02/12/2021
Colin Cunningham v Rochdale Metropolitan Borough Council
Court of Appeal 19 November 2021
Why is the judgment important?
Firstly it confirms that if an employer fails to meet the standards it has set itself in its own policies, this can represent a breach of duty of care towards its employees.
However the judgment also highlights the crucial importance of causation – it is not enough for an employee to show that the employer was in breach of duty; the employee must also go on to establish that the breach of duty actually caused the injury complained of.
The basis of the appeal
Mr Cunningham appealed the trial judge’s dismissal of his compensation claim, following a serious assault on him by a pupil on 3 November 2015. The same pupil had assaulted him previously, on 22 September 2015.
Mr Cunningham argued that the trial judge should have found that the school was in breach of its duty of care to him, on account of its failure to comply with its own written policies. He alleged that the school should have carried out a risk assessment following the first assault, and arranged a return to school interview and a restorative justice meeting between the pupil and Mr Cunningham.
The Court of Appeal unanimously decided that the trial judge, having accepted (with some concern) that the above measures had not been taken, should have concluded that they constituted breaches of duty on the school’s part. Employers generally are required to carry out suitable and sufficient risk assessments, so that reasonable steps can be taken to reduce workplace risks.
The Court commented that “the unexplained failure by the school to comply with its own policies was a breach of duty, because it fell below the standards of care that the school had set for itself.”
However, and crucially, the Court of Appeal rejected Mr Cunningham’s contention that the second assault would have been avoided had these measures been taken. In doing so the Court distinguished the previous decision in Vaile v Havering LBC.
In that case, a pupil with Autistic Spectrum Disorder had attacked a teacher. The Court concluded that, on the balance of probabilities, the provision of appropriate training would have prevented the assault. Mr Cunningham, in contrast, was experienced and trained, and the senior teaching staff knew of the deterioration in the pupil’s behaviour. A careful analysis of the relevant factual situation was required, in keeping with the conventional approach to the issue of causation.
The school had made many interventions and involved outside agencies in respect of the pupil’s behaviour. Mr Cunningham was unable to highlight precisely what would have appeared in the “missing” risk assessment which would have prevented the second attack on him.
The Court of Appeal concluded that had a return to school interview or restorative justice meeting taken place, it was possible, but not on the balance of probabilities probable, that this would have prevented the second assault.
As a result, whilst Mr Cunningham was successful in establishing breaches of duty, he could not establish that those breaches were causative of the second assault, and his claim for compensation against the LEA was therefore dismissed.
If you would like to discuss this topic, please contact Adrian Neale, Associate.
