From: Robert Stevens <robert.stevens@law.ox.ac.uk>

Sent: Thursday 19 February 2026 10:07

To: ODG

Subject: Lost Years

Yesterday the UKSC handed down an interesting decision on whether 'lost years' damages can be awarded to a young child.

https://supremecourt.uk/cases/uksc-2023-0111

The claimant had been injured by clinical negligence at her birth, and so had as a result a life expectancy of 29. Could damages be awarded for pecuniary loss for the additional years of life she would have enjoyed if she had not been injured?

'Lost years' damages have been awarded since the House of Lords decision in Pickett v British Rail Executive. But the Court of Appeal in Croke v Wiseman had held said that such awards cannot be made in the case of a young child (Croke v Wiseman [1982] 1 WLR 71).

A 4:1 majority of the UKSC (rightly) overturned Croke v Wiseman (Lords Reed, Briggs, Burrows and Stephens, Lady Rose dissenting).

Lord Reed (with whom Lord Briggs agreed) correctly state that Croke v Wiseman was based upon the idea that as the child did not have any dependants, there was nobody to compensate for the lost years award, and so no award should be made ([48]). As they explained, this is wrong, and reflects a misunderstanding of why damages are awarded. Damages are awarded to compensate the victim of a wrong to put them, so far as money can do it, in the position they would have been in if the wrong had not occurred. Two points are fundamental. First it is a counterfactual enquiry: we compare the world as it is with the world it would have been absent the wrong. Second, we are concerned with the tort victim's loss, not that of any third party, including where they exist the dependants. Dependants have not been wronged, so neither have any claim nor is any award to the victim made to reflect their loss. That assessing the child's economic loss for the 'lost years' was highly uncertain provides no reason for the court not doing the best it can in arriving at a figure to award ([56]).

As they also rightly say, if a distinction is to be drawn between persons with and without dependants, that is a matter of social policy for the legislature ([51]) and is not a matter for them. (cf Lady Rose's robust rejection of the logic of the compensatory principle [170], [199]).

Lord Burrows concurred in the result in the case as argued, but opens up the issue of overruling Pickett v BRE or confining 'lost years' awards to cases where the claimant has dependants ([143]). He states ([145])

'Lost years damages are controversial when viewed as compensating the claimant's own loss because they cut across the normal principle that there can be no loss to the claimant suffered after the claimant's death ... 'Wages in heaven should not be awarded when they are not needed on earth.' ... it is difficult to justify the lost years award when viewed as compensation for a loss of the claimant.'

This is wrong. If damages were awarded to enable the living to meet their needs, this would be correct. We have no needs when we're dead. But that is not why we award damages. We award them to place the claimant as near as money can do it in the position they (counterfactually) would have been in if no wrong had occurred. Being dead, when you would have otherwise been alive living as a musician, surgeon, barrister, bricklayer, or teacher, is to be worse off. The presence of dependants ought to be irrelevant, as the court in Pickett had also said. The award is not, and cannot be, for the dependants, because they have suffered no wrong: damnum sine iniuria. The dependants have needs, but damages awards are not made to make good needs.

As Lord Burrows rightly points out however, in Hunt v Severs it had been said (in obiter dicta) that where care is provided to a tort victim by a third party, the award of damages is to compensate the carer, not the tort victim, and so is held on trust. This too is incorrect. Rather the loved one who cares for the victim is discharging the obligation of the tortfeasor to pay for the care, an obligation that arises as soon as the wrong is suffered. The carer is not a mere volunteer; they do so out of moral compulsion. As a result, it makes sense to reallocate the burden of the discharge of the obligation to the party who properly ought to bear it: the tortfeasor. Consistency should require that the same approach ought to be adopted where the third party discharges the tortfeasor's obligation through the payment of money. (see, fwiiw, R Stevens, Torts and Rights 191-198, a passage I am relieved to find 20 years later still seems right to me).

The reason the common law historically said that damages did not survive death was because the view was taken that our rights died with us, and so did the claims. Not because being dead is not to be worse off than being alive.

Where the wrong kills the victim, today the victims are given their own freestanding claim under the Fatal Accidents Act. I think that can be justified, but only because it is the easiest route to getting as close as possible to the world where the wrong to the victim had not occurred.

Rob