The University of Bristol v Dr Robert Abrahart (Administrator of the estate of Natasha Abrahart, deceased)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 14 February 2024 |
| Neutral Citation | [2024] EWHC 299 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KA-2022-BRS-000012 |
and
[2024] EWHC 299 (KB)
Mr Justice Linden
Case No: KA-2022-BRS-000012
IN THE HIGH COURT OF JUSTICE
KING'S BENCH APPEALS
BRISTOL DISTRICT REGISTRY
ON APPEAL FROM THE BRISTOL COUNTY COURT (His Honour Judge Ralton and
Mrs Christine Price)
Royal Courts of Justice
Strand, London, WC2A 2LL
Aileen McColgan KC and Paul Stagg (instructed by Kennedys Law LLP) for the Appellant
Jamie Burton KC and Sarah Steinhardt (instructed by Deighton Pierce Glynn) for the Respondent
Catherine Casserley (instructed by The Equality and Human Rights Commission's Litigation and Advisory Team) for the Intervener (written submissions only)
Hearing dates: 11–13 December 2023
Approved Judgment
This judgment was handed down remotely at 10.45am on 14 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Linden
CONTENTS
| INTRODUCTION | 1 |
| OUTLINE OF THE APPEAL/CROSS APPEAL | 2 |
| SUMMARY OF THE FACTS | 3 |
| Introduction | 3 |
| Pre University | 4 |
| Ms Abrahart's first year at the University | 4 |
| The first term of Ms Abrahart's second year | 4 |
| The second term of Ms Abrahart's second year | 9 |
| OVERVIEW OF THE COURT'S JUDGMENT IN RELATION TO DISABILITY DISCRIMINATION | 16 |
| THE UNIVERSITY'S APPEAL IN RELATION TO THE FINDINGS OF DISABILITY DISCRIMINATION | 21 |
| Overview | 21 |
| The finding of breach of section 15 of the 2010 Act | 21 |
| The finding of breach of the duty to make reasonable adjustments | 22 |
| Indirect discrimination | 24 |
| Ground 7: confidentiality | 25 |
| THE JURISDICTION OF THE HIGH COURT IN AN APPEAL FROM THE COUNTY COURT | 26 |
| GROUNDS 4 AND 5 — THE CHALLENGE TO THE COURT'S FINDING THAT THE UNIVERSITY BREACHED THE DUTY TO MAKE REASONABLE ADJUSTMENTS | 27 |
| Introduction | 27 |
| The legal framework | 28 |
| The duty to make reasonable adjustments: institutions of further or higher education. | 30 |
| The duty to make reasonable adjustments: the relevance, under Schedule 13, of what the defendant knew or ought to have known about the claimant | 31 |
| No duty to make adjustments to competence standards | 34 |
| Discussion and conclusions on Ground 4: the competence standard point | 37 |
| Discussion and conclusions on Ground 5: whether the Court was wrong to find that there had been a breach of the duty to make reasonable adjustments | 41 |
| Conclusion on Ground 5 | 47 |
| GROUNDS 1–3 — THE CHALLENGE TO THE COURT'S FINDING THAT THE UNIVERSITY BREACHED SECTION 15 OF THE EQUALITY ACT 2010: DISCRIMINATION ARISING FROM DISABILITY | 48 |
| Legal framework | 48 |
| Actual or constructive knowledge of the claimant's disability: section 15(2) | 48 |
| Section 15(1): relevant principles | 49 |
| Discussion and conclusions on Grounds 1 and 2: actual or constructive knowledge | 50 |
| Discussion and conclusions on Ground 3 | 53 |
| GROUND 6: THE CHALLENGE TO THE COURT'S FINDING THAT THE UNIVERSITY INDIRECTLY DISCRIMINATED AGAINST MS ABRAHART: SECTION 19 OF THE 2010 ACT | 54 |
| The terms of section 19 | 54 |
| Relevant principles | 54 |
| Discussion and conclusions on Ground 6 | 55 |
| GROUND 7 | 55 |
| OVERALL CONCLUSION ON THE APPEAL | 56 |
| THE CROSS APPEAL AND THE ISSUES IN RELATION TO NEGLIGENCE | 56 |
INTRODUCTION
Tragically, on 30 April 2018 Natasha Abrahart took her own life. At the time, she was 20 years of age and a student at Bristol University (“the University”) in the second year of the MSci degree programme in Physics. She was suffering from depression and Social Anxiety Disorder, the effects of which amounted to a “disability” for the purposes of the Equality Act 2010 (“the 2010 Act”). Her conditions substantially impaired, amongst other things, her ability to participate in oral assessments and, in particular, interviews and a laboratory conference about experiments which she was required to carry out as part of a mandatory module called “Practical Physics 203” (“the Module”). She died on the day of the laboratory conference.
On 20 January 2020, these proceedings were issued in the County Court Money Claims Centre by Ms Abrahart's father, Dr Robert Abrahart, who brought the Claim under the Law Reform (Miscellaneous Provisions) Act 1934 as her personal representative and administrator of her estate. The proceedings were subsequently transferred to the Bristol County Court. They followed an Inquest into Ms Abrahart's death which resulted, on 16 May 2019, in criticism of the mental health team at the Avon and Wiltshire Mental Health Partnership NHS Trust (“the NHS Trust”) which had been responsible for her care from February 2018. Dr Abrahart settled proposed proceedings against the NHS Trust pre-action in April 2019.
In summary, Dr Abrahart's case against the University was that it unlawfully discriminated against Ms Abrahart contrary to sections 15 (discrimination arising from disability), 19 (indirect discrimination) and 20 (duty to make reasonable adjustments) of the Equality Act 2010, read with section 91(2)(a) and/or (f). He also alleged negligence. At the heart of these causes of action was the contention that the University should have removed or adjusted the oral assessment requirements of Practical Physics 203 so that they no longer caused Ms Abrahart the level of anxiety and distress which they caused, rather than continue to require her to participate, marking her down when she performed badly and penalising her when she did not attend. The failure of the University to do this, and other deficiencies in its handling of Ms Abrahart's situation, caused her psychiatric injury and injury to feelings, and contributed to her suicide.
This is an appeal from a decision of His Honour Judge Ralton sitting at the Bristol County Court with an assessor, Mrs Christine Price, who was appointed pursuant to section 114(7) Equality Act 2010 (though I refer to “the Judge” below, given that he wrote the Judgment). The trial took place between 1 and 8 March 2022 and a reserved judgment was handed down on 20 May 2022. The Court's Order declared that the University had breached each of the statutory duties relied on by Dr Abrahart under the 2010 Act. Damages in the sum of £50,000 for pain suffering and loss of amenity and injury to feelings were therefore awarded, and the parties were invited to agree a sum in respect of funeral expenses.
However, Dr Abrahart's claim in negligence was dismissed on the basis that the University did not owe Ms Abrahart any relevant common law duty of care. The Judge characterised this claim as based on an allegation of negligent omission(s) – failure to take action to protect Ms Abrahart from harm or, “in a sense” from herself – and held that this case was not in any of the recognised exceptional categories in which a duty of care may nevertheless arise. He said, however, that if such a duty had arisen he would have found that it was breached by the University for the reasons which amounted to the breaches of the 2010 Act which the Court had found:
“the main breach would be continuing to require [Ms Abrahart] to give interviews and attend the conference and marking her down if she did not participate when [the university] knew that [she] was unable to participate for mental health reasons beyond her control.”
OUTLINE OF THE APPEAL/CROSS APPEAL
In this appeal the University, represented by Ms Aileen McColgan KC and by Mr Paul Stagg (who appeared below), challenges all of the County Court's findings of breach of the 2010 Act and the finding that, if there had been a relevant duty of care, that duty was breached in this case. It also argues that if the Judge had considered causation in relation to negligence, the right conclusion would have been that any breach of any duty of care owed to Ms Abrahart did not cause her death.
In broad terms, the University's case in the appeal (although the arguments were not presented in this order) is that it had no duty to adjust the requirements of Practical Physics 203 because the oral assessments were a “competence standard” within the meaning of [4(3)] of Schedule 13 to the 2010 Act. The County Court was wrong to find otherwise. In the alternative, it was also wrong to find that the University knew or ought to have known enough about Ms Abrahart's situation to be obliged to make the adjustments to the requirements of the Module which the Judge held would have been reasonable. The disability discrimination claims should also have been dismissed on the basis that the University acted reasonably and/or was justified in its approach given the importance of maintaining academic standards, and fairness to other students. Ms Abrahart had not provided sufficient evidence through the relevant procedures for the University to be in a position to do more than it had done. Moreover, the Judge did not adopt a reasoned approach to the question of adjustments, and he made various other errors in setting out his Reasons.
On behalf of Dr Abrahart, Mr Jamie Burton KC and Ms Sarah Steinhardt (both of whom appeared below) support the Court's conclusions under the 2010 Act for the reasons which the Judge gave, and certain additional reasons pleaded in the Respondent's Notice. Their case is that the Court was entitled to find that the oral assessments were not a “competence standard”. There was therefore a duty to make reasonable adjustments to them given that it was common ground that they put Ms Abrahart at a substantial disadvantage in comparison with...
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Unleashing the anticipatory reasonable adjustment duty: University of Bristol v Abrahart (EHRC intervening) [2024] EWHC 299 (KB)
...Price (assessor), 20 May 2022, hereafter ‘Abrahart (CC)’.2. ibid., [151].3. University of Bristol v Abrahart (EHRC intervening) [2024] EWHC 299 (KB), hereafter‘Abrahart (HC)’.4. See Fage v Chobani [2014] EWCA Civ 5, [114]; Haringey LBC v Ahmed [2017] EWCA Civ1861, [29]-[31]; Prescott v Spri......
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...A. K., & Atrey, S. (2024). Unleashing the anticipatory reasonable adjustment duty:University of Bristol v Abrahart (EHRC intervening) [2024] EWHC 299 (KB). InternationalJournal of Discrimination and the Law, https://doi.org/10.1177/13582291241241505.7. Hand, J. (2024). The Equality Act 2010......