Pushing By Vulnerable Adult Found Not To Constitute "Intentional Harm" Under Para 4.3(8) EL/PL Protocol | However, Claim Escapes On Valuation At Time of Letter of Claim

JOHNSON v CHOICE SUPPORT [2025] EWHC 1020 (SCCO)

Johnson v Choice Support [2025] EWHC 1020 (SCCO) addressed whether the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims applied to a care worker’s claim for a back injury sustained when pushed by a vulnerable adult service user. Deputy Costs Judge Erwin-Jones examined two key issues: whether the claim was reasonably valued above the Protocol limit, and whether paragraph 4.3(8)’s exception for “harm, abuse or neglect of or by children or vulnerable adults” applied. After analysing available evidence and referring to previous case law including Lawal v London Borough of Southwark, the court found the Claimant’s solicitors reasonably valued general damages between £11,730-£26,050 plus special damages based on the symptoms and employment concerns present when the Letter of Claim was sent. The court further held that despite the service user being a vulnerable adult, his pushing – which was a known behavior accommodated through workplace equipment – did not constitute “harm, abuse or neglect” within paragraph 4.3(8)’s meaning.

“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... On the facts of this particular case ... 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."

Citations

Scott v Ministry of Justice [2019] EWHC B13 (Costs) The phrase “harm, abuse or neglect” within the EL/PL Protocol focuses on the nature of the acts or omissions rather than solely on whether a personal injury occurred, and a person causing injury must be a vulnerable adult for the exception to apply. Lawal v London Borough of Southwark [2022] EWHC 2627 (SCCO) Reckless actions by a vulnerable individual, with complete disregard for the claimant’s wellbeing, can constitute “harm” within the meaning of paragraph 4.3(8) of the EL/PL Protocol, potentially disapplying the Protocol. Leicester City Council v Cameron (Unreported, HHJ Richard Hedley, 24 June 2021) The word “harm” in paragraph 4.3(8) of the EL/PL Protocol must be considered in the context of “abuse or neglect,” and involves an assessment of whether the conduct amounts to more than mere accidental injury, with a broad or narrow interpretation based on factual circumstances.

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Key Points

When valuing a personal injury claim for the purpose of assessing whether a case falls within or outside of the EL/PL Protocol, solicitors are entitled to rely on their client’s contemporaneous reports of symptoms and concerns about long-term health, even in the absence of formal medical evidence, provided their assessment is reasonable on the facts known at the time.
The exception under paragraph 4.3(8) of the Pre-Action Protocol for Low Value Employers’ Liability and Public Liability Claims applies only where there is evidence of “harm, abuse or neglect” of or by a vulnerable adult; mere injury caused unintentionally without awareness of risk or consequences does not engage the exception.
In determining whether conduct amounts to “harm, abuse or neglect”, the court must consider the nature of the act or omission itself rather than solely the fact that an injury occurred; reckless or intentional disregard for consequences may amount to harm whereas wholly inadvertent acts typically do not.
The exception in paragraph 4.3(8) of the EL/PL Protocol should be narrowly interpreted, with disapplication of the protocol “in cases where there is an absence of neglect, abuse or intentional harm to be very much the exception” as noted in Lawal.
When assessing points of dispute concerning protocol applicability, the court should consider the information reasonably available to solicitors at the time of taking procedural steps (such as sending a Letter of Claim), without the benefit of hindsight using later-acquired evidence.

"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."

Key Findings In The Case

The Claimant’s solicitors were entitled to assess the value of the claim as exceeding the EL/PL Protocol limit at the time of the Letter of Claim, based on the Claimant’s contemporaneous reports of foot drop episodes, concerns about long-term health, and loss of overtime, even though no formal medical evidence was available then.
On the evidence known at the time, it was reasonable for the Claimant’s solicitors to value general damages within the moderate back injury bracket (£11,730 to £26,050), taking into account the severity of symptoms, risk of future work incapacity, and associated financial losses.
E, the service user who pushed the Claimant, was a vulnerable adult within the meaning of paragraph 4.3(8) of the Protocol, as he was elderly, doubly incontinent, and had learning difficulties, requiring constant care and supervision.
The service user’s act of pushing was not found to amount to “harm, abuse or neglect” under paragraph 4.3(8) of the Protocol because there was no evidence he intended harm, acted recklessly as to consequences, or had awareness that his actions could cause injury.
The burden of proof lay on the party seeking to disapply the Protocol to establish that the exemption under paragraph 4.3(8) applied, and on the facts available, the Defendant failed to prove the pushing incident amounted to actionable harm, abuse, or neglect.

"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."

Background

This case involves Julie Johnson (the Claimant) and her former employer Choice Support (the Defendant). The Claimant had worked with the Defendant for five years, providing care to elderly patients with complex needs. One patient, referred to as “E,” required regular management of his catheter bag.

On 25 December 2018, the Claimant was crouching to empty E’s catheter bag because the stool normally used for this task had broken two days earlier and hadn’t been replaced. E pushed the Claimant, causing immediate back pain. Though she initially recovered, she later developed foot drop (confirmed by MRI), leading to medical treatment and cancellation of a planned holiday. Growing concerns about her long-term health and ability to work safely ultimately led her to pursue a personal injury claim.

The procedural timeline included extensive document exchanges between parties, with the Claimant’s solicitors submitting a Letter of Claim on 14 October 2019, setting the stage for the costs issues. The Defendant raised Points of Dispute on 22 November 2022, challenging the application of the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (“the Protocol”). The detailed assessment hearing took place on 26 February 2025, with judgment issued on 28 April 2025.

Costs Issues Before the Court

The court addressed specific costs issues regarding the Protocol’s applicability:

Whether the claim’s estimated value exceeded the Protocol’s limit
Whether the case involved “harm, abuse or neglect of or by children or vulnerable adults,” explicitly excluded from the Protocol under paragraph 4.3(8)

The Parties’ Positions

The Claimant contended that her solicitors reasonably assessed the claim’s value between £11,730 and £26,050 at the time of the Letter of Claim, placing it outside the Protocol’s limit. This assessment considered her worsening symptoms, potential ongoing medical requirements, and possible future earnings loss.

The Defendant argued that the Claimant’s solicitors had overestimated the claim’s value. They further maintained that although E was clearly a vulnerable adult, the incident didn’t constitute “harm, abuse, or neglect” under paragraph 4.3(8). Drawing on multiple authorities, they emphasized that E’s pushing wasn’t intended to cause injury, nor did E understand that his actions could result in harm.

The Court’s Decision

Deputy Costs Judge Erwin-Jones addressed both contested points.

Regarding claim valuation, the Judge determined that based on evidence available when the Letter of Claim was sent, the Claimant’s solicitors reasonably estimated general damages within the moderate bracket for back injuries (£11,730 to £26,050). Given the Claimant’s persistent symptoms and concerns about future work capacity, the valuation appropriately included potential earnings loss and related costs. The court therefore found it reasonable that the estimated claim exceeded the Protocol limits.

On the paragraph 4.3(8) issue, while acknowledging E was undoubtedly a vulnerable adult, the court found his actions did not constitute “harm, abuse or neglect” as interpreted in previous cases including Lawal v London Borough of Southwark. E’s pushing was a known risk managed through the provision of a stool, and no evidence suggested E possessed awareness or intention to cause harm.

Consequently, the court found that there was 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 have applied.

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