What are the two heads of loss in a birth injury claim?
Short answer
Every birth injury award is built from two distinct heads: general damages (for the injury itself) and special damages (for the financial consequences of the injury, past and future). In minor cases the two are broadly comparable; in catastrophic cases special damages — and within them, lifetime care — dominate the total.
What goes into a birth injury Schedule of Loss
General damages
Compensation for the pain, suffering and loss of amenity caused by the injury. Assessed against the published brackets in the Judicial College Guidelines, with the precise figure within the bracket reflecting age, severity, retained insight and long-term prognosis.
Past financial losses
Losses already incurred at the date of settlement — parental loss of earnings, therapy and travel costs, paid carers, specialist equipment already purchased, and home or vehicle adaptations.
Future care and case management
The largest item in any catastrophic birth injury claim. A lifetime care expert costs a care regime — typically a mixed support and nursing package — and an actuary applies a multiplier for the child's life expectancy. Periodical Payments (PPOs) under the Damages Act 1996 are often used for this head so the funding cannot run out.
Accommodation, equipment and therapy
Adapted housing or capital costs of a property suited to the child's needs (under the Roberts v Johnstone / Swift v Carpenter framework), specialist equipment such as wheelchairs and standers, and ongoing physiotherapy, occupational therapy, speech and language therapy.
Lost future earnings and earning capacity
Where the injury affects the child's future capacity to work, an employment expert and actuary project the lifetime loss. Used in both severe disability cases and milder injuries (such as Erb's palsy affecting the dominant arm) that materially restrict career options.
How much are general damages for birth injury?
General damages for birth injuries are assessed against the Judicial College Guidelines, 18th edition (April 2026). The current brackets for brain damage are:
- Very severe brain damage (significant physical and cognitive disability, full-time care, no or minimal meaningful communication): £372,570 to £533,720.
- Moderately severe brain damage (substantial disability, some self-awareness, some capacity for meaningful response): £289,420 to £372,570.
The actual figure within the bracket reflects age, degree of disability, level of retained insight and long-term prognosis. Brachial plexus injury (Erb's palsy) has its own JCG brackets graded by severity and permanence — covered in the Erb's palsy claims guide.
Why birth injury awards are so high in catastrophic cases
NHS Resolution data shows obstetric claims at around 11% of new clinical negligence claims by volume but more than half of the total value paid. The 2024/25 NHS clinical negligence spend reached approximately £3.6 billion, with maternity claims accounting for around £1.3 billion of that figure. The driver is simple: a child born with severe HIE or cerebral palsy who requires full-time care, adapted housing, equipment and therapy over a 60- or 70-year life generates a future-losses schedule that no other category of claim approaches. NHS Resolution puts the average total settlement for obstetric brain injury cases at around £11.2 million.
What the 25% success-fee cap means in practice
Under the CFA Order 2013, the success fee on a Conditional Fee Agreement is capped at 25% of general damages and past financial losses. All future losses are entirely outside the cap and paid to the claimant in full. To illustrate: if general damages are £300,000 and past financial losses £50,000, the maximum success fee on those heads is £87,500. If future care and other future losses amount to £2 million, that entire £2 million is protected and paid in full. The CFA funding guide covers every deduction (including After-The-Event insurance) in plain terms.
Legal aid for severe neurological birth injury
Birth injury is one of the very few categories of clinical negligence for which legal aid remains available, under LASPO 2012. To qualify, the claim must be for a severe neurological injury caused by clinical negligence during pregnancy, at birth, or within the first eight weeks of life; the child must have been born at or after the 37th week. The financial assessment is based on the child's own means, so the means test rarely bites. For everything outside that narrow gateway, a Conditional Fee Agreement is the standard route — and is offered by Medical Negligence Guide as part of the initial free assessment.
What is the time limit for a birth injury claim?
For a child's own claim, the three-year limitation period under section 28 of the Limitation Act 1980 does not begin until their 18th birthday — proceedings can be issued up to age 21. Where the child lacks mental capacity into adulthood, limitation is suspended indefinitely. A parent or litigation friend should bring the claim much earlier: maternity records, CTG traces, neonatal notes and MRI imaging are easier to obtain, clinicians' recollections clearer, expert witnesses easier to instruct, and — most importantly — interim payments can be applied for to fund care, therapy and adaptations long before any final settlement. For maternal injuries sustained during delivery, the standard three-year rule applies from the date of injury or date of knowledge.
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Frequently asked questions
What does birth injury compensation actually cover?
Two heads of loss: general damages for pain, suffering and loss of amenity, and special damages for actual financial losses past and future. In serious cases the special damages — particularly lifetime care, accommodation, equipment, therapy and lost earnings — typically dwarf the general damages figure.
How much can a child with severe cerebral palsy receive?
General damages under the Judicial College Guidelines 18th edition (April 2026) reach £372,570–£533,720 for very severe brain damage. NHS Resolution data records the average total settlement for obstetric brain injury cases at around £11.2 million once future care costs are added.
What does the 25% success-fee cap mean for the family?
Under the CFA Order 2013, the success fee on a Conditional Fee Agreement is capped at 25% of general damages and past financial losses. Future losses — the bulk of a serious birth injury award — are entirely excluded from the cap and paid to the claimant in full.
Is legal aid available for birth injury claims?
Yes, for the specific category of severe neurological injury caused during pregnancy, at birth, or within eight weeks of birth (the child must have been born at or after 37 weeks) under LASPO 2012. The financial assessment uses the child's own means. Other birth injury claims are funded via a Conditional Fee Agreement.
How long do we have to make a birth injury claim?
The child's three-year limitation clock under section 28 of the Limitation Act 1980 only starts on their 18th birthday — proceedings can be issued up to age 21. A parent or litigation friend can and should act much earlier so records remain complete, expert witnesses can be instructed, and interim payments can be applied for.
People also ask
How long do I have to claim for a birth injury?
For an injured child: the three-year clock does not start until the child's 18th birthday. They have until their 21st birthday to start a claim in their own name. For a mother's injuries during birth: three years from the date of delivery, or from date of knowledge. Claims on behalf of children who lack mental capacity have no time limit.
How much compensation do birth injury claims pay?
Very serious birth injury claims — particularly those involving cerebral palsy, brain damage at birth, or brachial plexus injury — are among the highest-value personal injury claims. Settlements of £1 million to over £10 million are not uncommon in cases involving lifetime care needs, loss of earnings, and specialist equipment.
Can I claim if the midwife did not spot foetal distress in time?
Yes — if the CTG trace showed signs of foetal distress and a competent midwife or obstetrician would have acted on those signs and expedited delivery, a failure to do so may be negligent if the baby suffered harm as a result.
Related guides
- Cerebral palsy claims
- Brain damage at birth (HIE) claims
- Erb's palsy and brachial plexus claims
- Birth injury — category overview
- No win, no fee funding
- Medical negligence time limits — including children's claims
Sources & further reading
Primary statute, case law and regulator guidance referenced in this article.
- Judicial College Guidelines, 18th edition (April 2026) — Judiciary of England and Wales
- NHS Resolution — Annual Report and Accounts — NHS Resolution
- Damages Act 1996 — Periodical Payments — legislation.gov.uk
- Conditional Fee Agreements Order 2013 — legislation.gov.uk
- LASPO 2012 — Schedule 1, Part 1, Para 23 — legislation.gov.uk
- Limitation Act 1980, section 28 — legislation.gov.uk