When someone injured through another person’s fault chooses to pay for private surgery, physiotherapy or rehabilitation rather than wait for the NHS, the cost of that choice becomes a line in the claim. Whether it is recoverable is not a matter of opinion on either side. It turns on a specific statutory rule and a reasonableness test the courts have applied consistently since the 1990s, and on a live policy argument about whether that rule should survive at all.
In short: Section 2(4) of the Law Reform (Personal Injuries) Act 1948 says the availability of free NHS treatment must be ignored when a court decides whether private treatment costs are reasonable. That does not make every private bill automatically recoverable. A claimant still has to show, on the balance of probabilities, that they will actually have the private treatment, and a defendant can still test whether the cost was caused by the injury rather than by something else. In late 2025 the body representing many defendant doctors proposed repealing section 2(4) altogether, and that debate is still unresolved.
Professor Sandip Hindocha prepares personal injury expert reports that address whether a given treatment, private or NHS, was a reasonable and necessary response to the index injury. His background as a practising plastic and reconstructive surgeon equips him to say whether a private plastic or reconstructive procedure was clinically justified, a question that sits alongside, but is separate from, the legal question of whether its cost is recoverable.
What a Claim for Private Treatment Costs Actually Covers
A claim for private treatment costs is not a separate head of damages in its own right. It sits inside the ordinary special damages claim, alongside lost earnings and other out-of-pocket losses, and can include the cost of a private consultation, diagnostic imaging, surgery, physiotherapy, psychological therapy or rehabilitation. It can be a cost already paid, supported by invoices and receipts, or a future cost supported by a treating clinician’s or an expert’s recommendation and a reasonable estimate of price.
What makes this head of loss distinctive is that it invites an argument the rest of the claim does not usually face: that the claimant did not need to spend the money at all, because the same care was available free of charge from the NHS. Section 2(4) exists specifically to stop that argument from defeating the claim outright.
The Starting Point, Section 2(4) of the 1948 Act
Section 2(4) of the Law Reform (Personal Injuries) Act 1948 provides that in an action for damages for personal injuries, there is to be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses by taking advantage of facilities available under the National Health Service. In plain terms, a defendant cannot say a cost was unreasonable purely because the NHS would have provided the same treatment for nothing.
The provision is older than the NHS itself by a matter of days, passed shortly before the health service came into being in July 1948, and it has been carried forward largely unchanged ever since, with only the statutory cross-references updated as NHS legislation has been consolidated. It is this single sentence that gives a claimant the right to choose private care and still look to the defendant for the bill.
The Reasonableness Test the Courts Actually Apply
Section 2(4) removes one argument, it does not remove every argument. The leading modern authority, decided on the balance of probabilities standard that runs through this area of law, is Woodrup v Nicol [1993] PIQR Q104. The Court of Appeal held that if a claimant is, on the balance of probabilities, going to use private medicine in the future as a matter of choice, a defendant cannot defeat that part of the claim simply by pointing to NHS availability. The converse also applies: a claimant cannot recover for an expense they are not actually going to incur.
That turns the dispute into a question of fact rather than a question of principle. Will this particular claimant, in all the circumstances, probably go private for this particular treatment? A consultant’s letter confirming a referral, a signed estimate from a private clinic, evidence of a private health insurance policy already in place, or simply a credible explanation of why the claimant does not trust or cannot access the relevant NHS service quickly enough, can all support the answer being yes. An NHS waiting list of a few weeks for a minor procedure, with no evidence the claimant intends to use a private alternative, tends to support the answer being no.
Why the NHS Being Free Does Not Settle the Question Either Way
It is worth being precise about what section 2(4) does and does not do, because both sides sometimes overstate it. It does not entitle a claimant to private treatment costs regardless of circumstances, and it does not strip a defendant of every tool to challenge the figure. What it removes is a single, specific argument, that the NHS option being free makes the private option automatically unreasonable. Everything else about reasonableness, cost, timing and causation remains open to be tested in the ordinary way.
This is why the same statutory provision can sit comfortably in a claim where the NHS option was entirely adequate and the claimant simply preferred the certainty of a fixed private appointment date, and in a claim where the NHS option genuinely could not meet the claimant’s clinical needs in time. The statute treats both as a choice the claimant is entitled to make. The quantum of what is then recoverable is a separate, evidence-led question.
The Evidence That Actually Decides These Disputes
Disputes over this head of loss rarely turn on legal argument alone, they turn on whether the paperwork supports the claim. Gaps in the medical evidence are as likely to undermine a private treatment claim as any other part of a personal injury case. Invoices, a clinician’s letter recommending the specific treatment, correspondence showing an NHS waiting time that was actually quoted to the claimant, and contemporaneous medical records describing the claimant’s own account of why they chose to go private, all do more to settle the point than submissions about the principle in the abstract.
Where the claim includes future treatment that has not yet happened, the same evidential discipline applies. A bare assertion that the claimant intends to have private surgery carries far less weight than a dated referral, a quoted fee, and a clinician’s letter confirming both the clinical indication and that the claimant has, in fact, booked or is actively arranging the procedure.
How Causation Narrows the Figure, Even Where the Principle Is Accepted
A defendant who accepts that private treatment was a reasonable choice in principle can still argue that part of the cost was not caused by the index injury at all. Treatment for a pre-existing condition, or for a complication that would probably have arisen regardless of the defendant’s negligence, is not recoverable simply because it was bundled into the same course of private care. Where a claimant had an underlying condition that the injury aggravated rather than caused outright, the private treatment costs are typically apportioned, with only the element attributable to the defendant’s conduct recoverable.
This is the same balance of probabilities discipline that runs through causation in clinical claims more broadly, applied here to a cost figure rather than to liability itself, and it is usually where a well-prepared expert report earns its place, by separating what the injury required from what the claimant’s own health history would have required anyway.
What Happens if a Private Health Insurer Already Paid the Bill
A further complication arises where the claimant’s own private health insurer paid for the treatment up front rather than the claimant paying out of pocket. Many insurance policies include a subrogation or reimbursement clause entitling the insurer to recover what it paid out once the claim settles, and the insurer’s consent is often needed before that part of the claim is compromised. A claimant who overlooks this can find themselves liable to repay their insurer in full after already spending the damages. It is a practical point rather than a legal principle, but it is one that catches people out often enough to be worth checking before any settlement involving private treatment costs is finalised.
The Live Debate Over Whether Section 2(4) Should Survive at All
Section 2(4) has existed since before the NHS itself, and it has been argued over for almost as long. The Medical Defence Union, which represents many doctors facing claims, wrote to the Chancellor of the Exchequer in late 2025 proposing its repeal, arguing that claimants who recover private care costs can end up using NHS services anyway, in effect letting the NHS pay twice. In March 2026 Catherine McKinnell MP presented the Clinical Negligence Bill, a private member’s bill that would amend the 1948 Act and introduce fixed recoverable costs for some clinical negligence claims. Both proposals revisit a debate that defendant-side bodies have raised periodically for more than a decade, and that claimant representative groups have opposed just as consistently, pointing to the absence of evidence that claimants routinely double-dip in that way, and to the loss of patient choice a repeal would bring.
As things stand, section 2(4) remains in force exactly as described above, and nothing in the current debate has changed how a claim for private treatment costs is assessed. The disagreement is worth knowing about because it explains why this area of the law attracts more scrutiny from defendants than it once did, not because the test itself has moved.
Common Misconceptions About Private Treatment Costs
A frequent misunderstanding is that section 2(4) guarantees recovery of any private medical bill connected to the injury. It does not, it removes one specific objection, and every other aspect of reasonableness, causation and quantum remains open to challenge. An equally common misunderstanding runs the other way, that a defendant can always defeat a private treatment claim by pointing out the NHS would have treated the claimant for nothing. Since 1948, that argument alone has never been enough. A third misconception is that future private treatment costs need only be asserted to be recovered, when in practice the claimant must show, with evidence, that the treatment is actually going to happen.
What This Means for a Medicolegal Expert Report
An expert instructed on a personal injury claim involving private treatment is not asked to decide whether the cost is legally recoverable, that is a matter for the court applying section 2(4) and Woodrup v Nicol. The expert’s role is narrower and clinical: whether the treatment, private or otherwise, was a reasonable and necessary response to the injury in question, what it would be expected to cost, and whether any part of it relates to a pre-existing or unrelated condition rather than the index event. A report that stays within that remit, and leaves the legal question of recoverability to the lawyers, is the one that holds up best under cross-examination from either side.
| Authority | What It Establishes | How It Is Used Today |
|---|---|---|
| Law Reform (Personal Injuries) Act 1948, s.2(4) | NHS availability must be disregarded when assessing whether a private treatment expense is reasonable | The statutory starting point for every claim that includes a private treatment cost |
| Harris v Brights Asphalt Contractors Ltd [1953] 1 QB 617 | Early authority that a claimant is not automatically barred from recovering the cost of private treatment | Cited for the point that section 2(4) does not stop a defendant arguing that the claimant will in fact use the NHS |
| Woodrup v Nicol [1993] PIQR Q104 | Private costs are recoverable only for treatment the claimant will probably actually have | The reasonableness and probability test applied in every modern assessment |
| 2025 to 2026 repeal proposal (policy debate, not case law) | An argument, so far unsuccessful, that s.2(4) should be narrowed or removed | Context for why this head of loss is scrutinised more closely than it once was, not a change in the law |
Frequently Asked Questions
Can a claimant recover private treatment costs when the NHS would have provided the treatment free? Yes, in principle. Section 2(4) of the Law Reform (Personal Injuries) Act 1948 says the availability of free NHS care must be disregarded when deciding whether a private treatment expense is reasonable, but the claim still has to satisfy the ordinary tests of reasonableness and causation.
Does a claimant need to show the private treatment will actually happen? For future treatment, yes. Following Woodrup v Nicol, the claim must be supported by evidence that, on the balance of probabilities, the claimant will go ahead with it, such as a referral, a quoted fee or an active booking, not simply an intention to consider it.
What if only part of the treatment relates to the injury? The cost is usually apportioned. A defendant is not liable for treatment that was needed for an unrelated or pre-existing condition, only for the element caused or materially contributed to by the index injury.
Does it matter if a private health insurer has already paid? It can. Many policies include a subrogation or reimbursement clause requiring the claimant to repay the insurer out of any damages recovered for that treatment, and insurer consent may be needed before that part of the claim is settled.
Is section 2(4) about to be abolished? Not as things stand. The Medical Defence Union proposed repeal in late 2025, and a private member’s bill presented in March 2026 would amend the 1948 Act, but the provision remains in force unchanged, and the current test for recovering private treatment costs has not been affected.
Whether a claim involves clarifying what private treatment costs a case can properly include, or assessing whether a recommended procedure was a reasonable and necessary response to an injury, an independent expert opinion can help both sides test the evidence on its merits. Instruct Professor Hindocha to discuss how an expert report can address the clinical questions behind a personal injury claim.
Related Reading
- Understanding causation in complex medico-legal cases
- Why independent clinical opinion matters in medico-legal cases
- Contributory negligence and how it affects a medical claim
This article is for general information only and does not constitute legal or medical advice. Every claim turns on its own facts and should be considered with a qualified solicitor and, where appropriate, an independent medical expert.