Patrick Blakesley KC, representing the local authority, successfully resists appeal about a violent assault in a pupil referral unit
On 19 November 2021, the Court of Appeal handed down judgment in Cunningham v Rochdale Metropolitan Borough Council [2021] EWCA Civ 1719. The action concerned an incident at a school run by Rochdale Metropolitan Borough Council for pupils with emotional and behavioural difficulties. On 3 November 2015, Mr Cunningham, a teacher at the school, was punched in the face by a pupil. The pupil had been involved in other incidents at the school throughout 2015. These included a previous assault on Mr Cunningham on 22 September 2015, for which the pupil was excluded for three and a half days.
Mr Cunningham brought a claim against the Council in negligence. The allegations relevant to the appeal were that the school (for which the Council was responsible) had failed to produce risk assessments relating to the pupil and failed to arrange a return to school interview and a restorative justice meeting between the pupil and Mr Cunningham after the assault on 22 September 2015 in accordance with school policies. Mr Cunningham argued that, had this been done, the assault on 3 November 2015 would not have occurred.
The decision of the High Court
His Honour Judge Platts dismissed the claim.
First, he found that the school had failed to produce recorded risk assessments. However, he found that this did not amount to a breach of duty and it would not have altered Mr Cunningham’s approach to the pupil, since the staff were aware of the pupil’s behaviour. Second, he found that no formal return to school interview or restorative justice meeting had taken place after 22 September 2015. He did not find this to be a breach of duty as the pupil was not readily available for such meetings. In any event, he did not find that holding these meetings would have prevented the assault.
The Appeal
In October 2021, the Court of Appeal heard Mr Cunningham’s appeal from the decision of the High Court. In summary, the appeal was dismissed on the grounds that Mr Cunningham had failed to establish causation. In doing so, the court clarified the approach to be taken to causation where the precise mechanism of causation is not clear.
Giving the judgment of the court, Dingemans LJ held:
- The school was in breach of its duty to carry out suitable and sufficient risk assessments by failing to complete risk assessments, contrary to the decision of the High Court.
- The Council was also in breach of its duty to comply with its own policies in failing to arrange a return to school interview and restorative justice meeting after the incident on 22 September 2015. Although the pupil was not regularly attending school, there was no reason given by the school to explain why these meetings could not take place.
- The crucial issue in the appeal was causation. Mr Cunningham relied on the decision in Vaile v London Borough of Havering [2011] EWCA Civ 246 to suggest that a court can infer causation from proof of negligence and loss of a kind likely to result from that negligence, even where the precise mechanism of causation is not clear. Dingemans LJ held that Vaile had not changed the established principles on causation – Mr Cunningham was still required to show that, if the school had provided formal risk assessments or held the meetings with the pupil, it was more likely than not that he would have taken steps to avoid the attack. Mr Cunningham could not show this:
- As the trial judge had found, Mr Cunningham could not show on the balance of probabilities that providing formal risk assessments would have prevented the assault. This was because staff at the school were already aware of the risks posed by the pupil and Mr Cunningham was trained to deal with them.
- Mr Cunningham also could not show on the balance of probabilities that holding the meetings required after 22 September 2015 would have prevented the assault. The pupil had already had extensive interventions from both the school and external services throughout 2015 to address his behaviour. It was therefore possible but not probable that holding the return to school interview or the restorative justice meeting would have prevented the pupil from attacking Mr Cunningham.
Accordingly, the appeal was dismissed.
The judgment can be found here.
Patrick Blakesley KC leading Simon Vaughan acted for the successful Respondent, instructed by Robert Gray, Keoghs LLP.
