Negligence: Absent Breach and Causation

The Queen’s Bench Division considered an appeal by Norfolk County Council against a judgment in the Norwich County Court finding it liable in negligence for personal injuries suffered by the respondent: Norfolk County Council (Appellant/Defendant) v Sharon Durrant (Respondent/Claimant) [2020] EWHC 3590 Mrs Justice Foster.

The injuries were sustained in September 2015 when D was a teaching assistant at an Infant School and Nursery in Norwich (CH).

A 6-year-old child in her care at the school became upset when segregated from the classroom by D and another member of staff.

There was a small claim for soft tissue injury to D’s left shoulder, chest and limbs which healed within 8 weeks.  There was a much larger damages claim for Post-Traumatic Stress Disorder.

It was D’s case, based on common law negligence, that Norfolk had failed to take reasonable steps to provide her with a safe system of work.

Reasonableness was to be judged in the light of what was known at the time.

She had to show on the balance of probabilities that the alleged failings would have prevented the incident or avoided the injury.

Following the judgment and expressing concern regarding some apparent inconsistencies and uncertainties as to findings and, particularly, the absence of reasoning as to causation, Norfolk requested the Recorder to reconsider her reasoning.

This was consistent with English v Emery Rheinhold and Strick Ltd [2002] EW CA Civ 605, and re B Appeal: Lack of Reasons) [2003] EW CA save 881, as applied in re A and L (Children) [2011] EWCA Civ 1205.

Norfolk posed a series of questions for the judge who adjourned to consider her notebooks but declined to answer them.

The evidence given by the Claimant was strikingly unsatisfactory.  The Recorder found her to be significantly dishonest and described her general evidence as muddled and unreliable.

The essential challenge by Norfolk was that the Recorder had failed to identify material failures by the School, and nowhere did she say that any of the inadequacies she did find were causative, directly or indirectly, of the injury sustained by the claimant.

It was trite law that breach of duty and causation were essential elements of the tort of negligence.

This required findings of fact, an assessment of their relevance, and findings as to whether any breaches were causative of the loss in question.

The Appeal judge came to the clear conclusion that it was impossible logically to spell out a finding that any of the failures found were breaches of Norfolk’s obligations to D or that they caused the damage, directly or indirectly, suffered by D.

Furthermore, assessing the facts as they emerged from the judgment, even if there were a coherent finding of negligence discoverable, it would be a conclusion that was not supported by the evidence.

The Recorder did not address her mind to the requirement for such faults and problems as she found in the school’s systems as operated to be causative of the loss, even indirectly.

It was impossible to read the Recorder’s condemnation of aspects of the school’s systems as an implicit finding that the failures caused the injury.

It was quite inconsistent with the evidence which the Recorder must have accepted to the effect that everything encapsulated in a formal written Risk Assessment was in fact being carried out.

That the attack was unforeseeable and unprovoked must carry considerable weight.  The evidence was that no-one expected or foresaw the flareup of the index event.

Crucially, nobody suggested anyone would have acted differently, or done anything differently with the benefit of hindsight.

It was impossible to spell out a causative link between any problems with strict adherence to the school’s written systems and the Claimant’s injuries.

Likewise, no negligence could be spelt out from the choices made as to how to deal with the child up until the index incident.

Allowing the Appeal, Foster J held there was no finding of causation in the Recorder’s judgment and, on the evidence as the judge assessed it, there could be none.

Reassessing the materials and the facts as found by the Recorder, there was also, and in any event, no breach of any duty owed to D by Norfolk.

There could be no sustainable conclusion that Norfolk were negligence and liable for D’s injuries.