News Article
Webster & Ors v The Ridgeway School
1. This judgment relates to a claim by a pupil against his school arising from a hammer attack upon him by an outsider to the school. The trial of liability issues took place late last year, taking some five weeks before Nicol J. The pupil, Henry Webster, and his immediate family claimed damages against the school. Their claim has been dismissed. The judgment is highly important, indeed required reading for schools, public authorities and employers generally.2. The core facts were as follows:
(a) Henry Webster was 15 and a white year 11 pupil at The Ridgeway School (‘TRS’), situated in Wroughton village, near Swindon. On the morning of 11th January 2007 he had an altercation with a year 10 Asian boy. Later in the afternoon, Henry had agreed to have a fight with that boy on the school’s tennis courts after school finished at 3.50pm. He specified that the fight should be ‘one on one’.
(b) The Asian boy telephoned his older brother. He contacted other friends and relations. They came down to the road leading past the school. A stream of students came through the tennis courts abutting that road. The Asian boy together with two friends identified Henry Webster to the adults who had come down, three of whom entered the tennis courts and attacked Henry. One of them, Wasif Khan, beat Henry about the head with a claw hammer. Henry was then kicked while he lay on the ground by pupils. Henry suffered serious injuries. The immediate aftermath was witnessed by Henry’s brother, Joseph. He telephoned home and the boys’ mother and stepfather came down to the school. They also saw Henry before he was taken to hospital.
(c) Criminal trials were held and convictions secured.
(d) All four members of the family brought claims against TRS, a foundation school. The case was based primarily on common law negligence but with an additional claim founded on the Human Rights Act 1998.
3. The negligence claim had three strands:
(a) that the school failed to take proper care to keep the site secure and in particular that it failed to fence off the site or have a member of staff on duty in the tennis courts area.
(b) that the school was negligent in failing to do more (i) to establish better discipline in the school and (ii) to deal more effectively with racial tensions which were said to prevail in the school and which had allegedly resulted in a series of incidents. It was alleged that the school had policies with regard to security and race that were defective.
(c) that the school should have done more to protect Henry on 11th January.
4. The Human Rights Act claim alleged that TRS failed in its duty to take such positive measures to protect Henry from treatment that was contrary to Article 3. Article 3 of the European Convention on Human Rights (“no one shall be subjected to torture, or to inhuman or degrading treatment or punishment”), TRS being alleged to have had a positive obligation to take steps to protect Henry from such treatment.
5. The trial concerned issues of liability.
6. The key findings were as follows:
(a) Per Auld LJ in Gower v London Borough of Bromley (Court of Appeal 29th July 1999), “A head teacher and teachers have a duty to take such care of pupils in their charges as a careful parent would have in like circumstances, including a duty to take positive steps to protect their well-being”.
(b) A School’s duty can extend beyond the school day. Particularly as, in this case, Henry Webster was still on school premises at the time: see Kearn-Price v Kent County Council [2002] EWCA Civ 1539 at [18] and Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07 at [32].
(c) To some extent there was a duty to take reasonable care to protect and safeguard Henry Webster from outsiders. The Defendant submitted that as Henry Webster’s injuries had been caused by a criminal attack, the liability which the Claimants sought to impose on the school was for pure omissions - in not taking steps to prevent that attack. Smith v Littlewoods Ltd [1987] 1 AC 241 per Lord Goff at p. 271 was relied upon. Nicol J accepted that the relationship of school and pupil does make a difference. He looked at the three fold test in Caparo Industries plc v Dickman [1990] 2 AC 605. The fact that there has not previously been a case that the parties could identify where a school has been found to be liable for personal injury caused by an attack on a pupil by an outsider was not a complete answer, “but it does bring in to operation the injunction that courts should take care to extend duties of care only incrementally”.
(d) However, Nicol J did not agree that the school’s adoption of, for example, race and security policies meant that it had assumed responsibility for seeing that they were carried out or enforced.
“The imposition of a statutory duty may or may not attract civil liability if the duty is not observed. Ultimately it is a question of Parliament’s intention in imposing the duty. As I have said, the Claimants do not base their claim on an action for breach of statutory duty in this case. Where there is no liability for breach of statutory duty, the courts have resisted the idea that liability may nonetheless be incurred on the basis of a duty of care arising out an assumption of responsibility: see Mitchell v Glasgow City Council [2009] 1 AC 874 and X and Y v London Borough of Hounslow [2009] EWCA Civ 286. The reason is that an assumption of responsibility leads to a duty of care only if the assumption is voluntary. Where it flows from an attempt to carry out a statutory duty it is not voluntary.”
(e) In his view, relying upon Bradford-Smart v West Sussex County Council “the non-implementation of a policy is not sufficient unless the Claimant can also show that that amounted to a breach of the duty of care owed by the defendant.” Ultimately “I am not sure that the duty in this case can be expressed more specifically than to say that the school had a duty to take reasonable care to see that Henry was reasonably safe during school hours and for a reasonable period after the end of the school day while he was still on the school’s premises.”
(f) There was no perimeter fence. Reliance was placed on various texts and guidance requiring risk assessments and action, including potentially, security fences. However the Court accepted that the alleged negligence of the school here (and elsewhere) in failing to carry out a risk assessment took the Claimants nowhere unless they could show that the assessment would have identified a risk or reason for a measure which would not otherwise have been apparent to the school and that the school would have been obliged to implement that measure. The school acknowledged that a fence would have been desirable but cited cost, the need for planning permission, local opposition and a claimed right of way were obstacles. The school’s evidence was accepted on those issues. Nicol J held that “the risks and dangers as they were reasonably perceived to be prior to the 11th January were not so grave that the school was nonetheless obliged to overcome them. Thus, I find that the Defendant did not breach its duty of care to Henry by failing to construct a perimeter fence or a smaller, inner fence.”
(g) It was not negligent of the school not to ban mobile telephones/the use thereof. As to the use of mobile phones the former acting joint head had observed that they were a ‘fact of life’. Nicol J held that “In a school where many children had to travel quite some distance to get to the school, they were also a particular advantage. Increasing the restrictions on the use of phones would have a corresponding negative impact. I do not consider that the school was negligent because it failed to impose such restrictions in response to a single event [12th May 2006, where there was evidence of mobile phone use to bring in assistance] which appeared not to have recurred for many months.
(h) Even if there had been negligence in respect of disciplinary matters such as failing to exclude a child the Claimant would have failed to prove that such failing(s) caused reasonably foreseeable harm to Henry Webster. The hammer was wielded by an outsider. It was argued that what has to be foreseen is injury of the same type as was suffered even though the actual injury was more severe (Hughes v Lord Advocate [1963] AC 837) thus it was reasonably foreseeable that Asian pupils would summon adult help in assaulting Henry Webster. Nicol J rejected that submission: “I am doubtful whether all assaults (say a gentle punch of the kind which Henry gave to MM during their morning break) are to be treated as examples of the same type of injury as near fatal multiple blows to the head with a hammer.” But even if that were not the case there were insuperable factual hurdles.
(i) The Claimants also argued that the school’s Race Equality Policy was non-compliant with the guidance given by the former Commission for Racial Equality (now the Equality and Human Rights Commission), that the school failed to perform its general duty under s.71 of the Race Relations Act 1976 and that those obligations inform the nature of the duty of care. Nicol J noted that “So far as duty is concerned, I have made clear that I have dealt separately and in the previous section of this judgment with racism as an element of the school’s approach to behaviour and discipline. Beyond that, there is no reason why a duty of care to adopt and apply a proper race equality policy should be owed to Henry or other pupils in the school rather than to the world at large. Yet the common law of negligence is resistant to the idea of duties of care being owed to such an amorphous number. There cannot be a duty of care owed to an indeterminate class.”
(j) Nicol J observed that “even if I had been wrong about a duty of care and breach, in my judgment the Claimants have not shown that the injury to Henry would have been avoided if the Defendant had exercised proper care in this regard. Of course, education and proper race equality policies can sometimes make a difference. But it is almost banal to add that they will not always succeed in altering attitudes and behaviour.”
(k) When considering the actions of teachers acting in their professional capacity Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 had to be applied.
(l) A Claimant cannot succeed because the breach of a duty to take care against one risk has allowed events to unfold that have led to him suffering an injury of a different type - see for instance Darby v National Trust [2001] EWCA Civ 189. Differentiating punches from a hammer attack Nicol J held that “Of course a punch is an assault whether it is wielded by a pupil or an outsider, but I accept that they should be regarded for present purposes as injuries of a different type. What steps it is reasonable to expect a school to take to prevent the one may not necessarily be appropriate or reasonable to expect in relation to the other.”
(m) It is not always appropriate or possible to make findings of contributory negligence. Nicol J refused to make a notional finding as to contributory negligence: “A finding of contributory negligence requires consideration of the relative causative potency and blameworthiness of the claimant and defendant. The Court has also to consider what allocation of responsibility to the Claimant would be just and equitable. On the findings which I have made and the conclusions which I have reached the Defendant is not legally blameworthy and (at least in relation to some of the ways that the Claimants put their case), if they had been negligent, this would not have been causative of the Claimant’s head injuries. There are too many variables in the ways in which the claim is formulated for me to try and construct an alternative and hypothetical premise on which a contingent finding of contributory negligence could be based. I note that Hoffman J. reached a similar conclusion when he declined to make a contingent and hypothetical finding about contributory negligence in Norman v Theodore Goddard (a firm) and others (Quirk Third Party) [1991] BCLC 1028 at 1044.
(n) The judgment noted the practical limits of the Human rights legislation in this case. The Claimants relied on the positive obligation which the European Court of Human Rights has found to be inherent in both Article 2 (the right to life) and Article 3. For example as in Osman v UK (1998) 29 EHRR 245 at [116], which principles could also apply to Article 3 – E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536 per Lord Carswell at [44] – [49]. Nicol J felt that it “is hopeless to submit that there was a breach of the positive obligation in this case”. Liability is dependent on proof that the authority knew, or ought to have known, of a real and immediate risk of Article 3 ill treatment. It was not alleged that the Defendant had actual knowledge of Wasif Khan’s attack. It was “simply unarguable that Mr Piper or any other responsible member of staff ought to have realised that there was a real and immediate risk of Wasif Khan’s attack or something of similar severity. Even the Asian boys who summoned outside assistance did not know that Wasif Khan was going to bring and use a hammer.
(o) Some practical limits on Article 3 inhuman or degrading treatment were noted: “I reject the suggestion that Mr Piper ought to have appreciated that there was going to be a fight at the end of the school day. Even if he had, the type of punches or kicks that might be expected as part of such a fight would not be of sufficient severity to cross the threshold into the territory of inhuman or degrading treatment.”
(p) Racism can be a relevant factor in deciding whether treatment is within the scope of Article 3 (East African Asians v UK (1973) 3 EHRR 76 at 86 [207]) “but this is not a case where the Defendant or some other public authority is alleged to have behaved in a racist manner and, if this had been an ordinary fight, it would not have crossed the Article 3 threshold because some of the participants might have had a racial motive.”
Conclusions
7. The judgment is helpful to schools, particularly with regard to the effect of the potential millstone of the status of multiple policies and guidance emanating from government. The applicability of the Bolam test is emphasised. The judgment also places the human rights issues in context. There may well be a place for Article 3 being deployed as an adjunct to a civil claim, but as this judgment shows, even if the treatment is qualifying treatment the fact that some causation difficulties are removed is of no practical benefit if the foreseeability hurdle is so high. The case as a whole is a reminder of the ever present need to challenge every potential breach of duty with the question, ‘was it causative’, whilst showing that the human rights legislation provides no easy fall-back position.
Henry F. Charles