School breached Duty of Care owed to teacher
02/07/2022
Cunningham v Rochdale MBC [2021] EWCA Civ 1719
Teaching is one of the most respected professions in the world. It can be difficult, however, to keep teachers safe on the job, with almost a quarter (24%) experiencing physical violence from pupils at least once a week or more and 4% report being attacked on a daily basis. According to a report by the BBC, a lack of boundaries at home was singled out as the top reason for challenging, disruptive, or violent behaviour. The recent Court of Appeal case Cunningham v Rochdale MBC highlights the importance of a school conducting adequate risk assessments and following its own safety policies in health and safety incidents. The appeal failed, however, because the teacher, who had been badly injured by a second assault by the same pupil, was unable to show that the second attack would not have taken place if the required measures had taken place.
Background to the decision
The Appellant, A, was appealing against the dismissal of his negligence claim and claim for breach of statutory duty against the Respondent local education authority, R, which he brought after being assaulted at school by a pupil in November 2015.
A worked at a school for children who exhibited challenging behaviour outside of the mainstream education system. In 2012 the pupil who assaulted A joined the school. He was briefly excluded for assaulting A the first time and was excluded again a week later for assaulting another staff member.
After being excluded for the second time, the pupil was away from school for the half-term break. He underwent counselling and external training. On the first day back after half term, the pupil was asked to remain behind in class. He became angry and, without warning, punched A in the face, fracturing his cheekbone. A suffered a consequential psychiatric injury and retired from teaching.
At first instance, the judge accepted that the school had failed to carry out any formal risk assessment but was not persuaded that such an assessment would have altered the school’s approach to the pupil and his difficulties. He found that the teacher’s injury was not foreseeable and that, on the totality of the evidence, there was no breach of duty.
The main question for the appeal Court of Appeal was whether the failure to hold a return-to-school interview and a restorative justice meeting with the teacher after the first attack was a breach of duty in the light of the decision in Vaile v Havering LBC [2011] EWCA Civ 246, [2011] E.L.R. 274, [2011] 3 WLUK 406, and whether such a course of action would have prevented the second assault.
The decision in Vaile v Havering
In Vaile v Havering a child diagnosed with Autistic Spectrum Disorder (ASD) attacked a teacher. The Court stated that a system should have been in place to identify students with ASD and findings communicated to the teachers. Furthermore, the teacher had not been trained on how to deal with students with ASD. The Court concluded that if the student had been identified and training given to the teacher, the attack would not have taken place.
Lord Justice Longmore stated that:
“It may be difficult for Mrs Vaile to show precisely what she or the school could have done to avoid the incident if she had been appropriately instructed in suitable techniques for dealing with ASD children, but the probability is that, if proper care had been taken over the relevant three year period, she would not have met the injury she did”.
The Court of Appeal’s decision in Cunningham
The Court of Appeal dismissed the appeal. It confirmed that R owed a duty of care to provide A with a safe place and system in which to work. The relevant standard of care was that of a reasonable, prudent, and competent school. The second attack was reasonably foreseeable as a teacher being attacked by a pupil was an identified risk, and the first attack demonstrated that the pupil who committed both assaults was capable of violence. The fact that the school did not have a risk assessment was in breach of its duty of care. The Court emphasised that risk assessments should not be treated as a mere ‘tick-box exercise’. The school also failed to comply with its own policy to carry out a return to school interview and a restorative justice meeting. These failings resulted in a breach of R’s duty to A.
Despite the above finding, the appeal failed on causation grounds. The Court of Appeal distinguished Vaile on its facts and stated it had not created any new legal principles regarding causation. The prospect that the pupil would not have carried out the November assault if he had had a return to school interview and a restorative justice interview with the teacher was possible but not probable. The pupil had had extensive interventions throughout 2015, and none had prevented the November assault.
Final words
The case of Cunningham v Rochdale MBC and Vaile v Havering are well worth reading if you are in an industry in which violence against staff is commonplace. Undertaking appropriate and regular risk assessments and providing staff training on how to deal with the risk identified is an extremely important factor in protecting employees against violent assaults. Even if a breach of duty is established, however, the decision in Cunningham confirms that causation does not necessarily follow and must be proven in its own right.
