Julie Johnson v Choice Support

For a low-value personal injury claim, solicitors may reasonably value the claim above the applicable Protocol limit where the information available at the time supports a moderate injury and a realistic prospect of consequential losses, even if the claim may principally concern acceleration or exacerbation of a pre-existing condition.

The exclusion for harm, abuse or neglect of or by vulnerable adults is directed to the nature of the conduct, not merely to the fact that personal injury resulted. Expected conduct by a vulnerable adult, without awareness that it might cause injury and in circumstances where appropriate protective equipment had been provided, did not amount to harm, abuse or neglect on the facts.

This was a detailed assessment of the Defendant’s challenge to the costs claimed in a personal injury claim. The issues were whether the claim had been reasonably valued above the limit for the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims, and whether the Protocol’s exception for harm, abuse or neglect of or by children or vulnerable adults applied.

The Claimant, a carer, injured her back when a known vulnerable adult pushed her while she was crouching to empty his catheter bag after a safety stool had broken. The claim settled for £16,500. The court therefore had to determine whether the Protocol applied when the available evidence indicated continuing symptoms, possible loss of earnings and other losses, and whether the pushing constituted harm within paragraph 4.3(8).

1. Valuation. On the evidence available when the Letter of Claim was sent, it was reasonable to regard the back injury as more likely to fall within the moderate than the minor bracket. The potential value of the claim also included loss of earnings or a Smith -v- Manchester award, lost overtime and potentially care costs. The fact that the claim might principally involve acceleration or exacerbation did not make a valuation above the Protocol limit unreasonable. The Claimant succeeded on this issue.
2. Paragraph 4.3(8). The court accepted the approach in Scott -v- Ministry of Justice, 2019 EWHCB13 (Costs), that the phrase harm, abuse or neglect focuses on the nature of the relevant acts or omissions rather than simply on the fact that personal injury was caused. Scott was of limited assistance because its principal focus was whether the person causing the injury was a vulnerable adult.
3. Leicester City Council -v- Cameron was considered on the competing broad and narrow interpretations of harm. Lawal -v- London Borough of Southwark was distinguished on its facts and reasoning: the child’s conduct there was reckless as to whether injury would be caused, whereas the pushing here was an expected feature of the vulnerable adult’s behaviour and there was no evidence that he understood its possible consequences.
4. The vulnerable adult’s conduct did not itself suggest harm, abuse or neglect. The stool had been provided because the risk of loss of balance was known, and there was no evidence that the vulnerable adult knew that his pushing could injure a carer or amounted to an assault. The court concluded that the paragraph 4.3(8) exception did not apply. The Protocol would therefore apply, subject to the conclusion already reached on valuation.