‘Lost years’ claims for children injured at birth: what does the new Supreme Court ruling mean?
Before February 2026, if parents made a medical negligence claim on behalf of a child injured at birth, the law didn’t allow them to claim for a lifetime of lost earnings. A new ruling has overturned that principle. Claudia Hillemand, a partner at Bolt Burdon Kemp, looks at how it will affect new and ongoing cases
Until a landmark ruling in February 2026, children who had sustained life-changing injury as a result of negligence were only able to claim loss of earnings for the duration of their reduced life expectancy. It did not matter that the negligence had shortened their life expectancy, or that they might actually live beyond it.
On 18 February 2026, the Supreme Court, in the case of CCC (by her mother and litigation friend MMM) v Sheffield Teaching Hospitals made an important ruling that will affect many claims for children who have experienced brain injury at birth.
In that case, mistakes made by the hospital’s maternity staff in managing the claimant’s mother’s labour caused the claimant to suffer chronic partial hypoxic ischaemia resulting in cerebral palsy and a significant reduction in her life expectancy to the age of 29 years.
An important and fair principle underpinning personal injury and medical negligence claims is the principle of restitution - putting the victim of the negligence in the position they would have been in, but for that negligence.
But until the long overdue decision of CCC 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 - their loss of earnings and pension loss claims were capped by their reduced life expectancy. However, thankfully, the Court has ruled that it now does apply.
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 had the negligence not happened, she would likely have lived and worked beyond 29 years. Loss of pension income would not even have been considered in her claim. 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.
Adult claimants with a reduced life expectancy due to negligence 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. So, if an adult claimant would have lived to 82 years (the average anticipated life expectancy 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), whereas until the decision on 18 February 2026, rather unfairly, a child claimant could not have done so.
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, putting both on an equal footing, completely in keeping with the principle of restitution.
The ruling in CCC 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.
Children with complex needs will benefit
In the past, children with complex needs but who have a shorter life expectancy have struggled to raise the funds to buy and adapt a property to meet their needs. That’s especially true if they haven’t been awarded compensation in full, because the hospital’s liability has been assessed as less than 100%.
Because these children haven’t had the money necessary to buy and adapt a property, they have often had to resort to renting – but suitable rental stock isn’t easy to find, especially as many private landlords are now abandoning the rental market. Tenants can be at the mercy of landlords for essential repairs and maintenance, which is very problematic for children with complex needs who require warm, dry and safe properties.
There is also a risk that landlords may not want to agree to the significant, bespoke adaptations required to suit a tenant with complex needs – and even if they do, 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.
What the Supreme Court ruling means is that potential funds as a result of a lost years claim may enable some claimants to access money that was previously not available, and which could be used to contribute to the purchase and adaptation of a long-term property. This will better meet their needs and provide both security and peace of mind.
Some medical negligence cases have to compromise at less than 100% on liability, and this means the claimant will receive less than the full value of their claim. As a result, there is a shortfall in meeting their needs: they may not be able to meet the costs of all their needs, such as care and therapies, specialist equipment, assistive technology, a specialist vehicle and transport costs, specialist activities and holidays.
The new ruling means that, even if the child receives less than 100% of their lost years claim, the money can be used to help plug the shortfall, and help meet essential needs, such as specialist care.
Compensation awards will rise
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, and ends the illogical practice of treating child and adult claimants 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.
Claudia Hillemand is a partner and Head of the Child Brain Injury team at Bolt Burdon Kemp LLP. A leader in the field and ranked in the Legal 500 and Chambers and Partners, she has consistently secured strong results for many clients who have suffered birth injury. She and another partner achieved one of the highest ever settlements for a birth injury claim of just under £33.2 million. Bolt Burdon Kemp are one of our Trusted Legal Partners: you can find out more about them here.
