Clarke v Hull City Council

An appellate court should exercise great caution before overturning a trial judge’s findings of fact. Intervention is justified only where the finding had no evidential basis, involved a demonstrable misunderstanding or resulted from a failure to consider relevant evidence such that the decision cannot reasonably be explained or justified.

Where negligent conduct permitted repeated physical acts causing injury, causation may be established by proving that the negligence probably caused the loss. A claimant need not identify the precise act within a sequence that caused the injury where the evidence establishes that the sequence as a whole caused it. The court may also make an implicit finding of causation where the issue was addressed at trial and the evidence made that conclusion inevitable.

The claimant, a teacher employed by Hull City Council, suffered a knee injury while restraining a pupil who repeatedly kicked him. He claimed damages for breach of the employer’s duty to take reasonable care for his safety at work.

After a trial at Kingston-upon-Hull County Court, Her Honour Judge Sarah Richardson found that the claimant had been repeatedly kicked, that the Council’s employee should have intervened, and that the breach caused the injury. Judgment was entered for the claimant in the sum of £35,000 after a 30 per cent reduction for contributory negligence.

The Council appealed on findings of fact, breach of duty and causation. The central issues were whether the trial judge was entitled to make the findings challenged and whether causation had been established despite the absence of an express finding identifying which kicks caused the injury.

1. Appeal dismissed. The trial judge was entitled to find that the claimant had been repeatedly kicked. Appellate courts must avoid evaluating evidence by impermissible selection of isolated parts of the record. The judge had considered the evidence as a whole, identified weaknesses in the evidence of witnesses on both sides, and relied particularly on contemporaneous reports made before litigation was contemplated. The judge was also entitled to take account of the medical evidence concerning bone bruising.
2. The judge was entitled to find a breach of duty. Having found that the claimant was repeatedly kicked and that Mr Wharton was following behind, the judge could conclude that he should have seen the kicking and should have intervened or taken over the restraint. The fact that the claimant did not report the kicking and that other witnesses did not see it did not make the finding impermissible.
3. The case was governed by ordinary causation principles. It was sufficient to establish that the negligent failure to intervene probably caused the soft-tissue injury. This was not a material-contribution case under Bonnington Castings v Wardlaw [1956] AC 613 or McGhee v National Coal Board [1973] 1 WLR 1.
4. The trial judge had made an implicit finding of causation. The experts’ agreed evidence was that, if an accident involving repeated kicking had occurred, it was a soft-tissue accident. The judge found repeated kicking and a negligent failure to prevent it. The evidence did not suggest that only some kicks caused the injury while the others had no effect. Given the way causation had been addressed at trial, the implicit finding was proper.
5. The Council’s concession at trial was relevant to the scope of the issues requiring determination. A party seeking to resile from a concession bears the burden of showing why the point should be reopened, and prejudice makes resiling less likely. The Council had not raised at trial the argument that the injury had occurred before any negligent failure to intervene.

• Kingston-upon-Hull County Court: Her Honour Judge Sarah Richardson gave judgment for the claimant on 2 July 2018 in the sum of £35,000, reduced by 30 per cent for contributory negligence.
• High Court (Queen’s Bench Division): The Council’s appeal on findings of fact, breach of duty and causation was dismissed.