The recent case Newell v Ministry of Justice arose out of a very violent attack by one inmate of a secure prison unit on another. The seriously injured claimant took an action against the MoJ (which is responsible for running prisons) alleging its negligent failure to supervise his assailant properly in light of the risk that he (the assailant) presented. The fact that Newell, a convicted murderer, succeeded in his claim and was awarded £85,000 (plus interest) for his injuries seems largely to have escaped, so far, the attention of the tabloid press. The judge’s approach to quantifying damages for multiple injuries may be of greater interest to an audience from the claims sector.
The claimant was attacked on 27 November 2014 by Vinter, another inmate of the secure unit, during a period of association in an exercise area. Vinter, like Newell, was serving a whole life term for murder and he (Vinter) had a past history of violent loss of control when frustrated with aspects of the prison regime. He told the prison authorities on a number of occasions in the weeks preceding the attack that his increasing frustration at repeated delays in being transferred to another prison was likely to lead to him becoming violent, although he did not make threats against the claimant specifically.
The existence of a duty of care between the claimant and the MoJ was uncontroversial. The judge quoted from one of the leading texts on the point: “The duty on those responsible for one of Her Majesty’s prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and attention, to the extent that it is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners.”
The critical question for the judge was therefore whether the MoJ’s failure to prevent Vinter from associating with the claimant, in the context of the known risk of violence from him, amounted to a breach of that duty? A risk assessment, known as a DRAM, had been carried out on 26 November – the day before the attack – by the Head of the Secure Unit, a Mr Parkins. Despite that, the judge found the DRAM to have been inadequate (his decision is reported here) and that the Ministry’s duty had been breached.
“The risk on 26 November was high … the risk applied to staff and/or prisoners and the effect of [deciding not to prevent him from associating with other prisoners] meant that Mr Vinter’s opportunity to use the violence that he was well known for, would arise in the exercise yard when he was with other prisoners … There was a failure on the 26 November either to consider the opportunity that this presented to Mr Vinter, or to discuss it at all to this extent. If it had been discussed, the conclusion that should have been reached was to take steps to remove Mr Vinter’s association with other prisoners. I reject Mr Parkins evidence that it ‘might’ have been one of the decisions taken … the reasons that he gave for the DRAM allowing Mr Vinter to continue associating with other prisoners, based on the general nature of the threat, are not credible when viewed against Mr Vinter’s history and the nature of the risk by the time of the DRAM on 26 November.”
Turning to quantum – although not underestimating the claimant’s appalling injuries, which included brain damage, loss of his right eye, fractures to his right orbit & cheekbone and bruising to his lungs – the case serves to emphasise the correct approach to claims involving multiple injuries and hence different sections of the Judicial College Guidelines (JCG, formerly the JSB).
The judge reported that counsel for the claimant had “indicated the separate injuries should be cumulated, but [counsel for the MoJ] stated that was not the correct approach with overlap between the different guidelines.” He then adopted what seems to be widely regarded as the orthodox approach in not favouring the simple addition of separate JCG figures, holding that: “The correct approach is not just to simply add the different amounts attributable to each injury to come up with a total but to look at the totality of the evidence to come to quantification.”
That said, this overall approach should not be taken as always producing a figure lower than the total of the JCG figures for each separate injury. Indeed, all three members of the Court of Appeal in Sadler v Filipiak* in 2011 made the point that whether the overall approach in multiple injury cases should lead to an award higher or lower than the total (of the guideline figures for each injury) would depend on the specific circumstances. Pitchford LJ was particularly clear:
“It is in my judgment always necessary to stand back from the compilation of individual figures, whether assistance has been derived from comparable cases or from the JSB guideline advice, to consider whether the award for pain, suffering and loss of amenity should be greater than the sum of the parts in order properly to reflect the combined effect of all the injuries upon the injured person’s recovering quality of life or, on the contrary, should be smaller than the sum of the parts in order to remove an element of double counting.”
With the whiplash and small claims reforms commencing on 31 May 2021, there is an expectation that motor insurers may see a greater proportion of multiple injury claims being presented because awards for whiplash injuries alone will be restricted to the statutory tariff. Although in a very different area of liability, Newell is therefore a timely reminder of the overall approach to valuing such claims.
[* In Sadler itself the initial award for multiple injuries was actually increased on appeal on the basis that the judge at first instance had either undervalued each element or made too great a discount to the total.]