Hadlow v Peterborough City Council

This is an appeal against a judgment of HHJ Jenkins sitting at Lincoln County Court on 19 January 2011. The judge held that Mrs Jean Pamela Hadlow, the respondent, was entitled to damages assessed in the sum of £16,432.51 for injuries sustained in the course of her employment with Peterborough City Council, the appellants.

The respondent was injured on 29 March 2007 while employed as a teacher at Clare Lodge, a secure unit for young women which was operated by the appellants. The respondent was 63 years’ old at the time of the accident. The young women were present in a secure unit because they exhibited what the judge described as challenging, unpredictable and at times dangerous behaviour. On the day of the accident the respondent was due to teach a class of three of the women. The policy at the secure unit was that no member of staff whether a teacher or member of the caring staff would be alone with a group of more than two young women. In the respondent's case that meant that her teaching assistant would normally be present.

On that day it was known to all concerned that the teaching assistant would be late for work. The respondent attended a briefing meeting with the head of education, Mr Williams. In the absence of a teaching assistant there was need for a member of the caring staff to sit with the teacher until the teaching assistant arrived, and the respondent expressly told the coordinator that it was the agreed procedure.

The lesson was to take place in a locked classroom. The respondent had as part of her equipment an alarm to summon assistance in the case of an emergency. The respondent rang the duty room to say that she was ready for the class and two members of the care staff brought the three young women to the classroom. Having shown them in, the escorts left. Because her attention was on the students the respondent was aware of their having left only when she heard the click of the door closing. The respondent decided that she could try to attract the attention of the staff who had left before they got out of earshot. To do so she got up, the door was on her left, but, because of the way she was sitting, she got up to her right, and she went round her chair between what was on any basis a narrow gap between a book case and the back of the chair, tripped on the chair and fell, injuring herself badly.

Later in his judgment the judge found (paragraph 16):

“the claimant needed to get to the door without delay, she needed to move as quickly as she properly could to cover a short distance but there is no evidence to suggest that in doing so she was panicking, that she had in any sense lost control of herself or that she was disobeying the guidance given to her in relation to her CALM procedures and in other documents.”

The judge's findings were justified, indeed are not challenged, having regard to the respondent's statement which formed her evidence in chief. Paragraph 8:

A member of the caring staff, Mr Ingham, accepted that he knew the respondent needed cover and said that he had told the escorts accordingly. The respondent had been attacked on a previous occasion in November 2005. The service manager, Mr Nerini, accepted that there had been a "clear failure of the system".

The judge found that leaving the respondent in the room with the young women on her own was "a negligent failure". He held that the respondent was entitled to take action to remedy the situation and would have needed to make quick decisions. The judge stated at paragraph 18:

For the appellants Mr Waite accepts that what the respondent did was the right thing to do in the circumstances. Further, having made the decision she did, she needed to move quickly in a confined space. Allegations that she should have taken some other course of action, such as setting off her personal alarm, are not pursued.

The judge made findings in paragraph 20:

Permission has not been given to pursue an allegation of contributory negligence rejected at the trial. In relation to that, the judge stated at paragraph 23:

Seeking to uphold the judgment Mr Sprinks, in his written submissions on behalf of the respondent, submits that the question to ask was whether personal injury was foreseeable in the event of a staff member being left without a second staff member present. The respondent was left alone and acted reasonably and promptly, seeking assistance while a helper was still in the vicinity. She fell while attempting, in an understandably hurried manner, to do that.

Physical injury followed a breach of duty to the respondent to take reasonable steps to prevent injury to her. The issue is whether, having regard to the manner in which the injury occurred, the appellants were liable for damages arising from that physical injury. For the appellants, Mr Waite submits that the accident was not reasonably foreseeable. Further, it was the respondent's own behaviour in reacting to the absence of support which was the cause of the accident and the chain of causation was broken. It was not foreseeable that the respondent would injure herself in attempting to attract the attention of a care worker. Foreseeable risk that the young women would be violent did not materialise.

Developing those submissions orally Mr Waite submits that the source of the risk was the threat of attack; to create liability that risk must materialise, and it did not. Liability would have been accepted if the action of the respondent had followed an attack, or threat of attack, by the young women. It did not arise when the action was taken to end or avoid the risk by seeking help as the respondent did. The cut-off point had been passed, it is submitted.

Mr Waite relies on the decision of this court in Doughty v Turner Manufacturing [1964] 1 QB 518. An employee was injured in the heat treatment room of a factory when molten liquid escaped by splashing from a cauldron following an explosion which was caused by the negligent dropping of a cover into the cauldron. Diplock LJ stated at page 530:

I do not regard that situation as comparable with the present situation. In this case there was a risk of violence; the distinction sought to be made is between liability if that risk materialises and absence of liability if action is taken to end the risk.

For the respondent reliance is placed on the decision of the House of Lords in Hughes v Lord Advocate [1963] AC 837. An unguarded manhole in the street was covered with a tent surrounded by warning paraffin lamps. An eight-year-old boy entered the tent and knocked one of the lamps into the hole. An explosion occurred causing him serious injury. The finding of the trial judge that the claimant succeeded in his claim for damages was restored. Lord Reid stated, at page 845:

“The ground on which this case has been decided against the appellant [by the Court of Appeal] is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.”

Lord Reid added at page 847:

Lord Morris of Borth-y-Gest at page 853 cited with approval observations of Lord Keith of Avonholm in Miller v South Scotland Electricity Board [1958] FC (HL) 20 at page 34:

Lord Pearce stated at page 857:

Those statements have been approved in the House of Lords much more recently in Robb v Salamis MMI Limited [2007] ICR at 175. Lord Hope stated at paragraph 29:

The accident did not happen in the way most likely, having regard to the breach of duty; that is, by an attack, or threat of attack, on the respondent. It arose because the respondent entirely reasonably took action to remove the risk, an action which would terminate the breach of duty involved in leaving her alone with the three young women. The known source of danger was the propensity for violence of the young women, the risk of an attack on the respondent by one or more of them. It is not necessary to postulate foreseeability of the precise chain of circumstances leading up to the accident; too great precision in the test of foreseeability is not to be expected in circumstances such as these. In my judgment the judge applied a proper test and was amply justified in reaching the conclusion he did. A risk of injury had been created by the appellants; the respondent reacted in what is conceded to be an appropriate way by hurrying through a confined space to the door before the other members of care staff were out of earshot. While hurrying she sustained injury by tripping over the chair and falling; risk of physical injury was foreseeable and, while it did not happen in the most likely way envisaged, it was sufficiently connected with a risk created by the appellants to render them liable.

By respondent's notice an allegation is made under regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 by reason of the allegedly “cluttered” state of the classroom. On the conclusion I have reached it is not necessary to consider that allegation.

For the reasons I have given I would dismiss this appeal.

I agree. The real question in this case was whether the injury suffered by the claimant was caused by the defendant's breach of duty. Here the defendant was left alone in a room with three unpredictable young women in circumstances that gave rise to a risk of personal injury. That involved a failure by the defendant to take reasonable care for her safety. The claimant sought to attract the attention of the escorts before they left the vicinity of the classroom and that required swift action on her part. In her attempt to reach the door before they had left the area the claimant caught herself on the chair standing between the desk and the wall as she sought to negotiate the relatively narrow space between them, and in doing so she fell, suffering a considerable injury. In my view the judge was entitled to hold that the injury sustained by the claimant was a consequence of the defendant’s breach of duty, which caused her to take the course of action which resulted in the injury. For those reasons as well as for the reasons given by Pill L.J. I too would dismiss the appeal.

I agree with both the judgments that have just been given. I too would dismiss this appeal