Colin Cunningham v Rochdale Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lady Justice Andrews,Lord Justice Arnold |
| Judgment Date | 19 November 2021 |
| Neutral Citation | [2021] EWCA Civ 1719 |
| Docket Number | Case No: B3/2021/0230 |
| Court | Court of Appeal (Civil Division) |
Lord Justice Arnold
Lord Justice Dingemans
and
Lady Justice Andrews
Case No: B3/2021/0230
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT,
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
His Honour Judge Platts
(Sitting as a Judge of the High Court)
Claim No: F90MA137
Royal Courts of Justice
Strand, London, WC2A 2LL
Justin Valentine (instructed by Chris Kallis Solicitors) for the Appellant
Patrick Blakesley QC and Simon Vaughan (instructed by Keoghs, LLP) for the Respondent
Hearing date: 26 October 2021
Approved Judgment
Introduction
On 3 November 2015 the claimant, Colin Cunningham, the Assistant Head Teacher at Brownhill Learning Community (“the school”) in Rochdale was assaulted by a pupil (“the pupil”) who punched Mr Cunningham in the face. As a result Mr Cunningham suffered a fractured cheekbone and consequential psychiatric injuries. Mr Cunningham did not recover and has retired from teaching. The pupil was excluded and transferred to another school.
The school provided education and support to children between the ages of 4 to 16 years who exhibited challenging emotional and behavioural difficulties and who were not in mainstream schooling. There were about 220 pupils at the school which was spread over three sites. The evidence showed that Mr Cunningham was a respected and experienced Assistant Head Teacher at the site for the most senior pupils at the school. Mr Cunningham was referred to in the judgment below as a “devoted teacher”. At the material time, the pupil was still being educated at a site for younger pupils at the start of the academic year. This appears to have been in the light of the pupil's deteriorating behaviour over the course of 2015. The pupil, who lived with his mother following his parents' separation, had joined the school in 2012. His attendance at the start had been good and he had then built positive relationships with staff members at the school. In earlier reports the pupil had been described as kind, caring and helpful.
The pupil had suffered bereavements in 2015. The first was the death of his grandfather in the early part of 2015. Then the pupil's father, with whom the pupil was still in regular contact, developed a serious illness and died in the summer of 2015. Notwithstanding the deterioration in the pupil's behaviour, the records show that there was still some hope that the pupil would be in a position to leave the school and re-join mainstream schooling. In 2015 the pupil had become involved in other altercations and incidents outside school. In addition the pupil had attacked Mr Cunningham on 22 September 2015 following which he had been excluded from school for three and a half days. On 5 October 2015 the pupil had attacked another teacher, and had been excluded for one day.
There was a multi-agency system for supporting the pupil which escalated to Team Around the Child (“TAC”) meetings. There were a number of Child in Need (“CIN”) and then TAC meetings in 2015 about the pupil. The pupil had also had bereavement counselling and had taken part in a Strengthening Families Course in October 2015. This last course was reported to have gone well.
The 3 November 2015 was the first day back in school after the half term break. There had been a minor incident with other students about a set of keys which had led to the pupil becoming agitated. The pupil had been kept back after school as part of a disciplinary process. The pupil had damaged a panel on the entrance to the school and there had then been an incident which lasted for about half an hour from the time that the pupil had left the classroom until the serious assault on Mr Cunningham. During that time the pupil had taken out his frustration on school property. At times the pupil had been less aggressive and he had stood against a wall while other students collected their belongings. The pupil became angrier and more frustrated as he was denied access to his belongings. He was banging a door which Mr Cunningham, when he arrived on the scene after the start of the incident, properly prevented. The pupil had then suddenly and without warning struck Mr Cunningham.
The claim in this action
Mr Cunningham brought a claim against the defendant, Rochdale Metropolitan Borough Council who ran the school and employed Mr Cunningham. The claim was pleaded to be for negligence and breach of statutory duty.
The claim was heard by His Honour Judge Platts sitting as a Judge of the High Court (“the judge”) in the Manchester District Registry over four days from 2 to 5 November 2020. By a judgment dated 30 November 2020 the judge dismissed Mr Cunningham's claim.
Two main parts of the claim made against the school were first that the pupil should have been excluded from the school before the assault on 3 November 2015, and second that the incident on 3 November 2015 should have been handled in a different manner. In the light of the expert and other lay evidence at trial, the case that the pupil should have been excluded from the school before 3 November 2015 was not pursued in final submissions at the trial. The judge rejected both of these ways in which the claim was put, and there is no appeal against those findings. This appeal focusses on the claims made relating to a failure to produce risk assessments, and a failure to follow policies and arrange a return to school interview and a restorative justice meeting between the pupil and Mr Cunningham at any time after the pupil's assault on Mr Cunningham on 22 September 2015 before the assault on 3 November 2015.
The judgment below
The judge set out a summary of the case for Mr Cunningham and the council in paragraphs 2 and 3 of the judgment. Mr Valentine submitted that the judge had not fairly reflected all the parts of Mr Cunningham's case. This was because the judge had omitted to specify the reliance placed on the failure by the school to have a return to school interview with the pupil and a restorative justice interview with the pupil and Mr Cunningham. It is right that the judge had adopted a general description of part of Mr Cunningham's case as proposed by Mr Vaughan, who appeared below on behalf of the school, namely “the defendant failed in any event to respond adequately to the deterioration in [the pupil's] behaviour by providing adequate support or referring to outside agencies including mental health services”, but the judge was alert to the absence of an interview and restorative justice meeting and identified at paragraph 51 of the judgment “what is of more concern, however, is the lack of any evidence to suggest that the incident [of 22 September 2015] was followed up either by way of restorative meeting or discussion with [the pupil]”.
The judge then turned to the details of the school, and the level of support provided to children. In the judgment it is said that these levels of support were all provided by the school, but it was common ground at the hearing of the appeal that some of those levels of support were provided by the council's children services with the involvement of the school. It was clarified by Mr Valentine, in answer to a question from Lord Justice Arnold, that nothing turns on this point of who provided the services to the pupil.
The judge then referred to Mr Cunningham and the pupil before turning to the documentary evidence. This included a written behaviour policy which was dated April 2015. It had not been updated to reflect the Department of Education's “Mental Health and Behaviour in Schools” written guidance, but the judge found that was not relevant in this case. There were various pro forma documents and a proforma generic risk assessment dated December 2019 and an Aggression policy dated 2018. The judge accepted that these probably mirrored the risk assessments and policy in place at the material time.
It was common ground that there was no risk assessment relating to the pupil. Witnesses gave evidence about what were called “dynamic risk assessments” which the judge said “entailed staff using their experience and knowledge of the individual pupils and making their own assessments of their behaviour and acting accordingly”. Mr Valentine complained that this was really little more than saying the teachers reacted to information which came to their notice, and I will return to the issue of risk assessments. The judge accepted that there was a behaviour plan for the pupil but it had not been located for the trial. It was suggested on appeal that this was probably because the file had gone with the pupil when he was removed from the school after the attack on 3 November 2015.
The judge identified the lay witness and expert evidence that he had heard before identifying the pupil's progress before the incident. The judge reviewed the CIN and TAC meeting notes from paragraphs 19 to 37 of the judgment. The judge then set out his findings about the attack in paragraph 38 before turning to the allegations made on behalf of Mr Cunningham. So far as is material to this appeal the judge recorded that Mr Cunningham had to prove causation in the sense that he had to prove that the breach of duty caused the injury. The judge identified that it was self-evident that if the pupil had been moved before the attack it would not have taken place. The judge said “it is more difficult to say that different interventions whilst the [pupil] remained at [the school] would have made a difference”. The judge recorded the reliance placed by Mr Valentine on the decision in Vaile v London Borough of Havering [2011] EWCA Civ 246; [2011] ELR 274.
The judge then addressed the lack of recorded risk assessments. The judge found that the school had failed to carry out or...
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