‘The principle of compensatory damages for tort victims is beguilingly simple. As Lord Blackburn explained in Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25 (H.L.), the court awards “that sum of money which will put the party who has been injured […] in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation” (p. 39). This counterfactual enquiry is very difficult in practice where the claimant has been catastrophically and permanently injured, as “what will happen?” and “what would have happened?” are both unknowable at trial. But where the catastrophic injury has also reduced the claimant’s life expectancy, the enquiry is conceptually difficult as well. This is the “lost years” conundrum: if an injured claimant with reduced life expectancy would have earned money during years when they will now, ex hypothesi, be dead, should they recover compensation for the income they will not now earn in those lost years, even though they will not be around to spend it?’
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Cambridge Law Journal, 23rd October 2026
Source: www.cambridge.org