Cunningham v Rochdale Metropolitan Borough Council

The Court of Appeal dismissed Mr Cunningham's appeal against the dismissal of his negligence claim against his employer, Rochdale Metropolitan Borough Council. The court held that the council owed a duty to provide a safe system of work and that, as a matter of fact, it had breached that duty by failing to complete written risk assessments and by failing to arrange a return to school interview and a restorative justice meeting after an earlier assault on the pupil. However, the court concluded that those breaches did not, on the balance of probabilities, cause the later assault of 3 November 2015. The judge's primary finding that causation was not established was upheld.

Key legal principles applied include the standard of care of a reasonable, prudent and competent school, the requirement in ordinary circumstances to carry out suitable and sufficient risk assessments, and the necessity for the claimant to prove that any breach of duty caused the loss (that but for the breach the injury would have been avoided). The court considered and distinguished Vaile v London Borough of Havering on causation but did not treat it as establishing any new rule.

Background and parties

• The appellant, Colin Cunningham, was an assistant head teacher at a special school run by Rochdale Metropolitan Borough Council. On 3 November 2015 he was punched by a pupil, sustaining a fractured cheekbone and psychiatric injury; he subsequently retired.
• Mr Cunningham sued the council in negligence (and pleaded breach of statutory duty) seeking damages for his injuries and claiming failures in the school's handling of the pupil before the 3 November assault.

Procedural history

The claim was tried before His Honour Judge Platts in the Queen's Bench Division, Manchester District Registry over four days in November 2020, and dismissed by judgment of 30 November 2020. Mr Cunningham appealed to the Court of Appeal, which heard the appeal on 26 October 2021 and delivered its judgment on 19 November 2021.

Issues for determination

1. Whether the council breached its duty of care by failing to prepare and retain written risk assessments in relation to the pupil.
2. Whether the council breached its own policies by failing to carry out a return to school interview and a restorative justice meeting after the pupil's earlier attack on 22 September 2015.
3. Whether any breach was causative of the 3 November 2015 assault, that is whether it was more likely than not that the assault would have been prevented if the risk assessments and meetings had occurred.
4. Whether failures to update policy in line with Department for Education guidance or other expert evidence undermined the judge's findings.

Court's reasoning and conclusions

The Court of Appeal accepted that the council owed a duty to provide a safe system of work and that, on the evidence, it failed to complete and retain written risk assessments and failed to hold the return to school interview and restorative justice meeting required by its policies. Those factual findings established breaches of the standard of care.

However, on causation the court upheld the trial judge's conclusion that the appellant had not proved on the balance of probabilities that those omissions would, more likely than not, have prevented the later assault. The pupil's deterioration had been the subject of sustained multi-agency involvement and many interventions which had not prevented the assault; the incident on 3 November 2015 was a sustained and fluctuating episode that the judge found was appropriately managed in the moment. The Court distinguished Vaile v Havering LBC as a different factual situation where the causal link was more readily inferred. Consequently, although breaches were proved, causation failed and the appeal was dismissed.

Appeal dismissed. The court held that although the council breached its duty by failing to prepare/retain written risk assessments and by failing to carry out return-to-school and restorative justice meetings required by its policies, the appellant did not prove on the balance of probabilities that those breaches caused the assault of 3 November 2015; causation therefore failed and the appeal was dismissed.

Appeal from the High Court, Queen's Bench Division, Manchester District Registry (His Honour Judge Platts sitting as a Judge of the High Court). Trial judgment dismissed the claim (judgment dated 30 November 2020). Appeal heard in the Court of Appeal (Civil Division) and dismissed by judgment [2021] EWCA Civ 1719 on 19 November 2021.