged, particularly through Lord Burrows, that the conceptual foundations of Pickett were controversial – “lost years” awards cut across the normal principle that there can be no loss to the Claimant suffered after the Claimant’s death. Lord Burrows goes so far as to express a hope that there will be an opportunity in a future case to consider Pickett afresh with a seven-person court and full submissions on its merits / demerits. Lord Reed felt that clarification of the basis upon which damages for pecuniary losses during the “lost years” were awarded (as compensation for non receipt of future economic benefits or for the immediate diminution in earning capacity viewed as a capital asset) would be desirable.
For now, the issue of “lost years” in cases involving young children is settled. Given the express invitation of Lord Burrows for a full reconsideration of Pickett the closing of one door appears to have opened another.
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