Vaile v London Borough of Havering

An education authority may breach its duty to provide a safe system of work where it knows that a pupil has an autistic spectrum disorder but fails to communicate that information, train and instruct the teacher in appropriate techniques, or respond adequately to an earlier assault.

Causation may ordinarily be inferred where the claimant proves negligence and suffers injury of a kind likely to result from it. The claimant need not identify the precise preventive strategy that would have avoided the injury. The question is whether appropriate measures would probably have prevented the incident or reduced its likelihood.

A teacher at a special school suffered serious physical and psychiatric injuries when a pupil with an autistic spectrum disorder assaulted her. The local education authority had identified the pupil as having that disorder but had not recorded it adequately, informed the teacher, or trained and instructed her to use appropriate teaching techniques. There had also been an earlier assault.

The High Court judge found serious deficiencies in the authority's educational provision and response. He nevertheless dismissed the negligence claim because an unsafe system of work and causation had not been proved. The teacher appealed. The central issues were whether the judge's primary findings compelled a conclusion that the authority had failed to provide a safe system of work and whether that failure probably caused the injuries.

1. The appeal was allowed unanimously. Longmore LJ held that the trial judge's primary findings compelled the conclusion that the education authority had failed in its duty to provide the teacher with a safe system of work. Etherton LJ agreed, and Sir David Keene agreed with both judgments.
2. The authority should have maintained a system for identifying pupils with an autistic spectrum disorder and informing their teachers. Once it appreciated that the pupil had such a disorder, it should also have ensured that those teaching him were properly instructed in suitable techniques. Although TEACCH supplied an appropriate system, the authority's instruction and application of it were haphazard. The teacher had neither adequate training nor an instruction to apply the system to the pupil.
3. The inadequate response to the earlier assault reinforced the wider and continuing failure. The negligence was not confined to the period following that incident. It had persisted since the authority identified the pupil as having an autistic spectrum disorder but failed to communicate and act upon that knowledge.
4. On causation, Longmore LJ applied the principle in Drake v Harbour [2008] EWCA Civ 25. Where negligence is proved and the resulting loss is of a kind likely to flow from it, the court may ordinarily infer causation even though the claimant cannot prove the precise mechanism. The injuries were of a kind that proper risk assessment, information and structured procedures were intended to prevent or minimise.
5. The inability to identify the precise strategy that would have prevented the assault did not defeat causation. Etherton LJ emphasised that the relevant question was whether any strategy or combination of strategies would probably have avoided the second assault, rather than which particular strategy would have worked best. The expert evidence supported an affirmative answer. The trial judge had therefore erred both on breach and causation.
6. The High Court order was set aside, and the claim was remitted to the Queen's Bench Division for an assessment of damages.

• Court of Appeal (Civil Division): The appeal was allowed unanimously. The order dismissing the claim was set aside, and the matter was remitted to the Queen's Bench Division for assessment of damages.
• High Court, Queen's Bench Division: John Leighton Williams QC, sitting as a High Court judge, found deficiencies in the authority's provision but dismissed the claim because breach of the duty to provide a safe system of work and causation had not been established.