Irune Pedrayes Varela v Buckswood School Limited

Introduction

The Claimant, Ms Irune Pedrayes Varela, brings a claim against Buckswood School Limited in relation to matters occurring in the autumn term of 2019, when the Claimant was 14 years of age and attending the school as a ‘full-time boarder’ whilst her parents were living in Spain. The proceedings commenced in 2022, when she was a child, and the claim initially proceeded with the assistance of a litigation friend; by the time of trial she was about to turn 20 years old.

Irune Pedrayes alleges that over the weekend of 27 to 29 September 2019, and whilst on the school’s premises, she was supplied by an older pupil with a drug which she was told was called “magic” and which she took in a vape. It is said on behalf of the Claimant, and it is not disputed by the Defendant, that “magic” is commonly used as a name for mephedrone and that mephedrone is classified as a ‘Class B’ drug under the Misuse of Drugs Act 1971. She says that after using the vape she noticed “something strange in my head” and “ran to my room, scared, and got into bed”. The following morning, 30 September 2019, the Claimant felt unwell and went to see the school nurse. The nurse recorded that the Claimant told her that that she had taken “some drugs yesterday in a vape at about 11am”, that she “has a headache”, that “she has black in her vision, feels that things are repeating themselves”; the nurse noted “paranoid and manic symptoms obvious”. The school arranged for the Claimant to be taken to the local hospital where she was seen by a doctor and assessed as suffering the effects of recreational drug use; she returned to school that afternoon.

The Claimant alleges that the school informed her parents that she had been vaping and that she had had to go to hospital, but did not inform her parents that she had admitted to taking “magic” or any drug, nor the fact that the attendance at hospital was related to the use of any drugs; rather, the school gave her parents the impression that the hospital visit was due to an unrelated infection. She alleges that she subsequently took further illicit substances whilst at the school, including “THC” (tetrahydrocannabinol,) two days later.

Thereafter, Irune Pedrayes’s behaviour at school continued to be poor and her parents were eventually told on 20 November 2019 that she would be expelled if she was not voluntarily withdrawn from the school. Her parents then withdrew her from the school within a few days. Following her return to Spain, she was eventually diagnosed with psychiatric injuries resulting from drug use and received anti-psychotic medication.

A large amount of agreement was reached between the two psychiatrists instructed by the parties. It is common ground between the psychiatrists that the Claimant’s consumption of illicit drugs, starting with “magic” whilst at the school, precipitated an episode of psychosis and mania with visual hallucinations, déjà vue experiences and delusional and persecutory beliefs, which symptoms continued until she received treatment with anti-psychotic medication after her return to Spain. It is also common ground that she suffered personal injury in the form of a psychotic episode, together with post-traumatic stress disorder and hallucinogen perception disorder; the latter two injuries are said to be caused or contributed to by the delay in establishing appropriate treatment.

Ms McTague, counsel for the Claimant, divided the Claimant’s case on breach of duty into three issues which I summarise (albeit in a different order to Ms McTague’s analysis) as follows:

The Defendant, Buckswood School Limited, accepts that it owed a duty of care to the Claimant, but denies that it breached that duty and contends that it complied with its obligations to put in place appropriate systems to prevent students from accessing and taking drugs and that it took reasonable care of the Claimant.

Issues for determination

During the course of trial, the parties reached an agreement, subject to liability, on all issues of causation and quantum. Quantum was agreed in the sum of £145,000 (£60,000 for general damages and £85,000 for special damages), inclusive of interest. Ms McTague confirmed that the pleaded claims in respect of alleged breach of contractual warranties and statutory duties were not pursued.

Mr Edwards, counsel for the Defendant, confirmed that the effect of the agreement on causation and quantum was that causation was conceded in the event of a finding of negligence in respect of either Issue 1 or Issue 3 above.

In his submissions Mr Edwards treated Issue 2 (at [6.b] above) as a facet of the Claimant’s case on Issues 1 and 3 going to the standard of care, rather than a breach of a duty capable of giving rise to a claim in damages on the facts of this case. In relation to this, it is right to note that the Claimant’s Particulars of Claim, which were not pleaded by counsel, are unconventional in certain respects, and, in particular, the pleading in respect of Issue 2 provides little, if any, explanation as to (a) what it is alleged that the Defendant should have done which it did not do; and (b) how the alleged negligence is said to have caused or contributed to the incidents of 25-27 September 2019 and/or to the Claimant’s injury. Ms McTague characterised Issue 2 as a failure on the part of the Defendant to recognise the Claimant’s profile as giving rise to safeguarding risks, such that the school wrongly treated them as “behavioural” issues to be punished rather than “risk” issues requiring protective measures to be put in place. These issues are addressed further in section F at [103] to [119] below.

Subject to this difference of approach in relation to Issue 2, in light of the parties’ agreement on causation and quantum, the issues for determination are limited to the nature and scope of the alleged duties of care owed by the Defendant, the relevant standard of care, and whether the Defendant acted in breach of the duties as set out in Issues 1, 2 and 3 at [6] above.

The factual evidence relating to the Claimant’s time at Buckswood School

Prior to hearing oral evidence from Irune Pedrayes, I drew the parties’ attention to the guidance contained within the Advocate’s Gateway Toolkit 1, invited submissions from counsel as to any particular steps which should be taken in relation to oral evidence from the Claimant as a potential vulnerable party pursuant to CPR 1.6 and Practice Direction 1A, and provided instructions in relation to the questioning of the Claimant in accordance with paragraph 168 of the Equal Treatment Bench Book (May 2025 update). In the event, there was limited and careful cross-examination of the Claimant by Mr Edwards.

I also heard oral evidence from Ms Ainhoa Pedrayes, the Claimant’s sister. Given that Ainhoa Pedrayes did not attend the school with her sister, there was a limited amount of relevant evidence she could provide. As far as she was aware, her sister did not consume any illicit drugs before going to Buckswood School. No evidence was adduced from either of the Claimant’s parents.

Factual witness statements, together with Civil Evidence Act notices, were served on behalf of the Claimant from a Ms Maria Callis and Ms Cristina Troya Fernandez, both of whom had been Spanish students attending the school in 2019.

On behalf of the Defendant, I heard evidence in person from Mr Kevin Samson, the principal of the school. The Defendant did not adduce evidence from any other members of staff.

Buckswood School is a co-educational, fee-paying boarding school which takes domestic and international students between the ages of 10 and 19. In 2019 there were 184 boarders accommodated in six boarding houses on the school grounds.

On 19 June 2019 the Claimant’s parents applied to the school, via an agent, for her to join in September 2019, with an anticipated length of stay of one term, with a view to extending her time at the school if all went well. On the application form, the “no” option was selected in response to the following questions: “does the Student have any medical issues”; “does the Student have any Special Education Needs?”; “does the Student have any Behaviour concerns?”; and “does the Student have any Safeguarding and Child Protection issues?”.

A reference from her previous school was obtained, dated 5 July 2019, indicating (by a cross in an option box) that Ms Pedrayes was “below average” in the following: academic achievement, respect for staff, disciplined work habits and reaction to setbacks. The reference form included spaces for details of any Special Education Needs, any “Behaviour concerns”, any “Safeguarding and Child Protection” issues and any “medical issues” to be set out, but these were all left blank.

An email of 10 July 2019 from the school’s international admissions co-ordinator, Ms Cristina Terrazas, to Mr Samson provided some further information obtained from the agent. It was explained that Ms Pedrayes had not passed her last school year in Spain, meaning that it was proposed by her school that she should repeat the year if she continued in school in Spain. The email stated:

“They have also told me today for first time ... that ‘her parents have told us that this has not been an easy year for Irune on an emotional level which has notably affected her academic performance. She has been going to a psychologist for the last 6 months and the parents ask me if you have a psycho-pedagogical team that could support Irune. It seems that it does not have any serious pathology and it is only rebellion and desire to attract attention but we have already requested a report with the diagnosis and recommendations.’

After their email I have called the agent to try to have more clarification. She said that Irune is a smart girl, but her brother had a car accident 6 years ago, and parents were expending a lot of time at the hospital and focus in her brother, and it looks like if this affected her. Also maybe she can be kind a little spoil girl; her mother allow her everything and the father is quite strict, and this duality is not helping her. She can be slightly manipulative. And naughty for the attention of the adults around (by instance, she is now in a summer camp in England, and she has threw the keys of the room to the roof ... ) So the agent thinks that it could be better for her to be with students of her age rather than younger ones.

I am waiting now for her psychologist report. I told the agent she will be able to use our counsellor service by free, but also that she will have to follow the rules and discipline of the school. So she can have a risk of being expelled.”

On 11 July 2019, the school informed the agents by email that “As we mentioned on the phone, we have a counsellor at the school, in our nursing area, which students can use free of charge whenever they need, or if parents prefer, we can schedule sessions with the counsellor on a regular basis. We also sometimes coordinate Skype sessions of the students with the psychologists they have in their home countries if this is necessary. We are waiting to receive the psychological report and the recommendations of your psychologist translated into English.”

An email (in translation) to the school from Irune Pedrayes’s father of 12 July 2019 included further details about the Claimant:

“Irune, although she does not have any clinical pathology, is being treated by a psychologist who weekly helps her to advance in her maturation period, to relate better, to be less irascible and to understand, accept and abide by the rules and hierarchy as a necessity for coexistence in order. If to these circumstances typical of Irune, insecurity, difficulty in establishing lasting relationships, accepting rules, etc.. you add the problems inherent to age (14 years old) because sometimes [her] behavior is not appropriate and also, too often, [she] is not treated in the right way because, instead of treating Irune as a "victim" you usually fall into the temptation of treating her as an "executioner" and these ways of proceeding not only do not mitigate risks but aggravate them considerably.

Our doubts, which my wife, the psychologist and myself want to ask you on Monday, are regarding whether you have trained personnel for this student profile. Yes, we will approach this problem as a challenge and if you bet with us to try to get the best out of Irune who is a girl with a wonderful background, very smart, noble and with great possibilities but, unfortunately, we have not been able to channel all her "aptitudes" due to a deficit of attitude that we believe can be corrected with education professionals with enough experience to get the best out of each student.”

An internal email of 15 July 2019 from Ms Terrazas to, amongst others, the “school counsellor”, “safeguarding officer”, “nurses”, and copied to Mr Samson, summarised the information received and explained that she had spoken to the family and the psychologist and was providing information in advance “as we will need to put a welfare plan in place for the staff and student to follow. I have already told the parents and psychologist that she will need to follow the rules and discipline of the school as the rest of our students”. The email continued as follows: “And this is that the psychologist has told me today: ‘She is a girl full of fears, and when she feels vulnerable, she tends to attract attention as a defence mechanism. She has problems to accept rules and discipline. And she works better under positive reinforcements rather than punishment’…” The email concluded that “she will probably use our counsellor service, and carry on with some sessions by skype with her Spanish psychologist.”

A report from a Spanish psychologist, Rafael Oteo Seijas, dated 16 July 2019 was provided to the school. This noted “great instability in [her] prognosis” with “improvements” but also “appearance of new problems”. The clinical judgment (in translation) was stated to be:

“Disordered behavioural alterations as a consequence of the development of insecure attachment in addition to a temperamental variable. Regarding a psychological level, we can explain Irune's behaviour as a result of her way of perceiving herself and social relationships:

- Desire for invulnerability.

- Distant distrust vs. Influence and social pressure.

- Unconscious scepticism about relationships.

- Fear of rejection vs. Need of contact.

- Fear of being emotionally hurt.”

The report then provided “intervention guidelines” which included:

“• Take into account the variables described in clinical judgment. Her behaviour will be exponentially better by reinforcement rather than by punishment. Punishment consolidates and fosters her way of perceiving others and, as a consequence, disruptive behaviours appear. The reinforcement mismatches her way of conceiving social relationships and covers her most basic need, so that she will respond much better to the instructions and requests of anyone perceived as reinforcing. Therefore, we must be encouraging, comforting and emotional.

…

• Keep calm and avoid punishments (understood as any unpleasant stimulus for her) when Irune is invaded by an anxious emotional state. Regulate her from the tranquillity.

• We must be clear when establishing the limits. The limits must be stable and agreed by all teachers, so that she understands the same consequences independently of the teacher. The limits must be previously established so that she can anticipate them….”

Irune Pedrayes’s evidence included an acceptance that she did have some “behavioural problems”, “had a hard time interacting well with people my age” before her time at Buckswood School, and that she saw a psychologist because of her “poor ability to fit in and because of my defiance”.

The Claimant joined the school on 9 September 2019. The evidence from the school is that there were induction sessions where school rules were explained and she was given a diary summarising the rules, which included a prohibition on consumption of alcohol, tobacco, vaping and illegal drugs. Irune Pedrayes said that she did not recall the induction process.

The school put in place a welfare plan which, according to Mr Samson’s statement, was emailed to key staff on 13 September 2019.

It is evident that Irune Pedrayes struggled, from her second week at the school, to comply with the school rules. Her behaviour appears to have been challenging and disruptive. The behaviour records list “uncooperative behaviour” twice on 17 September, resulting in a detention, and further uncooperative behaviour on 18 September, and regular entries thereafter. The Claimant accepts that her behaviour at school was not good and describes using her mobile phone in class and wanting to be “kicked out of class so I didn’t have to sit through class” and that she was punished for her behaviour.

On 19 September the Claimant’s father emailed the school referring to the fact that he had seen on the school’s app that she was in trouble for her behaviour and stating that he had sent her a WhatsApp message and explaining, again, about her difficulties in relating to others.

On 24 September the school Safeguarding officer, Anne Jeffrey, emailed the school counsellor, to ask her to “pick up with Irune” in relation to her behaviour, including “dressing and behaving inappropriately for her age. (Short skirts, short shorts, and the incident today of pulling up her skirt in front of a man to adjust her tights). She is worrying me. I understand that she had another tantrum tonight with her housemistress…”. Irune Pedrayes denies ever having been told that she could seek help from the school counsellor and denies having seen any posters at the school about the provision of counselling. Mr Samson states that she refused help from the school counsellor.

The school’s minutes of the Behaviour Committee Meeting dated 24 September 2019 sets out notes about the behaviour of four students at the school, one of whom was Irune Pedrayes. The notes in respect of the Claimant read as follows: “Irune Pedrayes Varela – is a very angry young lady who is getting into trouble for failing to follow the school rules. AJ [Anne Jeffrey, Safeguarding Officer] spoke to her today as she was angry and upset. She has a welfare plan. HOY [Head of Year] is struggling to manage her behaviour and is in contact with her father. She is also dressing inappropriately by rolling up her skirt and wearing very short shorts. DDUN [the school counsellor] to pick her up. Email received from sales staff from her counsellor in Spain. AJ to forward this to EW [Elaine Wilson, Learning Support] to see if she is able to support her. RM [Richard Maclean, Deputy Principal (Pastoral and Designated Safeguarding Lead)] to meet with HOY (JR) to discuss a plan for Irune”.

On 25 September 2019 Ms Gilly Johnson, Deputy Principal (Academic), circulated an email to the group email address to all teachers providing “useful information re Irune” which copied an email from Elaine Wilson summarising advice from the educational psychologist and saying that Irune had been put on the SEN register. The advice stated that Irune “has anxiety issues/Attachment problems/can exhibit resentful behaviour/impulsivity: Please read the information from EP that I have put on SIMS [Student Information Management System] under SEN [Special Educational Needs] full description which gives strategies to deal with her”.

A further email was sent to all teachers by Ms Johnson on 26 September 2019 asking for feedback “positive and negative about Irune Pedreyes-Varela, re behaviour, attitude to learning, school rules etc?”

The medical section of the school’s database note that Irune Pedrayes was suffering from cold symptoms, with a sore throat, on Friday 27 September 2019 and was given paracetamol and throat sweets in the morning and again in the afternoon. It was noted that she “hasn’t eaten anything today”.

Mr Samson explained that Irune Pedrayes was “gated” for the weekend as a punishment for previous unacceptable behaviour, meaning that she was not allowed to go into town on Saturday 28 September. I have seen a copy of a “weekend gating form” dated 28 September 2019 with the Claimant’s name at the top and which states “to be signed by a member of staff according to the schedule below”. There is then a box setting out times on Saturday from 1:30pm every hour until 9:30pm with initials of a member of staff in each box, except for 7.30pm.

An email timed at 00:31 on 30 September from Ms Jenny O’Shea, the Claimant’s housemistress, to the school nurse records that Irune came to see her on the Saturday morning complaining of pain when she urinated and she was offered paracetamol but did not take any. The email records that her symptoms had worsened by lunchtime and Ms O’Shea walked her to the local medical centre, but, on arrival, the waiting time to see a doctor was showing as 3 hours and the Claimant refused to wait. They therefore went to the pharmacy and bought some cream. The email records that the Claimant’s parents were contacted and told that she had refused to wait to be seen. It also states that “I have asked her over the remainder of the weekend how she is and each time she says fine and refuses medication. However, she did have 1 paracetamol at 19:00 this evening (Sunday). She seems well within herself but she will need to see the doctor if the symptoms persist”.

In her witness statement Irune Pedrayes says, in relation to the events of the weekend of 28-29 September 2019, that “like any other weekend, we were going to the city…” She says that “there” (in town) “they” (other students) “bought alcohol or drugs”. Her statement is not correct is suggestion that she herself went to town on 28 September because, as noted above, she was “gated” and so had to stay at school. Her statement also makes no reference to the fact that she was taken to the medical centre by Ms O’Shea on the Saturday. She also makes no reference to being checked on every hour on Saturday afternoon, as appears to be recorded in the gating form. In short, it seems that her recollection of that weekend, perhaps not surprisingly, is unreliable. She suggests that at some stage on Saturday she took “magic” in a vape given to her by boys “in the senior year”.

Her statement then explains that she took “magic” again on Sunday 29 September in a vape on the rugby field and that “my head understood that something was happening to me that I had never felt before. I was very scared and I was afraid to talk to anyone because I felt very strange things… As soon as I noticed something strange in my head, I ran to my room, scared and got into bed”. She makes no reference in her statement to having been checked on by Miss O’Shea that evening, nor to having been given a paracetamol.

She says that the following morning, Monday morning, she was still feeling unwell and “knew I had to ask for help because I thought the feeling would last my entire life”. She recalls going to see the school nurse and she says that they did a urine test and, after lying down for a while, she was taken to hospital. She says she saw a doctor, that they took another urine test, and that she was told that she was still under the influence of the drug and that she should drink a lot.

The school’s medical notes records that she attended the school nurse at 08.32 on 30 September 2019 and that she “claims she has taken some drugs yesterday in a vape at about 11am in the day time, feels she has a headache, saying she has black in her vision, feels that things are repeating themselves, urine test performed, ketones +++, not sure if she is eating”.

The school medical notes record that she was taken to hospital: “A&E attendance 10.30 Assessed by Dr in A&E, re: symptoms of distress, disorientation, visual disturbance and paranoid thoughts, thought caused by vaping a liquid over the weekend. Advised to drink plenty of sweet fluids over next 24 hrs, when symptoms should subside. … A&E Attendance Ketones in urine ++ due to not eating anything over the weekend/dehydration. Admitted to also drinking alcohol at the time of vaping. Irune was offered orange juice and toast on return to the health centre, but declined. Left to go to lessons with friends.”

The welfare form completed by the school nurse ticked the “flag” box marked “substance misuse” and recorded that Irune presented with “vague physical symptoms but paranoid and manic symptoms obvious”. It continues “admitted vaping on Sunday in boarding house. Experiencing deja vue and some blackness in her vision. Taken to A&E for assessment. Says she was vaping Friday, Saturday & Sunday & drinking alcohol. Dr advised to drink plenty & symptoms are due to vaping incidents…”

An email from the school nurse to the Claimant’s father at midday on 30 September states “Irune has been feeling unwell this morning, we have arranged for her to be assessed by the doctor at the hospital, [w]hen we have further information I will let you know.” A second email, later that afternoon stated “Irune has been assessed by the Dr, Irune has eaten very little over the weekend and the Dr has suggested that she needs to eat and drink more. She has returned to school and felt well enough to return to her lessons”.

The medical records obtained from the hospital, and which would not have been seen by the school contemporaneously, record that the Claimant “admitted to smoking & vape liquid over weekend & felt unwell since”. It states that she presented to the school nurse “feeling anxious” and with “visual disturbances”. The medical notes also say “smoked cannabis vape + drank over weekend. Feeling fearful, anxious,+ “Deja vus” and “effects of recreational drugs”. The admission form states “extreme anxiety, disorientation, visual disturbances – used vape on Sunday” and “+++ Ketones in urine”. The discharge form, addressed to the Claimant’s GP in the UK, has a diagnosis of “recreational drug use” and under “instructions to GP” states “Safeguarding Concerns: Child is cause for safeguarding concern”. Again, the school would not have seen this.

Mr Samson confirmed that a search of Irune Pedrayes’s room was undertaken following the incident, but “nothing untoward was found, other than one broken cigarette. She was offered counselling by declined. That same afternoon [i.e. Monday 30 September] she returned to her lessons”.

A further school welfare form dated Tuesday 1 October 2019, completed by Ms O’Shea, contains a report from another student, whose name has been redacted. It states “[redacted] came to tell me that she knew where Irune had got the “magic” from that she used in a vape over the weekend. She told me that [redacted] and [redacted] had been the ones who supplied her with it…. She said that they were buying the magic online and having it delivered to School. [redacted] said that [redacted] had offered the vape to [redacted] over the weekend but [redacted] had said no.”

The school’s medical chronology contains entries for 1 October 2019 which notes that Irune Pedrayes went to the school nurse at 08:30 “reporting feeling unwell, has not followed advice from Dr regarding drinking sweet fluids. Says she did not sleep last night and is still experiencing deja vue feelings”. An observation chart for 1 October 2019 records that she slept in the morning and was given toast at 12:00 and, at 12:30 was “left with counsellor to get changed” and that she attended school that afternoon. A later entry in the records that day says the Claimant “was feeling ok but went to sleep early around 22:00 which is unlike her”.

I have seen a copy of the WhatsApp messages between the Claimant’s father and the agent liaising with the school. A message from the agent dated 1 October 2019 read “Irune has been sick this weekend and was taken to the hospital yesterday. Apparently, it was nothing”. On the same day, the Claimant’s father responded to say that he had seen a report of bad behaviour relating to the Claimant when looking for any “news about the infection that occurred over the weekend”. The reference to “infection” appears to relate to the urinary tract infection issue which he had been informed about on Saturday. The agent responded to say “please don’t worry. The school is doing its job and is keeping an eye on Irune. They have a points system using this card where they add and subtract points based on her behaviour and work”.

The school emailed the Claimant’s father the next day, Wednesday 2 October 2019, with an update. The email records that she was seen at the hospital on Monday and that she has been advised to drink plenty of sugary fluids and to ensure that she is eating enough. It records that her eating is being monitored and that since attending hospital she “seemed energetic and well within the house in the mornings and evenings”. The email also states that she “used a vape over the weekend”, which is “a breach of our behaviour policy” and that “three breaches of the behaviour policy concerning smoking results in a fixed term exclusion from school”. The email refers to “many avenues available to support her”, including a “resident counsellor who she has been referred to but at present she does not wish to visit”.

It is accepted by the Defendant that the school informed the Claimant’s parents that the Claimant had been vaping, but did not inform them that she had admitted that the vape contained a drug called “magic”, nor that another child had reported that the Claimant had taken “magic”. It is also apparent that the school did not inform the Claimant’s parents that the attendance at the hospital was because the Claimant was suffering “paranoid and manic symptoms” (as recorded by the school nurse) in association with reported drug use. Rather, it is clear that the school let the Claimant’s father assume that the hospital attendance was connected with the urinary tract infection symptoms which he had been informed about on the Saturday.

Following the weekend of 27-29 September, there are regular reports in the school’s behaviour record of Irune Pedrayes’s poor behaviour, with a list of 11 detentions between 3 October and 10 November 2019.

Irune Pedrayes describes living “in a parallel reality a large part of the time” for the rest of her time at the school. It appears that Mr Pedrayes did not see the school counsellor and did not, in fact, have any videoconference sessions with her Spanish psychologist during her time at the school. Mr Samson’s evidence was that there was no record of her attending the school nurse after her hospital visit in relation to “panic attacks, nightmares, nervousness etc and I do not recall anyone suggesting the same to me”. Conversely, there are a number of attendances on the school nurse in October and November recorded for minor ailments, mainly colds.

In an internal email entitled “IP weekly welfare plan feedback” dated 13 October 2019 a member of staff (name redacted) stated:

“Irune continues to be ok within the boarding house and adheres to the majority of the rules. However, her mental stability continues to be a concern. She has struggled in the classroom continually and has had verbal altercations with several of her teachers this week I understand. She struggles to understand how to conduct herself or express her opinion without shouting and becoming argumentative. I have few problems with her from the boarding side. However on Friday she failed to arrive at 20:00 for prep and I had to send other students out to look for her. She did understand the problem with this when I spoke to her and did apologise but it is another indication that she is not showing signs of accepting the rules that govern her existence here at school”.

In her oral evidence Irune Pedrayes stated that she continued to take drugs whilst at the school, including taking THC with Ms Callis a few days after taking “magic” over the weekend of 27-29 September and her evidence was that a photograph of her taken on 24 October 2019 shows her smoking THC in the school grounds.

Mr Samson drew attention to an email from Irune Pedrayes’s father of 4 November 2019 which indicated that Irune was happy at the school and the help she was receiving.

On 11 November Mr Samson wrote to Irune Pedrayes’s parents to inform them of his decision to exclude her from school for 3 days. He added: “this decision had not been taken lightly, but Irune’s behaviour was far from acceptable and in breach of school rules”. The letter states the reasons as including “Irune has been found to have been smoking, constant disruption in class, missing lessons, out of bounds three times (being in and around a male residence), and damaging school property by kicking and breaking a window in Residence 2 (a male residence) on 8 November…”.

An entry in the school database of 19 November records that on return from her 3-day exclusion she was placed on a “Behaviour Contract” and that “by the end of the first morning back she had broken all the conditions….”. Mr Samson explains that she had been found smoking in the boarding house during lunchtime that day and the school records notes that the smoking had taken place in another student’s bedroom and that Irune Pedrayes had left a candle burning “to get rid of the smell”. He also notes that the school’s “my concern” record of 20 November gives further details of alleged teasing/bullying of another student and making a racist comment to her maths teacher, suggesting that she should “go back to her own country”.

Mr Samson’s evidence was that “we did everything we could to help this troubled girl but ultimately it was not the correct place for her as the disruption she created on a daily basis was such that we could not manage her behaviour. There were far greater psychological problems than were disclosed to and anticipated by the school on admission.” He explains that “instead of permanently excluding Irune, which would have gone on her record, I asked her parents to withdraw her from the school, with immediate effect…”. He wrote to her parents on 20 November and her parents removed her from the school on 23 November 2019.

In her statement Irune Pedrayes says that she was happy at the school and did not want to leave despite her continuing psychological issues. When she was told that she had to leave the school she says that she told a teacher untruthful things about a member of her family in a “desperate attempt not to be expelled”. Those allegations were of a serious safeguarding nature and, according to Mr Samson, the school referred her allegations to both the Spanish and British social services. A note in the school’s database of 20 February 2020 stated that, even though Irune Pedrayes had left the school, she had contacted the art teacher at the school in “the middle of the night” making further allegations of continuing problems and that the same teacher had received a message from a teacher at Irune Pedrayes’s new school saying that thew were aware of the issues.” Those allegations were not explored during the trial and it is not necessary to consider them further in this judgment.

Irune Pedrayes says that when she arrived back in Spain she told her parents about the “magic”, but they did not initially believe her as they thought the school would have informed them. It seems that her drug use continued. In the summer of 2020 she says that was admitted to a “specialised therapeutic-education centre” and received multiple diagnoses including “Cannabis use disorder”. The fact of the diagnoses are confirmed in the expert psychiatric evidence I have seen.

Evidence as to Buckswood School’s relevant policies and procedures

The school’s First Aid Policy included the following:

“Where staff provide first aid to staff, students, contractors, visitors they must record the accident, injury and treatment details on a School Accident, Incident, Near Miss & Dangerous Occurrence Report Form and return the completed form to the Health & Safety Manager.

Where an accident has occurred and a student is injured, parents should be contacted as soon as possible.”

Irune Pedrayes’s evidence was that she did not use any kind of illicit drug before going to the school, although she says she did smoke tobacco occasionally during weekends. She says that there was “easy access to substances” at the school and that she “started using drugs … a few weeks after my arrival”. In her oral evidence she said that she did not think that the school implemented its rules in relation to drugs, but when pressed by Mr Edwards, she was vague on the details as to why she thought this, but her evidence was that her schools in Spain were stricter. She did not recall any patrols, she did not recall cleaners cleaning her room and did not remember whether any parts of the local town were out of bounds. She did, however, remember Mr Samson checking rooms. In re-examination she explained, in relation to discipline, that it depended on the member of staff who caught you doing something wrong, some were more tolerant than others.

As noted at [14] above, the Claimant also served a witness statement from a Ms Callis, who was 21 years old at the time she provided her statement in June 2024. Ms Callis had attended the Buckswood School for her sixth form from 2018 to 2020 and, also a Spanish student, was in the same boarding house as Ms Irune Pedrayes. Her evidence was that some students, from about the age of 16, would consume substances ranging from “alcohol to cigarettes and vapes to weed and magic”, both in the school grounds and when they went to town at the weekend. She said that “magic” could be purchased on-line and “you could put a few drops of [it] in your vape and gave you a high during 30 minutes, everyone loved it because it didn’t smell, it took a small quantity to make effect and it was easy to consume”.

In her statement Ms Callis says that “there were many measures taken [by] teachers” to try to control the use of drugs at the school and she provides some details. She says that (a) there were parts of the school which were “out of bounds” at certain times; (b) that every time the students went into town on Saturdays their bags were checked on arrival back at school to make sure students had not bought anything illicit; and (c) “the same thing went for packages, every time a student received a package they should have to open it in front of a headmaster, or person of authority” and (d) “there were regular tests too” including “drug tests for people who were under suspicion from some teachers and alcohol tests were also conducted” … and (e) “another measure teachers took was to conduct “inspections” … every morning where a headmaster would walk by each student’s room to check that everything was in order, but more “thorough” inspections were conducted if there was any basis for them”.

The Claimant also relied on the witness statement of Cristina Fernandez, a Spanish student at the school with Irune in 2019. She said that “alcohol, tobacco, cannabis, “magic” etc” were consumed at the school and on school trips and that “they were also consumed freely, since student had easy access to them” and “the supervision of teachers was not very strict”. She said that as a result of “Irune’s incident on 30 September” the teachers at the school “began to check what we bought on our outings to the village”.

Ms McTague placed some weight on an Ofsted report on the school of January 2019. The relevant paragraph reads: “There is a strong link between safeguarding procedures, behaviour management and teaching in PSHE. Recent concerns about students using drugs have led to changes in risk assessments and supervision arrangements for ‘town leave’ and to enhancements in the PSHE curriculum. Overseas students have been made aware of the legal implications of drug use and possession in the United Kingdom”. It also noted that “Leaders are challenging and changing a culture of relaxed expectations, especially with older students. Appropriate use of exclusion for serious events is giving a clear message and keeping other pupils safe. Leaders are now establishing higher expectations of behaviour across the school”. The “overall outcome” of the report was that “the school meets all of the independent school standards that were checked during this inspection”. The “boarding provision outcome” was that “the school meets all the national minimum standards that were checked during this inspection”. Ms McTague emphasised the reference to the “recent concerns about students using drugs”. Mr Edwards, naturally, emphasised the steps recorded as being taken by the school to deal with those problems.

Mr Samson’s evidence was that he had personally drafted the school’s “Drugs and Alcohol Misuse/Education Policy” of 2018. The Claimant does not criticise the content of the policy itself to any significant degree, but rather focuses on alleged lack of enforcement of the policy.

The school also had a “Screening, Searching and Confiscation” policy; authorised staff have the power to search students or their possessions, including without consent, where there are reasonable grounds for suspecting that a student might have a prohibited item, such as alcohol, illegal drugs or tobacco. Mr Samson summarised the position as follows: “under the policy, where alcohol, illegal drugs or potentially harmful substances are found, whilst there is no legal requirement to do so, Buckswood School may inform parents especially if the matter is sufficiently serious or could be potentially harmful to the student or the school”.

Mr Samson’s evidence was that “vaping was and remains a nationwide issue with the growth of this somewhat unregulated market” and that “vapes are harder to detect due to the lack of smell”. He explained that “we have to have a good reason to search a student and/or their possessions.” His evidence was that cleaners would regularly clean rooms and report any issues of concern, but that there were no such reports in respect of Irune Pedrayes’s room.

Mr Samson said that the school found that some students were ordering “magic” online and that they “remained extra vigilant, closely monitoring them when opening any packages which had been ordered to the school. Following this, some students tried to organise delivery to alternative addresses (parents of day students for example) so we had to work to stop this as well.”

His evidence was that when students went on trips to town on Saturday two or three members of staff would be “in attendance” and that in each boarding house there was a map showing where they could and could not go. I have seen a risk assessment dated 11 September 2017 detailing risks associated with visits to the town by students, including the risks of purchasing alcohol and cannabis, with preventative steps being identified as restrictions on town leave for offenders.

Mr Samson stated that there was a rota for staff to “patrol” the school grounds, but that the site was 40 acres and so there were always places that students could hide from a patrolling teacher. He emphasised that “we are a school and not a prison”.

Mr Samson’s evidence was that he would invite the police to attend the school to talk about issues such as smoking and drugs once a year or sometimes more. It is clear that he had protracted communications with the police in the days and weeks following the incidents of 27-29 September 2019. I have seen an email from Mr Samson of 7 October 2019 to Sussex police notifying them that “we have suspended 4 boys this week for testing positive to cannabis. They have told me that one of their friends at school has a phone number of someone in town who gets it for them. I have run a detection dog around the school today and found no sign of the drug in student rooms or in known hiding places so my next port of call is you in the hope that you might be interested in coming to school to interview the boys who can hopefully provide some intelligence on how they are getting this stuff and perhaps who has the phone number and therefore what the number is which might help with Sussex police and the work you are doing on County Lines”.

I have also seen a redacted email of 11 October 2019 from Mr Samson to an (anonymised) student’s parent or guardian asking them to withdraw the student from school and identifying that he had been “implicated as being involved with drug usage here at the school”. In her written statement Irune Pedrayes says that she was aware that the school expelled the boy who supplied her with the “magic” for possession of the drug.

An email from Mr Samson to the police of 21 October records that there had been two separate dog searches of the school arranged by Mr Samson with a specialist company, the first on 7 October and the second on 18 October. The first search appears to have revealed some traces of cannabis in various locations, some cannabis resin and some empty packets in the garden behind a boarding house.

In a series of subsequent emails in mid-October Mr Samson assisted the police in trying to identify and deal with drug-related issues and the sources of supply of drugs to students. He also contacted the police in early 2020 about problems relating to vapes with additives with a “hallucinatory or cannabis-like effect”, described the difficulties faced by the school in trying to detect and control such use, and asked for any advice the police could provide, including advice on testing kits or other approaches. There were several exchanges of emails with the police, but, in summary, the police responded by saying that it was not a police matter and they were not in a position to provide guidance.

Relevant law

The Defendant admits in its Defence that it was “at all material times responsible for the care and good discipline of pupils”, under a duty to take “reasonable care to ensure the good health and safety of pupils”, and under a duty to provide “a reasonable level of supervision and inspection” in relation to students in its care.

It was common ground between the parties that the duty owed by a school to a child attending the school to take care of and to protect that child from harm may go beyond the duty expected of a parent at home with responsibility for the care of their child. The rationale behind this was explained by Lord Sumption JSC in Woodland v Swimming Teachers Association and others [2014] AC 537, albeit in the context of a consideration of the nature of non-delegable duties which might be owed by a school, at [23] and [25(6)] as follows:

Reliance was placed by both parties on the following summary of legal principles set out by Spencer J in Pook v Rossall School [2018] EWHC 522 (QB), a case concerning a child who was injured whilst running to a hockey pitch:

“[25]…Although the Woodland case was concerned with, among other things, the issue of non-delegable duties, in that context the Supreme Court took the opportunity to observe that, whilst schools are employed to educate children, they can only do so if they are allowed authority over them and that authority confers on them a significant degree of control. Thus the recognition of a non-delegable duty of care owed by schools involves imputing to them a greater responsibility than any which the law presently recognises as being owed by parents.

[26] Mr Knifton further directed my attention to the decision of the Northern Ireland High Court in Murray v McCullough [2016] NIQB52 . In that case, Stephens J also found unhelpful any analogy between the duty owed by a school and the duty owed by a parent. He said:

“However for my own part I would prefer that the standard of the duty of a school teacher should not be expressed as taking such care of his pupils as would a reasonably careful parent of the children of the family but rather taking reasonable care in all the circumstances. The yardstick is reasonable care; it is not some notional standard as to what a reasonably careful and prudent parent of the family would or would not do in relation to his own children. The relevant circumstances which are to be taken into account in an individual case in determining whether reasonable care has been taken by a school teacher will depend on the evidence in that case. Highly significant circumstances will be the age and maturity of the child or young person. … in addition to those circumstances which are particularly relevant in claims by children or young persons are other circumstances of general application such as the magnitude of the risk, the likelihood of injury, the gravity of the consequences and the cost and practicability of reducing or avoiding the risk."

In that case, Spencer J also recognised the limits of the duty as follows:

“However, I reject the notion that the duty of a school is to reduce the risk to the lowest level reasonably practicable. I agree with Mr Lemmy that whilst there are some risks which no reasonable school or teacher would allow a pupil to run (running in corridors between classes for example), and other risks which it will almost always be reasonable to allow a pupil to run (for example the risk arising from contact and other sports), there will be situations in between which allow for a measure of discretion and judgment on the part of the teachers. In those circumstances, the court should be slow to condemn a teacher as negligent and to substitute its own judgment for that of the teacher where the teacher can be expected to have knowledge of the school, the environment, the particular children in her charge and her experience …”

Mr Edwards also relied upon Lord Eassie’s analysis in Hunter v Perth & Kinross Council [2001] SCLR 856, Court of Session, Outer House, in which a pupil was injured as a result of being pushed by another pupil whilst waiting to board a bus home from school. The court emphasised, at [40], that the duty of care did not require the school to provide “all-pervasive supervision” of the students of the type that would have been required to prevent an incident of this nature, rejecting the contention of the counsel for the pursuer that there ought to have been an adult present at all times and visible to the children in the relevant area. Further, in that case it was held that even the presence of additional supervision in the relevant area would not have prevented the incident.

In Liennard v Slough Borough Council [2002] EWHC 398 (QB), also relied upon by Mr Edwards, the claimant claimed damages for an alleged negligent failure of his former teachers to assess his learning difficulties properly and to refer him to an educational psychologist whilst he was at secondary school. Expert evidence from educational psychologists was adduced. The claim was dismissed. Applying the Bolam test, the court found, at [166] that the relevant teachers acted in a way in which reasonably competent teachers would have acted at the relevant time. It was recognised, at [14], that there was a duty on teachers to exercise reasonable skill and care in responding to educational needs. The standard of care was identified as that of a reasonable teacher at the relevant time and reliance was placed, at [15-16], on the following observations of Lord Slynn and Lord Clyde in Phelps v Hillingdon L.B.C. HL [2001] 2 A.C.619:

“…the claimant must be able to demonstrate that the standard of care fell short of that set by the Bolam test: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.  That is deliberately and properly a high standard in recognition of the difficult nature of some decisions which those to whom the test applies require to make and of the room for genuine differences of view on the propriety of one course of action as against another. In the field of educational matters there may well exist distinct but respectable opinions upon matters of method and practice, and it may be difficult to substantiate a case of fault against the background of a variety of professional practices…” per Lord Clyde at p672F.

The Bolam test, originating in a clinical negligence context, recognises that a range of different views may legitimately be held about an issue of clinical judgement by different medical professionals; accordingly, a claimant will not succeed in establishing negligence merely by demonstrating that there is a body of competent professional expert opinion which disagrees with the judgement taken by the relevant clinician, provided that there is a body of competent professional expert opinion which supports that judgement as reasonable in the circumstances.

Ms McTague emphasised that the issues in this case are primarily concerned with what might be described as the “health and safety” duties owed by the school, as opposed to “educational” duties – a distinction drawn by Judge LJ in Bradford-Smart v West Sussex CC [2002] EWCA Civ 07 [2002] ELR 139 at [31]. The effect of Ms McTague’s submission, which was not disputed by Mr Edwards, was that the Bolam test (and therefore evidence concerning a body of competent professional expert opinion) was not a necessary or appropriate test to apply to the predominantly “health and safety” duties with which the present case is primarily concerned. I would also note that this submission reflects, to some extent, the type of distinction draw by the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] A.C.1430, at [82], between on the one hand, the doctor's role when considering possible investigatory or treatment options, where the Bolam test applies, and, on the other, the doctor’s role in the consenting process, where the Bolam test is generally not applicable. I agree that the Bolam test is unlikely to be relevant to “health and safety” issues of the type raised in this case (particularly in relation to Issue 1 and Issue 3 identified at paragraph [6] above), although it may have greater relevance to the management of special educational needs and, potentially, therefore to certain aspects of Issue 2 in this case.

It was common ground that the nature and extent of the risk in question, as well as the particular vulnerabilities of the Claimant, are relevant factors to take into account when considering the appropriate standard of care.

Discussion

The pleaded allegations are that the Defendant:

The Defendant accepts that the First Aid Policy required the Defendant to contact parents as soon as possible in the event of an accident or injury to a pupil. The wording of the policy is set out at [61] above.

The Defendant accepts that “a child’s parents ought to be made aware in the event of a child using powerful illicit substances over the course of an entire weekend if that was the case and the school had knowledge of the same”. The school does not accept that it was in possession of such information.

Mr Samson’s evidence was that the school had no firm evidence that the vape had contained mephedrone or any “illicit” or prohibited drug. He noted that the urine test taken by the school did not identify any drug use. However, the Defendant has not adduced any evidence as to whether the urine test was intended to be capable, or was in fact capable, of testing for drug use, nor, if so, which particular drugs it was capable of identifying and after what period of time following use. His evidence was that he did not appreciate, at the time, that “magic” was a name used for mephedrone, nor, therefore, that it was a ‘class B’ drug. He said that if it is correct that the Claimant had taken mephedrone and had he appreciated this at the time then he would have acted differently, including by engaging a more rapid response and notifying the Claimant’s parents.

The following facts are evident from the contemporaneous documentary evidence and, insofar as any part of the relevant factual background was in issue, I make the following findings:

At paragraph 39 of its Defence the Defendant accepted “on the balance of probabilities the Claimant probably did take an illicit substance”. In my judgment, on the balance of probabilities, the drug which the Claimant took over the weekend of 27-29 September 2019 and which she understood to be called “magic”, was likely to have been mephedrone, or a similar substance. In any event, whether or not the drug taken by the Claimant was mephedrone, I accept, on the evidence before me, that the Claimant was displaying “paranoid and manic symptoms” on Monday 30 September 2019, the day after she had last taken the drug, and that these symptoms were obvious to the school nurse and correctly identified by the nurse as likely to have been caused by the use of the drug the previous day.

The symptoms reported by the Claimant to the school nurse and recorded in the school medical records can properly be described as more than minor; they were reports of visual disturbance, paranoid and manic symptoms. In their joint report the expert psychiatrists describe the taking of the “magic” over the weekend as precipitating “an episode with psychotic and manic symptoms” and this is accepted by the Defendant. That summary fairly describes, in my judgment, the symptoms noted and reported by the school nurse.

At one stage, there was a suggestion on the part of the Defendant that because the Claimant was “Gillick competent”, Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, the school was therefore unable to inform the Claimant’s parents that she was taken to hospital because she presented with “paranoid and manic symptoms” in connection with her admission of the use of a drug called “magic”. Mr Edwards, rightly, did not pursue that contention and conceded that the school was not prevented, by reason of any issue of Gillick competence, from informing the Claimant’s parents of the relevant facts.

In my judgment, it is clear that the symptoms noted by the school nurse, summarised at [92] above, amount to a personal injury of a type which should have been reported to the Claimant’s parents as soon as possible under the school’s First Aid Policy ([61] above).

The duty of care owed by the Defendant school to the Claimant encompassed a duty to protect the Claimant who, as a child, was inherently vulnerable and highly dependent on the observance of proper standards of care by the school. It is also relevant to the nature and scope of that duty, in my judgment, that the Claimant was boarding at the school and so the school had a particularly high degree of control over her life; see, for example, the description of the degree of control exercised by a typical day school over a student in Woodland v Swimming Teachers Association, at [25(1)], set out at [77] above. There was little or no opportunity for the Claimant’s parents, or any other adult outside of the School, to identify the relevant facts so as to be able to take appropriate action, including identifying that the Claimant had admitted taking an illicit drug, to note that she was exhibiting “paranoid and manic symptoms”, to make any enquiry as to the cause of any such symptoms, to assess any on-going symptoms, and to ensure that appropriate steps were taken to provide medical assistance to address any on-going symptoms.

Furthermore, in relation to the nature and scope of the duty of care and to the standard of care, it is necessary to take into account the School’s knowledge of the matters set out in Rafael Oteo Seijas’s psychiatric report dated 16 July 2019, including the recommendations relating to the need for particular care and protection of the Claimant and the “great instability in [her] prognosis”. The particular vulnerabilities of the Claimant were well known to the school and the school was under a correspondingly high duty to take care of the Claimant given its knowledge of her vulnerabilities, which included reporting incidents of this nature to her parents accurately and without undue delay. Apart from anything else, the Claimant’s parents needed to be informed of the true facts in order to be able to make a properly informed decision, in the interests of the Claimant, as to what, if any, steps should be taken to mitigate the risks of any continued drug use. Possible steps may have included withdrawing the Claimant from the school without delay and bringing her back to live at home with her parents in Spain.

In my judgment, in all the circumstances, the duty of care owed by the Defendant school to the Claimant encompassed, on the facts of this case, a duty to inform the Claimant’s parents timeously of the relevant facts, including that: (a) the Claimant had presented to the school nurses with “paranoid and manic symptoms” on Monday 30 September; (b) this was in connection with her admission to the nurses that she had taken “some drugs” the previous day; and (c) she was taken to hospital because of her “paranoid and manic symptoms”. I would add that when, the following day (Tuesday 1 October), another student informed the school that the drug taken by the Claimant was called “magic” (see [46] above) and the Claimant reported ongoing symptoms (including déjà vue) to the school nurses (see [47] above), the school should reported these additional facts to her parents.

I am also satisfied, on the evidence, that the Defendant school acted in breach of the duty of care which it owed to the Claimant by failing to provide adequate and accurate information to the Claimant’s parents:

The fact that the school did not provide accurate information to the Claimant’s parents about the incident and about the adverse effects suffered by the Claimant meant that the Claimant’s parents were not in a position: (a) to make any enquiries concerning the potential harm which might have been caused to the Claimant by any use of drugs; (b) to take action to ensure that the Claimant’s health was closely monitored; and (c) to decide whether the Claimant should be removed from the school in order to mitigate the risk of further exposure to drugs and/or to ensure adequate monitoring of her health and/or to ensure the availability of appropriate treatment.

It may be the case that the school formed the view that the adverse effects of the admitted use of drugs would be short term and of no real consequence. However, that does not justify the failure to provide the Claimant’s parents with adequate and accurate information concerning the true position. It is also difficult to reconcile with the fact that on Tuesday 1 October, some 48 hours after taking the drugs, the Claimant was still experience adverse symptoms ([47] above).

In summary, I am satisfied that the school fell below the requisite standard of care, and was negligent, in failing to provide the information identified in paragraph [98] above to the Claimant’s parents without delay.

In circumstances in which the Defendant has reached an agreement with the Claimant in respect of all issues of causation and quantum, subject only to determination of the issue of breach of duty, it is not necessary or appropriate for me to make any findings on causation. Accordingly, the Claimant’s claim in negligence in respect of this first issue succeeds and the Defendant is liable to pay her the agreed damages.

The pleaded allegations of breach of duty in this regard are primarily set out at paragraph 28.1 of the Particulars of Claim. It is alleged that the school:

“Failed to give effect to, and in fact acted entirely contrary to, the guidance provided by Dr Otel Seijas in his psychological report. For example, from as early as the first month in the School, Irune was subjected to several detentions and at one point had an angry outburst as a result. Moreover, an undated internal school staff note states that “getting angry with her will not be a solution to her behaviour in class …At all times, keep calm”, which indicates strongly that the staff had been getting angry with the Claimant instead of using positive, reinforcing techniques as instructed by Dr Oteo Seijas. This was a breach of the School’s duty of care as clearly the School was not handling her situation in a prudent manner as it was acting contrary to the professional guidance of the Claimant’s psychologist”.

As noted at [10] above, the Claimant’s Particulars of Claim, which were not pleaded by counsel, are unconventional in certain respects, and the pleading in respect of Issue 2 provides little, if any, explanation as to (a) what it is alleged that the Defendant should have done which it did not do; and (b) how the alleged negligence is said to have caused or contributed to the incidents of 25-27 September 2019 and/or to the Claimant’s injury. Mr Edwards treated Issue 2 as a facet of Issue 1 and/or Issue 2, going to the standard of care, as opposed to an allegation of a breach of duty which, on the facts of this case, could be said to have caused or contributed to the Claimant’s injury.

Ms McTague sought to characterise Issue 2 as a failure on the part of the Defendant to recognise the Claimant’s profile as giving rise to safeguarding risks, such that the school wrongly treated them as “behavioural” issues to be punished rather than “risk” issues requiring protective measures to be put in place. It was also suggested that the Claimant should have been the subject of a risk assessment.

It is common ground that a Welfare Plan was produced by the school. It is dated “Sep 19” and summarises relevant information and proposed “strategies and support”. Under the heading “review date” the plan stated “after assessment has been carried out and when we can ascertain if this record is an accurate assessment of her social standing”. Mr Samson’s evidence was that this was emailed to staff on 13 September 2019. It was suggested in cross-examination that the relevant email (along with various other documents) had not been disclosed, but I am not aware of the Claimant’s lawyers having sought a copy of the relevant email in advance of trial.

The Claimant contends that the Welfare Plan was not amended and updated whilst the Claimant was at the school notwithstanding that her behaviour and mental state was a cause for increasing concern (see, for example, [30] and [31] above), and staff concerns about her “mental stability” (see [53] above). Reliance is also placed on the 12 detentions received by the Claimant between 17 September and 10 November as indicating a policy of punishment rather than “reinforcement”, contrary to the strategies suggested by Oteo Seijas’s report.

The internal school staff note referred to in paragraph 28.1 of the Particulars of Claim, quoted at [103] above, summarises the type of strategies outlined by Dr Oteo Seijas, using similar language. Contrary to the submissions on behalf of the Claimant, that document does not suggest, in my judgment, that members of staff were getting angry or failing to use appropriate strategies. In my view, the note evidences the care which the school was taking to ensure that the guidance provided was being disseminated to staff and taken into account, in accordance with the Welfare Plan.

Insofar as the Bolam test (see [82] to [84] above) may be applicable to certain aspects of the case advanced by the Claimant in respect of the school’s handling of the Claimant’s additional needs, I have no relevant expert evidence before me in relation to the professional practices of reasonably competent teachers in this regard. Approaching the Claimant’s case under Issue 2, as Ms McTague urged me to do, as primarily concerned with the “health and safety” duty owed by the school, then in my judgment, the documentation produced by the members of staff contemporaneously evidences (a) an awareness of the issues set out in the Dr Oteo Seijas’s psychological report and the associated behavioural issues and (b) sustained efforts being made by the school to take account of, and to give effect to, the guidance provided by Dr Oteo Seijas in his report.

It is clear to me that, both before and after the weekend of 27/28 September, members of staff devoted considerable amounts of time and effort to attempting to deal with Irune Pedrayes’s poor behaviour and the underlying causes of that poor behaviour. The internal communications between staff demonstrate, in my judgment, a very real concern about Irune Pedrayes’s behaviour and a recognition of the need to take particular care in relation to her. In particular:

Furthermore, the above points are consistent with the evidence of Mr Samson as to how the school attempted to engage with Irune Pedrayes and to address her complex psychological profile and her behavioural issues. It is clear that she was a student with difficult and complex behavioural issues which posed challenges for staff at the school and, I anticipate, would have posed real challenges to almost any mainstream school.

It is correct that the Claimant was consistently punished for her poor behaviour and the Claimant’s closing submissions accurately summarise the position as follows:

However, I have seen no evidence to suggest that the punishments were unwarranted, inappropriate or that they were somehow contrary to the generalised guidance provided by the Claimant’s treating psychologist. It is clear from the evidence, including Mr Samson’s evidence, that the school was attempting to set boundaries in relation to the Claimant’s behaviour and ensure that poor behaviour was not condoned and I have not seen any evidence to suggest that the school was negligent in the steps it took in this regard.

It is suggested on behalf of the Claimant that the Claimant’s behavioural issues after the weekend of 28/29 September were a result, at least in part, of untreated psychotic episodes. Leaving aside the question as to whether any such allegation is adequately pleaded, I am not able to conclude, on the evidence before me, that the school should have been able to detect any appreciable change in the pattern of the Claimant’s poor behaviour prior to and following the weekend of 28/29 September.

It is also necessary to have in mind the real difficulties faced by a school in the Defendant’s position. The finite time of members of staff during a school term will necessarily be divided between all the students within the care of the school. The evidence before me suggests that the time spent by the staff on caring for the Claimant was considerable.

Insofar as it was contended in submissions on behalf of the Claimant that the school was in breach of duty in failing to undertake a “risk assessment of the Claimant” and/or to treat her as a safeguarding concern, neither of these issues was, in my view, properly pleaded as constituting allegations of negligence. The Particulars of Claim do not allege that the school was negligent for failing to carry out a risk assessment and the only reference to “safeguarding” in the particulars of negligence relates to the report from the hospital to the Claimant’s General Practitioner which, it was common ground, would not have been seen by the school.

In closing submissions reliance was placed by Ms McTague on the fact that the Ofsted report of January 2019 had identified certain issues in relation to the standards of teaching for pupils with special educational needs and/or disabilities. However, at least part of the concern identified was that teachers did “not always” demonstrate “high enough expectations of what pupils can achieve… sometimes pupil’s work was too easy.” This appears to have been an educational issue, as opposed to one relating particularly to any “health and safety” issues which might arise in relation to children with special educational needs. This issue was not raised in the Particulars of Claim and was not, therefore, addressed in the Defendant’s evidence. In any event, I have not seen any other supporting evidence to indicate that this was a continuing issue.

In summary, there is no basis, in my judgment, for a finding that the school was negligent in relation to any of the pleaded particulars of negligence which might be said to fall within this Issue 2. I reject the contention that the school acted contrary to the professional guidance of Dr Oteo Seijas in the manner in which teachers dealt with the Claimant and attempted to manage her behaviour and I do not consider that the school otherwise failed to “manage her situation in a prudent manner” as alleged. To the contrary, it is evident to me that different members of staff devoted a considerable amount of time and effort to trying to manage the Claimant’s very challenging behaviour throughout her period of time at the school, and attempting to do so in accordance with Dr Oteo Seijas’s guidance.

As Mr Edwards implicitly accepted, the matters raised in Issue 2 in relation to the Defendant’s knowledge of the Claimant’s additional needs and the level of care which she required as a result of her psychological profile, are nevertheless relevant to the standard of care to be expected of the school and, accordingly, fall to be taken into account under Issue 1 (see, for example [96] above) and Issue 3, (see, for example [138] below).

It is alleged that the school was in breach of duty in that failing to discharge its duty of care to exercise adequate supervision of the Claimant with the result that, on the weekend of 27 September 2019, the Claimant was able to obtain “magic” from another student and smoke it in a vape “for an entire weekend” (at paragraph 28.2). It is further contended that “…the fact that the Claimant was able to consume illicit substances for an entire weekend, and also days later, is self-evidently demonstrative of a breach of duty to supervise a (known vulnerable) young person”. It is submitted that a reasonable level of supervision and inspection would have prevented or at least minimised the risk of this incident…” (paragraph 30). Further, it is also pleaded that “no school environment and no child should be allowed to have access to illicit substances …” (paragraph 31).

The reference in paragraph 30 of the Particulars of Claim ([120] above) to the use of drugs “days later”, relates back to an allegation that the Claimant smoked illicit substances, this time THC, “two days later”, i.e. on or about 2 October 2019. Irune Pedrayes’s witness statement did not contain any evidence that she continued to use drug after the weekend of 27/28 September, but she did give some oral evidence about continued drug use (THC) a few days after that weekend and, again, on 24 October ([54] above). The substantial focus of the allegations, however, was on the Claimant’s use of “magic” over the weekend of 27/28 September 2019.

On behalf of the Claimant, Ms McTague put the case under Issue 3 on the basis of (a) an alleged systemic failure on the part of the school to take reasonable care to prevent access and use of drugs by students at the school, including the Claimant, between September and November 2019, in the context of a known history of substance misuse at the school and a culture of tolerance towards illicit drugs and that the school failed properly to implement the control measures which its written policies required to be in place; and (b) that there was inadequate supervision and care of the Claimant herself, in particular over the weekend of 27-29 September 2019.

Ms McTague relied on the Ofsted report of January 2019, quoted at [66] above, which noted “recent concerns about students using drugs”. However, the report went on to state that this had “led to changes in risk assessments and supervision arrangements for ‘town leave’ and to enhancements in the PSHE curriculum” and that “Leaders are challenging and changing a culture of relaxed expectations, especially with older students. Appropriate use of exclusion for serious events is giving a clear message and keeping other pupils safe. Leaders are now establishing higher expectations of behaviour across the school”. The evidence of the Claimant herself was that the student who supplied her with the “magic” was expelled by the school (see [74] above). This does not support the contention that students acted with “impunity” when it came to drug use as was suggested in submissions and, to the contrary, appears to be consistent with the Ofsted assessment that the school was using expulsion as a means of enforcing its efforts to deter drug use.

Ms McTague did not criticise the content of the school’s written drug policy per se, but rather took issue with the extent to which the school enforced its policies. It was suggested that the fact that the Claimant was not disciplined or sanctioned for her admitted use of drugs evidenced an overly relaxed approach where students acted with impunity. That submission does not sit comfortably with the Claimant’s contention that the school failed to follow Dr Oteo Seijas’s guidance that punishment of the Claimant was likely to be counterproductive. In any event, as noted above, the evidence of the Claimant herself was that the student who supplied her with the “magic” was expelled by the school (see [74] above).

It was also suggested that the school was not making proper use of drug testing and, in support of this submission, it was submitted that the Claimant was not drug tested despite admitting to taking drugs on Monday 30 September 2019. I have not seen any evidence to support the unpleaded allegation that the school should have been carry out drug testing of students, nor that such testing would have accurately and reliably identified the range of substances, including mephedrone, which students might have been able to procure. In any event, Ms Callis’s evidence, on behalf of the Claimant, was that the school did undertake drug testing of students who were suspected of taking drugs (see [64] above).

As to the culture at the school more generally, the contemporaneous documents reveal that Mr Samson went to considerable lengths following the weekend of 28/29 September to liaise with the police in an effort to stop the supply of drugs to the school, as set out at [74] to [76] above, including providing the police with information he had obtained in respect of possible local sources of drugs. He also arranged for a private company to carry out a search of the school on two occasions in October 2019 with trained dogs in an attempt to detect drugs, as set out at [75] above.

It is correct to note that Ms Fernandez’s witness statement, summarised at [65] above, described the students as having “easy access” to various drugs, described the supervision of teachers as being “not very strict” and noted that increased checks were carried out after “Irune’s incident”, but her statement provides little detail. Conversely, Ms Callis’s witness statement provides rather more detailed evidence as to the measures which she observed the school taking to try to control access to drugs and drug use by students at the school. As set out at [64] above, she details searches, drug testing and inspections carried out by the school. If, as suggested on behalf of the Claimant, Ms Callis had been intending to describe steps taken by the school after 27-29 September 2019 and not before this date then I would have expected that to have been made clear in her statement. In fact, her summary is largely consistent with Mr Samson’s description of the range of efforts being made by the school to control drug access and use. Further, Ms Callis’s statement gives an insight into the particular problems posed to a school in trying to control the use of a drug like “magic” which, she described as requiring only “a few drops” to have an effect, as being easy to consume in a vape and as being odourless and so difficult for teachers to detect.

Ms McTague was critical of the absence of any witness evidence from teachers other than Mr Samson. She sought to draw parallels with the position in Dawkins v Carnival Plc (t/a P&O Cruises) [2011] EWCA Civ 1237 [2012] Lloyd’s Rep 1 (“Dawkins”) where the Court of Appeal emphasised, at [28], that the mere existence of a policy or a system is not evidence that the policy or system was implemented and described the absence of evidence in that case from staff members of the defendant that the relevant system was in fact implemented as “remarkable”. As noted further below, this was a case in which the court considered that a prima facie case of negligence had been established, such as to reverse the burden of proof.

In the present case, Mr Samson, as principal, took responsibility for the overall policies in place and was able to explain those policies and the procedures whilst the contemporaneous documentary evidence disclosed by the school was of assistance in enabling me to assess whether particular aspects of his evidence were or were not consistent with the contemporaneous documentary evidence. This is not a case in which I consider that I would have been greatly assisted by witness evidence, several years after the events in question, from different teachers at the school.

The Defendant was also criticised for the absence of documentary evidence in relation to various issues including school patrols, checks on packages entering the school and details of disciplinary records relating to other children evidencing the approach taken by the school in other instances of suspected drug use. I have not seen any correspondence in which such disclosure issues were raised with the Defendant in advance of trial. In general terms, I have been assisted by the contemporaneous written documentary evidence provided by the Defendant, extracts of which are set out in sections C and D above.

Another factor to which it is appropriate to have regard when considering the Claimant’s criticisms of the extent of the Defendant’s witness and documentary evidence, is the extent of the disconnect between the clear allegations of systemic failures on the part of the school advanced by Ms McTague in her submissions and the markedly less clear articulation of any such allegations of negligence in paragraphs 28 – 31 of the Claimant’s Particulars of Claim which set out the alleged breaches of duty. The Defendant’s evidence necessarily responded to the narrower scope of the allegations advanced against it in the Particulars of Claim.

In summary, the contemporaneous documentary evidence, together with the witness evidence I have seen and heard, is not indicative of a culture of tolerance or complacency on the part of the school in relation to illicit drugs, and nor does the evidence support the conclusion of systemic failings on the part of the school as now alleged. To the contrary, the documentary evidence demonstrates the significant and persistent efforts being taken by Mr Samson, personally, to tackle the issue of older students obtaining drugs and bringing them onto the school grounds. The documentary evidence, in general, supports Mr Samson’s evidence that he took these issues very seriously and made sustained efforts to attempt to deal with the issues of access to, and use of, illicit drugs by students at the school.

There is no doubt that in response to the incident of 27-29 September 2019 Mr Samson took additional measures, including specialist dog patrols, and engaged in extensive communications with the local police in a further attempt to address issues concerning access to, and use of, drugs by students. However, the fact that this incident elicited such a sustained response from Mr Samson supports his evidence that these issues concerned him deeply and that the school was attempting to tackle these issues by taking action on different fronts. It is unlikely that the incidents of 27-29 September 2019 would have elicited such a strong and sustained response from Mr Samson had the school had a culture of tolerance towards illicit drugs as now alleged.

In my judgment, the totality of the evidence does not support the conclusion that there was any systemic failure on the part of the school to take reasonable care to prevent access to drugs and/or use of drugs by students at the school, including the Claimant, between September and November 2019. I do not accept that the evidence indicates that the school had a culture of tolerance towards illicit drugs, nor that there was any systemic failure to take appropriate steps to implement the control measures which its written policies required to be in place in relation to such matters.

As is evident from [120] above, the pleaded allegations of breach focus on an alleged inadequacy of supervision of the Claimant by members of staff over the weekend of 28/29 September 2019.

As Mr Samson explained, Irune Pedrayes was “gated” the weekend, meaning that she was deprived of the privilege of a trip to town on the Saturday and so was confined to the school premises. As noted at [35] above, the school’s “weekend gating form” dated 28 September 2019 has the Claimant’s name at the top and provides for it “to be signed by a member of staff according to the schedule below”. There is then a box setting out times on Saturday 28 September from 1:30pm every hour until 9:30pm with initials in each box, except for 7.30pm. The “house tutor signature” box has been completed and someone has written beneath it “Irune took this very seriously”. The column for “Sunday” has been crossed through – which is consistent with Mr Samson’s evidence that trips to the town (at least for the relevant age group) took place on Saturday. I have not heard evidence from the housemistress, or whichever member of staff completed that form, but this record indicates that the school had a system in place for checking on “gated” students and a written record of those checks, as explained by Mr Samson.

As noted at [36] above, the email timed at half past midnight on 30 September from Ms Jenny O’Shea, the Claimant’s housemistress, to the school nurse records that Irune came to see her on the Saturday morning and she was offered paracetamol but did not take any. Ms O’Shea then personally walked the Claimant to the local medical centre around lunchtime and then to a pharmacy. A further email from Ms O’Shea records that she called Irune Pedrayes’s father on Saturday afternoon to explain the position and that Irune had told her that she had also spoken to him.

Whilst it is, of course, possible that there was also time that day, or in the evening, for Irune Pedrayes to spend some time vaping, the evidence does not suggest that she was left to her own devices to take drugs for “an entire weekend” as alleged (paragraph 28.2 of the Particulars of Claim). Indeed, the contemporaneous documentary evidence suggests that Ms O’Shea spent a considerable period of time with, or checking on, Irune Pedrayes throughout the day.

There is less information available as to the level of supervision and contact on Sunday 29. Mr Samson explained that there was a “patrol rota” in place at the school for staff to patrol the school to keep an eye on students at the weekend, but he noted that the school site is 40 acre site and so there is a limit as to what is achievable in practice.

Ms McTague submitted that the fact that a group of students were able to use a “class B” drug in plain sight on a rugby pitch on a Sunday morning gives rise to an inference of negligence or prima facie case of negligence, such as to reverse the burden of proof (i.e. res ipsa loquitur); Ms McTague relied on the Court of Appeal’s judgment in Dawkins at [24] in this regard (see [128] above).

Although the Claimant now alleges that she smoked “magic” on a rugby pitch on Sunday, I note that the report of the nurse the following day refers to her as vaping “in the boarding house” ([42] above). The Claimant was not expressly challenged in cross-examination on this inconsistency, but, as noted at [37] above, her own evidence indicates that her recollection of the events of that weekend, perhaps unsurprisingly, are vague and unreliable at least in part. Mr Samson expressed doubt as to whether the vaping occurred on the rugby pitch given that, he said, the rugby pitch was in full sight of the road and so any group of students could have been seen by any passing members of the public.

In any event, even assuming that the Claimant is correct in her recollection that the vaping took place on the rugby pitch, the fact that a group of students were able to smoke a vape containing a drug, unnoticed by members of staff, on a Sunday morning on a rugby pitch of a boarding school comprising 40 acres does not, in my judgment, give rise to an inference of negligence, or a prima facie case of negligence, such as to reverse the burden of proof. This is a long way from the situation, considered in Dawkins,at [24],where a hazard is present on the floor of premises under the management of the defendant. A school may deploy a range of measures to try to prevent drugs from entering the school premises and/or to prevent students from using drugs on the school’s premises; unfortunately, those measures may not be successful, even in the absence of any negligence. In the present case, even if a member of staff were to notice that a group of students had gathered on a rugby pitch, that member of staff might not be able to ascertain that the students were using a vape (let alone that the vape contained drugs) without walking over to the group with the express purpose of ascertaining what they were doing. I do not accept that a school is under a duty to investigate all potentially suspicious gatherings of students in this way and nor do I accept the submission on behalf of the Claimant that the mere fact that a group of students manage to use a vape in the middle of a rugby pitch is “clear evidence of a breach of duty” on the part of the school.

It is apparent from the contemporaneous documents that Ms O’Shea did have some contact with the Claimant on Sunday 29 September. In her email to the school nurse on Sunday night/early Monday morning Ms O’Shea records: “I have asked her over the remainder of the weekend how she is and each time she says fine and refuses medication. However, she did have 1 paracetamol at 19:00 this evening (Sunday). She seems well within herself but she will need to see the doctor if the symptoms persist”.

It will never be possible, and may well be inappropriate, for a boarding school to monitor and supervise every waking hour of a student at the weekend. As Mr Samson emphasised “we are a school and not a prison”. As noted by Lord Eassie in Hunter v Perth & Kinross Council [2001] SCLR 856, Court of Session, Outer House, ([81] above) the duty of care on a school does not extend to a duty to provide “all-pervasive supervision” of all students within its care at all times; the duty is to take reasonable care and to provide reasonable supervision in all the circumstances. The contemporaneous documents suggest that staff at the school had regular contact with Irune Pedrayes over the course of the weekend of Saturday 28 and, albeit to a lesser extent, on Sunday 29 September.

The school had knowledge of the Claimant’s additional needs and that her psychological profile meant that she may have particular vulnerabilities, as set out in the report from the Claimant’s former treating psychologist, Dr Rafael Oteo Seijas. That information is relevant to the standard of care generally, and I have taken it into account under Issue 1 above (at [96]). However, I am not satisfied, on the evidence I have seen, that the information held by the school meant that the school should have carried out a specific risk assessment in respect of the Claimant’s propensity to take illicit drugs, nor that the school should have identified her as a student with particular safeguarding concerns in respect of illicit drugs. These were not steps suggested in the report of Dr Rafael Oteo Seijas. Further, and in any event, no such allegations were squarely pleaded in the Particulars of Claim and so were not addressed directly in the Defence or the Defendant’s evidence. Had such a case been properly pleaded then it is reasonable to anticipate that the Defendant might well have set out a number of objections to any suggestion that a risk assessment or additional safeguarding measures should have resulted in enhanced supervision and/or restricted freedoms being imposed on the Claimant at the weekends, not least the potential adverse effects that any such restrictive measures might have had on the Claimant’s attitude and behaviour more generally.

On the evidence before me, the Defendant school, in my judgment, did not breach its duty to take reasonable care in relation to either the alleged systemic failure on the part of the school to prevent access to, and use of, illicit drugs by students at the school, including the Claimant, between September and November 2019 and/or the alleged failure to supervise and take care of the Claimant over the weekend of 27-29 September 2019 in particular.

Conclusion

For the reasons set out at [86] to [102] above, the Claimant’s claim succeeds on Issue 1. In my judgment, the Defendant school acted negligently, in breach of its duty of care to the Claimant, in failing to inform the Claimant’s parents timeously on, or shortly after, 30 September 2019 that the Claimant had admitting to the school nurse that she had taken “some drugs” the previous day, had been observed by the nurse to have “paranoid and manic symptoms” which were suspected to be a result of that admitted drug use, and had been taken to hospital to be checked as a result. The school gave the Claimant’s parents misleadingly incomplete information about this incident and about the injuries which the Claimant had sustained as a result. In light of the agreement reached by the parties during the course of trial, causation and quantum are not in issue.

The Claimant’s case on Issue 2 is dismissed for the reasons set out at [103] to [118] above: the Defendant school did not act in breach of its duties of care to the Claimant, in my judgment, in relation to its treatment of the Claimant’s additional needs and/or its response to the guidance it had received from the Claimant’s psychologist.

The Claimant’s case on Issue 3 is dismissed for the reasons set out at [120] to [146] above: in my judgment the Defendant school did not act in breach of its duties in relation to either the alleged systemic failure on the part of the school to prevent access to, and use of, illicit drugs by students at the school, including the Claimant, between September and November 2019 and/or the alleged failure to supervise and take care of the Claimant over the weekend of 27-29 September 2019 in particular.

Accordingly, there will be judgment for the Claimant on Issue 1 with damages agreed in the sum of £60,000 for general damages and £85,000 for special damages, inclusive of interest.

I am very grateful to both counsel for their helpful submissions and for the manner in which they both conducted the trial.