Barrister Robert Spicer looks at the importance of risk assessments as a competent attempt to identify risks to safety so that reasonable steps to reduce risks can be taken.
In the recent case of Cunningham v Rochdale Metropolitan Council (2021), the Court of Appeal gave judgment in a case involving the potential liability of a local authority for an assault on a teacher by a pupil.
The facts, in summary, were that Colin Cunningham (C), an assistant head teacher, was punched in the face by a pupil. He suffered a fractured cheekbone and psychiatric injuries. He did not make a full recovery and retired from teaching.
C taught at Brownhill Learning Community. This school provided education and support for children with behavioural difficulties and challenging behaviour who were outside mainstream education. The pupil who attacked C had suffered two bereavements. His behaviour had deteriorated and he had previously attacked C and had been excluded.
C claimed compensation from the local authority responsible for the school, for negligence and breach of statutory duty. His claim was rejected by the High Court and he appealed to the Court of Appeal. That court dismissed the appeal and made the following points.
The local authority owed C a duty of care to provide him with a safe system of work. The standard of care was that of a reasonable, prudent and competent school.
An employer is generally required to carry out a suitable and sufficient risk assessment for the purposes of finding out what reasonable steps should be taken to provide a safe system of work.
C had established breaches of the duty of care owed to him by the local authority. The school had failed to carry out risk assessments, failed to arrange a return to school interview for the school and had failed to arrange a restorative justice meeting.
However, C had been unable to show that if the risk assessments had been carried out, or if the meetings had taken place, the attack would not have taken place.
The prospect that the pupil would not have assaulted C because he had had a return to school interview and a restorative justice interview was possible, but not probable and more likely than not to have prevented the attack.
The pupil had had the benefit of extensive interventions over the course of the year.
C was unable to show that if there had not been any breaches of duty on the part of the school, the attack and C’s loss would have been avoided, and therefore causation was not established.
This decision can be contrasted with the earlier case of Keating v Wirral MBC (2007). The facts of that case, in summary, were that K was employed as a residential childcare officer in a respite centre. The centre accommodated children and young persons with severe learning, behavioural or physical difficulties. K was an experienced employee but she had little training in the management of emotionally disturbed children. In June 2002, she was attacked and injured by X, a child. She was told before she started work on the day of the attack that another worker had been bitten on the face by X that day. K claimed compensation in negligence from her employer.
The claim succeeded. The court made the following points.
The systems within the respite centre for dealing with children with very challenging behaviour were not satisfactory.
There was no set written procedure for dealing with handover when K came on duty.
K had not been provided with any analysis as to risk following the biting incident. There should have been a risk assessment. There had been no analysis of behaviour, triggers or effective control in relation to X.
When the attack on K occurred, she was dealing with two children on her own, although each child required supervision by one staff member. If there had been appropriate staffing levels and a proper handover, the incident would not have taken place.
K knew that X was prone to violence. She should have called other staff to help. She had been contributorily negligent to the extent of 25%.
Employers need to be aware, in the context of school pupils and teachers, of the importance of risk assessments. This should not be a tick box exercise but should be a competent attempt to identify risks to safety so that reasonable steps to reduce risks can be taken. The decision in the Cunningham case was that a failure to complete such assessments was not causative of C’s injury because nothing was identified which might have been raised in a written risk assessment which would have prevented the assault.