JBX v Frimley Health NHS Foundation Trust [2026] EWHC 2294 (KB) is a quantum-only brain injury case where judgment was given on 4 September 2026 by Andrew Kinnier KC, sitting as a Deputy Judge of the High Court. It addresses two important issues for personal injury practitioners. Firstly, where should a claimant live? Should someone who is so catastrophically injured that they have the most complex of needs live in hospital or are they entitled to live in their own home? Second, how should lost years damages be calculated after CCC and in particular is there a basis for departing from the conventional 50% apportionment?
Background
The claimant, 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. The Trust admitted, pre-issue, that he should have been admitted and given a course of steroids, and that but for that failure he would not have suffered the cardiac arrest and hypoxic brain injury that followed the next day. The consequences were catastrophic. JBX, now 17, is in a minimally conscious state with no realistic prospect of improvement, has a profound four-limb motor disorder (GMFCS grade 5 equivalent), intractable epilepsy, severe dystonia, cortical visual impairment and complex feeding needs, and requires two carers for all transfers and personal care. Life expectancy was agreed, by way of compromise between the neurological experts, at 25½ years.
Judgment was entered for the claimant in December 2023, leaving damages to be assessed. By the time of trial the parties had narrowed the dispute to two heads of loss and, sensibly, agreed the quantum that would follow from each of seven possible factual findings, so that the court’s task was to choose between scenarios rather than to build up a figure from scratch.
Accommodation
The claimant’s case was that he should move out of the hospital environment in which he had been living and into his own private accommodation with a care package. It was agreed that this would mean a lump sum of £5.99m and annual payments of just over £1.06m p.a. The judgment does not include multipliers but assuming life expectancy to 25 ½ that would be a fixed period of 8.5 years (multiplier 8.32) and the capital equivalent of the award for care and accommodation would be approximately £14.8m.
The defendant’s case was that he should move to a specialist neuro-rehabilitation unit at a cost of £3.6m plus £725,000 p.a. I calculate the capital equivalent as being just over £9.6m.
Future care and accommodation: reasonable needs, not best interests
The judge began from the well-established principle that compensation is moderated by reasonableness: a defendant need not fund the best possible care, only what is reasonably required, and once a course is found reasonable the defendant must fund it in full (Rialis v Mitchell (1984) WL 282520, per O’Connor LJ at p.8; Sowden v Lodge [2005] 1 WLR 2129). Importantly, the Court of Appeal in Sowden established that the touchstone is “what is required to meet the claimant’s reasonable needs”, not “what is in the claimant’s best interests” — a distinction the judge held the defendant’s counsel had blurred by using “best interests” throughout as a synonym for reasonable requirements (judgment para 130).
Applying that test involved two stages. First, would JBX actually incur the costs of buying and adapting a home and running a Libertatem-supplied care package, or was this aspirational pleading unmatched by real intention? The claimant succeeded on this point. The judge accepted that the parents’ preference for a home was genuine, notwithstanding that they had not yet identified a house or spoken to the local authority in detail, because it made sense for them to wait for the court’s decision before committing to a property that might be sold by the time they were ready to buy, and their caution before the trial did not undermine their stated intention.
Second, would the proposed move to his own accommodation meet the claimant’s reasonable needs. The claimant failed at this hurdle.
The judge appears to have accepted that he was not being asked simply to choose between two reasonable alternatives – his role was not to determine whether it was better for the claimant to live in a residential unit or his own home. Rather the question was whether either or both options would meet the claimant’s reasonable needs.
In that context the judge found that the claimant had not proved that ‘option 1’ – living in his own home – was capable of meeting his reasonable needs. On that basis he refused to award the damages to pay for it and assessed damages on the basis of the only viable alternative which was the defendant’s ‘option 2’ – residential accommodation.
How surprising is it that the judge preferred ‘institutional care’, albeit a very specialist unit to the claimant living in his own home?
When reviewing a judgment it is important to acknowledge how much we don’t actually know beyond what is recorded in the 50+ pages of the judgment. Many would start however from the premise that provided there was access to a reasonably high level of medical care when required it would be better to be in your own home than shared accommodation/ a residential unit.
It is clear from the judgment that the way that the evidence was presented in court was a major factor in the decision. The Defendant’s neurologist (Dr Agrawal) and neuropsychiatrist (Dr Soppitt) presented a strong argument in favour of residential/ hospital care, not just in terms of managing future medical crises but in terms also of the Claimant’s overall well-being.
Both neurological experts agreed the proposed home package was not inherently unsafe; the Trust’s expert, Dr Agrawal, ultimately accepted it would be safe, just less safe than an institution. The judge found that difference decisive given JBX’s profile: his dystonic episodes and seizures are severe, frequent and unpredictable, his respiratory vulnerability is his primary life-limiting risk, and his needs are likely to increase, not decrease, as he grows older. On that footing, the “important, if not the principal, issue” was whether care staff in a home setting could respond as effectively to a medical crisis as staff in a residential unit with institutional governance, peer review and immediate multi-disciplinary support . The judge was not satisfied that they could, notwithstanding that the same clinical protocols would in principle apply wherever JBX lived.
The judge said that he was surprised that the claimant’s expert neurologist, Dr Prasad, had not been asked to consider the two alternative models of care prior to joint statements.
The claimant’s neuropsychiatrist,Dr Igboekwu, was criticised for his performance under cross-examination and his failure to weigh properly the two alternative models of care.
The judge was also critical of the claimant’s care expert for not having given any serious consideration in her report to the suitability of the institutional care regime. but rather for assuming that the claimant would be better in his own home. The judge found that, “in her entirety”, she had “fallen into the trap of advocating one side’s position rather than providing the court with a full, fair and balanced assessment of the competing merits”. That finding, on a head of loss worth several million pounds, was decisive.
Similar criticism was made of the claimant’s deputy. Her evidence in support of the home-based option was rejected for want of any real engagement with the neurological evidence or with the practicalities of running a home package.
There is something of a paradox in the judgment with the judge criticising the claimant’s experts for not comparing the two accommodation options whilst also acknowledging that the case was not a determination of ‘best interests’ and being clear that it was not for the court to make a judgment whether it was better for the claimant to live in one environment or the other.
I have some sympathy with the claimant’s legal team whose view may have been that if it was for claimant and his deputy/ family to decide where he should live rather than the court then an evaluation of the two alternatives was not required. The problem they faced though was that in circumstances where their experts had not carried out a comparison exercise they were left vulnerable to the defendant’s argument that when the two alternatives were actually compared, the ‘own home’ was not adequate to meet the claimant’s needs whereas the residential option was.
Before lawyers in other cases rush to make assumptions that residential care should be preferred to ‘own home’ accommodation it is worth noting just how limited this claimant’s understanding of his surroundings was agreed to be and just how specialist and complex his medical needs were. This is not a judgment which should give new encouragement to defendants wanting to propose that those with less severe brain injuries should live in (cheaper) supported living than their own homes.
The lost years claim after CCC
The second half of the judgment applies the Supreme Court’s decision in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5, which held, reversing the Court of Appeal’s approach in Croke v Wiseman [1982] 1 WLR 71, that a child claimant can recover damages for loss of earnings and pension in the lost years in the same way as an adult claimant, and that such a claim does not depend on the claimant having, or being likely to have, dependants [178]–[186].
Applying that framework, Andrew Kinnier KC worked through three stages. On likely income, the claimant argued for an assessment based on his father’s actual earnings as a City sales manager (between roughly £160,000 and £220,000 a year in recent years), pointing to a family tradition of going into sales. The judge rejected that approach: the claimant’s elder brother, despite an apprenticeship and a stated hope of following the family trade, had in fact gone into a different, non-sales field, which undermined the inference that JBX would necessarily have followed his father’s specific career [197]–[199]. In the absence of reliable evidence tying the claimant’s own prospects to his father’s earnings, the judge fell back on the most recent Annual Survey of Hours and Earnings (“ASHE”) average net salary data [199].
On the multiplicand, the Trust argued for a 90% discount to reflect the claimant’s probable living expenses, relying on Lord Burrows’ observation in CCC that the discount “may be high” given the degree of uncertainty in child claims [174]–[176]. The judge rejected that figure as “out of kilter” with the range actually applied in reported first-instance decisions, which cluster around 40–50% (see, among others, Eagle v Chambers (No.2) [2003] EWHC 3135 (QB) and JR v Sheffield Teaching Hospitals NHS Foundation Trust [2017] 1 WLR 4847) [184(a)], [201]–[203], and applied the conventional 50% discount [203].
Finally, on the multiplier, the judge preferred a retirement age of 70 over the Trust’s proposed 68, on the basis that the state pension age has only ever risen and there was no reason to expect that trend to reverse before 2079 [204].
Interestingly the Defendant did not raise the point of whether lost years should not be awarded at all (regardless of the age of the claimant) – an intriguing possibility raised in CCC and now something often seen in counter-schedules.
The decision is useful to both claimants and defendants in supporting the conventional approach both to the calculation of loss of earnings for children i.e. the use of average/ median earnings regardless of parental income and in confirming 50% as the appropriate lost years discount. Hopefully the approach of the judge in sticking to what we might consider ‘usual practice’ just makes settling cases easier for all parties.