We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
14/09/2026
The Claimant, JBX, was born in 2009 and had suffered from asthma since early childhood. In 2018 he presented at the Defendant’s hospital with severe asthma symptoms but was negligently discharged without steroids. As a result of that breach of duty he suffered a cardiac arrest and hypoxic brain injury, caused by respiratory failure.
Following stabilisation the Claimant moved to Chestnut House at Tadworth Court, a residential rehabilitation centre for severely disabled children, and has lived there since.
It was not in dispute that JBX suffers from profound and permanent disabilities. He is in a minimally conscious state and is unable to communicate or make decisions. He has a severe four-limb motor disorder, involving spasticity and dystonia, which leaves him without independent mobility. He also has severe contractures affecting his elbows, wrists and knees, with little or no use of his hands. He experiences epileptic seizures on most days leading to prolonged muscle spasms and distress. In addition, he has neuromuscular scoliosis requiring a brace, hip deformities, and a risk of dislocation. He has severe cortical visual impairment (meaning that his brain cannot process images), is doubly incontinent, unable to feed himself, and is reliant on a gastro-jejunal tube for nutrition. His sleep is frequently disturbed, and his agreed life expectancy is 25.5 years.
As a result of those injuries the Claimant requires 24-hour, two-to-one care. He requires assistance from trained carers and nurses with all aspects of his mobility, transfers, feeding, personal care and hygiene. He also requires specialist equipment, including a fully supportive wheelchair, specialist seating, spinal braces, structured positioning systems, a height-adjustable bath, shower trolleys and feeding tubes.
His medical management is complex and requires protocols for seizures, dystonia, asthma and other conditions, together with regular medication, monitoring and frequent hospital admissions for complications. He also requires a range of therapies, including regular physiotherapy, hydrotherapy, speech and language therapy, occupational therapy and music therapy.
The fundamental difference between the care experts, and therefore between the parties, concerned the appropriateness of a domiciliary rather than a residential care setting (i.e., where he already was). The Claimant advanced the former; the Defendant the latter. The Court’s assessment provides a useful reminder of:
1. The law.
2. The approach it will take when assessing the differences of opinion between experts.
The assessment of what is reasonable is not replaced by what is in the Claimant’s best interests and they are not (necessarily) the same thing. The question for the court is simply – what care is required to meet their reasonable needs (see paragraph 129 of JBX, quoting from Sowden v Lodge [2005] 1 WLR 2129).
Sometimes however, there are two proposals, both of which may be reasonable, but one of which may be less expensive. In that regard the Judge referred to the comments of Ritchie J at first instance in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB), i.e., that the analysis involved two questions:
1) Did the Claimant have a reasonable need for the expense as a result of his injuries?
2) Were the claimed expenses reasonable when compared with less expensive methods of meeting that reasonable need?
‘The care experts’ evidence was each problematic but in different ways. The trial was the first time that Mrs. Evans and Mrs. Ward had given oral evidence. Both experts were understandably nervous and the contrast between the relative clarity of the joint statement and their hesitation in cross-examination was notable. (Paragraph 112).’
Whilst there were difficulties with both experts, the difficulties with the Claimant’s expert were more fundamental than those affecting the Defendant’s expert. The Judge had regard to the fact that the Claimant’s expert:
1. Did not consider the advantages and disadvantages of the identified home and residential settings sufficiently to satisfy the Judge that she had discharged her obligations under Part 35. Whilst she acknowledged that both options had ‘positives and negatives’ she only identified the positive features of her proposal and the negative features of the Defendant’s proposal.
2. She did not seek any expert medical advice on the appropriate future care setting, despite the Claimant’s complex needs.
3. Although she had purported to research adult neuro-residential care options for the Claimant, none of her research was set out in her written evidence, and so there was no information on which the court had the benefit of her views about those units.
4. Although she understood that the question of ‘reasonable needs’ was one for the court to decide, her report did not contain any of the information that was required to make that decision.
5. She concluded that an experienced care agency such as the specific one she proposed was suitable but (perhaps surprisingly) she had not actually discussed the Claimant’s case with either that (or any other) agency.
Taken together, the Judge considered that this showed an expert who had fallen into the trap of advocating one party’s position rather than providing the court with a, ‘full, fair and balanced assessment of the competing merits of the options.’ (paragraph 114).
The court therefore preferred the Defendant’s evidence, closing with this comment on the Claimant’s expert:
‘I regret this conclusion because Mrs. Evans is an experienced practitioner who has what she sees as the Claimant’s best interests at heart. However, given its centrality in the claim and the complexity of the Claimant’s condition and needs, the analysis of future care and accommodation required greater consideration than the one sentence it received in Mrs. Evans’ original report and a more balanced assessment in her contribution to the joint statement and her supplemental correspondence.’
As ever, when considering how to present expert evidence in the best possible light, not only must the parties should ensure that the expert covers the range of opinion, but they must also explain their reasoning for preferring one option over the other(s).
Given the complexity and intensity of the Claimant’s needs, the Court found that a specialist neuro-rehabilitation unit with in-house therapies best met his reasonable needs, rather than a home-based care package. Not only did the Judge prefer the Defendant’s expert, but insofar as there were advantages to the domiciliary package, these were essentially psycho-social. Whilst that was important, it was not as important as the Claimant’s safety, with the Judge finding that on the facts of this case the Claimant would be safer in residential care in the (not unlikely event) of a medical crisis.
Aside from the dispute about care, the other notable aspect of the case was the Judge’s treatment of the lost years claim, particularly in light of the recent Supreme Court decision in CCC.
The Claimant submitted that there were three elements to consider:
1. The Claimant’s likely annual income over his lifetime.
2. What percentage of that income would be spent on living expenses and the like.
3. The multiplier.
Likely income
On the first issue the Claimant relied upon paragraph 60 of Lord Reed’s judgment in CCC, to the effect that, where there is no evidence of likely earnings, the Court may have to rely on ASHE. That said, as per CCC, it remained open to a claimant to contend that he or she would have earned more than average earnings by relying upon educational attainment, family achievement and geographical circumstances.
In this instance it was said that the Claimant would have followed in the family footsteps and worked in sales, probably up to the same salary as his Father. The Defendant’s case was that it was inappropriate to use the parents’ earnings to predict those of the Claimant (relying on Lady Rose’s dissenting Judgment in CCC)
The Court held that CCC established that various sources of evidence may be relevant to estimating likely income. Those sources included, but were not confined to, statistical evidence of average earnings, but also included evidence of family achievement and the average earnings of a suitably tailored category of individuals. Given the precedent of the Claimant’s parents and brother, it was reasonable to assume that but for his injuries he would have left school at 16 and enrolled on an apprenticeship course before starting full-time work. However, it was unclear whether he would have worked in sales (the court noting that his brother did not). The average salary figures from the ASHE data were therefore used.
Deductions for living expenses
On the second issue, the Claimant submitted that, in practice, a conventional deduction of 50% had usually been made, and that this approach was endorsed in CCC and other authorities. By contrast, the Defendant submitted that the deduction should be 90%, relying (in part) on ONS evidence.
The Judge found that the deduction had to reflect the sum that the Claimant would have spent on himself (rather than on a spouse, children or other family members), at the standard of living appropriate to his case. The Court held that a deduction of 50% was appropriate.
The multiplier
On the final issue, the Claimant contended for a multiplier on the basis that, by 2079, when he would have turned 70, the state retirement age would be 70. The Defendant contended for 68. The Judge had little hesitation in adopting 70, observing that the state retirement age had only ever increased and that there was no reason to doubt that trend would continue.
The Judgment on Lost Years is perhaps a reminder that if parties wish to contend for evidence other than that from ASHE, and although the court will look at all the evidence in the round, that evidence has to be tailored to a relatively fine degree. Parallels with parents (for example) may be instructive but then (and especially where there are siblings) they may not be.
Call: 2012
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