“Harm, abuse or neglect” – the costs position of injuries caused by assault: A guide to saving money

Articles | Thu 23rd Jul, 2020

It is unfortunately not uncommon for public bodies to have to defend claims from members of staff or the public who have been assaulted by children or by vulnerable adults in their care.  The injuries that result from such assaults can range from the trivial to the significant and gruesome.  When the value of the claim is relatively modest does such a case fall within the scope of the Pre-Action Protocol for Low Value Claims (Employers’ Liability and Public Liability) (“the protocol”)?

I know of at least two large Claimant firms who routinely argue that such cases are exempt from the protocol and such that their recoverable fees are not constrained by the fixed fee regime.  The foundation for the argument is derived from §4.3(8) of the protocol that provides:

“4.2        This protocol does not apply to a claim –

                                …

(8)          for damages in relation to harm, abuse or neglect of or by children or vulnerable adults.”

The attractively simple argument for a claim falling outside the scope of the protocol is therefore that (i) the Claimant suffered “harm” in the form of personal injury (ii) and that the harm was caused by an assault perpetrated by a child or vulnerable adult and as such the 4.2(8) exemption is made out.   Anecdotally this argument has met with some success, predominantly at the district judge level, however it is an example of the fallacy of Occam’s Razor – the simplest explanation is here not the correct one.  The success of the argument seems to be due to either Defendants incorrectly conceding the point or the question being subject to very limited argument at the end of the substantive application or trial.

The inaccuracy of the argument is borne out by a judgment of Deputy Master Fiston that was handed down in December 2019: Scott v Ministry of Justice [2019] EWHC B13 (Costs).  The decision is not as well-known as it deserves to be and Defendant practitioners would be well advised to routinely send a copy to their opponents when faced with an injury caused by a child or otherwise vulnerable third party.    In Scott the Court had to decide whether the phrase “harm, abuse or neglect” could be read as a synonym for “personal injury”.  In essence the Court rightly noted that the material phrase could not be read disjunctively noting at [§15-§17]:

“…I do not believe that it is permissible to run a blue pencil through words ‘abuse or neglect’ and to focus on the word ‘harm’ as if it stood in isolation. In my view, the true meaning of the word ‘harm’ is given by its surrounding words. Put otherwise, the words ‘harm, abuse or neglect’ ought to be read as a phrase, with each word giving context to the others.

If that phrase had read ‘abuse, neglect or harm’ (namely, if the order of the words had been different), I would have had no hesitation in saying that the word ‘harm’ was a reference to acts or omissions that are akin to abuse or neglect. The fact that the word ‘harm’ precedes the words ‘abuse’ and ‘neglect’ makes me pause for thought, but I am not overly troubled by this as there is precedent for qualifying words following (rather than preceding) words that are qualified (see, for example, Pengelly v Bell Punch Co Ltd [1964] 1 WLR 1055). In my view, the meaning of the phrase ‘harm, abuse or neglect’ is that it means abuse, neglect or other such harm. Put otherwise, it focusses on the nature of the acts or omissions in question, not on the mere fact that a personal injury has been caused.

Furthermore, if it were right to say that the word ‘harm’ encompassed personal injuries per se, I would have expected it to be separated from the words ‘abuse or neglect’ by something weightier than a mere comma. This is because harm (in the sense of injuries) is fundamentally different from abuse and neglect (which are acts or omissions); by way of illustration, the phrase ‘personal injury, abuse or neglect’ reads badly and is jarring.”

Perhaps more fundamentally if “harm, abuse or neglect” just means “injury” then why did those who drafted the provision not simply say so?  In the immediately preceding sub-section at §4.3(7) there is an exception for “… personal injury arising from an accident … occurring outside England and Wales”  As matter of internal logic therefore if the relevant phrase was intended to convey the meaning for which Claimants continue to argue then §4.3(8) should simply take the wording of the sub-section it directly follows and read something like: “for damages in relation to personal injury of or by children or vulnerable adults”.

The importance of considering the protocol as a whole and not simply focusing attention on a particular sub-section was made plain later in Scott where at [§18] Deputy Master Friston held:

If the word ‘harm’ could be read as meaning personal injuries per se, this would cause serious internal inconsistencies in the EL/PL Protocol. In particular, if [the Claimant’s] analysis were [sic] correct, it would also apply to children (including those who bring public liability claims as a result of having sustained an injury). This would mean that any child with any personal injury (whether as a result of abuse or neglect or otherwise) would be excluded from the EL/PL Protocol. This, however, is demonstrably false, as that protocol repeatedly makes reference to children. By way of example, paragraph 6.4 states that ‘where the claimant is a child, this must be noted in the relevant section of the CNF, and paragraph 6.5 says that ‘where the claimant is a child the statement of truth may be signed by the parent or guardian’. There are similar references at paragraphs 6.16, 7.24. 7.44 and 7.53. In my view, it would make no sense at all for the EL/PL Protocol to include multiple provisions relating specifically to child claimants, only for that same protocol to disapply itself. This requires a different reading of the meaning of the word ‘harm’ to that urged upon me by [the Claimant].”

In light of the above it is surprising and disheartening that some continue to argue that “routine” personal injuries resulting from physical assaults or accidents caused by children or vulnerable adults fall outside the protocol.  It should be clear that the exemption was never intended to cover such “simple” cases of personal injury but rather cases of neglect or abuse or where a harm was caused by an act or omission akin to neglect or abuse.

In time such arguments will peter out, but until they do Defendants should be prepared to explain the proper interpretation of the protocol to the Courts.  The potential costs savings are normally significant.