English teacher who was punched by pupil loses negligence appeal against former employer

Colin Cunningham argued that Rochdale Metropolitan Borough Council had failed to follow its own policy following an earlier assault by the same pupil, and that if it had the assault could have been prevented.

The appeal was heard in the Court of Appeal of England and Wales by Lord Justice Arnold, Lord Justice Dingemans, and Lady Justice Andrews. Justin Valentine appeared for the appellant and Patrick Blakesley QC and Simon Vaughan for the respondent.

Failed to follow policy

The school at which the appellant had worked, Brownhill Learning Community, provided support to children who were not in mainstream schooling as a result of emotional or behavioural difficulties. In the months prior to the incident, the behaviour of the pupil who assaulted him had been deteriorating following a series of bereavements in his family.

On 3 November 2015, at the end of a thirty-minute period of aggressive behaviour, the pupil punched the appellant in the face, fracturing his cheekbone. The appellant, who also suffered psychiatric injury following the incident, did not fully recover from the incident and retired from teaching. Prior to the incident, the same pupil had attacked the appellant on a previous occasion in September 2015, for which he was excluded from school for three and a half days, as well as assaulting another teacher in October.

The pupil was excluded and transferred to another school after the 3 November incident. It was argued by the appellant that the school had failed to produce risk assessments relating to the pupil’s return to school following the September assault and failed to follow its own policy and arrange a return to school interview and a restorative justice meeting between the appellant and the pupil at any time after the September incident and before 3 November.

In November 2020, a High Court judge dismissed the appellant’s claim, finding that while no risk assessment had been conducted in respect of the pupil, the evidence led by the appellant was insufficient as to convince him that the respondent was in breach of its duty of care. The judge was also unconvinced that any part of the appellant’s injury was reasonably foreseeable.

Counsel for the appellant submitted that the High Court judge ought to have found that a return to school interview and meeting would have prevented the 3 November assault, and therefore that the respondent was in breach of its duty of care. The respondent submitted that, even if there had been a breach of duty, it had not caused the assault on the appellant, and the judge was entitled to make the findings that he had.

Extensive interventions

In his opinion, with which the other two judges agreed, Dingemans LJ began by noting: “The school had formulated policies to protect both pupils and teachers. It was common ground at the hearing that the school’s own policies were evidence of the standard to be expected of a reasonable, prudent and competent school.”

He continued: “It is established that it is not necessary to show the exact nature of the attack which took place could be foreseen. In these circumstances in order for Mr Cunningham to succeed on the appeal he will in addition need to show that there was a relevant breach of duty, and that the relevant breach of duty caused loss in the sense that if there had not been a breach of duty the attack would not have occurred.”

Assessing the appellant’s evidence, Dingemans LJ said: “Although it is right to show that there were difficulties in organising [return to school] meetings because the pupil was not regularly attending school, there was no evidence at the trial below to show that those meetings could not take place. In these circumstances the unexplained failure by the school to comply with its own policies was a breach of duty, because it fell below the standards of care that the school had set for itself.”

However, turning to the issue of causation he went on to say: “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.”

Dingemans LJ concluded: “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.”

The appeal was therefore refused.