Friday, 7 February 2014

Ryder LJ and the Meaning of Non-Accidental Injury

A couple of weeks ago, the Court of Appeal (Tomlinson, Ryder and Christopher Clarke LJJ) gave judgment in Re S (A Child)[2014] EWCA Civ 25. The case involved a small child who was the subject of child protection proceedings, the question in short being whether two skull fractures had been inflicted upon her intentionally by one of her parents, or had arisen as a result of an accident.

In itself, that is a common enough question for family courts to be asked in child protection cases. It is standard practice to refer to these two categories of cause (accidental or intentional) as 'accidental injury' and 'non-accidental injury'. This is so common that practitioners often abbreviate the latter as 'NAI'. So my interest in Re S relates to a single paragraph of Ryder LJ's leading judgment, where the judge said this:

  1. The term 'non-accidental injury' may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a 'catch-all' for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).

As a matter of etymology, Ryder LJ is quite right that the word 'injury' carries with it a fault element. For lawyers, its links with the latin injuria are obvious, and the OED's first definition says 'Wrongful action or treatment; violation or infringement of another's rights; or mischief wilfully and unjustly inflicted'.

Which is fine, except... that's not how the word is actually used in modern language. We use it to mean physical damage, especially to the body of a person or animal, with no implication of wrongful cause. For example, when the BBC said a few days ago that 'Arsenal boss Arsene Wenger said he would not have signed midfielder Kim Kallstron had he known about the Swede's back injury earlier', that was a perfectly acceptable way to say that the footballer had hurt his back when he fell over during training. It was no one's fault. It was in no way 'wrongful', but it still makes sense to say that he is injured, or that he has an injury. Indeed, it was an accidental injury. When time is added to a sports game under the heading of 'injury time', it may well be time that was spent treating a player who hurt him or herself falling over or pulling a muscle, without any 'wrong' from another player.

Nor indeed is this broader use anything new. Looking down further on the OED's definition, we find meaning 3: 'Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage'. The OED traces this usage to 1430, but their 1555 example of 'the injury of time consuming all things' ('Thiniurie of tyme consumynge all thynges') seems particularly instructive. The ravages of time can hardly be said to have a fault element to them.

So, with all due respect to Ryder LJ, I don't think that the phrase non-accidental injury is tautologous. It makes perfect sense, as does the phrase 'accidental injury' which the judge describes in para 20 as 'an oxymoron that is unhelpful as a description'. On the contrary, I think this phrase to be perfectly meaningful and of potentially great use in the context of child protection proceedings.