In a case which could have significant repercussions going forward, an appeal court recently dismissed an assistant head teacher’s claim for personal injury compensation after being attacked by a pupil. The ruling revolves round the problem of causation and linking potential breaches of a duty of care with attacks/injuries.
In the case of Cunningham v Rochdale MBC, assistant head teacher Mr Cunningham took the education authority to court alleging a breach of duty of care. On 3 November 2015 the claimant was punched by a pupil, suffering a fractured cheekbone and psychiatric injuries. As a consequence of the attack, the claimant was forced to retire early. The school provided educational support to children with challenging behaviour issues, deemed not suitable for mainstream education.
It was reported that the defendant had previously been assaulted by the same pupil on 22 September 2015 for which he was excluded for 3.5 days. An additional assault was also noted in the school records regarding another teacher on 5 October 2015. The second assault resulted in a one-day exclusion from school.
In the initial ruling, the judge decided the defendant did not breach their duty of care in relation to:-
- Failure to permanently exclude the pupil before the attack in question
- Handling of the previous assaults
Interestingly, while the judge recognised the defendant failed to carry out/record a formal risk assessment, it had carried out dynamic risk assessments. Consequently, as the claimant was unable to prove that the serious assault/injury was foreseeable, and a result of lack of duty of care, the case was initially dismissed. The appeal has cast further light on important elements of the situation which could have serious ramifications going forward.
Elements of the appeal
When it comes to protection in the workplace, and personal injury compensation, there were a number of important issues raised during the appeal.
Broad duty of care
All parties agreed that the employer, in this instance the council, had a duty of care to provide a safe working environment for all employees. At the time the education facility was deemed to be “a reasonable, prudent and competent school”. Even though there had been previous assaults by the pupil, the appeal judge ruled that the defendant had maintained their overall duty of care and it was impossible to predict a future assault.
Breach of duty
The appeal judge recognised that the defendant had failed to comply with their own risk assessment policy. Appreciative that the school had carried out a dynamic risk assessment, this was deemed sufficient at the time. It was also noted that while the defendant’s written policy was to carry out a return to school interview with the pupil, and a meeting between the pupil and the claimant, neither actions were taken. The claimant’s representatives were adamant this was a breach of duty, a claim not disputed by the judge, which brings us onto the matter of causation.
When it comes to causation, there were some interesting additional issues that came to light. In essence, the judge ruled that the breach of duty did not in fact lead to the assault and injuries caused. Records showed that senior staff at the school was aware of the pupil’s deteriorating behaviour and the events behind this. It was also established that the claimant was experienced and trained to recognise such behaviour, attempt to avoid and take the appropriate action.
Consequently, the judge ruled that causation was impossible to prove in that the back-to-school interview and justice meeting would not, in their view, have prevented the assault. The appeal was rejected and the initial ruling stood.
On the surface, many people would automatically assume that any breach of duty was sufficient to prove causation and therefore confirm a degree of negligence and liability. The fact that the judge ruled this breach of duty did not directly lead to the assault, would appear to weaken the duty of care employers have towards employees?
In this case, it was recognised that the defendant failed to carry out a full risk assessment although there was an assessment of sorts. The suggestion this played no part in the assault may be difficult for some to understand. The fact that the pupil had been excluded as a consequence of previous assaults was seemly enough to indicate fulfilment of a broader duty of care.
It can be challenging to understand where an employer’s duty of care ends and where the responsibilities of an employee begin. Aside from the breaches of duty of care, the ruling in this case confirmed that the defendant had taken the appropriate action on previous assaults. Senior teachers were also well aware of the pupil’s particular situation, trigger points and were trained to identify and avoid such confrontations.
While this ruling is very interesting, seemingly placing more emphasis on the teacher’s action prior to the assault, it surely opens a can of worms on the standard of training given? The ruling was controversial but in many ways it has prompted more questions than answers provided.