COST BITES 231: THE CLAIMANT’S REASONABLE VALUATION OF THE CASE MEANT IT DID NOT COME WITHIN THE PRE-ACTION PROTOCOL (HOWEVER THE FACTS OF THE ACCIDENT ITSELF WOULD NOT HAVE TAKEN IT OUTSIDE THE PROTOCOL)
In Julie Johnson v Choice Support [2025] EWHC 1020 (SCCO) Deputy Costs Judge Erwin-Jones decided that the claimant’s initial valuation of a case made it reasonable to start it outside the Pre-Action Valuation Protocol for Low Value Claims. There is also an important consideration of whether the claim would have been excluded due to the injury being caused whilst the claimant was caring for a “vulnerable adult”.
“… I am satisfied that, given the clear and unambiguous instructions they had from their robust and stoic client, who did not withhold or disguise any of her medical history and had without prompting developed some concern about her long term ability to work safely as she had originally wished, her solicitors could not be said to have unreasonably valued the case in excess of the EL/PL Protocol limit. I find for the Claimant on this issue.”
KEY PRACTICE POINTS
Solicitors who make a decision that a case falls outside the Protocol for Low Value Claims should record, clearly, their reasons for reaching that conclusion. The fact that this conclusion may be wrong is not determinative of the issue of whether that decision was a reasonable one. “Show your reasoning” (by contemporary records) is an essential element of succeeding on these issues.
THE CASE
The claimant had been injured at work. She was working as a carer. She helped a patient change a catheter. This was normally done by the claimant working on a stool. The stool had broken and the claimant worked by crouching down. In doing so she injured her back, to the extent that she was sent home. The claim was eventually compromised by payment of £16,500. The primary issue at this hearing was whether the matter should have been brought by the claimant within the protocol.
THE JUDGMENT ON THE LIKELY VALUE OF CLAIM AT THE TIME THE LETTER OF CLAIM WAS WRITTEN
The judge considered the evidence available to the solicitor at the time the letter of claim was written. She found that, on the facts available, it was reasonable for the claimant’s solicitor to conclude that the likely damages meant that the case would fall outside the Pre-Action Protocol.
“4. However about two days before the incident in this case, the stool had been broken and a replacement was awaited. This meant the Claimant had to crouch down in order to empty the catheter bag. E pushed her and she felt her back “go”. She was in such pain her colleagues sent her home and she was off work for a day or so managing pain with meds herself. She apparently recovered relatively quickly, returning to work within a few days but on 14 January 2019, she found her foot “stumping” on the floor. It worsened, and she saw her GP through an emergency appointment, and was then sent for an MRI scan which confirmed a herniated disc causing foot drop. She was advised to cancel a planned holiday to India.
5. The Claimant was first spoken to by her solicitors on 5 March 2019, when she gave a full account of the incident on 25 December and reported her previous history. She had had an L4 discectomy 25 years previously and had also been diagnosed with MS when she was 40, although that was not affecting her life at the time. The Claimant intended to work until retirement age and clearly had a good relationship with her employer who had put her on light duties. After some initial consultations with the Claimant’s solicitors, she asked them to delay sending a Letter of Claim as her injuries and symptoms were improving. Her employers were looking after her and she didn’t want her position to be impacted by the claim being made. She intended to work until normal retirement age.
6. In June 2019 the Claimant reported to her solicitors that she had had a setback with her recovery. She started to be concerned about her long-term health and ability to work. An attendance note on 14 October 2019 shows that the Claimant had fallen over “again” and was giving serious consideration to pursuing the claim. She had explored the possibility of an operation with her GP but since there was no guarantee this would assist her ongoing symptoms; she had elected not to proceed with it. She told her solicitor that her foot had dropped unexpectedly causing her to fall into the road and this was concerning. She also mentioned other ongoing episodes of falling over as a result of foot drop, sometimes stumbling and saving herself, occasionally at work.
7. It was clear that the Claimant had significant concerns about her long-term health and ability to work. In her conversation with her solicitor on 14 October 2019, she authorised submission of the Letter of Claim.
8. On page 2 of the Letter of Claim, the Claimant’s solicitors indicated on the issue of likely value of the client’s claim it should be dealt with in accordance with the Personal Injury Protocol. The Letter of Claim makes no mention of the exceptions set out at paragraph 4.3 (8) of the EL/PL Protocol.
9. On the evidence I have seen, at the point the Letter of Claim was drafted, the Claimant’s solicitors did not have any medical evidence. They knew their client had been on light duties for the first part of 2019, which meant that she lost overtime payments. They knew that the Claimant had initially shown no symptoms but had then developed a foot drop, recovery from which had been initially positive, but then by June 2019, subject to setbacks, leading to the Claimant having concerns about her long-term health and ability to work.
10. The falls, stumbles and trips she had as a result of her foot drop continued so that by 14 October 2019, the Claimant told her solicitors she was sufficiently concerned about her future health and ability to work safely, despite her good relationship with her employer, to authorise a claim to be made.
11. During the course of the hearing, I was provided with a copy of the relevant Judicial College Guidelines for orthopaedic injuries. On the basis of the evidence available to the Claimant’s solicitors at the point the Letter of Claim was sent, I am satisfied that it was reasonable for the Claimant’s solicitors to form the view that general damages were more likely fall within the moderate rather than the minor bracket for back injuries, which bracket with a 10% uplift was likely to be within a full liability range of £11,730 to £26,050. In addition, given the Claimant’s reported increasing trips, there was, in my view, a reasonable prospect that the likely value of the claim might encompass some loss of earnings and/or Smith -v- Manchester award, loss of overtime and potentially, though to a lesser extent, care costs even if, on the basis of the evidence available to the solicitors about the Claimant’s medical history, the claim was likely principally for acceleration or exacerbation.
12. For those reasons I am satisfied that, given the clear and unambiguous instructions they had from their robust and stoic client, who did not withhold or disguise any of her medical history and had without prompting developed some concern about her long term ability to work safely as she had originally wished, her solicitors could not be said to have unreasonably valued the case in excess of the EL/PL Protocol limit. I find for the Claimant on this issue.”
THE CLAIMANT’S ALTERNATIVE ARGUMENT: “VULNERABLE ADULTS”
The judgment also contains a detailed consideration of the claimant’s alternative argument – that the Protocol did not apply because the claimant was injured because of harm, abuse or neglect by a vulnerable adult. The claimant’s arguments were not successful on this issue.
“16. Paragraph 4.3 (8) of the EL/PL Protocol states “this Protocol does not apply to a claim – for damages in relation to harm, abuse or neglect of or by children or vulnerable adults”.
17. There is no doubt that E was a vulnerable adult. He was an 80-year-old man with learning difficulties who was doubly incontinent. He was reliant on a team of carers around him at all times. None of the submissions I have heard or read suggest that the service user who the Claimant was caring for on 25 December 2018 was not a vulnerable adult. The issue is whether the totally expected pushing (for which with other reasons the stool had been provided) amounts to “harm, abuse or neglect” – the wording in paragraph 4.3 (8) of the EL/PL Protocol.
18. I have been referred to a great number of authorities in very detailed skeleton arguments submitted on behalf of the Claimant and Defendant. In my view, most helpful among them are the decisions of Deputy Costs Master Friston of 2019, Scott -v- Ministry of Justice 2019 EWHCB13 (Costs) and Lawal -v- London Borough of Southwark 16 December 2022, and the case of Leicester City Council -v- Cameron, an unreported decision of Judge Richard Hedley dated 24 June 2021 on which case I have been provided with a copy of the judgment.
19. Scott concerned a prison officer who was injured trying to restrain a prisoner. The Court found the prisoner was not a vulnerable adult and concluded that the meaning of the phrase “harm, abuse or neglect” is that it means abuse, neglect or other such harm focusing on the nature of the acts or omissions in question, not on the fact that a personal injury had been caused. I find Scott is of limited assistance in this case, as Deputy Costs Judge Friston found in Lawal, because the focus was on whether the person who caused the injury was a “vulnerable adult”.
20. In Cameron the focus was on whether the word “harm” (in the context of its place alongside “abuse or neglect”) should be given a broad or narrow interpretation. The case concerned a teaching assistant who had been attacked by a pupil on a first aid course, suffering injuries to her lower back and hip. The claim settled for £9,000 and led to a bill of costs of £12,300.32. In Cameron the compensator had, from the outset, invited the submission of the claim in the MOJ portal. This was an invitation which the Claimant’s solicitors declined.
21. In Lawal the claim concerned a teaching assistant from a special educational needs school who was injured when a pupil pushed her causing her to twist her right wrist when she grabbed a pole to stop herself falling. The pupil was known to “get up and run” and the Claimant had stood in front of the door specifically to block the pupil’s exit and had to put herself in harm’s way. On that basis, the court asked whether the exception in paragraph 4.3(8) of the EL/PL protocol applied. In Lawal, if the injury had been intentional then the protocol would be disapplied. Similarly, if it was wholly unintended then the opposite would be the case. However, in Lawal the court found that the child’s actions could properly be described as reckless as to whether an injury would be caused.
22. The child might have been focused solely on exiting the minibus but did so with complete disregard for the Claimant’s wellbeing and for that reason it did amount to harm within the meaning of paragraph 4.3(8) of the EL/PL protocol. Deputy Master Friston’s reasoning in Lawal was heavily influenced by the fact that it must have been obvious to the child that his actions would have been capable of causing injury to the Claimant. He also pointed out that this case was very much decided on its own facts. He said: “I would expect disapplication of the EL/PL protocol in cases where there is an absence of neglect, abuse or intentional harm to be very much the exception”.
23. In this case, it had been known from the beginning of the Claimant’s employment that E was moody and might likely push members of staff when they were attending to his needs, particularly around his toileting. There was no suggestion that the pushing in itself was harmful, simply that for a crouching or bending carer, there was a risk of being unbalanced. This being a known feature of the care E required; a stool had been provided. Nothing in the evidence before me from the Claimant’s Solicitor’s files suggests that E was in any way aware of the consequences of his pushing in terms of the potential impact on those caring for him. There is nothing to suggest that E would have even any awareness that his behaviours might cause an injury or harm to anyone, or constituted an assault.
24. On the facts of this particular case therefore I conclude that that there is an absence of harm, abuse or neglect of or by the vulnerable adult and so, were it not for the reasonably assessed value of the case at the time the Protocol would apply.”