ZH v The Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judgment Date | 14 March 2012 |
| Neutral Citation | [2012] EWHC 604 |
| Court | County Court |
| Docket Number | 9CL02483 |
| Subject Matter | Family |
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Neutral Citation Number: [2012] EWHC 604 (QB)
Case No: 9CL02483
IN THE CENTRAL LONDON COUNTY COURT
Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14 March 2012
Before :
SIR ROBERT NELSON
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Between :
ZH (A protected party by GH, his litigation friend)
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The Commissioner of Police for the Metropolis
Claimant
Defendant
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Heather Williams QC (instructed by Bhatt Murphy Solicitors) for the Claimant
Anne Studd (instructed by the Metropolitan Police Service) for the Defendant
Hearing dates: 28th, 29th, 30th November and 1st, 5th, 6th and 8th December 2011
Approved Judgment
Judgment Approved by the court for handing down.
SIR ROBERT NELSON :
Introduction
1. The Claimant, ZH, is a severely autistic, epileptic nineteen year old young man who
suffers from learning disabilities and cannot communicate by speech. He brings this
claim through his father, as his litigation friend. The claim is for damages, for assault
and battery, false imprisonment, unlawful disability discrimination under the
Disability Discrimination Act 1995 (DDA), under the Human Rights Act 1998 (HRA)
alleging breaches of Articles 3, 5 and/or 8 of the European Convention on Human
Rights (ECHR) and for declaratory relief. All the claims are denied. In 2008, when
the events leading to this litigation occurred, the Claimant was sixteen years of age,
living at home and attending a specialist day school, the Sybil Elgar School, Southall,
Middlesex, run by the National Autistic Society.
The Background Facts
2. On 23 September 2008 the Claimant was taken with four other pupils from his school
to Acton swimming baths on a familiarisation visit. It was not intended that any of
the children would swim or be in close proximity to the water on that day. The pupils
were accompanied by three of the school staff, Padmaja Namballa, ZH’s class
teacher, and two classroom assistants. One of those assistants, Sateesh Badugu, was
tasked with providing one:one support to the Claimant.
3. When the pupils left the viewing gallery above the pool, the Claimant broke away
from the group and made his way to the poolside. He became fixated by the water
and despite his carer’s attempts to distract him by offering him crisps, he could not be
encouraged to move away from the poolside. The school staff were aware that ZH
had an aversion to being touched and would be likely to react adversely if this was
done, so they did not attempt to do so. Becoming fixated, or “stuck”, and aversion to
being touched are both common features of autism.
4. Ms Namballa returned to the school, which was nearby, with the other students
intending to return to the pool with assistance. She asked Mr Badugu to stay at the
pool in charge of the Claimant.
5. Before Ms Namballa left, Yvette Burton, a lifeguard, came on duty. She saw ZH
standing fully clothed by the poolside railings when she arrived. He was extremely
close to the water and at that point she could not stand between him and the pool. The
railings, with the lifeguard’s chair next to them and the blue doors leading to the
corridor behind them, can be seen in photograph 20. Mrs Burton (then Ms Cole)
spoke to another lifeguard who had been on duty, Joe Starkey, and was informed that
ZH had been standing there for 20 or 30 minutes and would not move away. Mrs
Burton contacted her manager, Christian Hartland, and told him that there was a boy
standing by the poolside who would not move away. She did not say to him that he
was about to jump, though she was concerned that he might enter into the water, and
felt that either way they could not have a member of the public at the poolside fully
dressed in case he did fall into the pool.
6. Whether or not Mrs Burton later managed to place herself between ZH and the pool,
he having moved somewhat away from the edge, is a matter in dispute, but Mrs
Judgment Approved by the court for handing down.
Burton’s evidence that the female carer told her in no uncertain terms that she could
not stand in front of him and that she must not touch him as he was autistic, is
consistent with that part of Ms Namballa’s evidence where she accepts that she did
say to a member of the pool staff “if you touch him he will jump in”,
7. Mrs Burton describes the male and female carer as standing by the blue doors,
verbally trying to distract ZH with food and the promise of food.
8. Mr Badugu agreed that after Ms Namballa had left to take the other pupils back and
get assistance he was a few feet into the corridor trying to entice ZH away from the
pool with a packet of crisps. He had moved closer to ZH to show him the crisps but
this had caused ZH to move to the edge of the pool ready to jump in, so he stayed a
bit away from him in the corridor. He was in that position when Christian Hartland,
the pool manager, responded to Mrs Burton’s call and came to the poolside, though
Mr Hartland described him initially as sitting on the wooden bench, rather than
standing, in the corridor near the blue doors. Mr Badugu told Mr Hartland that ZH
needed time but Mr Hartland said that he did not think that the carer would know
better what to do. Mr Hartland said in evidence that they had a swim safety policy by
which everyone who could not swim had to be accompanied by an adult. He was
aware that ZH had been by the poolside for a significant period of time by then, and
said to Mr Badugu that he needed to do something to remove ZH from the pool or he
would call the police. Mr Badugu said to him that ZH’s teacher would come with his
stuff and get other staff members to help to deal with the situation and asked him not
to call the police because he was not hurting himself or being dangerous to anyone
around.
9. Mr Hartland sought himself to persuade ZH to move away from the pool, buying a
can of coca cola for him and seeking to tempt him away with that. This did not
succeed and having lost patience with what he regarded as the carer’s ineffectiveness
he decided to call the police. His intention was to call the Police Community Support
Officers but when he made the telephone call they said it should have been a 999 call
and put him through to the operator.
10. The information which Mr Hartland gave to the operator at 15.24 was recorded as
follows:-
“We have a disabled male trying to get in the pool… the carer
is trying to stop him and he is getting aggressive”
“He is quite a big lad”.
11. In the Incident Report form which he filled in on behalf of his employers on the day
of the incident Mr Hartland described the situation as “getting worse as Z started to
get angry and edge closer to the pool”. There is no evidence from any other source
which suggests that at any time ZH was in fact aggressive, or indeed angry, by the
time Mr Hartland made his call to the Police. In his own evidence Mr Hartland said
that he had initially sought to call the PCSO, rather than the Police, because he did not
think it was a real emergency and agreed that ZH had not been aggressive up to that
point and no-one had suggested that he had been. He said in terms that ZH was not
aggressive and that that had not been the case, but that he had given that impression
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