Smith v Youth Justice Board for England and Wales & Anor

In a negligence claim, factual causation is only the first stage. The court must also decide how far, in fairness, the defendant should be held responsible for the consequences. An intervening act may displace an earlier breach where the claimant’s own conduct materially and independently brings about the relevant harm. A state’s failure to review a hazardous restraint technique could support liability if timely review would probably have led to its withdrawal. It does not, however, make the state responsible for injury arising from the claimant’s unnecessary and excessive use of the technique, particularly where clear signs requiring release were ignored. The appeal was therefore dismissed on causation grounds, distinct from public policy.

The appellant, a former training assistant at a secure training centre, claimed damages for post-traumatic stress disorder after participating in the restraint of a 15-year-old trainee who died. She alleged that the Youth Justice Board and the Ministry of Justice were responsible because they had permitted the continued use of the seated double embrace restraint and had failed to arrange an expert medical review.

The Central London County Court held that the Ministry owed her a duty of care and had breached it by failing to keep the technique under medical review. The claim was nevertheless dismissed because the judge found causation unproved: it was less than likely that a review by 2004 would have led to the technique being abandoned. On appeal, the central issue became whether the officers’ unnecessary and excessive restraint, including their failure to respond to obvious distress, displaced any prior state responsibility.

1. Appeal dismissed. The court treated causation as involving factual causation followed by a normative assessment of responsibility. The question was where, in fairness, responsibility for the sequence of consequences should end. This approach was consistent with Rahman v Arearose Ltd [2001] QB 351, Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404 and Corr v IBC Vehicles Ltd [2008] UKHL 13.
2. For the purpose of the appeal, the court assumed that a timely professional review would probably have resulted in the withdrawal of the seated double embrace by 2004. The Ministry’s failure to conduct regular independent medical reviews was inexcusable, whether the risk arose from the technique itself or from its misuse.
3. That breach did not determine legal responsibility for the claimant’s psychiatric injury. The restraint had been used unnecessarily, contrary to rule 36 of the Secure Training Centre Rules 1998, and in circumstances where alternative control was available. It was therefore an assault which the trainee was entitled to resist, and the claimant had participated in the situation which followed.
4. Separately, the officers continued the restraint despite clear and repeated signs of serious distress, including inability to breathe, loss of bowel control, vomiting and becoming motionless. Rule 38 of the Secure Training Centre Rules 1998 permitted physical restraint only within strict limits, and the training guidance required release when continued restraint became unsafe. The excessive and prolonged use of the technique was a supervening cause of the death and consequent trauma.
5. The conclusion did not rest on public policy or establish criminal or civil culpability against the claimant. It was a causation finding: it would be unjust for the claimant to recover damages for the consequences of a death which her own conduct, with that of her colleagues, had brought about. The judge’s original causation finding was consequently immaterial.

• Court of Appeal (Civil Division): appeal dismissed on the basis that the claimant’s unnecessary and excessive restraint was a supervening cause of the harm.
• Central London County Court: HH Judge Collins dismissed the claim. He found a duty of care and breach in failing to arrange medical review, but held that causation was not established because abandonment of the technique by 2004 was less than likely.