Key takeaways
Assessment of future earnings
Courts will require a robust evidential basis before concluding that a child would have achieved earnings significantly above the national average.
Deductions for living expenses
There may be a reluctance to impose substantial deductions for living expenses solely because the claimant is a child and future expenditure is uncertain.
Accommodation needs
Accommodation arrangements must meet a claimant’s reasonable needs. In some cases, residential care may be more appropriate than domiciliary care.
Since the Supreme Court's landmark decision in CCC -v- Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 lawyers have eagerly awaited insight into how the court will approach the assessment of child lost years claims.
The High Court's decision in JBX v Frimley Health NHS Foundation Trust provides the first judicial guidance on that issue.
The position after CCC
As discussed in our previous article Landmark shift in ‘lost years’ damages for child claimants | Hill Dickinson the Supreme Court in CCC overturned the long-standing authority of Croke -v- Wiseman, confirming that child claimants whose life expectancy has been reduced by negligence are entitled to pursue claims for earnings lost during the years of life they will no longer live.
The Supreme Court recognised that the assessment of such claims would inevitably involve a significant degree of uncertainty, often with limited evidence from which to predict a child's future education, career path, earnings and expenditure.
However, Lord Reed was clear that such uncertainty is not a reason to refuse compensation. Instead, courts must assess damages as best they can, using the evidence reasonably available.
The question left unanswered by CCC was precisely how the court would apply those principles in practice.
The facts of JBX
The claimant suffered a catastrophic hypoxic brain injury following admitted negligent treatment of asthma when he was eight years old.
Liability was admitted and it was accepted that, but for the negligence, JBX would have had a normal life expectancy and lived an independent adult life.
As a result of his significantly shortened life expectancy, the court was required to value a substantial lost years claim.
Assessing a child's future lost years earnings
JBX’s father worked as a successful sales manager in the City of London. JBX argued that his future earnings should be assessed by reference to his father's earnings and career trajectory.
The court rejected that approach as too speculative.
Whilst accepting that family background is a relevant consideration, the judge found there was insufficient evidence to conclude that the claimant would probably have followed the same career path or achieved similar success. The court noted that the claimant's older brother had followed a very different route, leaving school at 16 and earning substantially less than his father.
The judge considered that school reports from the claimant's first three years of education provided very limited assistance when attempting to predict career progression decades into the future.
In the circumstances, the court assessed the claimant's earning capacity using average net earnings data taken from the Annual Survey of Hours and Earnings (ASHE) and applied a standard multiplier/multiplicand approach.
The judgment suggests that absent compelling evidence to the contrary, courts may be reluctant to base lost years calculations on aspirational or particularly successful parental career paths. Instead, objective statistical evidence may often provide the starting point for the assessment.
Deducting for living expenses
As with adult lost years claims, damages are only recoverable for the portion of earnings which would have accumulated during the lost years. The claimant cannot recover the proportion of earnings that would have been spent on their own maintenance and living costs.
The Defendant argued that the court should apply a 90% deduction. Reliance was placed upon comments made by Lord Burrows and Lord Stephens in CCC, who observed that deductions in child claims may be ‘high’ because of the significant uncertainties associated with forecasting a child's future expenditure.
The court rejected that submission.
The judge accepted that child lost years claims involve greater uncertainty than many adult claims. However, he emphasised that the assessment remains an evidence-based exercise and that uncertainty should not result in an unduly restrictive approach to compensation.
Having considered JBX’s likely living arrangements throughout adulthood, including periods of living with parents, alone and potentially with a partner or family, the court concluded that a 50% deduction for living expenses was appropriate.
The court also calculated to a retirement age of 70, factoring in that the state retirement age has and will likely continue to increase over time.
Accommodation claims: residential care -v- privately purchased property
This Judgement also cited Harman -v- East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662 (QB), which made clear that care must be taken not to equiparate the family’s preferences with the regime of care and support the cost of which should be the basis of reasonable compensation.
This does not mean that a family’s wishes will not be taken into account, but each case must be examined on its facts.
It is not sufficient that the court might find that, as a matter of fact, if enough money were available a house would be bought and adapted for the Claimant and appropriate care arrangements put in place. The Claimant must also show that the option would meet his reasonable needs.
JBX’s care was highly complex and dynamic, requiring continuous monitoring and rapid escalation in response to unpredictable events. The concern was that it would be ‘extremely challenging’ to provide the required clinical infrastructure in his own home and so it was concluded that this would not meet his reasonable need.
What does this mean for defendants?
JBX is a first-instance decision and each case will depend on its own facts, with further judicial guidance inevitable as more post-CCC cases come before the courts. However, it is clear from JBX that the assessment of child lost years claims will remain an evidence-based exercise, with ‘uncertainties’ unlikely to justify either exceptional increases in earning capacity or unusually high deductions for living expenses. Overall, it seems that conventional lost years principles will likely prevail.
This case also serves as an important reminder that accommodation arrangements must meet reasonable need, and this will not always equate to the option of a privately owned property with individually sourced care arrangements.
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This article was co-authored by Paralegal, Megan McLintock.
