| SPOTLIGHT |
A county council has won an appeal over a ruling that it was liable in negligence for personal injuries suffered by a teaching assistant.
Mrs Recorder Rodgers, sitting in the Norwich County Court, had found Norfolk CC liable for the respondent’s (Ms Durrant’s) injuries, which were sustained during an incident in September 2015 when she was a teaching assistant at a school in Bowthorpe, Norwich.
A 6-year-old child in her care at the school became upset when segregated from the classroom by Ms Durrant and another member of the staff.
The claimant/respondent made a small claim for soft tissue injury to her left shoulder, chest, and limbs which healed within eight weeks. There was a much larger damages claim in respect of post-traumatic stress disorder.
The case for the claimant was put on the basis of common law negligence. She also pleaded provisions of the Management of Health and Safety at Work Regulations 1999, alleging by reference to them a failure to make any suitable and sufficient risk assessment of the risks to health and safety of those working at the school, failure to provide information on risks, to take into account her capabilities when entrusting her with tasks, and failure to provide training.
The Recorder noted that following section 47 of the Enterprise and Regulatory Reform Act 2013, breach of a Regulation causing damage did not of itself give rise to liability, but might be relevant for establishing common law negligence, and held that the Regulations provided context in which to assess an employer's performance of its common law duty of care. “There is, rightly in my judgement, no challenge to that analysis,” Mrs Justice Foster, who heard the appeal, said.
The claimant's case was based on breaches of the employer's duties to her, including to provide a safe system work. It was alleged that the area in which the injury happened, the so-called Sunshine Room, a calming-down area for disruptive children, was an unsafe place of work in light of what was known at the time.
Ms Durrant also alleged a failure by the school to operate their systems for monitoring and management of difficult pupils effectively.
If the systems and policies had been consistently applied, she said, what was described as a "dramatic deterioration" in the child's behaviour before the incident would have been managed properly, and the incident would not have taken place. He would have been removed to a special area, alternatively, the "psychological atmosphere" would have been different and the incident would not have taken place. The claimant pointed to the absence of a completed Pupil Specific Risk Assessment form as a reason for - or evidence of - alleged non-identification of the relevant risks.
The central allegation became at trial (it was not pleaded) that the child, known in the case as "J", "undoubtedly should have been escalated", that is, subjected to a graduated "Red Card system" operated at the school, of escalating concerns about behaviour and removed to "the Base"- a special mobile classroom that was a discipline facility at the neighbouring, more senior, school, at some point before the incident.
It was also said he should have been referred to the Leadership Team at the school, and that the incident on 28 September 2015 was quite foreseeable.
It was therefore Ms Durrant's case that Norfolk had failed to take reasonable steps to provide her with a safe system of work, reasonableness being judged in the light of what was known at the time. Necessarily, she had to show on the balance of probabilities that the alleged failings would have prevented the incident or avoided the injury.
In Norfolk County Council v Durrant [2020] EWHC 3590 (QB) the local authority argued that the Recorder failed to ask herself what difference any breaches she found had made, in the light of what was known at the time and the safety measures and strategies there were already in place.
Norfolk said, correctly according to Mrs Justice Foster, that there was no actual finding on the question of causation in the judgment and argued no consideration or conclusion upon it might be inferred from the terms of the judgment.
The council argued that, properly applying the law, the evidence did not support a finding of negligence against it. No act or omission of Norfolk could be said to be causative of the injury to Ms Durrant, whether directly or indirectly.
In addition to the failure to make findings on causation the local authority said the Recorder also made two unsustainable factual findings namely:
a. That there were other relevant incidents or concerns at the time that were not recorded or reported, and this resulted in
b. A failure to provide an overall risk assessment
The respondent accepted that no actual finding of causation was made by the judge but invited the High Court to infer from the judge's reasoning read as a whole that that was what the judge must have found.
Norfolk said the judge's reasoning could not stand and invited the High Court to analyse the materials set out by the judge for itself and reach what it argued was the inevitable conclusion that the claimant's case must fail.
The respondent claimant was also content for the High Court to reach its own conclusions on causation, and, if it were to accede to the appellant's submissions, Ms Durrant did not ask for a retrial.
Mrs Justice Rogers had held the defendant liable but found contributory negligence of 40% on the part of the claimant.
Mrs Justice Foster allowed Norfolk’s appeal.
The council had argued that it was difficult to discern the Recorder’s reasoning, her analysis of the chronology of events, and her conclusions as to whether failures were culpable and caused the loss complained of. “I regret that I am constrained to agree,” the High Court judge said.
She added that, “regrettably”, she could not “find cogent reasoning or a conclusion as to causation”.
Mrs Justice Foster said she had come “to the clear conclusion” it was impossible logically to spell out a finding that any of the failures found were breaches of Norfolk's obligations to Ms Durrant or that such caused the damage whether directly or indirectly suffered by the claimant.
“Furthermore, assessing the facts as they emerge from the judgment, I have formed the clear view that even were a coherent finding of negligence discoverable, it would be a conclusion that was not supportable on the evidence.”
She added: “In my judgement, the Judge did not address her mind to the requirement for such faults and problems as she found in the school's systems as operated to be causative of the loss, even if indirectly.” (judge's emphasis)
In the circumstances the judge did not need formally to decide whether the Recorder’s two findings of fact were unsustainable. However, were it necessary to do so, she would have quashed those findings.
