05 January, 2021
When a Claimant suffers injury they may require treatment in order to help them to recover. This is known as 'mitigation of loss'. The Claimant is entitled to obtain that medical treatment privately irrespective of the availability of state funded care. That was entrenched in the Law Reform (Personal Injuries) Act 1948, S2 (4):
"In an action for damages for personal injuries … there should be disregarded, in determining the reasonableness of any expense of the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service".
It is for the Claimant to prove their loss, and for that reason a claim for future loss may be subject to challenge. A Defendant may argue;
It is for the Claimant to prove their likely intention. The case of Woodrup v Nichol (1993), the Court of Appeal held that a Claimant could recover only the "private" half of the expenses that it was held he/she would be likely to incur.
Russell L J summarised that; "If, on the balance of probabilities, the Claimant is going to use private medicine in the future as a matter of choice, the Defendant cannot contend that the claim should be disallowed because National Health Services facilities are available. On the other hand, if, on the balance of probabilities, private facilities are not going to be used, for whatever reason, the Claimant is not entitled to claim for an expense which he is not going to incur".
The Claimant can only be compensated for damages which flow from the index event. If a Claimant has a pre-existing condition and some medical costs and expenses would have been incurred in any event, then there is likely to be an apportionment of damages for future treatment. A distinction can be made between treatment cost caused by the negligence, and problems caused by an unrelated event or underlying condition.
The general rule is that it is helpful to have the recommendation from an expert for any type of treatment sought. Documentary evidence can assist to justify the cost of such treatment. Witness evidence from the Claimant to show that it was reasonable to try alternative treatment, and the benefits received from it will help to establish the claim.
Before embarking on such treatment the Claimant might ask themselves;
This is what is known as a subrogated claim. There is a rule that the Claimant cannot recover damages for any losses by a third party. However, the contract between the Claimant and their insurer may require them in the context of a claim for damages caused by another party to recover their outlay on their behalf. It may be an obligation of contract and must be considered by a solicitor. It could come in the form of 'reimbursement clause'. Alternatively, there may be a subrogation clause to entitle the insurer to bring the claim in the name of the policyholder.
These clauses should be checked to see whether they allow the insurer to recover the cost directly against the Claimant should they breach the contract and fail to bring the claim on their behalf or reimburse from the damages.
The cost of private treatment from a private health policy in a clinical negligence context is an obvious example. Another is a recoupment of earnings clause, requiring reimbursement from a third party for wages paid during absence from work due to the negligent fault of a third party.
It is important to be aware of the terms of the contract before settlement is achieved. It may require written approval from the insurer. This of course causes potential for conflict between the Claimant's interest and that of the insurer. There is often negotiation and apportionment based on recovery under a particular head of loss. Where it is clear that damages have been recovered in full, for example for loss of earnings, then it might be said that it is easy to establish what is owed to the employer. It becomes more difficult when a claim has been settled more generally, without individual heads of loss being discussed. Alternatively, there may have been an allegation of contributory negligence on the part of the Claimant, which means they are partially responsible for what has happened and that has to be taken into account. This exposes Claimants to full recovery in relation to one of these policies, where the full amount has not been recovered in relation to that element.
There is no authority that ring fences the Claimant's money in respect of losses and he or she might need to repay their insurance provider in full.
For more information contact Leonie Millard in our Personal Injury department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.