Background to ‘lost years’ claims
The House of Lords decision in Pickett v British Rail Engineering  established the principle that damages for lost years could include a sum to cover loss of earnings in that period, whatever the age of the claimant. Such losses are recoverable in adult claims on the basis that that person has been deprived the opportunity to use their income in the way they would have wished had their life expectancy not been reduced.
In the subsequent case of Gammell v Wilson  this point was revisited in relation to lost years claims by children and Lords Diplock and Scarman agreed that such awards were not available to young children. Lord Diplock was of the opinion that in cases where there was no history of previous steady employment, “the judge would be faced with a task that is so purely one of guesswork that it is not susceptible of solution by the judicial process”.
Lord Scarman said:
“In the case of a young child, the lost years of earning capacity will ordinarily be so distant that assessment is mere speculation. No estimate being possible, no award - not even a “conventional award” - should ordinarily be made. Even so, there will be exceptions: a child television star, cut short in her prime at the age of five, might have a claim: it would depend on the evidence.”
Later the same year the position was confirmed in the Court of Appeal in the case of Croke (a minor) v Wiseman . The Court of Appeal considered the position regarding loss of years and provision for dependents. In view of the Courts’ decisions in Pickett and Gammell, the Court of Appeal found that there were social policy grounds why a ‘lost years’ claim could never be brought by a young child.
- In the case of a child there are no dependants, and “if a child is dead there can never be any dependants and, if the injuries are catastrophic, equally there will never be any dependants. It is the child that will be dependent. In such circumstances, it seems to me entirely right that the court should refuse to speculate as to whether in the future there might have been dependants for the purpose of providing a fund of money for persons who will in fact never exist”
- The court could and should refuse to speculate as to whether, but for the accident, the child in adult life might have had dependants, for whom he might have wanted to provide a fund of money, this, it was said would require speculation “about an impossible and hypothetical situation”
- “Not only does it (the Court) have to assess what sum the plaintiff might have been earning, but it also has to make an assessment of the sum that would not have been spent on the plaintiff’s own living expenses and would have, therefore, been available to spend upon his dependants. In the case of a living claimant of mature years whose life expectation has been shortened and who has dependants, there are compelling social reasons for awarding a sum of money that he knows will be available for the support of his dependants after his death. It was this consideration that led to the result in Pickett’s case”
Totham v Kings College Hospital NHS Foundation Trust 
The claimant, a child, claimed damages for serious brain injuries sustained during her birth. She suffered from cerebral palsy having sustained a grade 2 hypoxic ischaemic injury. She lacked muscle strength and was unable to mobilise without help. She presented with severe learning difficulties but attended a mainstream primary school with one-to-one support.
The Claimant’s life expectancy was 47 and she was aged 7 at the date of trial. The defendant NHS Trust admitted liability but a number of heads of damage remained in dispute, in particular a claim for loss of earnings and pension up to the age of 93.6 years, notwithstanding the judgment in Croke which, as discussed above, restricts a claim to the period of life expectancy in such cases.
In assessing damages for future loss of earnings and pension payable the Court followed Croke but set out that the decision was inconsistent with the principle of compensation as set out in Wells v Wells . The Court held that, had it not been bound by the decision in Croke it would have made an award for the ‘lost years’ following the claimant’s reduced life expectancy in accordance with the principle of full compensation.
For Croke to be overturned the issue must be heard by the Supreme Court. As Laing J strongly asserted in Totham, this point ‘should’ be resolved by the Supreme Court, and it is likely to be only a matter of time before this comes to pass.