It is only relatively recently that claims for artificial limbs have become a feature of amputation claims. NHS prosthetists will say, when asked, that good quality artificial limbs are readily available on the NHS, and in Scotland the waiting lists are minimal. Moreover, state of the art limbs are provided for those who can justify their provision. Some amputees have run marathons, climbed mountains and achieved all sorts of sporting success wearing NHS limbs.
Despite this, increasingly we see claims for the very significant costs of purchase and maintenance of artificial limbs from private providers. We also see claims for physiotherapy and other treatments associated with the building up of muscle tone to facilitate the use of the prosthesis.
The starting point is the Law Reform (Personal Injuries) Act 1948 which provides at section 2(4):
“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 available under the National Health Service Act 1977 or the National Health Service ( Scotland ) Act 1978 or of any corresponding facilities in Northern Ireland .”
The effect of this Section is to deprive the Defender of arguments that a claimant is failing to mitigate loss by insisting on the provision of a privately supplied and purchased artificial limb rather than reliance on an equivalent limb, provided by the NHS.
In Donnelly v FAS Products Limited from 2004, the claimant suffered a crushing injury which resulted in the removal of all of the fingers on her left hand other than the stump of her index finger. She sought recovery of the costs associated with the purchase of a prosthetic hand. These included annual replacement costs.
Counsel for the Defenders argued it was for the Pursuer to prove that she would in fact incur these costs or outlays; that she had to prove she was going to replace the hand annually and that she would meet the costs from her own funds. It was argued that the claimant might never actually wear the prosthesis and therefore it was inappropriate to award these costs in her favour.
Lord Brodie interpreted section 2(4) to mean that the Pursuer was not obliged to use the NHS to acquire a prosthesis. However, more controversially, he also held that even if the claimant decided not to replace her prosthesis every year, she was entitled to be put in the position that she would be able to do so. Presumably he was satisfied that these were reasonable costs which the Pursuer might incur.
In Baird v Cowie, decided in October 2006, the Pursuer sought compensation following an accident which resulted in an above knee amputation. Part of her claim was for the cost of physiotherapy and gait training – both of which are routinely provided to amputees on the NHS. The Defenders sought to convince the Court that such a claim was irrelevant. Lord Carloway disagreed. Again, he referred to section 2(4) and said that the fact that these treatments are available on the NHS is of no consequence. The Pursuer would be entitled to recover the costs of such treatment if she proved its reasonableness.
In light of such decisions, what arguments are available to a Defender when faced with such claims
- A claimant is still under a duty to mitigate loss, and therefore, although private costs can be recovered, these costs are still subject to scrutiny in the same way as any other claim would be.
- The legislation requires that the expenses incurred by the claimant are reasonable – for example is it reasonable for a claimant who receives little or minimal benefit from an artificial limb (perhaps because of other medical problems) to be able to claim the costs of such a limb?
- It is still open to the Defender to lead evidence that the claimant - as a matter of fact - will use the NHS rather than a private provider, in which case the Pursuer fails to prove his or her loss.
Contact
Louise Hay
(Information posted in July 2007and may not have been updated at time of reading).