On 19 November 2021, the Court of Appeal handed down judgment in Cunningham v Rochdale Metropolitan Borough Council  EWCA Civ 1719. This claim concerned an incident at a Pupil Referral Unit “PRU” run by Rochdale MBC, educating pupils with emotional and behavioural difficulties. On 3 November 2015, the claimant, a teacher at the school, sustained serious injuries after being punched in the face by a pupil there.
The pupil’s behaviour had declined and he had been involved in other incidents at the school earlier on during 2015, which included an earlier assault on the claimant on 22 September 2015 and one involving another teacher in October 2015.
The claimant contended that the school should have removed the pupil and placed him in a more therapeutic setting following the first incident. He also alleged that they had failed to produce risk assessments relating to the pupil or to arrange a return to school interview or a restorative justice meeting between the pupil and him after the previous assault on 22 September 2015, in accordance with school policies. It was also alleged that, had it been done, the assault on 3 November 2015 would probably not have occurred.
HHJ Platts was critical of the lack of relevant documentation completed by the school. The deterioration in the pupil’s condition was undisputed. There was a failure to carry out or record any formal risk assessment on the pupil and there was no documentation in place to show that a properly updated behavioural support plan was in place either. However, evidence was given that the senior staff at the school were aware of the pupil’s deterioration generally and the type of events that manifested it. The court accepted that the staff carried out “dynamic risk assessments” and that informal communications within the school had been sufficient to bring issues concerning any individual pupil to the attention of relevant staff.
The court found there was no established pattern of violence against teachers although it was arguable that it was beginning to develop. The pupil had been at the school since he was aged 12 and to remove or move him would have been disruptive to him. There was still hope of the pupil returning to mainstream education, so exclusion from a PRU setting would, bluntly, have been the end of the line for his ability to access mainstream education. In his Judgment HHJ Platts stated it was clear that the school was still trying to work with the pupil and there was no evidence of any threats of violence to staff. Given that, the school was not in breach of its duty of care by failing to remove the pupil.
The court was not persuaded that, if there had been any formal written risk assessment or proper written behavioural support plan in place, it would have altered the school’s approach to the pupil and his difficulties. It was a small community and it was not established that this incident arose because of a lack of awareness by any individual of the deterioration in behaviour or of any risk posed. It was not suggested or established that the claimant would have acted any differently had he been aware of a properly completed risk assessment or behavioural support plan. Although the school was criticised for failing to have and retain documents, it had no practical effect in the particular circumstances of the relevant assault.
The Judge decided, when looking at the totality of the evidence, he could not be satisfied that the Defendant was in breach of its duty either to the pupil or Claimant pre incident. It was clear that the senior staff at the school were already aware of the pupil’s difficulties and deterioration in his behaviour including the previous incidents. It was clear that significant steps were taken to help the pupil.
The claimant’s Appeal focussed on the school’s failure to produce risk assessments and to follow policies or arrange a return to school interview and restorative justice meeting between the pupil and him any time after the initial assault in the months preceding the relevant assault.
On causation, the claimant relied on the earlier Court of Appeal decision of Vaile v London Borough of Havering  EWCA Civ 246, contending that had the school sufficiently risk assessed the danger posed by the pupil and ensured a restorative meeting took place, the assault would have probably been prevented. It was argued that where a claimant proves both that a defendant was negligent and that a loss ensued which was of a kind likely to have resulted from that negligence, it is ordinarily 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.
The defendant argued that the trial Judge was right to find that the risk assessments in place were sufficient and that there was no breach of duty in relation to their failure to ensure a restorative meeting took place. Further, the second assault was unforeseeable and could not have been prevented.
Regarding the earlier Vaile v Havering LBC decision, the defendant submitted that it did not alter the conventional rules on causation. In Vaile, causation was established because if that teacher had known about the pupil’s condition and received training it was more likely than not that she could have taken steps to avoid the attack. As such, the loss was of a kind likely to have resulted from the negligence in failing to warn that teacher about the pupil’s condition and to train her on how to deal with it.
The Appeal was dismissed as the claimant had failed to establish causation. In doing so, the Court of Appeal clarified the approach to be taken to causation where the precise mechanism of causation is unclear. Giving the judgment, Dingemans LJ held:
“The prospect that the pupil would, in the final event, have not assaulted Mr Cunningham because he had had a return to school interview and a restorative justice interview with Mr Cunningham is possible, but it is not probable and more likely than not to have prevented the attack. 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 Families course, which had been described in the evidence as a step forward.
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.”
Accordingly, the appeal was dismissed.
This Court of Appeal decision should come as a relief to insurers and local authorities given the Court’s positive assertion that their earlier 2011 decision in Vaile v Havering LBC did not rewrite the Court’s determination of causation in cases of this nature. It serves to emphasise that each case must be decided on its own merits.
Defendants should carefully consider and assess whether any potential breach(es) of duty were in fact causative of the assault, or if it would have probably occurred anyway had they not arisen, which is sometimes not straightforward.
This decision also highlights the importance for defendants to identify the positive actions/steps taken prior to any such incident and the point that a failure to prepare prior risk assessments etc. does not automatically lead to an inability to successfully defend an employers’ liability claim.
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