JBX v Frimley Health NHS Foundation Trust

In assessing future care and accommodation damages, the court must ask whether the claimed regime meets the claimant’s reasonable needs and whether the regime and expense are reasonable. It must not substitute an assessment of the claimant’s best interests, or reject a reasonable choice merely because a cheaper alternative is also reasonable. Clinical complexity, unpredictable crises, access to specialist clinicians and institutional resilience may make residential care reasonable even where home care has psycho-social benefits. A child may recover lost-years damages if the loss is proved under normal principles. The court should use the best available evidence, including average earnings where appropriate. A living-expenses deduction must be evidence-based, moderate and rough-and-ready, without reflexive conventionality. Here, residential care was selected; lost-years damages used ASHE averages, a 50% deduction and retirement at 70.

The claimant, aged eight when admitted clinical negligence caused cardiac arrest and catastrophic hypoxic brain injury, sued through his mother. Liability and causation were admitted, and judgment was entered on 8 December 2023 for assessment of damages. At the quantum trial, the principal disputes concerned future care and accommodation after his planned departure from Tadworth Court at 19, and a lost-years claim to an agreed life expectancy of 25½. The claimant sought an adapted home with 24-hour two-to-one care and therapies. The Trust contended that a specialist adult neuro-rehabilitation unit was safer and met his reasonable needs. The lost-years issues were the appropriate earnings evidence, the deduction for personal living expenses and the assumed retirement age.

1. Future care and accommodation. The court held that the governing question was whether the claimed regime met the claimant’s reasonable needs, not whether it was in his best interests. The approach in Rialis v Mitchell (1984) WL 282520 and Sowden v Lodge [2005] 1 WLR 2129 required assessment of the regime claimed, rather than rejection merely because another arrangement might also be reasonable. The claimant would incur the costs of a home and care package if sufficient damages were awarded.
2. Option 1 nevertheless failed the reasonableness test. The claimant’s condition was complex, fragile and dynamic, with unpredictable seizures, dystonia and respiratory crises. Effective care required experienced staff, structured escalation, multidisciplinary access and institutional resilience. The psycho-social benefits of home care did not outweigh the lack of equivalent clinical infrastructure. The PDOC Guidelines were relevant evidence but were not determinative. Family preferences were relevant but could not be equated with reasonable compensation, applying Harman v East Kent Hospitals NHS Foundation Trust [2015] EWHC 1662 (QB). The claimant’s care expert had not provided the full, fair and balanced analysis required by Civil Procedure Rules 1998 Part 35; the court preferred the Trust’s care evidence. Hydrotherapy exceeding twice-weekly sessions was not established as therapeutically justified.
3. The claim for future care and accommodation was therefore assessed on option 2: a neuro-rehabilitation unit with in-house therapies. The agreed figures were a retained lump sum of £3,600,000 and periodical payments of £724,793.71.
4. Lost years. Following CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5, a child may recover lost-years damages where the loss is proved under normal principles. The assessment requires the likely net income, a deduction for personal living expenses and an appropriately discounted multiplier. Uncertainty required a rough-and-ready but evidence-based assessment, not a nominal award or an arbitrary conventional deduction. The court used average net salaries from the October 2025 ASHE data, applied a 50% deduction for living expenses and adopted a retirement age of 70. The parties were directed to agree the resulting sum, with consequential matters to be dealt with on the papers or at a further hearing.

This was a first-instance assessment of damages. Liability and causation had been admitted before issue, and judgment for the claimant was entered on 8 December 2023 with directions for quantum.