Personal injury – can claimants seek the cost of private medical treatment?


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As thankfully numbers of Covid-19 cases continue to fall, the media has recently reported on the backlog of patients awaiting treatment or surgery that has been postponed as a result of the Coronavirus pandemic.

Estimates suggest that before the pandemic, the total number of people waiting to undergo a procedure was in the region of 4.4 million. The NHS Confederation estimates that number to reach almost 10 million by Christmas.  There are numerous reasons for this, but hospitals operating under strict social distancing measures will reduce capacity and no doubt patients may be nervous when attending hospital for surgery under tight disease control provisions.

In personal injury cases, Claimants are expected to mitigate their losses and this extends to seeking and undergoing recommended treatment to assist in their recovery. Defendant insurers will of course prefer Claimants to seek NHS treatment, but it is important to note that pursuant to The Law Reform (Personal Injuries) Act 1948, costs of medical treatment including private medical treatment are recoverable, provided the costs claimed are reasonable. The possibility of avoiding private medical costs by taking advantage of facilities under the National Health Service shall be disregarded. Defendants therefore cannot argue to avoid paying private medical treatment just because the treatment could have been provided free of charge on the NHS. Of course, only the costs of treatment for injuries caused by the accident are recoverable.

In relation to claims for future treatment, this provision has been controlled by the Court's decision in Woodrup v Nichol [1993] which held that damages will not be awarded if it is unlikely that the claimed future private medical costs will be incurred.

So in circumstances where a personal injury claim is being pursued and where NHS wait times will be significantly extended, Claimants should be contented that the law lends support to them seeking reasonable and necessary medical treatment on a private basis and recovering the cost of so doing as part of their claim.


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