Case No: B3/2010/0917
Neutral Citation Number: [2011] EWCA Civ 246
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE QUEEN’S BENCH DIVISION
JOHN LEIGHTON WILLIAMS QC
(Sitting as a Judge in the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/03/2011
Before :

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE ETHERTON
and
THE RIGHT HONOURABLE SIR DAVID KEENE
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Between :

	VAILE	Appellant	
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	LONDON BOROUGH OF HAVERING	Respondent	
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(Transcript of the Handed Down Judgment of
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Mr Andrew Prynne QC & Mr Marcus Grant (instructed by Dickinson Solicitors Ltd) for the Appellant
Lord Faulks QC & Mr John Norman (instructed by Barlow Lyde & Gilbert LLP) for the Respondent

Hearing date: 2nd March 2011
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Judgment
Lord Justice Longmore: 
1.	On 4th July 2003 a special needs child X at a special school for children with learning difficulties called Dycorts in Essex assaulted the claimant teacher.  X was aged 14 and quite tall and had gained puberty.  He had joined the class in September 2002 and had to some extent become emotionally dependent on his teacher especially as the summer holidays were approaching and he did not want to be separated from her or the school.  At the end of the first lesson of the day, taken by Mrs Vaile with the help of an assistant Mr Champion, the pupils were leaving their written work at the designated place in the classroom for collection and correction.  X approached Mrs Vaile’s desk and put his work down on her desk.  She said “No … can you put your work where the others have put theirs”.  X then turned on Mrs Vaile with an evil look, brought his hand down towards the desk and stabbed Mrs Vaile in the back of the hand with the pencil he was holding.  He lunged at her and hit her left ear.  He then grabbed her by the neck and shook her head violently leaving red marks on the left side of her neck inflicted by the pencil.  Mr Champion shouted “No” and X backed off shoving another pupil.  Mr Champion then took X out of the room.
2.	Sadly Mrs Vaile suffered severe injuries as a result of her head being shaken.  Those injuries included a multiple detached retina and such severe psychological injury that she has not been able to work again.  She now suffers from agoraphobia and depression.  She was a devoted teacher who had spent many years giving care attention and education to special needs children.  She now sues the local education authority (“Havering”) for negligence and failing to provide a safe system of work.
3.	The incident was not an isolated one.  On 10th June 2003 X became frustrated because the Enter Key on his computer was sticking.  Mrs Vaile went over to help; he grabbed her right hand, bit it and tried to hit her on the face and head.  Mrs Vaile reported the assault to the headmaster Mr Wroe and the deputy headmaster Mr Feakins saying that, but for Mr Champion, she would have been seriously injured.  For the next 10 days X would not settle in class and often had to have one to one sessions with Mr Champion.  An educational psychologist Mr Nicholas Jarrett observed X during a history lesson (not given by Mrs Vaile or Mr Champion) but never made any report on what he observed.  On 3rd July 2003, in a class taken by Ms Mandy Willis, X became aggressive and started to stick his pencil into the back of his hand leaving deep red marks.  When Ms Willis asked him to stop, he hit the table and grabbed her hand leaving bruises on it.  He continued to hit the table and make loud noises.  After 7th July when the school in assembly had been told there were 3 weeks before the holidays, X again became unsettled and had to have a further one to one session with Mr Champion.
4.	One of the main issues at trial was whether X was autistic or should have been treated as if he was.  The judge found that X had never been formally diagnosed as autistic but was within what is called the “ASD” spectrum, ASD standing for Autistic Spectrum Disorder.  ASD comprises what is called a triad of impairments namely impairments of social interaction, communication and imagination.
5.	I have already said Dycorts was a school for teaching children with learning difficulties.  It was a small school of about 65 children with appropriately small classes.  Many staff had been there for many years and much enjoyed their work.  Mrs Vaile had herself been there for about 14 years since 1989.  Housed with the school (but not a part of it) was Havering’s TEACCH Outreach Service, those initials standing for
“Treatment and Education of Autistic and related Communication Handicapped Children.”
Dycorts was not a specialist autistic school but had some autistic pupils and could call on the assistance of the TEACCH service as necessary.  One of these services was the provision of techniques and systems for educating and dealing with children with ASD and consequent learning difficulties.
6.	X had been made the subject of a Statement of Special Educational Needs in June 1994 when he was 5 years old.  On 22nd March 2000, when he was at Ravensbourne School, a school for those with serious learning difficulties, his Statement was updated.  His 2000 Statement recorded he had made extremely good progress and was ready to move from his existing school to a more challenging environment.  He was described as a passive student lacking self confidence, who needed changes to events and activities explained to him and who also had difficulty with basic literary and numeracy skills.  The stated objectives were to develop these skills, increase his confidence and develop his communication skills.  This Statement had Appendices A to H listed as attached to it of which only Appendix F, a document headed Psychological Advice dated 29th October 1999, was new, the others having been attached to the 1994 Statement.  Following the 2000 Statement he was transferred from Ravensbourne to Dycorts in the Spring of 2000.
7.	The Psychological Advice dated 29th October 1999 said X had “a history of development delay and in particular speech delay” and had benefited from the support and advice of the Speech and Language Therapy Service.  It stated that he was sometimes difficult to understand because of his articulation and continued to use sign assisted language, that in the assessment he had echoed a great deal of speech used with him and that in the school was able to take simple messages to staff.  His physical skills were described as an area of strength and he was able to swim 7 lengths of a pool.
8.	The references to X having made extremely good progress and the description of his physical skills as an area of strength need to read with some caution.    Mr Wroe said X was not well coordinated and had taken a considerable time to complete the swim.  Mrs Stanbridge, who was employed in the TEACCH Outreach Service, described X as quite a clumsy mover, who moved in jerks.
9.	Shortly before the trial began Mrs Stanbridge found on a back-up disc a document headed “TEACCH Audit for Dycorts School”.  She told the judge that at the time (it appears some time in 2000) they were doing an audit for 3 schools of which Dycorts was one, to consider possible moves of individual children.  She said Dycorts received a copy.  The Audit listed 57 children.  The entry for X stated:
“ASD Individual timetable – seniors.  Work Station/Tasks.  Social Stories.  Notify Changes.”
Mr Wroe recently wrote on the document “31.8.00 Given to all staff at Staff Meeting”.  Mrs Stanbridge told the judge that the entry “ASD” was not based on any formal diagnosis but was the result of observation and discussion.  She stated a formal diagnosis was only sought if parents requested it.  This appears to have been the first recorded reference to X having ASD.  At this time X was not in the claimant’s class.  The judge accepted the claimant’s evidence that she never saw this document.
10.	On 16th March 2001, a teacher, Mrs Downing, referred X for music therapy commenting on the referral form:
“Just beginning to communicate with world around him – he’s on the autistic spectrum.”
11.	In June 2001 the defendants’ Statement of Special Educational Needs Section wrote to X’s parents about X’s annual Statement review stating that from advice contained in a Spring review report no changes in provision were required.  Dycorts produced National Curriculum Reports on X dated July 2001 and February 2002.  In February 2002 the Section again wrote to X’s parents stating an annual Statement review would take place during the spring term.  The results of that review, if it took place, have not been disclosed in these proceedings.  On 4th March 2003 a Transition Plan was written for X, who was now 14 years old, and a Transition Planning meeting took place attended by X’s parents and the claimant.
12.	None of the above documents apart from the TEACCH Audit and Mrs Downing’s note make any reference to X’s autism or ASD.  The judge heard no evidence that the defendants complied with their statutory obligation to review X’s Statement of Special Educational Needs in 2002 or in 2003.  Mr Wroe said it was common to leave the Statements unchanged for a long time until the pupil needed to leave for college.  Mr Wroe also accepted that a change in diagnosis from developmental delay to ASD would be significant and should, if it had occurred, have resulted in the Statement being amended.  He also accepted that the absence of any reference to ASD on X’s Statement was unfair to the claimant, who as X’s teacher was likely to read and rely on it.  Mr Wroe suggested that responsibility for that omission lay with the defendant’s Adjudication Panel who would act on what the educational psychologist, school doctor or Social Services said.  X’s Statement did not identify any teaching techniques required to achieve the stated objectives.
13.	Havering produced a 2002 “Corporate Risk Assessment Form” which under the heading “Existing Control Measures” referred to staff being trained in TEACCH procedures and a log system using ABC procedures.  These ABC procedures were not suitable for ASD children.
14.	The local education authority at least carried out their duty to the extent of arranging insurance against the possibility of attacks by the children and ensuring that there was always another adult in the classroom.  But the claimant alleged at trial that Havering or the school should
i)	have carried out an appropriate risk assessment both of the risks to Mrs Vaile’s health and safety and of the risks of danger from X; such an assessment would have made clear:
a)	that the school could not accommodate a child with violent tendencies who had become more suited to a school for children with severe (rather than moderate) learning difficulties;
b)	that X was becoming inappropriately obsessed with the claimant;
c)	that a quiet room should be provided for children with aggressive outbursts;
d)	that X needed to be removed from the claimant’s class and be taught by a male teacher;
ii)	have provided the claimant with information, advice and training about risks to her health and safety from potentially violent pupils, in particular have identified X as requiring specialist insight and training and informed Mrs Vaile of that fact;
iii)	have obtained and acted on a written report from Mr Jarrett;
iv)	removed X from her class after the first assault on 10th June 2003 or at least have involved the specialist TEACCH team with their knowledge of autism to consider the problems of having X in the classroom.
15.	Most reprehensibly the headmaster, Mr Wroe, took it on himself to doctor the contemporary evidence and deny in the witness box that he had done so.  In particular he produced, as GW5, a copy of what he described as “daily orders” which was effectively a school diary summarising staff meetings and incidents which occurred in classrooms.  Havering relied on this diary in support of the case which they advanced at trial to the effect that Mrs Vaile knew that X was autistic and should be taught by the TEACCH system.  Particular entries of 22nd November 2002 and 19th June 2003 were relied on for this purpose.  The judge held that Mr Wroe had inserted those entries after the event to bolster the defendants’ case, because he felt that the school would be open to criticism for failure to give Mrs Vaile relevant help and information.  Not surprisingly the judge felt that he could put no weight on Mr Wroe’s evidence where it was in conflict with that of Mrs Vaile and held that Mrs Vaile had never known that X was suffering from ASD (let alone that he was autistic), had never been told by anybody that the TEACCH system or techniques should be used for X, had not been given any assistance after the incident of 10th June 2003 save for a suggestion that she should keep her own diary of events (which in the event she did providing what the judge held to be an accurate record of events) and had not been told of any observations or conclusions of Mr Jarrett after he had observed X in class.  In spite of the judge’s adverse findings about Mr Wroe, he nevertheless found for the defendants.
16.	Expert evidence was given by a Mr Reid for Mrs Vaile and by a Mr Holme for Havering; they agreed
i)	Dycorts was a suitable school for X, but
ii)	there should have been appropriate training for staff in specific approaches to the education of children with ASD;
iii)	so a structured and consistent teaching approach such as that provided by TEACCH should have been employed in teaching X; 
iv)	there was no requirement for Havering, despite X’s increasingly challenging behaviour in June or July 2003, to have considered a change in school, but they should have considered a graduated response to X’s change of behaviour.
17.	There had been a seminar for staff about the TEACCH approach in 1999, attended by Mrs Vaile among others; the judge regarded that as no more than an introduction to the approach.  There were after school TEACCH seminars but Mrs Vaile could not to attend those because she needed to drive home before dark.  She did attend a training day in April 2003 at which she received a document called “Policy for teaching pupils on the Autistic Spectrum …” but had no reason to associate this with X and she was, in any event, not given relevant appendices to the document.
18.	The judge found Havering deficient in its duty to X since they failed to take account of the fact that he had ASD or even to identify that fact before 2000 and thus failed to implement properly the system of statementing of X’s special educational needs.  Once they had identified that X had ASD in their TEACCH audit, they failed to implement TEACCH or equivalent procedures for his benefit.  But as the judge pointed out (paras 2 and 107) these deficiencies could, by no means, be conclusive on the issue whether Havering had taken proper care to provided Mrs Vaile with a safe system of work for teaching X.
19.	As to that the judge found that there had been risk assessments in 2002 and 2003 which pointed out the hazards of physical violence to teachers.  The control measures were stated to be:-
“Staff trained in TEACCH procedures … log systems using ABC procedures … Pen Portraits, minimum of two staff members in class … access to pupil files, staff informed of any incident and given advice, staff reminded of behaviour modification techniques.”
He held (para 109) that Mrs Vaile had not been trained in TEACCH procedures “whatever that is intended to mean” and (para 121) that an appropriately highly structured approach was not employed for X.  Nevertheless he said he had heard no evidence that the teaching for X was unacceptable or inadequate either for him or for the provision of a safe system of work for Mrs Vaile.  There was no reason for concern until 10th June 2003.  An analysis of X’s behaviour was then required but that analysis would not  necessarily have been completed by 3rd July and there was no reason why X should have been taken out of school meanwhile.  He therefore dismissed the claim.
20.	For Mrs Vaile, Mr Prynne QC accepted the judge’s primary findings of fact but submitted that he failed to draw the obvious conclusion that Havering did not provide Mrs Vaile with a safe system of work and that such failure caused her injury.  He relied in particular on the following findings:-
i)	The defendant failed to advise Mrs Vaile that X was autistic or within the Autistic Spectrum (ASD).  She was teaching him on the day of both assaults in ignorance of this vital information.
ii)	The defendant failed properly to instruct Mrs Vaile in the “TEACCH system” of teaching ASD children as virtually admitted by Mr Wroe’s feeling the need to falsify the school diary and make it state that such instruction had been provided and that Mrs Vaile had been told to use it.  To the contrary she had not been trained in TEACCH procedures and the ABC procedures were inappropriate for ASD children
iii)	The defendant failed to implement the Statementing process properly.  The Statement had not been amended to reflect that X did not just suffer “Development Delay” (as his amended statement dated 22nd March 2000 recorded (para 13)) but that he was ASD.  Mr Wroe and Mr Holme had conceded that the determination that X was ASD and not just suffering from Development Delay was significant and should have been reflected in X’s statement and that it was unfair not to have passed that information to Mrs Vaile.  The result of this was that, if X was not being adequately educated, he was liable to let his anger get the better of him.
iv)	There should have been but was not a further assessment of X after the first assault.  The judge did not believe Mr Wroe when he said he had advised Mrs Vaile about Mr Jarrett’s observation of X.  In any event it was not enough for Mr Jarrett merely to observe X on one occasion and make no report on what he observed.
21.	Lord Faulks QC for Havering emphasized that the question was not whether X had been properly treated or provided with adequate teaching but whether there had been a failure to take steps to provide Mrs Vaile with a safe system of work.  The judge had heard evidence from the school and the experts over a number of days; he had rightly criticised Mr Wroe’s conduct and his evidence but had also rightly reminded himself that that misconduct did not mean that the system that was in place was not safe.  Mrs Vaile had not discharged the burden of showing that there was not a safe system of work nor had she shown that there was any negligence.  Any negligence there might have been did not, in any event, cause the attack.  
22.	There is considerable force in the submissions of Mr Prynne and I would accept that the judge’s primary findings of fact logically compel one to the conclusion that Havering did not take adequate steps to provide Mrs Vaile with a safe system of work.  It is not enough to say that Mrs Vaile did not herself ask for any extra measures to be taken after 10th June because the failure of Havering began at a much earlier date.
23.	There should have been a system for revealing whether pupils at the school had ASD and for informing the teachers of that fact.  Although Mr Wroe pretended that there was and that Mrs Vaile had been so informed, there was no system and she was not so informed.
24.	Once Havering appreciated that a pupil was ASD, they should have ensured that those teaching that pupil were properly instructed in appropriate techniques.  TEACCH did provide an appropriate system and technique but, to the extent that there was instruction about it, its application was haphazard.  Mr Wroe pretended that Mrs Vaile had been instructed to apply the technique to X and had been adequately trained to do so.  In fact she had had no adequate training and had not been instructed to apply it to X.
25.	There was, moreover, no adequate response to the 10th June incident.  If this failure was the only failure, Mrs Vaile’s case might be more problematic but it was symptomatic of the failure to provide a safe system of work and it underlines the previous failures.
26.	In para 101 of his judgment the judge said this:-
“I am satisfied that the defendants failed to make appropriate educational provision for X, according both to standards required of them and to standards they set for themselves, insofar as they failed to take into account that he formally identified X as ASD.  They failed to implement the statementing process properly.  They never formally identified X as ASD.  Having initially recorded his difficulties as being caused by delayed development simpliciter they never recorded him as being ASD and maintained that error.  They failed to implement their own strategies for dealing with autistic pupils.  Having identified X as ASD in their 2000 TEACCH audit they failed to implement TEACCH or allied procedures for X, apart from the pictorial diary.  And this despite having what appears to have been an enthusiastic TEACCH unit readily available to help. ”
27.	When however he came to his concluding paragraphs he said in para 121:-
“Whilst I conclude in the light of the expert evidence that a highly structured approach should have been but was not employed for X, I have heard no evidence that the teaching for X fell below what was educationally acceptable for him, was in fact inadequate for him, or more particularly, was unacceptable or inadequate in that it resulted in an unsafe system of work for the claimant which manifested itself on the occasion of the assault.”
28.	These paragraphs are not readily reconcilable.  The cautious conclusion buttressed by its double negative does not seem to me to be justified in the light of the judge’s earlier findings.  With respect the judge does not appear to have followed through the logic of his own findings and, making all allowances for his familiarity with the evidence and his advantage of seeing and hearing the witnesses, I nevertheless think it right to make what is the proper conclusion from his primary findings of fact, namely that Havering failed in its duty to provide Mrs Vaile with a safe system of work.
Causation
29.	The judge also decided that, if there was any negligence on the part of Havering, it was not causative of the injury suffered by Mrs Vaile.  This conclusion inevitably lacked the focus on causation which the judge would have been able to give, if he had found any negligence.  The issue of causation begins to look somewhat different, once one concludes that there was negligence.
30.	In my judgment the failure to provide a safe system of work persisted over a considerable period of time at least from the time in 2000 when the TEACCH audit listed X as being ASD.  Of course it is true that merely knowing that a pupil has ASD does not mean that it is likely that a pupil will attack his teacher.  But one of the main reasons why it is important to make a risk assessment in the light of proper knowledge about pupils is so that procedures can be adopted (such as TEACCH procedures) which will minimise the effect of any incident in the class room.  The risk assessment which was, quite rightly, conducted by Mr Feakins stated that the significant hazards included bites, punches and kicks and that persons at risk included both staff and pupils.  The injury that occurred was of a kind which one might expect if a risk assessment was not done or if the right information and structure was not in place in order to avoid the identified risk.
31.	Lord Faulks submitted that although Mrs Vaile ought to have been but was not instructed in TEACCH techniques (or any other technique) to deal with children suffering from ASD, she could not show what if anything might have been done which would have prevented the assault.  No one submitted that X should have been removed from the class and how matters might have developed if Mrs Vaile was aware that X was suffering ASD and had been able to adopt appropriate techniques was pure speculation.
32.	I disagree.  Although Drake v Harbour [2008] EWCA Civ 25 was a very different case on the facts (because there were a number of possible candidates for the cause of a fire in an unoccupied house) the words of Toulson LJ in para 28 are apposite:-
“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.”
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.
33.	The judge (para 105) focussed mainly on the previous incident of 10th June and accepted Mr Reid’s evidence that it should have led to specific strategies being discussed with Mrs Vaile.  He recorded Mr Reid’s view that those strategies would have prevented the attack but he criticised that conclusion because Mr Reid did not identify those strategies save to say that X should be given one to one support.  Since however they were strategies specifically designed (inter alia) for ASD children I do not consider that the failure to identify a precise strategy can be conclusive.  The judge went on to say that neither expert had assessed X and neither was therefore in a position to recommend detailed strategies.  But that was not a difficulty which should have resolved the causation issue in the defendants’ favour.  No court would, in an action between a teacher and her employer, make an order for a difficult (and no doubt sensitive) child to be examined and assessed by experts unknown to him for the purpose of identifying precisely how he should have been taught or come to terms with his difficulties.
34.	The judge also said (as if it was relevant – para 123) that any analysis after 10th June would have taken 2 to 3 weeks and perhaps longer to complete.  But that time scale would only take one to the first week of July and the assault took place on 9th July.
35.	So I fear I cannot agree with the judge on causation either.  In the first place it was not correct to focus only on 10th June because the negligence took place over a considerably longer period.  But even if there was no negligence until after 10th June I consider that Mrs Vaile’s claim should still succeed.
Conclusion
36.	I would therefore allow this appeal, set aside the order of the judge and remit the matter to the Queen’s Bench Division for an assessment of damages.
Lord Justice Etherton:
37.	I agree.
38.	On the question of causation, as Longmore LJ has pointed out, the judge recorded in paragraph [105] of his judgment that both experts, Mr Reid and Mr Holme, agreed that following the assault on 10 June 2003 Havering could and should have considered a graduated response to the change of behaviour in X.  The judge also recorded that Mr Reid’s expert evidence was that knowledge of the 10th June assault should have led to specific strategies being discussed with Mrs Vaile in relation to such incidents, “which would have prevented the second attack” (my emphasis). The Judge appears to have discounted that evidence solely on the basis that neither expert had assessed X “and neither therefore was in a position to recommend what detailed strategies should have been implemented for X”.
39.	The following points arise out of that evidence of Mr Holme and Mr Reid.  First, contrary to the impression generated by what the judge said in paragraphs [120] and [121] of his judgment, there was expert evidence that, if Havering had done what it should have done following the first assault, it was probable that the second attack would have been prevented.  Secondly, the judge did not record that Mr Holme disagreed with the evidence of Mr Reid to that effect, and so it is unclear what was the basis for the judge dismissing the substance of Mr Reid’s evidence that, one way or another, if a proper assessment had been carried out and due consideration given after the first attack, one or more strategies could and should have been devised, which probably would have prevented the second attack.  Thirdly, once it is accepted or established that Havering were negligent in failing to devise appropriate strategies for X designed, doubtless among other things, to prevent further assaults of the kind that occurred on 10 June 2008, it is not obvious why the inability of the experts subsequently to assess X, in order to establish which particular strategies would have worked best, results in Mrs Vaile’s failure to show causation.  A finding of negligence in the present case presupposes that steps could and should have been taken precisely because they would have been likely to prevent the recurrence or at the least to diminish the likelihood of an assault.  So far as concerns causation, the issue is not which strategy would have worked best but rather whether any strategy or combination of strategies would have been likely to avoid the second assault.  The evidence of both experts was consistent with an affirmative answer to that question.  
Sir David Keene:
40.	I agree with both judgments.