On Friday 4 September the High Court handed down judgment in JBX v Frimley Health NHS Foundation Trust [2026] EWHC 2294 (KB). This provides the first (or at least one of the first) judicial applications of the Supreme Court's ruling in CCC (by her mother and litigation friend MMM) (Appellant) v Sheffield Teaching Hospitals NHS Foundation Trust (Respondent).

The decision confirms that:

• The conventional 50% living-expenses discount applied in adult claims will not automatically give way to a higher figure because the claimant is a child; and
• ASHE average earnings will be the appropriate earnings basis where the evidence does not safely support a higher figure.

Background 

JBX’s asthma was mismanaged at Frimley Park Hospital in January 2018, when he was eight years old. He was discharged but the following evening he suffered a cardiac arrest and a catastrophic hypoxic brain injury. The Trust admitted liability and accepted that, but for the admitted negligence, JBX would have led a fully independent adult life. 

His father works as a sales manager in the City of London, with gross earnings of between £160,000 and £221,000 in recent years; his brother left school at 16 earning approximately £14,000 per year.

CCC v Sheffield Teaching Hospitals NHS Foundation Trust

In February 2026, the Supreme Court in CCC overruled Croke v Wiseman [1982] 1 WLR 71 and confirmed that lost years damages are available in principle to claimants injured in early childhood, assessed using the multiplier-multiplicand approach. The earnings basis, living-expenses discount and multiplier all fell to be determined according to the evidence.

The majority of the Supreme Court left the assessment of quantum to the trial judge. Lord Reed identified ASHE statistical data as an important tool; Lord Burrows anticipated that the percentage discount for living expenses would be "high" because of the high degree of uncertainty in child claims; Lord Stephens cautioned against arbitrary or conventional discounts and warned that uncertainty must not lead to inappropriately parsimonious awards. 

The Court's analysis and decision

Andrew Kinnier KC, sitting as a Deputy High Court Judge, assessed the lost years claim in three stages.

1. The earnings basis

The judge declined to assess likely earnings by reference to the father's career in sales. Although JBX’s father may have wished the Claimant to follow his career path in Sales in the City of London, his eldest son's experience – leaving school at 16, pursuing an apprenticeship and earning approximately £14,000 per year – suggested that wish would not necessarily be fulfilled. 

The reports from the Claimant’s first three years at school “provide very limited assistance in considering his likely employment when he reached 18 and his earning capacity beyond the fact that he was meeting expected standards of development at the age of eight”. Viewing the limited evidence in the round, the judge was not satisfied there was enough to allow a safe assessment on the basis of the father's earnings and assessed likely income instead by reference to ASHE average net salaries from the October 2025 survey.

2. Living-expenses discount

The Trust sought a 90% discount, relying on Lord Burrows' observation in CCC that the percentage discount would be “high” in child claims. The judge rejected the 90% figure, holding that assessment remains an evidence-based exercise even in child claims, and that the Trust's proposed discount was out of kilter with the general range applied in recent years. He assessed the Claimant's likely living arrangements at various stages of life – with parents, alone, or with a family of his own – and noted that there was no reason to suppose he would have been eternally single or moved far from the south-east of England, where unemployment is below the national average. The appropriate discount was 50%.

3. Retirement age

The judge accepted a retirement age of 70 rather than the Trust's proposed 68, reflecting the direction of travel in state pension age.

Conclusion

The decision in JBX shows that where the evidence does not support an above-average earnings, ASHE will apply. Equally where the facts do not justify departure from the conventional living expense discount range, a 50% discount will be applied. To find out how Browne Jacobson can support you with lost years claims and other complex matters, contact our specialist clinical negligence team.