JBX was eight years old in January 2018 when he was discharged from Frimley Park Hospital despite presenting with a six-month history of worsening asthma. Very sadly, JBX suffered a catastrophic brain injury the day following discharge. The Defendant admitted liability pre-issue. Life expectancy was agreed by the parties at 25½ years. Following the injury, JBX (now age 17) was cared for and lived at a residential rehabilitation centre for severely disabled children (Tadworth).

The case proceeded to a quantum trial in May 2026 on two issues: (1) future accommodation and care and (2) lost years. This insight breaks down the judgment in relation to these two issues and suggests some key takeaways for practitioners.

Future accommodation and care

JBX’s case was that the costs of buying and adapting a property and setting up a home care regime would be incurred at age 19 (two years in the future). The Defendant’s case was that the evidence strongly supported the likelihood that JBX would remain in residential care given the complexity of care needs.

The Judge started from the principle of reasonableness that the Defendant should compensate JBX for what is reasonably required. The reasonableness test involved applying two stages:

• First, would JBX actually incur the costs of buying and adapting a home and running a home-based care package? The Judge found that “if enough money is available, a house will be bought and adapted for the Claimant and appropriate care arrangements put in place” (paragraph 140).
• Secondly, would the proposed move to his own accommodation meet the Claimant’s reasonable needs? JBX did not meet this hurdle and did not establish that the home care package would meet his reasonable needs. The Judge said that “a neuro-residential care unit would satisfy those needs” (paragraph 166). Damages will be awarded on the basis of the Defendant’s neuro-residential proposal.

Due to the parties narrowing quantum issues before trial, oral expert evidence was confined to four expert disciplines. The Judge preferred the evidence of the Defendant’s expert witnesses, namely Dr Agrawal (Neurology), Dr Soppitt (Neuropsychiatry), Claire Ward (Care) and Juliet Weston (Physiotherapy).

Dr Agrawal and Dr Soppitt provided persuasive opinion in favour of residential care in terms of managing future medical crises and JBX’s well-being. The Judge summarised Dr Agrawal’s evidence that “it would be ‘extremely challenging’ to provide the required clinical infrastructure in a home environment” (paragraph 72).

Other factors that the Judge took into account before finding in favour of the Defendant’s proposal for a neuro-rehabilitation unit were:

• The Judge criticised the Claimant’s care expert, stating that “Mrs Evans neither critically nor adequately examined the merits of domiciliary and residential care given the catastrophic nature of the Claimant’s injury” and she “did not discharge her obligations under CPR 35” (paragraph 151).

• JBX suffers from a prolonged disorder of consciousness and has very specialist and complex medical needs. The Trust relied upon the 'Prolonged disorders of consciousness following sudden onset brain injury – National Clinical Guidelines'. In short, these said that “Long-term care should be provided in an appropriate setting, which may be in the patient’s own home with family, but is more usually arranged in a nursing home setting; living alone with a care team is not appropriate…”. DBX’s factual evidence (mother and Litigation Friend) on behalf of JBX was that the future adapted property would be purchased “nearby”. However, the proposal was that JBX and DBX would not reside in the same property together, contrary to the above guidelines.

• The Judge was “not satisfied that Mrs Brack, the Claimant’s joint deputy, properly considered the merits of domiciliary and residential care before concluding that the former met the Claimant’s reasonable needs” (paragraph 164).

• The Judge “preferred Mrs Weston’s evidence and… I am not satisfied that there is any sound or critically-evaluated evidence that more than twice-weekly [hydrotherapy] sessions would provide much, if any, substantive therapeutic benefit… to the Claimant” (paragraph 165).

The key takeaways include the importance of having balanced and persuasive expert opinion on future accommodation and care and the necessity of careful case preparation. Defendants should, however, be cautious about proposing residential or neuro-rehabilitation accommodation in other claims. It is important to note that this case should be confined to its own particular facts.

Lost years

The second issue determined was lost years. 

JBX argued that an award should be made on the basis of the father’s earnings (high earner) of over £200,000 p/a, with a 50% deduction for living expenses for the entirety of his life with a pension age of 70. The Defendant argued that the award should be based on average earnings, a 90% deduction for living expenses and a pension age of 68.

The Judge rejected JBX’s approach to the calculation of future earnings and noted JBX’s “normal” expected school development prior to the injury and the career trajectory of his older brother. The Judge bypassed familial projections and, instead, applied average net salaries as set out by the Office for National Statistics’ (ONS) Annual Survey of Hours and Earnings (ASHE) data, finding that retirement at the age of 70 was “realistic” (noting the statutory retirement has increased over time).

Importantly, the Judge determined the Defendant’s submission for a 90% deduction for living expenses was out of kilter with the general range of discounts applied in recent years, albeit that a deduction of 75% was awarded in Wooding v Torbay District Council [1992] CLY 1558.

The Judge accepted that assessment of the appropriate discount in child claims will be “rough and ready, [but] nonetheless an evidence-based exercise” (paragraph 200), but even though the child claims have a “novel nature” (paragraph 203) to the exercise, the appropriate discount was 50%.

Conclusion

JBX v Frimley Health NHS Foundation Trust demonstrates that it remains a significant hurdle for Claimants to persuade Courts to deviate from average or median earnings, regardless of parental income, when calculating future loss of earnings for children. The result of this case may make it easier to resolve lost years claims for other cases if the “conventional” approach by the Judge in JBX is adopted by Claimants and Defendants.

However, practitioners do need to appreciate the paucity of evidence available to the Court in JBX. We expect that other lost years claims may involve expert evidence from labour market economists or employment experts deployed by Claimants and Defendants to argue against the “status quo” found by the Judge in JBX.

How Capsticks can help

Capsticks advises NHS organisations and healthcare providers on clinical negligence claims, patient safety and all aspects of litigation. If you would like to discuss the issues raised in this article, please contact Principal Associate Joseph Dowling.