On 19 November 2021 the Court of Appeal handed down judgment in an important decision on an employer’s liability claim for damages for personal injury suffered by an Assistant Head Teacher who was assaulted by a pupil. Dingemans LJ gave the sole reasoned judgment, with which Andrews and Arnold LJJ agreed, dismissing the Claimant’s appeal against the dismissal of his claim after trial.

The judgment of the Court of Appeal can be found here.

Key Facts

The key facts found at trial were that Mr Cunningham was employed by the Defendant local authority as the Assistant Head Teacher at a school in Rochdale. The school provided education and support to children who exhibited challenging behaviour and were not in mainstream schooling. On 3 November 2015 he was punched by a pupil, suffering a fractured cheekbone and psychiatric injury. He subsequently retired early. The pupil had suffered two bereavements in 2015 (his grandfather and then his father). He had assaulted Mr Cunningham previously on 22 September 2015 and been excluded for 3.5 days. He assaulted another teacher on 5 October 2015 and was excluded for one day.

Decision at First Instance

The trial judge, HHJ Platts, sitting as a Judge of the High Court, made the following findings:

  • the Defendant was not in breach of duty for failing to permanently exclude the pupil before 3 November 2015 (this was not pursued by the Claimant in final submissions);
  • the Defendant was not in breach of duty for its handling of the incident on 3 November 2015 in the run up to the assault;
  • the Defendant had failed to carry out or record any formal risk assessment, but it had carried out dynamic risk assessments; and
  • the Claimant had failed to persuade the court that his serious injury was foreseeable or that it was as a result of any breach of duty on the party of the Defendant.

Court of Appeal’s Decision: Duty of Care

Dingemans LJ started his discussion by stating, interestingly, that neither party had suggested the court should adopt the six-question framework for deciding cases in negligence identified in the appeals of Manchester Building Society v Grant Thornton [2021] 3 WLR 81 and Meadows v Khan [2021] 3 WLR 147, as opposed to the (perhaps more conventional) analysis of duty of care, breach, causation and damage (see [23]).

The parties agreed that the Defendant owed the Claimant a duty of care to provide him with a safe system of work (i.e. the employer’s common law duty). The standard of care was that “of a reasonable, prudent and competent school”: [24].

Dingemans LJ disagreed with the Judge’s finding on foreseeability, observing:

[27] As far as the judge’s finding on reasonable foreseeability is concerned, it might be noted that an attack by a pupil was specifically identified as a risk and indeed was known to have occurred before with an attack on Mr Cunningham and another teacher. In my judgment it was therefore reasonably foreseeable to the school and council that Mr Cunningham might be attacked by the pupil. It is established that it is not necessary to show the exact nature of the attack which took place could be foreseen. In these circumstances in order for Mr Cunningham to succeed on the appeal he will in addition need to show that there was a relevant breach of duty, and that the relevant breach of duty caused loss in the sense that if there had not been a breach of duty the attack would not have occurred.

Court of Appeal’s Decision: Breach of Duty

Dingemans LJ also disagreed with the Judge’s finding on breach of duty in the context of the school’s failure to produce a formal risk assessment. In guidance which is likely to be of wider significance, he observed that:

[28] … An employer is generally required to carry out a suitable and sufficient risk assessment for the purposes of finding out what reasonable steps should be taken to provide a safe system of work, compare Allison v London Underground Ltd [2008] EWCA Civ 71. This is particularly the case if the school has set out in its own written policies the requirement to carry out a risk assessment. It is also clear that a risk assessment should not be a tick box exercise but should be a competent attempt to identify risks to safety so that reasonable steps to reduce risks can be taken.

The school’s failure to comply with its own policy to have a return to school interview with the pupil, and to provide a restorative justice meeting between the pupil and Claimant following the earlier assault on 22 September 2015, was also considered by Dingemans LJ to be negligent (again in disagreement with the Judge) and amounted to a further instance of breach of duty.

Court of Appeal’s Decision: Causation

The decision of Dingemans LJ is arguably most significant for its consideration of whether the breach of duty caused the injury. In this case, the issue was now whether any of the breaches of duty found by the Court of Appeal, were causative of Mr. Cunningham’s injuries.

An often cited authority in this context is the previous decision of the Court of Appeal in Vaile v Havering Borough Council [2011] ELR 274, which on one reading, and as Mr Cunningham argued before the Court of Appeal, established a principle or at least an inference that, “where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism”.

Dingemans LJ rejected this argument and held:

[37] In my judgment Vaile v Havering LBC did not establish any new principles of law in relation to the issue of causation in general, or causation in particular relating to attacks on teachers by pupils. It was a case where the Court of Appeal considered that if a teacher had been warned about a pupil’s ASD and had been trained in how to manage a pupil with ASD, the attack would, on the balance of probabilities have been avoided, even though the mechanism by which that would have occurred could not be shown. By contrast, in this case, the judge found, on the basis of evidence of records of TAC meetings and the witness evidence, that “the senior staff at the school were aware of the [pupil’s] deterioration generally and the events that manifested it”. The evidence also established that Mr Cunningham was experienced and trained. The situation in this appeal is different from that in Vaile v Havering LBC, and the issue of causation requires a careful analysis of the relevant factual situation.

The court went on to hold that failure to complete risk assessments was not causative of the injuries because nothing was identified which might have been raised in a written risk assessment which would have prevented the assault: [38].

Whilst causation in respect of the failure to hold both the return to school and restorative justice interviews was more difficult, partly because these issues had not been at the forefront of the Claimant’s case at trial, ultimately it was only possible but not probable that either of those interviews, if held, would have prevented the attack: [41]. The reasoning for this was:

[41] … This is because the pupil had had the benefit of extensive interventions over the course of the year as his behaviour deteriorated coinciding with the time of his grandfather’s death, his father’s illness and subsequent death. As already recorded, the judge found that the school had been involved in referring the pupil to various bodies including: CAMHS, Early Help and Family Support, Resolve, Hype, The Youth Offending Team, Crisis Intervention, the school counsellor, Outreach Intervention, one to one youth work, Early Break and Strengthening Families. The pupil had had contact with the school counsellor, although he had refused external counselling. The pupil had been referred to bereavement services. The pupil and his mother and sibling had undertaken a strengthening family’s course, which had been described in the evidence as a step forward.

[42] In all of these circumstances the attack in this case was not of a kind likely to have resulted from the failure to have the return to school interview and the restorative justice meeting. This appears from the sustained nature of the incident, the circumstances of the assault, and the fact that all of the other interventions did not prevent the assault. In my judgement, therefore, the appellant is unable to show on the balance of probabilities that a return to school interview or a restorative justice interview would have prevented the pupil’s serious assault on Mr Cunningham. This means that Mr Cunningham is unable to show that if there had not been any breaches of duty on the part of the school, the attack and Mr Cunningham’s loss would have been avoided, and therefore causation is not established.

The reference at [42] to the attack not being “of a kind likely to have resulted from the failure [to have the interviews]” was presumably not intended to contradict the earlier guidance on Vaile.

Court of Appeal’s Decision: Implications

This was a decision of a strongly-constituted Court of Appeal. Interestingly, Dingemans LJ gave the first instance decision in Al-Najar v Cumberland Hotel [2019] 1 WLR 5953 which is an important case in the context of an occupier’s, and particularly a hotel’s, duty to protect visitors against third party assaults (and indeed questions of breach and causation).

The decision reinforces the points that (a) those representing claimants in third party assault cases will need to tightly plead and prove cases on issues of breach of duty and causation, and (b) those representing defendants can argue that claimants must prove causation without the benefit of a potentially watered-down test for causation relying on Vaile.

Generally-speaking, causation may be harder to establish where the breaches of duty concern failures to risk assess or follow more general policies, as opposed to failures to exclude or isolate a child (which can more obviously have the potential to prevent an assault).

It is also useful to compare this case to another assault at work case where, in contrast, causation was successfully established. In Buck v Nottinghamshire Healthcare NHS Trust (2007) 93 BMLR 28 the claimants, nursing staff employed by the defendant at Rampton Hospital, successfully established liability where the defendant had failed to implement a policy confining an exceptionally risky patient to her room at night. Causation was established when the assault occurred at night.