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GAZETTE
NOVEMBER 1996
[ Road traffic accident cases and hospital
charges - a warning
by Keenan Johnson
Most solicitors involved in litigation
will be familiar with the practice of
hospitals and health boards issuing
accounts for hospital maintenance in
road traffic cases, which are
considerably higher than those normally
charged to public, private or semi-
private patients. The health boards
and hospitals quote as authority for
their right to charge higher rates in
such cases, the provisions of section 2
sub-section 1 of the
Health Amendment
Act, 1986.
The said section states
as follows:
"(1) Where -
(a) injury is caused to a person by the
negligent use of a mechanically
propelled vehicle in a public place,
and
(b) in-patient services or out-patient
services have been, are being or
will be provided by or on behalf of
a health board in respect of the
injury, and
(c) any one of the following, that is to
say, the person aforesaid, his
personal representative or
dependant, has received, or is
entitled to receive damages or
compensation in respect of the
negligent use aforesaid from the
person liable to pay such damages
or compensation in respect of that
injury, or any loss, damage or
expense (or mental distress in the
case of a dependant) arising
therefrom, the health board shall,
notwithstanding anything in the
Health Acts, 1947
to
1985,
make a
charge upon the person who
received or is entitled to receive
such damages or compensation in
respect of the said in-patient service
or out-patient services."
When this legislation was going through
the Senate, the Minister for Health
indicated that the charge made by the
health board would normally be the
average daily cost per bed day in the
hospital concerned
1
. This "average
daily cost" formula is the reason
substantially higher charges are
sought from patients who are victims of
injury arising out of a road traffic
accident. The average daily rate can
vary greatly from health board to health
board and hospital to hospital with
amounts being claimed varying from
£80 to over £300 per day. The formula
takes no account of the accommodation,
treatment or care afforded to the
patient and is, to say the least, arbitrary
and unfair.
There have been a number of High
Court cases where the question of
hospital maintenance charges has been
addressed, most notably the case of
Crilly vT & J Farrington & Another,
2
in which Denham J allowed the
hospital a figure of £99 per day,
which was the same as the semi-
private rate. Denham J granted the
hospital in the said case liberty to
apply to explain why it considered it fair
to charge an additional rate for road
traffic accident cases. This case is still
before the courts and its outcome is
anxiously awaited.
There have been similar High Court
decisions. O'Hanlon J in the case of
McNamee
v
Dunphy
1
disallowed a daily
rate of £300 and allowed a daily rate of
£100 and in
O'Rourke v Scott
A
Kinlen J
disallowed daily rates of £184 and £172
and allowed £100 per day.
In the light of the foregoing cases, it
has become standard practice to settle
RTA cases on the basis that the
maximum figure which hospitals
and health boards are entitled to in
respect of maintenance is £100 per day.
Many hospitals and health boards
are accepting the £100 per day as a
payment on account in respect of their
bills and are reserving their position in
respect of the balance, in the hope that
the courts will uphold the right of the
hospital, in the case of
Crilly
v
Farrington
to charge maintenance
charges calculated on the average
KeenanJohnson
daily cost. Obviously this places
litigants and solicitors in a very
invidious position and pending the
outcome of
Crilly
v
Farrington
a
solicitor is advised to take the following
precautions:
1. If possible attempt to negotiate a
compromise figure for maintenance
charges with the hospital.
2. If possible try to get an indemnity
from the insurance company in
respect of any additional charges to
which the hospital may be entitled.
Unfortunately most insurance
companies are loath to provide such
an indemnity.
3. If neither of the options above are
available, advise the client in writing
prior to settlement of the amount that
is on offer for maintenance charges,
the amount being claimed and the
possibility that all or part of the
difference may be recoverable from
him by the hospital or health board
after settlement.
4. When settlement has been reached,
the solicitor should write to the
hospital or health board forwarding a
cheque for the amount recovered in
respect of maintenance and advising
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