Where Claimants are injured as a result of an accident, rehabilitation is crucial. Defendants often dispute their liability to pay for such treatment on a private basis, as in the recent case of Tutas v East London Coach and Bus Company.

At first instance the judge disallowed a claim for the Claimant’s physiotherapy. The Defendant argued it was unable to agree or dispute the claim through lack of knowledge, despite the Claimant’s solicitors disclosing the initial quote from the rehabilitation providers some time beforehand. The Defendant later filed an updated counter-schedule, adding that there was no evidence that the Claimant had paid the sums or was legally obliged to pay them.

At trial the Claimant gave evidence that he was not sure who had arranged the physiotherapy or paid for it. The Judge said if the Claimant didn’t expect to be paying for it; he could not see how it could be regarded as a loss. The Claimant was given leave to appeal.

The Court of Appeal held that it was unsatisfactory for the Defendant to have taken issue with the cost of physiotherapy by way of counter-schedule at such a late stage and that it was entirely understandable for the Claimant to be unable to answer questions regarding who was responsible to pay. In addition, the court held that the idea that the Claimant did not believe he was liable was wrong. The Claimant simply did not know and if any conclusion was to be drawn, it was that the Defendant was going to pay. The appeal was allowed.

Where Claimants are successful in bringing claims for personal injuries, there is a requirement for them to mitigate their losses by seeking treatment in a timely manner. Pursuant to section 2(4) of the Law Reform (Personal Injuries) Act 1948, there is no requirement for that treatment to be provided via the NHS.                                                                                 

Claimant solicitors therefore often arrange the treatment through external providers and include the cost in the damages claim. This is the correct approach, as endorsed by the Court of Appeal, and gives the Defendant very little room for argument when it comes to the issue of who should pay.