UK: Throwing His Weight Around

Last Updated: 29 October 2010
Article by Tom Walshaw

Vaile v London Borough of Havering (2010) High Court.

A recent case examines where the responsibilities of both employer and employee fall when dealing with challenging pupils in a special school.

Introduction

The claimant was 49 years old at the time of the accident, and had had over 25 years of experience of teaching children with difficulties. Her work had included duties at a Young Offenders' Institution, but the school where the accident took place, Dycorts, catered for pupils with severe learning difficulties, including some children on the autistic spectrum. The claimant had been teaching there for 14 years at the time of her accident.

The accident involved an assault by a pupil in the school, referred to throughout as "X". X exhibited some features of the autistic spectrum, and had the benefit of a Statement of Special Educational Needs. Until the summer of 2003, X had displayed no behaviour out of the ordinary for pupils at that school.

At the time of the incident, the claimant taught a class of ten pupils, all of whom had learning difficulties. They were adolescents, going through various stages of puberty, which, because of their special needs, they found challenging and difficult to cope with.

Events Leading up to the Assault on 9 July 2003

The first notable incident occurred on 10 June 2003, when a computer that X was using, malfunctioned. He became agitated, and when the claimant went to calm him, X bit the inside of her right hand. The incident was reported to senior management, and the claimant was told to keep a diary of X's behaviour, which she did. The claimant did not ask for X to be removed from her class, and no one suggested that he should be.

A further incident took place in early July, not involving the claimant, but another teacher, when X once again became agitated and was aggressive. The teacher took the event in her stride, and carried on with teaching her class.

The material assault took place on 9 July 2003, at the end of the lesson, when X came to the front of the class to put his work down. He put it in the wrong place, and the claimant told X to put it with the other pupils' papers. The claimant then recorded in her diary: "With that X turned on me with an evil look on his face, bashed down on the desk, stabbing me in the back of the hand with the pencil he was holding. He then lunged at me, striking a blow to my left ear. He then grabbed me by the neck and shook my head violently."

The Claimant's Case

Early on, the claimant asserted that the defendant had failed to assess and deal with the risks posed by X to the claimant, both by way of general risk assessment, and by reference to a more specific risk assessment which the claimant argued should have taken place in the light of the behaviour over June and early July 2003. By the time of the trial, the focus of the case became that June to July period, during which X's behaviour was clearly different from before. Should the first assault in June have alerted the defendants to the need to reconsider the claimant's safety; and, if so, what should they have done?

The Judgment

The judge looked simply at what practical actions could have been taken after the June assault, and whether not to have done them was evidence of negligence. The two potential actions were as follows:

1

Should X have been removed from the claimant's class? The claimant did not consider it necessary that X was removed from her class after the 10 June incident. She could have requested it, but did not, and there was no evidence that that course of action should have been taken.

2

One-to-one teaching by a male? Here there was simply no evidence that that would have prevented the assault.

3

The provision of a room where an agitated pupil could be taken? This may have been desirable, but the judge could not see that a quiet room could have prevented an assault which occurred suddenly, without any warning signs.

4

Should there have been an assessment of X following the June assault? The judge felt that detailed analysis of X's behaviour was desirable, but this would have taken time to complete. Expert evidence was that this could have taken two to three weeks, perhaps longer. The judge specifically found that X did seem to calm down again in the claimant's class and, "if he had not I would have expected the claimant, as an experienced teacher, to have taken further steps to bring such behaviour to the attention of senior management and, if she felt in danger, to have said so to senior management".

Therefore, whilst the judge felt that a review of X's behaviour might ideally have been implemented more vigorously, this would have made no difference at all to the happening or otherwise of the accident.

Comment

Teachers in schools have a hard enough job, and those working with challenging pupils have a particularly tough time. Their pupils' behaviour can be particularly unpredictable.

Equally, it can be difficult for the Head and senior management to predict how pupils are going to behave, or how their behaviour will change as they grow up. Risk assessments are an important part of managing this, and Dycorts had various risk strategic assessment procedures in place. However, these became irrelevant on the facts of the case, because what mattered was the specific change in X's behaviour over June/July.

Because the deterioration/change was not that great, the judge did not feel that anything dramatic needed to be done, such as remove X from the claimant's class, and, whilst he thought that a review needed to take place, he accepted that this would have taken time, and would not have prevented the material accident in any event.

It is noteworthy that the judge considered that the claimant was responsible for giving feedback and input into the management of her class, and he would have expected her to let senior management know if she was concerned about X's behaviour. However, the fact that she did not give feedback he felt showed that there was nothing of particular concern, rather than evidence of any contributory negligence on her part.

The judge expressed considerable sympathy for the claimant, but took limited comfort from the fact that the council had in place Ill Health Insurance so that, even though her claim in negligence failed, she had previously received compensation through that route.

Tom Walshaw acted for the successful defendant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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