PI Brief Update

Lost Years Claims for Children: The First Application of CCC v Sheffield Teaching Hospitals - Maia Cohen, Temple Garden Chambers

24/10/26. JBX v Frimley Health NHS Foundation Trust [2026] EWHC 2294 (KB) is the first example of a court’s approach to the calculation of a lost years claim for children since the Supreme Court in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 overturned Croke v Wiseman [1982] 1 WLR 71 and held that this head of loss was recoverable for children in relation to their own pecuniary losses and was not contingent on having dependants.

At age eight, the Claimant suffered catastrophic injuries as a result of the Defendant’s negligence which substantially reduced his life expectancy to 25.5 years. His injuries rendered him severely disabled and unable to communicate or make decisions.

At the time of the High Court judgment, the Claimant was 17 years old. When assessing the Claimant’s lost years claim (the loss of earnings and pension in the period between his expected death and the date of his death had he not been injured), Andrew Kinnier KC (Sitting as a Deputy Judge of the High Court) considered the following three elements.

1. An assessment of the Claimant’s likely annual income over his lifetime.

Counsel for the Claimant submitted that, but for the Claimant’s catastrophic injury, he would have followed in his father’s footsteps and pursued a career in sales, ultimately achieving the same salary as his father. Reference was made to the Claimant’s pre-injury school reports in support of this.

The Defendant referenced Lady Rose's dissenting judgment in CCC and submitted that it was inappropriate to base the Claimant’s future earnings on his father's, advocating the use of average earnings to calculate the Claimant’s estimated earning capacity.

Referring to Lord Reed’s judgment in CCC, Kinnier KC held that such an assessment should be fact-specific, and while there was a high level of evidential uncertainty in this case, the difficulty of assessment does not justify awarding no or nominal damages. Kinnier KC acknowledged that statistical evidence of average earnings served as useful guides but rejected the Defendant’s submission that the Claimant’s family circumstances should not be a factor of the assessment. He held that evidence based on family circumstances and attitudes was likely to assist the court in making the best assessment of the loss suffered by the particular individual. Nonetheless, when viewing the evidence regarding the Claimant’s father, mother and brother’s careers in the round, Kinnier KC held he could not determine that the Claimant would have worked in sales and make the calculation based on his father’s salary.

2. The deduction to be made for the Claimant’s living expenses

The Claimant maintained that a conventional discount of 50% should be applied, with reference to first instance decisions in which this had been done.

The Defendant objected to the application of the conventional approach to child claims because, as stated by Lord Burrows in CCC, they included a high degree of uncertainty. The Defendant submitted that a 90% discount was appropriate to reflect the degree of speculation required.

Kinnier KC held that, although the assessment of the discount to be applied in child claims would be “rough and ready”, it was nonetheless an evidenced-based exercise, decided on the facts of the case. Therefore, assessment should “guard against the reflexive use of a conventional figure”.

Kinnier KC considered the ONS data from the area his mother lives, which shows unemployment is lower than the national average. He held that there was no reason to suppose that, but for his injury, the Claimant would have moved away from SE England, where his family is based. He further held that there was no reason to suppose that the Claimant would have been eternally single. Kinnier KC held that, in light of these facts, 50% was the appropriate deduction and that, “even allowing for the novel nature of the exercise in child claims, the Trust’s proposed discount of 90 per cent is…out of kilter with the general range of discounts applied in recent years”.

3. The application of the multiplier.

The multiplier was determined with reference to the Ogden table. The judge held that the Claimant’s assumption that, by 2079, when but for his injuries C would have turned 70, the state retirement age will have increased to 70 was more realistic than the Defendant’s submission of an increase to 68.

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