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Reduction of NHS charges in cases involving contributory negligence

It has long been established that in personal injury cases where the Plaintiff has received treatment at an NHS hospital as a result of the negligent act of the Defendant, the costs of same can be recouped from the Defendant on conclusion of the action. What is less widely known is that if a finding of contributory negligence is made, the amount payable by the Defendant is reduced accordingly. So for example, if a Plaintiff is found to have been 60% liable for the incident which led to him or her sustaining injury, the amount of NHS charges will also be reduced by 60%.

The principal legislation in Northern Ireland governing the recovery of any NHS charges is the Recovery of Health Services Charges (Northern Ireland) Order 2006.  This legislation is supplemented by a number of regulations, the most relevant of which is The Recovery of Health Service Charges (Reviews and Appeals) Regulations (Northern Ireland) 2007.

Where an accident or injury has occurred on or after 29th January 2007, the Order makes provision for contributory negligence to be taken into account in all cases were it is a factor in the primary compensation claim.  In such cases, once a claim has been settled, the CRU (Compensation Recovery Unit) may be asked to review the Certificate of NHS charges to take into account the relevant contributory negligence.  The Regulations state that there will be a specific form to be filled out to facilitate same, but this has not been put into place.  Instead, the CRU department must be written to within 3 months of the date of settlement or the date on which the Certificate was issued, whichever is the later, requesting a review.  That request must include either:-

1. A copy of the Court Order or Judgement indicating the reduction or
2. A statement that it was agreed by or on behalf of the injured person that the damages payable were to be reduced to reflect contributory negligence on the part of the Plaintiff. 
3. The amount of damages which would have been payable on a full liability basis.
4. The amount or proportion by which it was agreed damages were to be reduced. 
5. The names of all those involved in the settlement process.

 

There is therefore no need to lodge a formal appeal in cases of contributory negligence and a request for review, as outlined above, is sufficient.  The full amount does not have to be paid by the insurer in the first instance before a review is made to recoup same.  If the CRU department receive a request for review to reflect a reduction in damages, they will simply carry out the calculation and amend the Certificate before payment is required.

Further information regarding this scheme and the relevant regulations applicable in this jurisdiction can be found at www.esdni.gov.uk/z1.doc.