Keoghs Insight

Author

Aaron Reynard

Will recovering Air Ambulance costs “take off”?

Blogs13/04/2021

A recent article in the Law Gazette[1] highlighted a potential claim for a charitable donation to the Air Ambulance, in the region of £4,000. The firm involved were “seeking to routinely recover these donations” made by “injured parties and their families...

In the aftermath of financial pressures from the pandemic we may see a rise in such claims.

Background of the Air Ambulance

There are 21 different Air Ambulance charitable organisations across the country. Whilst some elect to fund their own medical staff costs, there are many who work in partnership with their local ambulance and NHS trusts who second staff to the Charity on a rotation basis, although arrangements differ throughout the separate geographical regions.

Arguments to consider in cases for recovery

1. Does the service fall within the NHS recovery scheme?

If it does then the cost is wrapped up in the statutory tariff. The scheme requires recovery where “The injured person has been provided with NHS ambulance services… for the purpose of taking him to a health service hospital for NHS treatment.” The air ambulance service is on the face of it a separate legal entity to the NHS ambulance service, but the staff involved have been seconded, and perhaps paid for by the NHS.

The service is called out either by the NHS emergency response to an accident after the 999 call and the initial triage, or by the NHS Ambulance first responders on initial attendance. It would not be unreasonable to suggest that they attended as agents of the NHS and hence are covered within the NHS charges scheme. We will return to this issue later.

2. Lack of contractual relationship:

The Air Ambulance handle patients more often than not requiring life threatening or critical medical attention and the need to extract them from the scene quickly. It is quite unrealistic to expect (or suggest) the Air Ambulance to enter into a binding contract with the injured party at the scene.

  • Moral obligation:

Examples of voluntary donations via crowdfunding pages have shown that the courts do not favour tortfeasors benefiting from the benevolence of third parties. Going back to Parry v Cleaver[2] in 1970 the Court held the possibility of a tortfeasor benefiting in this manner would be “revolting to the ordinary man’s sense of justice.” This might give an early clue as to the direction of travel of any court faced with the head of claim. It may not be attractive for an insurer to be perceived as trying to benefit from charitable donations. 

3. Is there precedent in Hospice charity care costs?

The case of Drake v Foster Wheeler Limited[3] dealt with what was described as a “novel” point where the court found that palliative care which the claimant had received fell within the head of damage for medical, nursing and other care costs, drawing similarities with the concept of gratuitous care provided by family members. The family of the mesothelioma victim wanted to make a donation and claimed on that basis.

One can see how this might be moulded to the Air Ambulance cost claim, however there is a distinction. Such outlay has nothing to do with the NHS. The claimant and family have made a direct choice to engage a hospice given the need for palliative care. In the AA case, the response is triggered by an employee of the NHS as part of the emergency response.

Conclusion

This head of loss, whilst comparatively modest at present, is one where the legal costs of any dispute could well outweigh the sums at stake in an individual claim. That said, one charity was called out five times a day on average in 2020 making for 1,825 calls a year which at £4k a claim exceeds £7m for that one charity alone. One can see why this could be an attractive argument to run by cash strapped charities. An insurer contesting this head of loss will find it hard to get the general public onside.

However, the legal basis for the claim is arguable. The Hospice case can be distinguished as there was a conscious decision by the family to use the service instead of taking on the care role in the last days of a horrible death. Air ambulances are summoned by the NHS emergency services and the claimant plays no part in its deployment.

We would suggest a FOI request to a couple of NHS trusts as to the payments to the charities and the secondment of NHS staff. Subject to the details of the relationship (there must be one surely from a governance viewpoint) it may be arguable that there is an agency relationship with the NHS and the service is part and parcel of the “NHS ambulance services” and covered by the statutory recovery payment. 

 For more information, please contact Aaron Reynard, Solicitor. 

[1] https://www.lawgazette.co.uk/practice/firm-leads-fight-to-recover-air-ambulance-costs-from-defendants/5107467.article

[2] [1970] AC 1

[3] Drake and Starkey (executrixes of the estate of James Wilson Deceased) v Foster Wheeler Limited [2010] EWHC 2004 QB