CIVIL PROCEDURE BACK TO BASICS 78: NO DUTY ON AN INJURED CLAIMANT TO USE THE NATIONAL HEALTH SERVICE
This post is due to a tweet someone copied me in on this morning. The issue was, ostensibly, one of general damages in a personal injury case. An insurer was refusing to pay the costs of private treatment – stating the claimant should use the NHS. The claimant was, therefore, suffering for a longer period of time waiting for treatment on the NHS. The question posed was whether this could lead to a higher award for damages for pain and suffering. The truly surprising matter here, however, was the assertion being made that the claimant should use the NHS. This ignores the provisions of The Law Reform (Personal Injuries) Act 1948, s.2(4).
SECTION 2 (4)
All the costs of medical treatment, travel to treatment and private care are recoverable providing they are ‘reasonable’. The claimant is under no duty to use the National Health Service. The Law Reform (Personal Injuries) Act 1948, s 2(4) states:
‘‘in an action for damages for personal injuries … there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities under the National Health Service.’’
LAW COMMISSION REPORT
The Law Commission found that only a very small percentage of claimants used private care: Law Com no 262, para 2.4.
THE COURT HAS TO BE SATISFIED THAT THE COSTS WILL, ACTUALLY, BE INCURRED
Damages will not, however, be awarded if it is unlikely that the costs will be incurred: Harris v Bright’s Asphalt Contractors Ltd  1 QB 617,  1 All ER 395, QBD. The Law Reform (Personal Injuries) Act 1948, s 2(4) means that the defendant cannot argue that the claimant should have used the National Health Service; however, the defendant can argue that the claimant is unlikely to incur the expenses. In Woodrup v Nicol  PIQR Q104 at Q114, CA Russell LJ stated:
‘‘… if, on the balance of probabilities, a plaintiff 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 are available. On the other hand, if, on the balance of probabilities, private facilities are not going to be used, for whatever reason, the plaintiff is not entitled to claim for an expense which he is not going to incur. That view, in my judgment, is amply borne out by authority.’’
In Woodrup v Nicol  PIQR Q104, CA it was held, on the balance or probabilities, that one half of the physiotherapy costs would be obtained privately and the other half from the National Health Service. The plaintiff was entitled to half the physiotherapy costs claimed.
These matters are set out in chapter 8 of Munkman and Exall on Damages (14th ed).