Double recovery in care claims where statutory funding is in place

20 Dec 2021

Celine Martin v Salford Royal NHS Foundation Trust – recent High Court ruling considering the question of double recovery in care claims where there was already statutory funding in place.

As a result of the defendant’s negligence, the claimant suffered physical injuries and a severe brain injury.  The claimant had a significant pre-existing psychiatric history and was already receiving state-funded care for her mental health needs.

One of the main issues considered by the court was the care claim which fell into two categories:

  1. Mental health needs –  not incident related, and
  2. Physical needs – was incident related.

The defendant argued that the claimant would continue to receive state-funded care (under s117 Mental Health Act 1983) and it was not appropriate to make an award for a private care package. It was contended that this would amount to double recovery and reliance was placed on the decision in Crofton v NHS Litigation Authority (2007). 

The Judge concluded that the current care package was not sufficient to restore the claimant to the position she was in at the time of the accident.  HHJ Bird accepted the claimant’s evidence that she wanted “more support than the package provides her with” and found that she was entitled to a care package for life despite the possibility that she may be hospitalised in the future.

HHJ Bird also agreed that the appointment of a case manager was necessary because this was “key to the success of the overall package”.

The possibility that the claimant might continue to take advantage of the s117 care for her physical needs was not enough to apply a ‘Crofton’ discount, the Judge stating, “I am satisfied that any possibility that Miss Martin might continue to take advantage of s117 provision for her physical care, whilst it cannot be entirely discounted, is not sufficient for me to make any adjustment to the award.”


Although the courts have been clear when awarding damages in cases like this that double recovery must be avoided, this case will be of concern to compensators. Here the Judge accepted that the award may over-compensate the claimant but was mindful that, in the alternative, she may be left short if her physical needs were to increase over time. Although he concluded that an award of damages over the claimant’s lifetime was the best way to address the risk of over-compensation, this case does highlight the potential for claimants to claim for a private care package and then seek s117 funding at a later date.

This update has been written by Stuart Furniss and Steve Lynch who are both members of the Care, Statutory Funding and Rehabilitation Subject Matter Group at BLM. For more information on our Subject Matter Groups, please click here.


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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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