PROVING THINGS 218: THE NEED TO PROVE CAUSATION IN ADDITION TO BREACH OF DUTY

The Court of Appeal judgment in Cunningham v Rochdale Metropolitan Borough Council [2021] EWCA Civ 1719 highlights the need to prove issues of causation in addition to breach of duty.

THE CASE

The claimant is a teacher who was attacked by a school pupil.  He brought an action against the local authority, his employer. At trial it  was found that the authority had been in breach of duty, however those breaches were not causative of the claimant’s injuries.  That finding was upheld on appeal.

THE COURT OF APPEAL JUDGMENT ON CAUSATION

Having observed that there were breaches of duty the  Court went on to find that those breaches were not causative of the attack.  Even if the steps had been taken it could not be established that they would have led to any different conduct on the part of the parties and the pupil.  Lord Justice Dingemans stated:-

    1. So far as causation is concerned in order for Mr Cunningham to succeed on the appeal he will need to show that there was a relevant breach of duty, which caused loss. As this is a case where the breach of duty is an omission to act (or a failure to make things better, compare Robinson v Chief Constable of West Yorkshire [2018] AC 736) it might be more accurate to say that in this case Mr Cunningham needs to satisfy the Court on the balance of probabilities that the failure to complete the risk assessment, or the failures to have the return to school interview or restorative justice meeting, caused the attack in the sense that if the action had taken place, the assault would not have taken place. In this respect it is well-known that some measures might prevent an attack from a third party but it is sometimes very difficult to say that they would be more likely than not to prevent such an attack, compare Al-Najar and others v Cumberland Hotel [2019] EWHC 1593 (QB)[2019] 1 WLR 5953 at paragraph 235.
    1. In Vaile v Havering LBC a pupil with Autistic Spectrum Disorder (“ASD”) had attacked a teacher. The trial judge found that there should have been a system for revealing whether pupils had ASD and that the teachers should have been informed of the fact. The teacher had not been trained in the implementation of the relevant procedures for pupils with ASD, but the trial judge dismissed the claim. The Court of Appeal accepted the trial judge’s findings of primary fact which included the fact that the teacher had not been informed that the relevant pupil had ASD and had not been trained in how to deal with pupils with ASD. The Court of Appeal accepted that had the school taken these steps the attack would have been prevented. Longmore LJ referred to Drake v Harbour [2008] EWCA Civ 25[2008] NPC 11, a case involving the causes of a fire in an unoccupied house, where Toulson LJ had said “where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism”. At paragraph 32 of his judgment, Longmore LJ concluded that “it may be difficult for Mrs Vaile to show precisely what she or the school could have done to avoid the incident if she had been appropriately instructed in suitable techniques for dealing with ASD children but the probability is that, if proper care had been taken over the relevant three year period, she would not have met the injury she did”.
    1. Etherton LJ agreed with the judgment of Longmore LJ. He recorded the expert evidence to the effect that if Havering LBC had done what it should have done “it was probable that the second attack would have been prevented”. He held that the evidence of both experts was consistent with “an affirmative answer” to the question whether a strategy or combination of strategies would have been likely to avoid the second assault. Sir David Keene agreed with both judgments.
    1. Mr Valentine submitted that the decision in Vaile v Havering LBC showed that causation could be established in a situation such as this because that Court approved the approach that “where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism”. Mr Blakesley accepted that general statement of the law but submitted that Vaile v Havering LBC did not have the effect of altering the conventional rules on causation. Mr Blakesley submitted in that case causation was established because if the teacher had known about the pupil’s condition and had training it was more likely than not that she could have taken steps to avoid the attack, so the loss was of a kind likely to have resulted from the negligence in failing to warn the teacher about the pupil’s condition and to train the teacher on how to deal with it.
    1. In my judgment Vaile v Havering LBC did not establish any new principles of law in relation to the issue of causation in general, or causation in particular relating to attacks on teachers by pupils. It was a case where the Court of Appeal considered that if a teacher had been warned about a pupil’s ASD and had been trained in how to manage a pupil with ASD, the attack would, on the balance of probabilities have been avoided, even though the mechanism by which that would have occurred could not be shown. By contrast, in this case, the judge found, on the basis of evidence of records of TAC meetings and the witness evidence, that “the senior staff at the school were aware of the [pupil’s] deterioration generally and the events that manifested it”. The evidence also established that Mr Cunningham was experienced and trained. The situation in this appeal is different from that in Vaile v Havering LBC, and the issue of causation requires a careful analysis of the relevant factual situation.
    1. As to the breach of duty in failing to complete risk assessments in this case the judge said “I am not persuaded that if there had been any formal written risk assessment or proper written behavioural plan that it would have altered the defendant’s approach to [the pupil] and his difficulties”. This was because the judge found, in paragraph 44 of the judgment, that the school was a small community and it had not been shown that the incident arose because of a lack of awareness of either the deterioration in his behaviour or the risk he posed. Nothing has been identified on behalf of Mr Cunningham, even with the benefit of hindsight and the passage of time, which might have been raised by a written risk assessment which would have prevented the assault on Mr Cunningham. Therefore this breach of duty did not cause the attack and Mr Cunningham’s loss.
    1. The most difficult issue is whether it has been shown that the failure to hold the return to school interview and the restorative justice interview between the pupil and Mr Cunningham would, on the balance of probabilities, have prevented the attack on Mr Cunningham by the pupil. Although, for the reasons given above, the issue was sufficiently pleaded and raised before the judge at the trial, it can be fairly said that this was not at the forefront of the case advanced on behalf of Mr Cunningham and the specific pleading of causation was in relation to the failure to exclude the pupil before the attack. The causative effect of either the pupil being excluded from school or the situation on 3 November being managed differently would have been obvious, but as the judge said at paragraph 40 of his judgment “it is more difficult to say that if there had been different interventions whilst the claimant remained at [the school] it would have made a difference”.
    1. The original lack of emphasis in Mr Cunningham’s case on the causative effect of the breaches of duty by not having the return to school interview and by not having the restorative justice meeting is, in my judgment, not surprising. This is because the incident itself was a sustained incident, lasting well in excess of 30 minutes. It is apparent that the pupil’s behaviour fluctuated during the incident. The situation on the day was, as the judge found, appropriately handled by the school.
    1. The prospect that the pupil would, in the final event, have not assaulted Mr Cunningham because he had had a return to school interview and a restorative justice interview with Mr Cunningham is possible, but it is not probable and more likely than not to have prevented the attack. This is because the pupil had had the benefit of extensive interventions over the course of the year as his behaviour deteriorated coinciding with the time of his grandfather’s death, his father’s illness and subsequent death. As already recorded, the judge found that the school had been involved in referring the pupil to various bodies including: CAMHS, Early Help and Family Support, Resolve, Hype, The Youth Offending Team, Crisis Intervention, the school counsellor, Outreach Intervention, one to one youth work, Early Break and Strengthening Families. The pupil had had contact with the school counsellor, although he had refused external counselling. The pupil had been referred to bereavement services. The pupil and his mother and sibling had undertaken a strengthening family’s course, which had been described in the evidence as a step forward.
    1. In all of these circumstances the attack in this case was not of a kind likely to have resulted from the failure to have the return to school interview and the restorative justice meeting. This appears from the sustained nature of the incident, the circumstances of the assault, and the fact that all of the other interventions did not prevent the assault. In my judgement, therefore, the appellant is unable to show on the balance of probabilities that a return to school interview or a restorative justice interview would have prevented the pupil’s serious assault on Mr Cunningham. This means that Mr Cunningham is unable to show that if there had not been any breaches of duty on the part of the school, the attack and Mr Cunningham’s loss would have been avoided, and therefore causation is not established.
Conclusion
  1. For the detailed reasons set out above I would find that Mr Cunningham has proved breaches of the duty of care owed by the school to him in that the school failed to carry out risk assessments, and failed to arrange a return to school interview and failed to arrange a restorative justice meeting between the pupil and Mr Cunningham. In my judgement, however, Mr Cunningham is unable to show that if the risk assessments had been carried out, or if the return to school interview and restorative justice meeting had taken place, the attack on 3 November 2015 would not have taken place. I would therefore dismiss the appeal.