Lessons for claimants in a difficult quantum assessment case for a severely damaged claimant
Lizanne Gumbel KC and Samuel Talalay
JBX v Frimley Health NHS Foundation Trust [2026] EWHC 2294 (KB)
The judgment in JBX – handed down on 4 September 2026 by Andrew Kinnier KC, sitting as a Deputy High Court Judge – provides a helpful guide to the Court’s approach to assessing damages in the case of a catastrophically injured child in a minimally conscious state who had been in residential care for 10 years before trial and had a life expectancy of only 25.5 years.
Introduction
This appears to be one of the first decisions involving a ‘lost years’ claim by a child since the change in the law ushered in by the Supreme Court judgment in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 (covered elsewhere on this blog). The result in this respect was unsurprising and the Defendant’s attempt to argue the Claimant should only recover 10% of his income in the lost years failed; the conventional 50% was instead applied.
More significant were the difficulties encountered by the Claimant in his attempt to recover damages based on purchase of accommodation and care in his own home when he had been in residential care for 10 years before trial. It is as a stark reminder of the evidential work required to prove that home care – and a bespoke home care team – is reasonable for claimants in a minimally conscious state.
Background
JBX suffered a hypoxic brain injury in January 2018, at the age of eight, as an admitted consequence of the Defendant Trust’s negligent care. As a result, he developed a profound and complex disability characterised, inter alia, by “a prolonged disorder of consciousness which is classified as a minimally conscious state”: [7(a)]. He had been unable to communicate or make decisions ever since, and his reduced life expectancy was agreed by the parties to be 25.5 years.
Several months after the injury, in May 2018, JBX moved to Tadworth Court, a residential rehabilitation centre for severely disabled children. He was still living at Tadworth Court at the time of trial, and it was agreed that he would stay there until he turned 19 in June 2028: [6].
The quantum trial, held over eight days in May 2026, concerned (1) the value of damages that the Claimant ought to recover for the future costs of accommodation and care and (2) the correct approach to quantifying future earnings and living expenses for the purposes of calculating the lost years claim.
Care and accommodation
On the former issue, the parties agreed on the valuation of different care and accommodation scenarios, but disagreed as to the scenario that should form the basis of the assessment.
The Claimant argued for almost £7m in damages on the basis that JBX would live “in his own home with care provided by Libertatem care agency”, while the Defendant argued for just over £4m on the grounds that JBX would live “in a neuro-rehabilitation unit with [an] in-house package of therapies”: scenarios 1 and 2, respectively, at [123].
The judge sided with the Defendant, deciding at [166] to award care and accommodation damages on the basis of scenario 2.
Lost years
As for lost years, the Claimant argued for a figure informed by above-average earning predictions based on the father’s line of business, see [172(a)], and for a discount of 50% to account for the living expenses JBX would have incurred.
The Defendant’s position was that damages should be calculated using average earnings as a starting point [174] and applying a substantial discount of 90% for living expenses, [176]. That discount was necessary, the Defendant maintained, “to reflect the difficulty of the exercise, the degree of speculation required and Lord Burrows’ expectation of a high discount” in child claimant lost years claims after CCC.
While not averse in principle to making an award on the basis of information about other family members’ employment history, the judge, at [199], was “not satisfied that there is enough to allow me safely to assess the Claimant’s likely earnings on the basis of his father’s career in sales.” He agreed with the Defendant’s use of Office for National Statistics figures on net average salaries.
The Court agreed with the Claimant, however, that “the appropriate discount is 50 per cent”: [203].
Comment: lost years claims for children
The decision to end the bright line distinction between adult and child claimants with respect to eligibility for lost years damages, in place since Croke v Wiseman [1982] 1 WLR 71, was only taken by the Supreme Court in February 2026. As such, the award of damages to JBX for loss of earnings over the ‘lost years’ was necessarily novel. It was, however, a straightforward application of the law post-CCC.
What was less certain was how the Court would deal with the fact, acknowledged by Lord Burrows at [141] in the judgment in CCC, that the degree of uncertainty pertaining to (lost) future earnings only increases as the age of the claimant decreases, even if, in both his and the majority’s view, that increased uncertainty did not warrant a qualitatively different approach in the form of a bar on recoverability for children.
The decision illustrates the difficulty with trying to persuade a court that the Claimant would have followed in his parents’ footsteps – whilst there was strong evidence that several generations of men in JBX’s family had gone on to work in sales and, in the case of his father, to earn above average, there was no evidence that JBX’s sibling had done so. Furthermore, school reports from the first three years’ of JBX’s education provided limited assistance – see [198-199].
As to the discount to reflect the amount of his income that the Claimant would have spent on his personal living expenses, the Court noted that (i) in previous cases a discount of 40-50% had been applied (ii) whilst the amount would have varied over the Claimant’s life, a single discount should be applied (iii) there was no reliable evidence of pre-injury earning capacity (iv) there was no reason to expect that he would have been eternally single (v) there was no reason to expect that he would have moved far away from the south-east of England, where he was from, [201-202]. The Court ultimately declined the Defendant’s invitation to impose a steep 90% discount, despite “the novel nature of the exercise in child claims”: [203].
The approach to lost years claims brought by children is, for now at least, no different in principle from the approach to adult claims.
Legal principles on recovering care and accommodation costs
Quite separately, this judgment is helpful as a restatement of foundational principles governing recoverability of damages for future care and accommodation costs.
First, the familiar principle of negligence that a defendant is only liable for the losses reasonably foreseeably caused by its wrong should be understood, for the purposes of care and accommodation, in terms of “what is reasonable”: [128], following Rialis v Mitchell (1984) WL 282520. Damages are not to be determined with reference to the “best possible treatment”(ibid.), the judge’s assessment of “the claimant’s best interests” ([129]), or the “family’s preferences” ([132]). Instead, “the test is ‘what is required to meet the Claimant’s reasonable needs?’”: [130].
A claimant’s reasonable needs and her best interests might be coterminous – as was suggested to be the case, at [129], in Sowden v Lodge [2005] 1 WLR 2129 – but they need not be. Threatening the conceptual distinction, however, was the Court’s acknowledgment that, to “identify what is required to meet [the] Claimant’s reasonable needs, the starting point is his diagnosis and prognosis”: [145]. In other words, whether the care and accommodation being claimed for is in a claimant’s clinical best interest, in some sense, clearly forms part of the analysis of his reasonable needs. Indeed, the judge rejected scenario 1 – the Claimant’s preferred care and accommodation scenario – because he was not satisfied that it would “provide adequate support for the Claimant’s profound and challenging clinical needs”: [162].
Secondly, the Court reiterated the two-stage approach encouraged by Ritchie J in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) to determining the Claimant’s reasonable needs. The first stage involves considering “not whether other treatment is reasonable but whether the treatment chosen and claimed for is reasonable”: [128]. If it is, then the further question to be asked is whether the “claimed expenses [are] reasonable compared with other less expensive methods of satisfying the reasonable need”: [131].
Caveat claimant
More than anything, this case is a powerful reminder of the evidential legwork that is needed to convince the Court to award future care and accommodation damages on the claimant’s terms.
The Claimant’s problems in this regard included:
- Issues with disclosure, privilege and redactions;
- That the Claimant’s litigation friend did not address the choice of home care for her son in her initial witness statements. As the judge explained “A relatively more troubling aspect of DBX’s evidence was her inability to explain when and why she had decided that a domiciliary model would best meet the Claimant’s reasonable needs”: [138];
- That the Claimant’s litigation friend did not address, in any of her witness statements, her reasons for not wanting her son to live in the proposed residential units [35];
- That the Claimant’s litigation friend did not explain whether she had considered the clinical risks of her son living in his own home [34];
- That the Claimant’s deputy, who supported home care for the Claimant, did not read the medical evidence [164];
- That the Claimant’s care expert did not explain the benefit of home care [151]; and
- The fact that the Claimant had already been in residential care for ten years and that he was only expected to live a further seven years from trial. By the time a home was adapted to his needs he would probably only live there for under five years.
The judge’s decision to prefer the Defendant’s care and accommodation scenario, and thereby make a significantly smaller-than-claimed-for award, was largely a result of his preference of the Defendant’s expert evidence.
Particularly damaging for the Claimant’s financial outcomes – which turned in large part on proving that the residential care envisaged in scenario 1 was appropriate for JBX’s highly complex needs – were the judge’s findings, at [113] and [95] respectively, that his care expert “did not consider the advantages and disadvantages of the identified home and residential settings sufficiently to satisfy me that she had fully discharged her obligations under Part 35” and that his neuropsychiatric expert “did not sufficiently consider the merits and, crucially, the risks posed by the various accommodation options under consideration”.
Conclusion
This case is significant in marking the beginning of the post-Croke v Wiseman era of lost years claims. For practitioners, however, it is perhaps more useful as a reminder of the size of the task faced by a claimant wishing to recover all of his or her anticipated care and accommodation costs, and the implications for case preparation.
There are cases where a claimant in a minimally conscious state or permanent vegetative state will reasonably require home care: Ahsan v University Hospitals Leicester NHS Trust [2006] EWHC 2624 is an example. However detailed investigation of the reasons for and advantages of home care must go well beyond the evidence the Claimant was able to rely on in this case.
