PROVING THINGS 194: PROVING CAUSATION IS AN ESSENTIAL ELEMENT OF A CLAIM IN NEGLIGENCE

The judgment of Mrs Justice Foster in Norfolk County Council v Durrant [2020] EWHC 3590 (QB) illustrates how it is essential for a claimant to prove causation in a case based on negligence.  It also highlights the need to consider, and preferably plead, how the failure to carry out an adequate risk assessment has led to the claimant being injured.

 

“It is trite that breach and causation are essential elements of the tort of negligence. This requires findings of fact, an assessment of their relevance, and findings as to whether any breaches were causative of the loss in question, whether directly or indirectly and thus in law amount to negligence. Where it is alleged that a risk assessment was not completed, or, as in this case, not reduced into writing, following Uren, the court must be aware that an assessment failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury. As Smith LJ pointed out a decision of that kind would necessitate hypothetical consideration of what would have happened if there had been a proper assessment”

 

THE NEED TO CONSIDER CAUSATION IN A “RISK ASSESSMENT” CASE

This case highlights the wisdom of a claimant bringing a case based on a failure to risk assess to consider and plead their case on causation at the outset.

  1. Was a risk assessment carried out?
  2. Was that risk assessment adequate?
  3. If there was no risk assessment or it was not adequate then what should the risk assessment have stated?
  4. Most importantly the claimant needs to consider, and plead, precisely what steps the risk assessment would have led to and which may have prevented the accident.

See the discussions in an earlier post on this blog: Risk Assessments: Useful Links. 

THE CASE

The claimant was employed by the defendant as a teaching assistant.   She was injured when dealing with a six year old child who became upset when segregated from a classroom. The claimant succeeded at trial. The defendant’s appeal against the finding of liability was successful.

THE CLAIMANT’S CASE

Mrs Justice Foster set out the claimant’s case on liability.

  1. The case for the Claimant was put on the basis of common law negligence. She also pleaded provisions of the Management of Health and Safety at Work Regulations 1999, alleging by reference to them a failure to make any suitable and sufficient risk assessment of the risks to health and safety of those working at Clover Hill, failure to provide information on risks, to take into account her capabilities when entrusting her with tasks, and failure to provide training.
  2. The Recorder noted that following section 47 of the Enterprise and Regulatory Reform Act 2013, breach of a Regulation causing damage did not of itself give rise to liability, but might be relevant for establishing common law negligence, and held that the Regulations provided context in which to assess an employer’s performance of its common law duty of care. There is, rightly in my judgement, no challenge to that analysis.
  3. The Claimant’s case was based on breaches of the employer’s duties to her, including to provide a safe system work. It was alleged that the area in which the injury happened, the so-called Sunshine Room, a calming-down area for disruptive children, was an unsafe place of work in light of what was known at the time.
  4. Ms Durrant also alleged a failure by the school to operate their systems for monitoring and management of difficult pupils effectively. If the systems and policies had been consistently applied, she said, what was described as a “dramatic deterioration” in the child’s behaviour before the incident would have been managed properly, and the incident would not have taken place. He would have been removed to a special area, alternatively, the “psychological atmosphere” would have been different and the incident would not have taken place. She pointed to the absence of a completed Pupil Specific Risk Assessment form as a reason for – or evidence of – alleged non-identification of the relevant risks.
  5. The central allegation became at trial (it was not pleaded) that the child, known in the case as “J”, “undoubtedly should have been escalated”, that is, subjected to a graduated “Red Card system” operated at Clover Hill, of escalating concerns about behaviour and removed to “the Base”- a special mobile classroom that was a discipline facility at the neighbouring, more senior, school, at some point before the incident. It was also said he should have been referred to the Leadership Team at Clover Hill, and that the incident on 28 September 2015 was quite foreseeable.
  6. It was therefore Ms Durrant’s case that Norfolk had failed to take reasonable steps to provide her with a safe system of work, reasonableness being judged in the light of what was known at the time. Necessarily, she had to show on the balance of probabilities that the alleged failings would have prevented the incident or avoided the injury.

IT WAS ACCEPTED THAT THERE WAS NO FINDING OF CAUSATION

 

  1. The Respondent accepts that no actual finding of causation was made by the Judge but invites this court to infer from the Judge’s reasoning read as a whole that that is what the Judge must have found.

THE JUDGMENT ON APPEAL: DECISION OF TRIAL JUDGE WAS OVERTURNED

Mrs Justice Foster allowed the defendant’s appeal.   There were no findings on causation, and such findings could not properly be inferred from the Recorder’s judgment.

    1. The essential challenge from Norfolk is that the Recorder has not clearly identified material failures by Clover Hill, and nowhere said that any of the inadequacies she did find were causative, whether directly or indirectly, of the injury sustained by Claimant.
    2. The Appellant argues in the Grounds of Appeal that it is difficult to discern the learned Judge’s reasoning, her analysis of the chronology of events, and her conclusions as to whether failures were culpable and caused the loss complained of. I regret that I am constrained to agree.
    3. I am mindful that she had the benefit of several days of evidence and saw the witnesses, according, and bearing in mind the admonitions of Leggatt and Lewison LJJ, I have read carefully the 400 or so pages of the Transcript of the hearing to determine whether it can assist me in supplementing the Judge’s reasoning and sustaining her conclusions. It does not do so.
    4. Applying the principles set out above, it is clear that unless I am able to spell out of the Judge’s judgment, a conclusion on causation, the finding that Norfolk were negligent, cannot stand. Regrettably, I cannot find cogent reasoning or a conclusion as to causation.
    5. It is trite that breach and causation are essential elements of the tort of negligence. This requires findings of fact, an assessment of their relevance, and findings as to whether any breaches were causative of the loss in question, whether directly or indirectly and thus in law amount to negligence. Where it is alleged that a risk assessment was not completed, or, as in this case, not reduced into writing, following Uren, the court must be aware that an assessment failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury. As Smith LJ pointed out a decision of that kind would necessitate hypothetical consideration of what would have happened if there had been a proper assessment.
    6. In this case it is, with respect, firstly, sometimes difficult to discern whether criticisms of the school amount to findings of breaches of duties owed to Ms Durrant, and secondly, very difficult to find any developed consideration of the counterfactual- what would have happened if the alternative courses of action had been adopted.
    7. The highest that the findings on a counterfactual is expressed is as set out above in paragraph 64, citing the judgment at paragraph [82]. It is there held that had, in January 2015, “protocol been followed” [not explained] … “they might have come to a decision that “other forms of referral would have been better”. There is nowhere a finding of what would have happened on the balance of probabilities, nor a finding that on the balance of probabilities, whatever would have been done would probably have obviated the injury.
    8. Immediately after these findings the Judge records the evidence of Ms Gooch to the effect it would actually have increased the risk were J to have been put in Base, as the Claimant says Clover Hill negligently failed to do. The Judge recites Ms Gooch’s views on what was considered to be the appropriate treatment of J, and, as with the evidence other witnesses to like effect, makes only complimentary comments. Clear reasoned views on the steps taken -and not taken- in respect of J were explained by all of Clover Hill’s witnesses, and even the Claimant’s own witness agreed (see above). These were recited by the Judge who takes no issue at all with the unanimous (save for the Claimant) views.
    9. I have come to the clear conclusion it is impossible logically to spell out a finding that any of the failures found were breaches of Norfolk’s obligations to Ms Durrant or that such caused the damage whether directly or indirectly suffered by the Claimant Ms Durrant.
    10. Furthermore, assessing the facts as they emerge from the judgment, I have formed the clear view that even were a coherent finding of negligence discoverable, it would be a conclusion that was not supportable on the evidence.
    11. The submissions on behalf of Ms Durrant resolved themselves before the Judge into essentially the following points:
a. There had been an unjustified, unreasonable, and undocumented departure from policy and departures are prima facie negligent
b. The departures were not, as stated in evidence, positive, but rather a simple failure of enforcement
c. The school consistently failed to recognise the seriousness of J’s behaviour and at least 4 Red Cards ought to have been issued in the September week before the incident
d. Although accepted that a record was made of incidents [the evidence was, it was put in individual diaries which are destroyed after 3 years], this was not sufficient
e. The evidence from Ms Chaplin was “most unsatisfactory”; it was not accepted that there was any actual discussion of J in Senior Leadership meetings nor with the Inclusion Manager as Ms Chaplin had said in evidence
f. By early July J should have reached level E – exclusion from Clover Hill
g. Alternatively, referral to an external agency should have taken place
h. Nothing turns on the differences in accounts between the Claimant and Ms Hanwell of the incident – it is not in dispute she suffered injury
    1. In my judgement, despite the strong submissions on her behalf both below and before me by Mr Mainwaring, the evidence just did not support the case made by the Claimant. Her evidence was deeply tainted by what the judge characterised, simply, as her dishonesty and, even in respect of the incident in the Sunshine Room, she rejected her evidence. There is no suggestion that what Ms Durrant (alone) said were the appropriate steps to have been taken regarding J, were accepted as such by the Judge.
    2. It should be noted:
a. the Judge did not find Ms Durrant was inadequately trained or prepared by the school;
b. the Judge did not find the Claimant was inadequately managed;
c. The Judge did not find that steps taken following any of the J incidents, or the reflections after those events were wrongly or poorly made;
d. the Judge did not find that the use of the Sunshine Room, in particular, in the circumstances of what was known at the time, constituted an unsafe system of work;
e. the Judge did not say that the system of reporting behaviour was negligent in itself although she describes it as convoluted and cumbersome;
f. the Judge nowhere sets out the counterfactual as to what would have happened differently on the balance of probabilities, had a risk assessment form being completed, or a different system been in place; and
g. the evidence reported and accepted by the Judge does not support a finding that, but for the flawed system of reporting, the incident that injured Ms Durrant would not have happened. Indeed, to the contrary, there is no witness who was able to say anything would have been done differently. That was so whether the processes and protocols had been followed to the letter or not.
    1. In my judgement, the Judge did not address her mind to the requirement for such faults and problems as she found in the school’s systems as operated to be causative of the loss, even if indirectly.
    2. In my judgement it is impossible to read the Judge’s condemnation of aspects of the school’s systems as an implicit finding that the failures caused the injury, as was urged on me by Mr Mainwaring on Ms Durrant’s behalf. It is quite inconsistent with the evidence which the Judge must have accepted to the effect that everything encapsulated in a formal written Risk Assessment was in fact being carried out.
    3. That the attack was unforeseeable and unprovoked must necessarily carry considerable weight: the evidence was that no one expected or foresaw the flareup of the index event. The Judge makes no finding to the contrary but recites with approval the evidence to that effect. Crucially, nobody suggested anyone would have acted differently, or done anything differently with the benefit of hindsight.
    4. In such circumstances it is impossible to spell out a causative link between any problems with strict adherence to the school’s written systems and the Claimant’s injuries. Likewise, no negligence can be spelt out from the choices made as to how to deal with J up until the index incident.
    5. It is clear the Judge considered the facts in issue carefully and had a close understanding of the pressures and difficulties inherent in coping with child J. She reflected her sympathy with the school staff on numerous occasions and was clear in her dismissal of the Claimant as a witness of truth. She was clear also in her acceptance of the evidence of the other witnesses, all bar one of whom gave evidence on behalf of Norfolk and were senior to Ms Durrant. Nonetheless, I regret that I am compelled to agree with Ms Dobie, counsel for Norfolk here and below, that it is not always easy to see what the process of reasoning of the Judge was. It is certainly not clear, in my judgement, as I have set out, how she could conclude that a case of negligence had been made out. Accordingly, her judgment is appealably wrong.
    6. Analysing the position afresh and drawing such inferences as I may (pursuant to CPR 52.21) the evidence shows in my judgement that Clover Hill did indeed carefully consider the position during J’s period at the school. There was a significant body of evidence from reliable witnesses that they considered the position of J, his behaviour, and the best way to tackle it, frequently and in detail.
    7. Norfolk submitted, and I accept, the written Policy was not a contract, it necessarily had to be adapted to circumstances (its wording suggested as much). Even if, which in this context I doubt, a departure from the letter of the Policy required “a good reason”, then good reasons existed here. To fail to use a system of discipline and control that was actively considered to be inappropriate for this troubled child could not possibly be characterised negligent, indeed, to follow a rigid policy path might attract criticism.
    8. As to failure to keep records, the burden of the evidence from witnesses who had impressed the Judge was that personal notes of meetings were kept, frequent meetings were held, even if informal and seldom centrally recorded.
    9. In the context of a busy and demanding school environment it was important to analyse carefully what difference scrupulous formal records in accordance with the Policy might have made in J’s case. The evidence was again clear; the Judge certainly did not dismiss it, and appears to have accepted it: nothing, on reflection, would have been done differently, or if done differently, would probably have prevented, or avoided the incident.
    10. Considerable reliance was placed on the failure of the referral to Tiffany Howard the Inclusion Manager at the beginning of 2015. It is clear however, that the environment for a reference to her changed. Alternative steps were taken for J between January and June 2015 and it is also clear from the chronology and evidence that in any event from March 2015 there was measurable improvement in J. In my judgement there is no connection between any culpable failure to refer and the incident that caused injury to Ms Durrant.
    11. The Judge herself said in the course of the second day of the trial that it was not the reams of policy documents that mattered, but whether Clover Hill took professional decisions about actions. I agree with that approach, and the evidence in my judgement shows clearly that they did. That approach was not sustained in the judgment however, as explained above, and the finding of liability against Norfolk cannot stand.
    12. In the circumstances I do not need formally to decide whether the Judge’s two findings of fact are unsustainable, as challenged in paragraph 10 above. However, in my judgement there is real force in the criticism made by the Appellant that it is wholly unclear which incidents the Judge refers to in her deciding paragraphs as not being recorded, and which thus prevented an “overall risk assessment” being made.
    13. The Claimant’s evidence did not support the contention that such unrecorded incidents of significance existed. The evidence had shown there were Pastoral Meeting minutes, an electronic log, Incident Forms, and other pastoral notes made. There was in my judgement, no scope for a finding that significant matters remained unrecorded. In any event, it was clear on evidence apparently accepted, that the team at Clover Hill were at the relevant times fully informed of the issues concerning J. The process of Risk Assessment was continuous and there was no evidence that any failures to record adversely affected any aspect of assessing J’s risks.
    14. Accordingly, were it necessary to do so, I would quash those findings.

SUMMARY

  1. The Appellants are in my judgement clearly correct that there is no finding of causation in the learned Recorder’s judgement and, on the evidence as I have assessed it, there could be none.
  2. Reassessing the materials and the facts as found by the Judge, there was also, and in any event, no breach of any duty owed to Ms Durrant by Norfolk.
  3. For these reasons there can be no sustainable conclusion that Norfolk were negligent and liable for Ms Durrant’s injuries.