The claimant, aged seven, suffered severe injuries during her birth leading to severe quadriplegic spastic cerebral palsy. Liability for the clinical negligence was admitted. Most heads of loss were agreed with a key area of dispute being the hydrotherapy costs and associated accommodation.
After lengthy submissions the High Court awarded the claimant the costs of a hydrotherapy pool. However, the court was at pains to stress the exceptional nature of the claimant’s injuries and the agonising pain she experienced on an almost daily basis; pain that was only alleviated through the use of the pool.
In the judgment there is also comment on the extent to which parents of injured child claimants should have to give credit for ‘gains’ made in the form of accommodation costs and associated living expenses. Following Whiten v St George’s Healthcare NHS Trust (2011), the court did not make any deductions for the costs that would have been incurred in any event.
What this means for insurers
It is important to appreciate the full extent of the claimant’s injuries. She is described in the judgment as having virtually no spontaneous ability to use her hands or arms, was virtually blind, suffered osteoporosis and was prone to spontaneous fractures. Her intellectual abilities were too low to be measurable.
The claimant also suffered from frequent spasms, mostly affecting the upper limbs, which were described as leaving her ‘screaming in agony’. The frequency of these attacks were in issue but were found to occur on most days (if not every day), and also for two to three days per week.
This resulted in long periods of uninterrupted screaming lasting from 60 minutes to several hours at a time. These occurred at any time of day or night. Sleep hygiene was poor and unlikely to improve.
Day in the life footage showed the claimant accessing a hydrotherapy pool and experiencing an apparent relief from the effects of her spasms. The court agreed with an expert comment that the changes to the claimant on using the pool were ‘remarkable`. No doubt was cast on the validity of the footage and it was considered by the court to show relief from the claimant’s suffering.
Alternative methods of relief were considered and discounted. It was agreed that there was not a pharmacological solution. Alternative bathing arrangements could not keep the upper limbs properly submerged. The need was frequent and irregular, making outsourced arrangements impractical and travel counter-productive.
There was a discussion on proportionality and cost. The costs were exacerbated by the family’s desire to move to an expensive part of London. The overall additional costs of having a hydrotherapy pool at home was just under £500,000. The court rejected the submissions by the defendant’s team that, following Whiten, proportionality involved an assessment of benefit versus costs.
This was rejected on the grounds that such a principle, if applied in that way, would be at odds with the core principle that the claimant should be placed in the position she would have been in if she had not suffered the wrong. The judge stating that the wider interpretation of proportionality suggested by the defendant was not that intended by the Whiten judgment.
Also in Whiten the hydrotherapy claim failed due to the absence of proven clinical need. This issue is aired in passing but it seems the judgment progressed on the basis that the parties accepted that water immersion gave significant symptomatic relief and that this was sufficient on the facts of this case. It seems the clinical need requirement is still open for future argument.
The importance of the footage is highlighted at paragraph 112 of the judgment where the court accepted some cynicism in relation to this head of loss until the footage was viewed.
When faced with evidence that the claimant was suffering from spasms described as `agonising’ on probably a daily basis which were only alleviated by the hydrotherapy pool, and that relief was visible from the footage, it is easy to see why the court reached the conclusion it did.
At the same time both the claimant’s leading counsel and the court stressed the exceptional difficulties the claimant faced and the ‘unusual if not exceptional’ circumstances of the case.
There are a number of other interesting points in the case including the offsetting of benefits the parents received as a result of the provision of accommodation. Those points would warrant a separate discussion in themselves.
Suffice to say that the court held that the parents need not account for the payments they would have made for accommodation but for the negligence, neither need they give credit for running costs they would have incurred in any event. I suggest the reasoning is open for challenge in the future.
The ‘day in the life’ footage was pivotal to this decision. We expect to see this being used more often for these heads of loss. The accuracy of what is being selectively represented in the footage was not in doubt in this case - but it may be in others, which will raise interesting challenges for the defence team.
We do not expect this case to be the last word on the issues it explores over the next 12 months - certainly in relation to hydrotherapy costs.
In terms of what we do expect, we have produced recent alerts on the issue of lost years claims and anonymity orders, neither of which feature in this case, presumably due to their recent development.
It will be interesting to compare the position today and the position in 12 months’ time, when it is expected both of those issues will be fully live.
Andrew Underwood
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