Cunningham v Rochdale Metropolitan Borough Council

An employer’s duty to provide a safe system of work requires the standard of a reasonable, prudent and competent school. Where school policies require risk assessments, return-to-school interviews or restorative meetings, unexplained failure to follow them may constitute breach. Breach alone does not establish liability. For an omission, the claimant must prove on the balance of probabilities that the omitted step would have prevented the loss. In third-party assault cases, causation requires analysis of the actual circumstances, including the duration of the incident and the effect of other interventions. Reasonable foreseeability of an attack is sufficient; its precise manner need not be foreseen. The appeal was dismissed because causation was not proved.

An assistant head teacher was assaulted by a pupil at a school operated by the respondent council. He claimed negligence and breach of statutory duty, alleging failures to exclude the pupil, complete risk assessments, follow the school’s policies, and arrange a return-to-school interview and restorative justice meeting after an earlier assault.

The High Court, presided over by His Honour Judge Platts, dismissed the claim on 30 November 2020. On appeal, the expert-evidence and guidance issues were accepted to be immaterial. The central issue was whether the school’s established breaches caused the later assault.

The appeal was dismissed unanimously.

1. Duty and foreseeability. The council owed the claimant a duty to take reasonable care to provide a safe system of work. The applicable standard was that of a reasonable, prudent and competent school. The school’s policies were evidence of that standard. Because the incident postdated the entry into force of Enterprise and Regulatory Reform Act 2013, the claim proceeded in negligence only; the Management of Health and Safety at Work Regulations 1999 were relevant as evidence of the applicable standard. An assault by a pupil was reasonably foreseeable because that risk had been identified and previous assaults had occurred. The precise nature of the attack did not need to be foreseeable.
2. Breach. An employer is generally required to carry out a suitable and sufficient risk assessment to identify reasonable safety measures. It must be a competent attempt to identify risks, rather than a tick-box exercise: compare Allison v London Underground Ltd [2008] EWCA Civ 71. The school’s failure to complete risk assessments was therefore a breach. The unexplained failure to arrange the return-to-school interview and restorative justice meeting required by its own policies was also a breach.
3. Causation. Since the breaches were omissions, the claimant had to prove on the balance of probabilities that, if the omitted actions had occurred, the assault would not have occurred. The conventional rules of causation were not altered by Vaile v London Borough of Havering [2011] EWCA Civ 246. That case concerned a materially different situation in which warning and training would probably have prevented the assault, although the precise mechanism was uncertain. The court also considered the difficulty of proving that preventative measures would probably have avoided a third-party attack, as discussed in Al-Najar and others v Cumberland Hotel [2019] EWHC 1593 (QB).
4. Application. The risk-assessment breach did not cause the attack because senior staff already knew of the pupil’s deterioration and the risk he posed, and no additional preventative step arising from a written assessment was identified. The return-to-school interview and restorative justice meeting might have helped, but their preventative effect was not probable. The sustained incident, its circumstances and the failure of extensive earlier interventions to prevent the assault all pointed against causation. The claimant therefore failed to establish that the breaches caused the attack or his loss.

1. Court of Appeal (Civil Division): dismissed the appeal from the High Court judgment, [2021] EWCA Civ 1719.
2. High Court, Queen’s Bench Division, Manchester District Registry: His Honour Judge Platts dismissed the negligence claim on 30 November 2020.