No Causation, No Negligence
03/23/2021
Norfolk City Council recently won an appeal in the case of Norfolk CC v Durrant [2020] EWHC 3590 (QB) on the grounds that the Claimant, a teaching assistant, failed to address the issue of causation in an employer’s liability personal injury claim.
Using an unusual assessment of breach and causation, the County Court Recorder reasoned that simply because parts of the employer’s systems faced ‘condemnation’, this served as an ‘implicit finding’ that those failures caused the purported injuries.
Background to the decision
Ms Durrant was a teaching assistant at an infant school in Norwich. In September 2015, a six-year-old child became upset when they were segregated from the rest of the children during class time. Following an incident with the child, Ms Durrant brought a claim for soft tissue injuries to the left shoulder, chest, and limbs, and also for post-traumatic stress disorder.
The claims were based on common law negligence and the provisions of the Management of Health and Safety at Work Regulations 1999. Under the latter, Ms Durrant claimed the Appellant:
- Failed to make a suitable and sufficient risk assessment concerning the risks to health and safety of those working at the school.
- Did not provide risk-related information or consider her capabilities when entrusting her with duties.
- Failed to provide adequate training.
Ms Durrant stated that the rapid deterioration in the child’s behaviour during the incident that led to her injuries would have been mitigated had the Appellant completed Pupil Specific Risk Assessment forms and used the data to monitor and manage ‘difficult pupils’.
At first instance, the Recorder found for Ms Durrant.
The Appellant appealed on the grounds that a finding of liability was made without any discovery of causation, an essential element of the tort of negligence.
”The argument by Norfolk on appeal is 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 say, correctly, that there is no actual finding on the question of causation in the judgment and argue no consideration or conclusion upon it may be inferred from the terms of the judgment. The Appellants argue that, properly applying the law, the evidence did not support a finding of negligence against them. 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 not making findings of causation the Appellant stated the Recorder also made two unsustainable factual findings namely:
a) Other relevant incidents or concerns at the time were not recorded or reported, and this resulted in
b) A failure to provide an overall risk assessment
In making her findings regarding negligence, Mrs Justice Forster stated:
‘It is trite that breach and causation are essential elements of the tort of negligence. This requires findings of fact, an assessment of their relevance, and findings as to whether any breaches were causative of the loss in question, whether directly or indirectly and thus in law amount to negligence. Where it is alleged that a risk assessment was not completed, or, as in this case, not reduced into writing, following Uren, the court must be aware that an assessment failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury. As Smith LJ pointed out a decision of that kind would necessitate hypothetical consideration of what would have happened if there had been a proper assessment’.
The appeal was allowed.
Comment
Mrs Justice Forster made other findings that led to her conclusion, including:
- The Recorder never described the system in place to report concerning behaviour as negligent, rather, she used the words “cumbersome” and “convoluted”.
- The Recorder did not find evidence that Ms Durrant was inadequately trained, prepared, or managed.
Nowhere was a counterfactual set out stating, on the balance of probabilities, how the situation would have turned out had a risk assessment form been completed, or a different system been in place. - None of the witnesses stated that anything would have been done differently, so it could not be supported by evidence that ‘but for’ the flawed system of reporting, the incident that resulted in Ms Durrant’s injuries would not have occurred.
This judgment is a reminder that simple legal principles can be overlooked by Claimants and even, as in this case, the judiciary. Those defending negligence claims should remain alive to such mistakes and remember Captain James Cook’s words: “When the mind tries to verify a preconceived notion, it can miss the obvious”.
While every effort has been made to ensure the accuracy of these court updates, these articles are intended as a general overview and not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Neither Zurich Municipal, nor any member of the Zurich group of companies, will accept any responsibility for any actions taken or not taken on the basis of these articles.
