Norfolk County Council v Durrant

Negligence requires proof of duty, breach, causation and loss. A failure to complete or record a risk assessment does not itself cause injury. Liability requires proof that a suitable and sufficient assessment would probably have led to a precaution which would probably have avoided the injury. An employer’s written policy need not be followed rigidly where professional judgment shows that a different approach is appropriate for the individual circumstances. On appeal, the court must respect primary factual findings and evaluative judgments, but may intervene where the reasoning contains an identifiable flaw or fails to address an essential issue.

A county council appealed against a county court judgment finding it liable in negligence for injuries suffered by a teaching assistant when a six-year-old pupil became violent in a school calming room. The Recorder found shortcomings in the recording and reporting of the pupil’s behaviour and in the completion of a risk assessment. She concluded that these failures were negligent and caused the claimant’s injuries, while reducing damages for contributory negligence.

The appeal challenged the absence of a reasoned finding on causation, certain factual findings, and the conclusion that the council had breached its duty of care. The central issue was whether the Recorder’s findings and reasoning established a causative breach of duty.

1. The appeal was allowed. The Recorder’s judgment did not contain a sustainable finding that any identified breach caused the claimant’s injury.
2. In negligence, breach and causation are distinct essential elements. The court must identify the breach, assess its relevance, and determine whether it caused the loss directly or indirectly. Where the complaint is failure to complete a risk assessment, liability requires a finding that a suitable and sufficient assessment would probably have resulted in a precaution which would probably have avoided the injury, requiring consideration of the counterfactual.
3. The Recorder described the school’s reporting system as cumbersome and incompletely implemented, but did not explain what would probably have happened if the system had been followed more formally. The evidence accepted by her showed that staff were informed about the pupil, met frequently, adapted their strategies and would not probably have done anything differently. The incident was unforeseeable and unprovoked.
4. A school’s behaviour policy was not a contract and had to be adapted to circumstances. Departing from a rigid disciplinary process was not negligent where the evidence showed that the process was considered inappropriate for the child and alternative professional strategies were used.
5. Reassessing the material under CPR 52.21, there was also no sustainable finding of breach. The council had carefully considered the pupil’s behaviour and the appropriate management strategies. The alleged failure to refer the pupil to an inclusion manager had no causal connection with the later injury.
6. The findings of liability were set aside. The court also indicated that, if necessary, the findings concerning unrecorded incidents and the absence of an overall risk assessment would be quashed.

• High Court (Queen’s Bench Division): appeal from a decision of Mrs Recorder Rodgers sitting in the Norwich County Court. The appeal was allowed.