Hall v Bolton Metropolitan Borough Council

An employer responsible for a special school must devise a safe system of work on adequate information about a pupil’s known violent behaviour. The assessment must properly balance safety risks against educational aims and cannot rely on incomplete incident records or an uninstructed decision-maker’s personal experience.

An appellate court will not disturb a trial judge’s findings on witness reliability or evidential weight where they were open on the evidence. A trial is not necessarily unfair because the case is clarified or expanded at trial where the formulation remains within the existing case and the opposing party cannot show material prejudice.

The claimant, a teacher at a special school, suffered serious shoulder injuries when a pupil known to display violent and unpredictable behaviour attacked her during assembly. She alleged that the defendant local authority had failed to devise and implement an adequate behaviour-management system, despite knowledge of the pupil’s previous attacks.

The recorder found that the authority had negligently failed to follow its 1993 incident-recording policy and had failed properly to instruct the employee who devised the relevant assembly guidelines. The authority appealed, alleging that the trial had been unfair because the claimant’s case developed through pre-trial skeleton arguments and a document produced during the second day. It also challenged the recorder’s treatment of the evidence and factual conclusions. The central issues were whether the proceedings were unfair and whether the findings of negligence were open on the evidence.

Disposition

Lord Justice Buxton delivered the first judgment. Lord Justice Schiemann and Lord Justice Simon Brown agreed. The appeal was dismissed unanimously, with costs.

1. Procedural fairness. The claimant’s first pre-trial skeleton introduced a more specific allegation that the pupil should have been seated apart from others at every assembly. The authority nevertheless chose to contest the case on that basis. The further document produced during the second day explained and expanded the existing complaint that the policy had been devised without adequate knowledge of the pupil’s history and without proper regard to staff safety. It remained open to counsel to make those criticisms in closing submissions. The authority identified no material evidence that it would have called had the document been produced earlier and made no application to call further evidence. The trial was therefore not unfair.
2. Employer’s safe-system duty. The recorder was entitled to find negligence where the policy-maker had not been given the full information that should have been recorded under the 1993 policy and had not been instructed in the proper balance between safety risks and educational requirements. The policy had failed to account adequately for the increasing frequency and violence of attacks, their unpredictability, the pupil’s physical maturity, the risks associated with assembly and the transition from transport, and the lower level of supervision in assembly.
3. Evidence and appellate review. The recorder was entitled to accept the evidence of the claimant’s colleague and the policy-maker, and to reject or discount the expert’s evidence where it was conflicting and based on materially less information. A lay witness’s view of whether the policy was reasonable was not determinative. The recorder’s conclusions were properly available on the evidence, so the Court of Appeal would not interfere.
4. Case management. The court strongly criticised the failure to identify the issues and evidence at an early stage. It observed that firm judicial management under the Civil Procedure Rules should prevent similar difficulties in future.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 1717, the authority’s appeal was dismissed unanimously with costs.
• Manchester County Court: Mr Recorder Storey QC found the local authority negligent and entered judgment for the claimant after trial.