Hydrotherapy in the home


By Siân McKinley

In the recent case of A (A Child) v University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB) the claimant was awarded the cost of installing a hydrotherapy pool in her home. Here we look at the circumstances in which a defendant will be ordered to pay such expensive costs.


As a result of negligent delivery at birth, A suffered severe quadriplegic spastic cerebral palsy. A has virtually no spontaneous ability to use her arms and legs. She frequently suffers from painful spasms and as a result has prolonged periods of crying and screaming. She is effectively blind and her cognitive and intellectual abilities are severely limited.

Negligence was admitted by the Trust. The issue at trial was limited to quantifying the value of certain heads of loss, including the accommodation costs, the costs of adaptation and holiday costs.



The court will only award the costs of a hydrotherapy pool in the home if three conditions are satisfied:

  1. Hydrotherapy is necessary as part of the therapeutic treatment of the claimant (Cassall v Hammersmith & Fulham Health Authority [1992] PIQR Q168);

  2. There are no reasonable alternatives available (Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066, per Swift J.);

  3. The costs must be proportionate to the benefit to be obtained by the claimant (Whiten).


The defendant argued that the third condition meant A should not recover compensation for a particular item if the cost of that item was disproportionately large by comparison with the benefit achieved, even if the item would achieve a result that other methods could not.

This submission was rejected by Warby J. He held that the concept of proportionality meant that, in determining whether a claimant’s reasonable needs require that a given item of expenditure should be incurred, the court must consider whether the same or a substantially similar result could be achieved by other, less expensive means. If there is significant harm which cannot be made good otherwise, the mere fact that the making good will be expensive is not an answer to a claim (paragraph 80).

The judgment

The first and second conditions were satisfied as A obtained symptomatic relief from her painful spasms as a result of head-out-of-water immersion in a hydrotherapy bath in way that no other method provided. Pain killers gave no relief for A. Although a warm bath did provide some relief, A could not achieve immersion in a bath. In particular, her arms were one of the most likely areas to suffer spasms and, as a result of necessary bath supports, her arms could not be submerged. In the view of Warby J, none of the alternatives came close in its effect.

When considering the third condition, Warby J considered that A’s painful spasms occur day and night. In particular, prolonged pain and screaming happened at night at least once or twice a week. He noted that her pain was experienced more frequently than she would be able to have pre-arranged access to external pools, and the unpredictable nature of the pain meant it was likely she would experience pain when she did not have a pre-booked session. She could not receive any relief from public pools at night.

Warby J therefore concluded, in these “unusual and probably exceptional circumstances”, that the Trust should have to pay the costs of a hydrotherapy pool in the home.

The evidence

It is not possible to overstate the importance of good evidence. In support of the claim for the costs of installing a hydrotherapy pool, A provided witness statements from both her parents, as well as from A’s grandmother and one of her carers. A also provided care diaries and a number of video footage.

Of particular influence in this case was a segment of footage entitled “A Day in the Life” which included footage of A during painful spasms, during hydrotherapy and after a session. Warby J noted that all of the medical experts had moved towards acceptance of the pain relieving benefits of hydrotherapy after viewing the footage. He admitted that he had been sceptical as to the effect of hydrotherapy on A until he had seen the “strikingly clear evidence of a quite dramatic change” in A’s pain symptoms.

Credit for parents’ accommodation

This case is also helpful in that it further confirms that parents should not be required to give credit out of a claimant’s damages for living rent free in the claimant’s home.

On the facts of the case, had A not been injured, A’s parents would have lived as expatriates with accommodation costs paid for by A’s father’s employer, most likely until their youngest child was at university. Rent-free accommodation within A’s home did not represent a significant monetary gain by A’s parents.

Warby J also considered the issue on a principled basis. Applying the judgments of Swift J. in Whiten and by Sir Robert Bell in Iqbal v Whipps Cross University NHS Trust [2006] EWHC 3111, Warby J confirmed it is not just to deprive parents of the incidental benefit of living rent free, when there are so many sacrifices on their part which go uncompensated.

Warby J considered that A’s parents had made substantial sacrifices, including (but not limited to) significant financial sacrifices. For example, A’s father had given up a very valuable final salary pension scheme. Warby J held that the value of these sacrifices comfortably exceeded the value of free accommodation and made no deduction from A’s award.