Securing damages for hydrotherapy: judgment establishes workable framework for quantifying serious injury claims
A High Court ruling has provided welcome clarity on the law relating to compensation claims for the costs of a hydrotherapy pool, including installation and maintenance. The ruling is particularly helpful to potential claimants because it reviews the key cases on this topic, analyses the grounds for a successful claim and explains why the child in this particular case was entitled to the costs of installing a hydrotherapy pool.
Such claims can be particularly relevant for those with cerebral palsy arising from a birth injury and those with a spinal injury. However, prior to this landmark judgment, the response to legal teams incorporating the costs of a home-based hydrotherapy pool when pursuing a claim for damages has invariably been that it is excessive and unreasonable as set out in a recent case: ‘This is not agreed and neither are the associated costs. No therapeutic rationale or medical rationale has been given for the need of a permanent hydrotherapy pool’.
The case of CCC (litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust was heard by Mr Justice Ritchie in July 2023. In his judgment, he allowed an award of £607,100 and made clear that, in an appropriate case, this is a reasonable claim which should be taken seriously by defendants, rather than dismissed.
The cases considered by the court were:
- Cassell v Riverside Health Authority 
An eight-year-old with cerebral palsy could walk, ride ponies with assistance, hear and had partial vision. His cognitive functioning was around that of a three-year-old. While acknowledging that swimming was one of the best ways for him to exercise, the court noted that it was not the only way and he could also use a public pool with carers. The focus was on his ability to access other activities.
- Sarwar v Ali and Motor Insurers’ Bureau 
A 23-year-old suffered tetraplegia in a road accident. He used a wheelchair together with a standing frame two hours a day and needed 24-hour care to assist him. It was concluded that he would enjoy hydrotherapy but his physiological gains would be limited and were not supported by medical evidence. It was not proven that this would provide therapeutic benefits greater than land-based therapy and he could travel to hydrotherapy in the same way that he travelled for other activities.
- Lewis v Shrewsbury 
An 11-year-old with athetoid cerebral palsy was awarded the costs of a therapy pool. Relaxation in warm water was beneficial to her muscle tone and joints.
- Smith v East and North Hertfordshire NHS Trust 
A girl with mild, left spastic hemiplegia, which was due to a birth injury and had led to a need for two person care, suffered from autism and noise phobia. She could walk and run and could exercise on land. She was not awarded a home pool.
- Whiten v St George’s Healthcare 
A seven-year-old with severe quadriplegic cerebral palsy with dystonic spasms and mild epilepsy as a result of a birth injury, claimed for a home pool. He had use of a school pool as well as access to a private pool. There was also a lack of clinically proven benefit and so a pool was not awarded.
- A v University Hospitals of Morecambe 
The claimant was aged 14 and suffering from quadriplegic spastic cerebral palsy with significant limb spasms and pain which were hard to treat. The judgment confirmed that proportionality is a relevant factor and whether a similar result could be achieved by less expensive means. In this case, alternatives were not equal to full immersion in a pool. Key to the success of the case was the factual evidence of (a) the degree of pain, (b) the impact on the pain of water-based activities and (c) the lack of alternatives. It was noted that the difference which immersion in water gave was significant and the case was referred to as ‘unusual and probably exceptional’ at the time.
- Robshaw v United Lincolnshire Hospitals 
This was a claim on behalf of a child with four limb dyskinetic cerebral palsy. It was noted that just providing pleasure would not ordinarily be sufficient and some real and tangible benefit would need to be demonstrated. There were no suitable, nearby alternative pools. It was confirmed that every case was dependent on its own facts, and the physical and psychological benefits were important. The cost of a 5m x 3m pool was awarded. The judge acknowledged that it is ‘unknown precisely how frequently the issue of a home-based pool is raised and either conceded or recognised to some extent [in litigation claims]’.
- HS v Lancashire Teaching Hospitals 
A birth injury case where an eight-year-old with bilateral spastic cerebral palsy, no dependent mobility and low cognitive functioning claimed a pool. Medical evidence did not confirm a therapeutic benefit and it was concluded that a pool at home was likely to be used less when she was older, especially as her siblings grew up. This claim was not accepted and took into account the fact that there was access to a hydrotherapy pool 40 minutes’ drive away.
- AB v Royal Devon and Exeter NHS Foundation Trust 
A claim on behalf of a 50-year-old who had a spinal lesion that led to paraplegia. One of the most important consequences of the injury was the frequent, extremely painful spasms rated as severe and unlikely to improve. The judge confirmed ‘It seems to me that it is not … reasonable to engage such a large capital expenditure when there is a risk it might not be used in the long term’. However, a considerable sum was awarded for hydrotherapy facilities away from the home.
The claim for £607,100 made in CCC was for the costs of installing a hydrotherapy pool, to include building an extension and installing a 5m x 4m pool and equipment to heat and clean it. Running costs were estimated at £368,746 for life (£17,385 pa). The claim was successful.
It was noted that five factors are relevant to a decision to allow such a claim:
- Past advice and use – whether treating therapists recommend it for physical and psychological benefit and hydrotherapy and swimming have been undertaken previously.
- Past advice and use - whether there is evidence that this has benefited the claimant physically or psychologically.
- Future benefit – whether hydrotherapy or swimming will benefit the claimant and provide exercise and amenity which the claimant cannot access otherwise due to their condition.
- Out of home pool availability – to consider availability elsewhere.
- Relative cost – compare out of home pool costs with installation and running of home pool.
The criteria and evidence to consider, as set out, confirms the validity of the approach followed by the clinical negligence and personal injury team at Penningtons Manches Cooper. In past cases there has been an emphasis on the benefits of an indoor pool with reference to reduction of pain; improved sleep; reduced spasticity; improved posture, range of movement and muscle strength; increased cardiovascular and respiratory function and improved morale and confidence. When setting out all the benefits, evidence has been focused on the individual, including whether hydrotherapy access has been an important part of the education provision where a child has an Education, Health and Care Plan (EHCP) or been recommended by treating clinicians or therapists. When considering out of home pool costs, case managers have been instructed to compare facilities and evaluate the options. Factors will include the temperature of the water, whether there are appropriate changing facilities, how easy it is to get out of the pool in an emergency and the availability of hoists and other specialist equipment. Private sessions may be difficult to book, the distance to travel may be too great, or the hoist may frequently be out of use. Arranging and commenting on a specific trial of hydrotherapy over a longer period and showing the benefits gained should help to convince the defendant and judge that an award is justified. Witness statements from parents, therapists and others will be needed, as well as video clips of the claimant swimming or undergoing hydrotherapy to demonstrate and emphasise its importance.
If it is established that a pool is an appropriate provision, the judge must consider the relative cost to the defendant against the extent of the benefit which would be derived from a hydrotherapy pool. The fact that a pool is expensive is not a reason to refuse it. If a substantially similar result could be achieved by less expensive means, the claim will fail, but if there is no suitable alternative, it is likely to be successful.
This case is good news for claimants as it establishes clear guidelines for lawyers to consider when advising on whether a claim for a hydrotherapy pool should be made. The type of evidence to be produced is logical and provides a common-sense approach. Too often these claims have been dismissed with a rigid view that they are not reasonable because they are too expensive and medical evidence is limited. The court’s ruling should change this approach so that the focus is on the individual and recognising the benefits they will gain for many years into their future.
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