Rigby v Wandsworth Borough Council

This case concerns the Claimant’s action for damages for personal injury arising out of two incidents at her place of work, the first being in late January/early February 2001 and the second on 4^th May 2001.

At the time of the incidents, the Claimant was employed by the Defendant at Bradstow School in Broadstairs as Assistant Head Teacher. Her duties included, inter alia, being in charge of the primary department, taking responsibility for the school’s curriculum and child protection officer. She first worked at the school in January 1999, when she was engaged as a curriculum consultant. She was made acting Head of the Primary Department in September 1999.

Bradstow School is a mixed special residential school maintained by the London Borough of Wandsworth. It caters for pupils aged between 5 and 19 years who have severe and complex learning difficulties. Most pupils are diagnosed with autistic spectrum disorder (ASD). The school itself is set on a large self-contained site of over 13 acres of parkland. It opened in 1979 and is one of a very small number of schools in the United Kingdom that are designed to meet the needs of pupils with ASD. Pupils come mainly from Wandsworth and other London Boroughs, but some come from further afield due to the scarcity of the specialist provision.

Autistic spectrum disorder indicates a wide range of levels of difficulty. Bradstow School caters for those with marked or severe difficulties. Most of the pupils have already been excluded at least once from other mainstream schools as a result of their challenging behaviour. The majority will have been “statemented” in previous schools as requiring at least 1:1 supervision.

From about November 1998, the school roll has stood at about 50 pupils. There are some 11 qualified members of the teaching staff with about 39 education support staff. The headmaster Mr Bert Furze came to the school in 1997.

The two incidents involved one of the pupils LS. He was born on 3^rd October 1987 and suffered from global development delay with challenging and emotionally disturbed behaviour. He had no verbal communication skills.

The Claimant’s case is that the incidents were caused by the defendant’s negligence and/or breach of contract by failing to exercise reasonable care and skill for her health and safety and operate a safe system of work. It is alleged that the defendant was in breach of a duty of care to ensure the above.

The broad headings relied on in the Particulars of Claim are as follows:

The defendant, whilst accepting it owed the Claimant a duty of care, denies negligence and/or breach of contract. It is contended that the nature of the job, i.e. dealing with very disturbed and challenging pupils means that both staff and other children do occasionally suffer injury. That is unfortunate but inevitable, and much is done to minimise the risk of injury as far as it is possible to do so. All potential employees are told at interview that they can expect to be bitten, hit, scratched and verbally abused by the pupils. They are aware of the risks of working with these children before they decide to become members of staff. The risk of injury cannot be totally eliminated in an environment of this nature.

The defendant denies that there was no adequate induction to the school for the Claimant. Further the defendant contends that the Claimant is fundamentally in error in the way the claim is advanced about the need for 1:1 funded supervision. It claims that policies and assessments were in place. It is contended that LS was not the most challenging pupil at the school. He was “high frequency, low intensity” in terms of the risk of violence to the staff and others.

The defendant contends that, if there were any failings, then they lay at the door of the Claimant herself, who did not follow proper procedures and took inappropriate risks, despite her in-depth knowledge of LS. She was the person responsible for LS as she had been his form teacher for two terms and she knew his nature and propensities better than anyone else. It was her duty to call an internal review meeting or other such steps, if there were any concerns about LS. She did not do so.

The following is a summary of the evidence, distilled from some 128 closely typed pages of evidence. The fact that a certain piece of evidence has not been mentioned does not mean that it has not been considered, it has.

In her statement dated 31^st August 2005, and in evidence in chief, Miss Rigby gives her background and training. She is qualified to teach in primary education. She has training and experience in that and other fields including various special needs courses; curriculum policies, assessment and target setting; therapeutic crisis intervention; permissible forms of restraint; managing aggressive and difficult behaviour.

She first worked at Bradstow school in January 1999, when she was engaged as a curriculum consultant. She was made acting Head of the Primary Department in September 1999. At the time of the incidents, she was employed at the school as Assistant Head Teacher. Her role involved class teaching, being in charge of the primary department, responsibility for the school’s curriculum, child protection liaison and training officer and multi-agency working for looked-after children. She was not responsible for behaviour management nor for applying for funding for 1:1 supervision.

At the time of the incidents she had received no training in how to draw up risk assessments or individual education plans for children with special needs. She had received no induction course, following her appointment as assistant teacher, nor any training about the school’s policies and procedures in relation to dealing with violence. She was not trained to deal with autistic children with severe learning difficulties until February 2001. She received no school policies or handbooks. She was not aware of a regular review of the incident sheets or of any risk management plan. She attended a SCIP course in April 1999 (Strategies for Crisis Intervention and Prevention). No member of staff sat down with her to go through the behaviour management plans, nor was she given a mentor. She never had a 1:1 meeting with the behaviour management manager; matters were discussed in meetings. She did however share a room with the behaviour management manager.

LS was a challenging child. He was about 5 foot 4 inches tall, he was attention seeking and hyperactive. She had been aware even in the early days when she was a consultant that he was an “escaper”. She was aware that he had attacked members of staff in the past and she had seen some staff with scratches and bruises as a result of his behaviour.

LS was capable of manipulating situations and was aware of what he was doing. He needed 1:1 supervision and it was possible on occasions for the staff to provide this, but LS was difficult to handle and sometimes it required two staff to move him. Mr Furze himself would be called in to deal with LS and would often use “non- SCIP” manoeuvres to do so.

From September 2000, when she became LS’s teacher there were meant to be three members of staff in her classroom, but often there were only two. LS required one person’s attention all the time and this sometimes left only one person to deal with the needs of the other pupils. There would be weekly meetings with the staff to discuss the pupils at which issues would be raised about LS and the lack of staff to deal with him. She sets out a number of occasions when this concern was raised with the other members of senior management.

On 3^rd October 2000 the staffing problem was discussed at a meeting. Concern was expressed by the staff about staffing levels given that one person was required to give LS attention all the time. Miss Rigby discussed this concern after the meeting with Cathy Evaristo Boyce, the deputy head teacher. The response to this concern from the Head and the Deputy, was that it was due to staff illness, and that the teachers should reduce the demand on pupils to correspondingly decrease the challenging behaviour.

On 11^th and 18^th October 2000, an internal review was called and held. The subject was that of LS’s stripping and smearing his faeces over the room and his hitting and pinching members of staff. During a medical of LS which took place on 16^th January 2001, the doctor was unable to examine LS as he was so difficult to contain. The doctor indicated that LS should have a designated 1-1 staff member in addition to the class staff. Miss Rigby conveyed this advice to the headmaster, who responded that the doctor knew nothing about the students. Mr Furze made it clear that he did not advocate 1:1 supervision.

The first incident in relation to the claim, occurred sometime at the end of January/ beginning of February 2001. She was in a class of six pupils with two assistants. There was a bolt on the inside of the door of the classroom to slow LS if he was attempting to run out of the room. LS unbolted the door and ran out. Miss Rigby heard a member of the kitchen staff call out LS’s name and so she ran through the dining room and pantry into the kitchen. LS was standing in front of a pan of boiling water on the cooker. He was trying to reach a tray of puddings at the back of the cooker by stretching over the pan. At that time one of the kitchen staff was in the pantry and another in the preparation room. In order to protect LS from hurting himself, Miss Rigby pulled him away and in so doing LS wrenched her left arm and shoulder. She did not adopt a SCIP manoeuvre as it would not have worked in that environment. LS then grabbed a handful of margarine from the table in front of him and began to eat it. This made it difficult to control him. By that time, one of the kitchen staff had alerted Melodie Channing, one of the classroom assistants, who came into the kitchen to help her remove LS from the kitchen.

At lunchtime Miss Rigby completed an accident report form which was a procedure newly introduced into the school – such reports being sent to the LEA. She then reported the incident to Mr Furze. He joked and asked why she had not done a SCIP manoeuvre. She asked for an additional bolt to be put on the classroom door. Mr Furze was uneasy about this due to fire regulations, but he instructed her to get the caretaker to put a bolt on the pantry door. Mr Furze asked if she was injured and he told her to “take it easy” and bring LS to him if there was any trouble. They parted with him saying jokingly that she needed to keep up her training and running skills.

Miss Rigby says that she suffered a sprain in her left elbow and shoulder as a consequence of this incident. She had never suffered pain in her left shoulder or elbow prior to this. She is left-handed. She had started playing badminton again when she went to the school and remembered being stiff but had had no problem with her shoulder. She had played badminton in her youth at county and country level. Due to staff shortages, she continued working whilst undergoing physiotherapy weekly. Had there been a dedicated 1:1 supervision for LS, Miss Rigby says that she would not have been injured.

Following this attack, Miss Rigby told Mr Furze that the risk assessments were not proper assessments carried out by a competent person, they were merely pen pictures. She completed risk assessments on 1^st February 2001, having received no training in how to do them.

One of the auditors from the LEA had given a presentation on risk assessments. Governors and senior management were asked to go to the presentation and consequently, Mr Furze had asked the members of staff to brainstorm and think of all the risks within their area. Although all of the information was put together in one document, as far as she was aware, nothing further happened after that.

According to Miss Rigby, there was no scope in the risk assessment document for inserting a comment to the effect that the pupil needed dedicated 1:1 support, without which, the school was not appropriate for such a pupil. Nevertheless, she had asked if the risk assessment could be used to apply for 1:1 support. Mr Furze had declined, as he did not agree with 1:1 funding. He suggested that she speak to the behaviour manager Sarah Dunn to see what could be done and commented, that as department head, Miss Rigby should be doing more to motivate her staff. According to Miss Rigby, whenever staff raised the problems with LS, Mr Furze made a joke along the lines that they, the staff, were inadequate. Three members of staff ( Denise, Lorraine and Tracey) had said they did not find it amusing.

On 27^th March 2001, LS assaulted April Young, one of the classroom assistants, by pushing her into a window. Young was off work for several weeks. The following day, Mr Furze wrote to Brent Council, indicating that the school was now unable to meet LS’s needs with the current level of resources available, and that they were going to have to seek funding for 1:1 support for him at all times. Miss Rigby asserts that Mr Furze should have insisted on dedicated 1:1 support for LS from February 1997 when he first joined the school.

On 28^th March 2001 an inspection was carried out by the Health and Safety Inspectors of the Defendant’s Occupational Health and Safety Unit. A number of recommendations were made in the report.

On 3^rd April 2001, the annual review of LS was carried out. It was noted in the review that LS needed 1:1 supervision to deal with his increasingly challenging behaviour.

The second incident took place on 4^th May 2001. Miss Rigby and an assistant Jules Ward, had gone out with three pupils, including LS, to post some letters in the post box just outside the school walls. Due to his disruptive nature, LS could not be left in the classroom whilst tidying-up was taking place. On the way back from posting the letters, LS was walking up the drive with Miss Rigby. On reaching the top of the drive LS pulled away from her, jumped onto a bike propped up against the fence and tried to climb over the fence. Miss Rigby pulled him off the bike. LS then jumped on the bonnet of a car and hit the window with his head and hands. She tried to pull him off. He grabbed hold of her jumper and pulled at her left arm, which caused her a great deal of pain. When she saw other members of staff approaching, she let go of LS. Had she had a two-person escort, Miss Rigby contends that she would not have been injured.

Miss Rigby spoke to Mr Furze before leaving to go for a physiotherapy appointment. Mr Furze was very caring and concerned about the level of pain she was in.

In Miss Rigby’s view, if there had been a dedicated 1:1 carer for LS, the incidents complained of would not have occurred. She details the injuries suffered, the history of treatment and the effect of the injuries- physically, emotionally and practically. She describes her current self- employed work situation.

Cross examined, in some detail, in summary Miss Rigby said the following:

In re-examination she said:

In response to questions from the bench she said:

Nita Kennedy gave evidence. In her statement dated 20^th June 2005 she explained that she worked at Bradstow School as a school nurse from February 1997 to October 2001. She recalled LS as being a “very active boy”. She found him manipulative and thought that he knew the relationship between cause and effect. She opined about his need for 1:1 support. She felt a detailed assessment should have been done of the pupils at the entry stage in order to meet their particular needs properly.

She was not around when Bert Furze dealt with LS specifically, but typically, he would get the pupils by their collars and march them away, taking them to his office and getting them to sit against the wall.

Having been given leave to ask questions on a topic not reflected in the statement, (the witness having sat in court that day listening to the evidence of Miss Rigby), Miss Kennedy described what happened at the medical examination of 16^th January 2001.

She had attended the medical of LS on 16^th January 2001. Dr Naidu was the doctor. LS was squatting in the corner and Miss Rigby was trying to hold onto him with one arm while LS was trying to get to the back of the doctor. The session had only lasted a few minutes as Judith Rigby was attempting to answer the questions the doctor was asking her. It was Miss Kennedy’s practice to see the staff member some time after the medical to discuss the pupil who had been examined.

Cross examined she said:

Sue Costa, a former classroom assistant, gave evidence. Her statement is dated 27^th October 2004. She worked at the school between May 2002 and August 2004. She met Miss Rigby independently of the school, as Miss Rigby was doing some private tutoring for her daughter. When she first started at the school she was not made aware that any particular child had special difficulties. When she came for interview, she had spent some time in a class but LS was not in that particular class. She was in LS’s class for four weeks as his 1:1 carer was off sick. LS had 1:1 care provided by a number of assistants who would take it in turns. She herself found LS very demanding and he regularly slapped and scratched her, so much so that she wore gloves.

She was given a lot of information about training and policies when she joined the school and had in depth SCIP training. This continued weekly. She had an induction pack and spent time in different areas. She did not have behaviour management induction but was told to do the SCIP course. The level of staff sickness was high because the staff picked up illnesses from the children, who did not go home when they were ill save for serious conditions.

In the Spring of 2004 the head teacher called the half-term classroom assistants’ meeting. He indicated that he had heard staff saying “if so and so were not in the class it would be much nicer”. He said that the school was the pupils’ last chance and he was not going to let the school fail them. If anyone did not like it there were forms in his office for them to complete – he held up a form and read it out – the effect of which was to give in their notice. The message was that if they did not want to take the risk of working with pupils of challenging behaviour then they should leave. Mr Furze was quite confrontational with the pupils, standing in front of them or holding them against the floor with his body weight. This is not SCIP procedure.

Cross examined she said that the 1:1 carer would just be an extra pair of hands. She was given a lot of information about policies and training and in- depth SCIP training. The weekly SCIP sessions were continuing development of the SCIP course. After the incident with LS, Mr Furze asked her if she was content to carry on, as he wanted to be satisfied that she was happy to continue. They understood by the nature of the work they were doing, that there was a risk of being assaulted. At the meeting in 2004 she did not take the view that Mr Furze, in a jokey fashion, was saying they could resign.

April Young gave evidence. Her statement is dated 24^th June 2005. She started working at the school in 1997 and was a classroom assistant in LS’s class from 1998 to 1999. LS was a lively pupil who disrupted the class when he could. Sometimes he needed two or even three members of staff when he was out of the classroom or his clothes or pads needed changing. He did not have a dedicated 1:1 carer.

She was assaulted by LS in March 2001 when LS ran past her jumping at the same time, which was normal behaviour. This time he pushed her with some force, such that she fell backwards against a window ledge and struck the base of her spine. She was winded and could not breathe and had three weeks off work. She completed an accident report form. She always does an accident and an incident report form.

Cross examined she agreed that 1:1 care can be provided even if the funding is not in place. The 1:1 supervision they provided in the class was very much as described in Melodie Channing’s statement. A member of staff would be allocated to LS at the beginning of the day. When they were assigned to pupils, they were given pen pictures of them and some behaviour sheets. There was also SCIP training concerning how to deal with the individual person.

Melodie Channing was the last of the lay witnesses to give evidence on behalf of the Claimant. Her statement is dated 6^th January 2005. She worked as a classroom assistant between September 2000 and July 2001. She was in the same class as Judith Rigby who was the teacher. LS was very challenging. Every day he would pinch, hit her and pull her hair. None of the assaults was as serious as those suffered by Miss Rigby. The other boys were generally quiet.

She tells of two incidents when LS caused Miss Rigby injury. The first occasion was before Christmas 2000 when LS escaped from the classroom. There were two or three classroom assistants in addition to Miss Rigby and five pupils. LS opened the door and ran to the kitchen. Miss Rigby ran after him. Having checked it was all right to leave whoever was in class, she ran after him and found LS eating food, (she thought some bread), which had been left on the work surface. Miss Rigby held on to LS’s arm reassuringly and then LS made a pulling motion and twisted. This caused Miss Rigby to wince in pain, as LS had twisted her shoulder. Miss Rigby was unable to escort LS back to the classroom as she was in pain, so Melodie Channing and another classroom assistant came in and helped to take him back to class. She advised Miss Rigby to put the incident in the accident book.

The second incident was early in the New Year when she was working in the class with one other assistant. Miss Rigby and LS were in the quiet area of the classroom when LS jumped over the partition and knocked objects off the tables. Miss Rigby called his name and he laughed and grabbed at her jumper and pulled her arm violently. Melodie Channing grabbed his arm and said stop, which he did, but he twisted Miss Rigby’s arm in the process.

During the time in class, LS would have the support of one staff member, either an assistant or teacher. There was not someone specifically appointed to be a 1:1 carer, but someone nominated on a daily basis to look after him on a 1:1 basis. This was discussed before the pupils came into class. This person was not in addition to the staff, but was one of them. Sometimes, on the rare occasions when there was a spare member of staff, this person would be brought in to support LS.

It was stressful working with LS, and as he got older the incidents seemed to get more difficult to control. They had weekly class meetings and they would discuss LS’s behaviour on a daily basis. The staff would discuss the low level of staffing with Miss Rigby and she assumed the comments would be passed on. In her view LS needed 2:1 support.

Cross examined she said that she had not worked with ASD children before. She was told by Miss Rigby to read the files and would have gone through them. There was no further discussion with Miss Rigby after having read the files. Having seen a letter she wrote on 5^th February 2002 indicating that there were three assistants present at the first incident, she agreed that that was most probably correct.

They would rotate the duty of looking after LS, and there were times when she felt that she was being made to deal with him most of the time and she felt she could not cope. At the time of the incident she thought that Miss Rigby was working with him. Even if there were only two classroom assistants someone would be specifically allocated to work with him. He did not have someone specifically appointed as a full time carer but every day there would be a nominated person, which would change during the course of the day depending on staff levels. It was not unusual for Miss Rigby to take an individual pupil to Mr Furze if they were being unruly and she did take LS to Mr Furze. She did this as a last sanction, right up until the time she left.

In re-examination she said that she could only recall two occasions when Mr Furze removed LS from the class. He would come into the classroom, hold onto his clothing and march him into his office.

Mr Furze made a statement dated 26^th September 2005. He is Head of Bradstow school. He first became a teacher in 1981 and progressed over the next eight to nine years to the position of head teacher of a school for children with autism and severe learning difficulties until he moved to Bradstow in 1997.

He describes Bradstow school and the nature of autism. The pupils who come to Bradstow are those who have severe difficulties and who, on the whole, have already been excluded at least once from other schools as a result of their challenging behaviour. All have been formally statemented. The school is the end of the line for those pupils who attend. There were 34 pupils when he joined. This expanded to 50 by November 1998 and remains at that level to date. There were about 180 staff.

Mr Furze indicates that as a consequence of the nature of the pupils and their challenging behaviour, both staff and other children occasionally suffered injury. This was unfortunate but inevitable, and much was and is done to minimise the risk of injury as far as it was and is possible to do so. He says that all potential employees are told at interview that they can expect to be bitten, hit, scratched and verbally abused by the pupils, so that they are aware of the risks of working with the children before they decide whether to join. All who work at the school are aware of the risk of injury involved in this type of work. There is no escaping this, irrespective of the procedures that are in place.

Well over 70% of those coming to the school have indicated in their statements a 1:1 or even 2:1 or 3:1 supervision ratio. The staff will put in what support is considered to be necessary for the individual pupil. LS had been assessed as needing 1:1 supervision in the statement, but the statement did not provide funding for that supervision. The tariff for a school with SLD (Severe Learning Disability) or ASD ( Autistic Spectrum Disorder) children is one teacher plus two assistants to every six children.

When Mr Furze came to the school, there were different procedures for dealing with student behaviour. There was no nationally recognised system at the time, so he decided like every other establishment, that they should develop their own strategies – ones which involved minimum use of force and consideration of the rights of the students. SCIP was the system chosen, the aim of which was to improve the quality of life of the pupils by providing staff with the necessary information and skills to create a supportive environment. SCIP also increased the confidence of those dealing with the pupils to develop a proactive approach to the management of crises, the key points being prevention and early detection. From 1999 this training took place at the school, Miss Rigby being one of the first members of staff to be trained.

In order for SCIP to be fully operative, all staff need to know the behaviour of each pupil intimately, and to this end risk assessments and behaviour support plans had been produced for every pupil. The Claimant, as class teacher of LS, would have been thoroughly briefed on each pupil by the previous teacher, Stephen Vickery. Additionally she had had contact with LS on a daily basis over the lunch hour when her previous class mixed with the other two junior classes.

Each pupil was the subject of an annual review. In between the annual review were internal reviews and behaviour management meetings held with such frequency as was required by the pupil. There were also support plans and individual education plans for each student, and staff were instructed to fill out incident report sheets. Mr Furze set out the various documents, which were in existence, including behaviour management plans and risk assessments which were all available to the Claimant. In this way pupils were continually monitored and their needs and risks reviewed. If it was identified at the annual review or internal review that as a result of the child‘s behaviour additional funding was required, then it would be applied for. There was only one internal review raised by the Claimant re LS in October 2000. This indicated to him that the Claimant had no concern about the staffing provision until the spring of 2001 where in the annual review the concern was raised and extra funding was sought. The onset of puberty was a time, which is often quite difficult for a pupil and it can cause problems. The Claimant did not raise any such concerns with him before this time either at weekly meetings or informally. If she had such concerns, she was under a duty to raise them with him or other senior management or to call an internal review.

Commenting on the cv and application form of the Claimant, Mr Furze observed that she had presented herself and been found on interview to be fully qualified for the post she held. In practice, his opinion was that she was not in her element in the classroom, and the senior staff had afforded her a great deal of support. Miss Rigby’s class was given extra support as LS was in it and he was highly disruptive. They also offered encouragement and counselling. He had advised her not to let LS shake her arms up and down vigorously and to use an alternative strategy such as holding on to LS’s belt loop to retain contact with him.

There was close supervision of LS at all times, as evidenced by the annual review of 2000 completed by the Claimant, although funding had not been provided. He was not one of the most challenging pupils, being “high frequency/low intensity”. He would pinch and scratch, nothing serious. There were five to six pupils there who were potentially lethal, two of which he has since had to permanently exclude as their behaviour was so extreme. If children are excluded there is high risk that they will be sectioned, which is devastating.

Dealing with the first incident, he observed that it was the Claimant’s duty to ensure that LS did not unlock the internal lock, and, that if he had done it before, consideration should have been given to the fitting of a star lock. Miss Rigby was the head of department. He commented that as there was no incident report form filled in, that the Claimant cannot have thought the incident important at the time.

With regard to the second incident, he observed that given that the Claimant had identified that LS needed 1:1 support in the annual review of April 2001, she demonstrated questionable judgement (“daft”) by taking LS out if she did not have sufficient resources. A SCIP procedure is to ignore the child and let the event subside in cases where, like this one, it is known that he likes to tap car windows and does not cause any damage to himself.

Mr Furze was cross examined at some length, often repetitiously. In summary he said:

Re-examined, he said he had asked for the Health and Safety inspection as he wanted to get Sarah Dunn out of the classroom to be a full-time behaviour management officer. He thought, but could not say definitively, that the inspector had seen the risk assessment done by Judith Rigby.

The annual review of 2000 had shown that LS had made improvements in many areas. No alarm bells were being sounded in relation to LS. The report had been compiled by Steve Vickery, an excellent class teacher, and LS’s house parent. The annual review was signed by Mr Furze, Vickery, Fisher, Holbourne and Kennedy.

Turning to LS’s behaviour in 2001 – there was a very, very low number of incidents recorded in the first part of 2001, below average in the context of the other students.

The essence of SCIP in relation to physical restraint is to maintain body alignment, so that for instance one did not pull an arm out of the way, one held onto long bones not joints. There was the use of wraps, sitting in support position and maintaining them lying prone for the really serious incidents.

He went through the class list to indicate those pupils for whom 1:1 funding had been obtained after they had arrived at the school.

Sarah Dunn is Assistant Head Teacher and Behaviour Manager at the school. Her statement is dated 23^rd September 2005. She was first employed at the school in 1987. She and Miss Rigby were both promoted to the post of Assistant Head Teacher at the same time. They shared a room. They both taught for three days and devoted the other two days to their areas of specialist responsibility.

In 1997/1998 Ms Dunn took a two year post graduate diploma in applied psychology and it was at this time that she learnt about SCIP.

Since 1997, when Mr Furze joined the school they had been in the process of improving training for the staff in relation to challenging behaviour. SCIP was the main vehicle for this as described in her statement. She herself was trained as a SCIP instructor in November 1999, having first been trained in it at an earlier stage. All staff were trained in SCIP by January 2000.

Individual Education Plans (IEP) were used to address each individual pupil’s learning difficulties, and were geared to anticipating their needs. This acts as a defusing mechanism for potentially challenging behaviour. A summary of the plans for each pupil is contained in the Behavioural Support Plan, responsibility for such document falling to the class teacher. The support plan sets out everything about the students including the strategies. In addition to this there are behaviour strategies to be implemented when problem behaviour occurs. The Individual Behaviour Scale was a response to staff confusion about whether to physically intervene. It tells staff at each level what to do and gives them guidance even though they have a Behaviour Support Plan.

Since 2000/2001 Health and Safety Risk Assessments have replaced the Behaviour Audits. In June 2000 she and Mr Furze developed new Individual Risk Assessments and she introduced it to the teachers in the autumn term. She went through the form identifying what was low, medium and high risk and how to fill in the strategies. If Miss Rigby had not been there, she would have got the minutes of the meeting and if she did not understand Ms Dunn would have gone through it with her. Miss Rigby did not express any concern on doing the risk assessments.

All the documents on the pupil are held in their file. There is a copy held centrally and a copy is available to the staff in the classroom. Anyone coming into the classroom would be aware of the events, which could trigger a pupil’s behaviour.

There is a system of internal reviews, which can be initiated by the staff for a number of reasons including behaviour management problems. Incident sheets are used for every behavioural “event” and used as a tool for noting any changes in the pupil’s behaviour. It is normal for a number of these to be completed in the school in any given day. If injury ensues, then an accident report also has to be filled in. Changes to the plans and recommendations re students would often come about after the annual review. The internal review is also an avenue for change.

Ms Dunn has no recollection of Miss Rigby complaining about LS or of her being concerned about the student/staff ratio. As Head of Department she had the power to make changes to the staffing required. If there had been so much concern on the part of Miss Rigby about LS’s behaviour, she would have expected to see more internal reviews called by her. Miss Rigby did discuss her concerns about two or three other pupils but not LS. There is only one internal review generated by Miss Rigby in her time at the school on the 11^th October concerning LS “anal poking”. The strategy adopted after the review was to put him a Unitard (like a leotard) and on 27^th November 2000, Miss Rigby expresses the view that the “Unitard was brilliant – no more smearing all day” ( Page 228).

Miss Dunn gave high praise to Miss Rigby for her academic and organisational skills, but commented that she had noticed that dealing with the students was not Miss Rigby’s forte and thus she was given extra support.

Dealing with the incidents – she pointed out that Miss Rigby should have filled in an incident sheet in respect of LS. She had filled in incident sheets in the first three months of 2001 in respect of other pupils but not in respect of LS (pages 230 to 235). She records in her statement, that Miss Rigby on one occasion was rubbing her shoulder, complaining not about LS, but a number of children pulling her arms. This accords with the letter written by her GP dated 10^th May 2001, recording the same complaint – namely, a number of children pulling her arm (page 239) . Pulling had been discussed in the SCIP sessions, because it is in the handbook about not pulling students. Dealing with the second incident, she observed that given that the annual review had identified just a month earlier that LS needed 1:1 support at all times, Miss Rigby showed poor judgement in taking LS out together with another assistant and the two other students. Pulling a pupil is not part of SCIP procedure and LS’s reaction to the pulling was entirely predictable and avoidable. LS had a propensity for tapping windows – that is checking the environment – which is common behaviour in autistic children. Cars are parked at the owner’s risk. If ignored, LS would have got bored and desisted.

Cross examined she said:

In re-examination, she said that immediately following the Health and Safety report, she had taken an extra day out of school to be available for staff. She then became a full time behaviour manager in September 2002 once the funding was available and by September 2003 she had acquired an assistant who helped her with the newly designed database and other tasks.

The INSET training days covered all topics. She explained the background to the 2004 meeting Mr Furze had with the staff in which Mr Furze had told the staff not to make inappropriate remarks about students. Sue Costa who had been the object of a very serious incident, having moved classrooms at her own request, subsequently left the school.

Cathy Evaristo Boyce is the deputy head teacher. Her statement is dated 26^th September 2005. She has been at the school since 1985. Mr Furze came to the school in 1997, and since then, he has instituted many positive changes to the school. He is a strong leader and a very good “people” person and very supportive of the staff and students.

She was line manager to Ms Dunn and Miss Rigby. Miss Rigby was very bright, confident, articulate but emotional at times. She was competent and efficient. Her inter-personal skills were her weak point and they gave as her as much support as they could, in particular in dealing with the children. Ms Dunn and Ms Boyce would often talk through Miss Rigby’s problems with her. Miss Rigby was responsible for everything to do with running the classroom, the timetable, Individual Education Plans, Behaviour Management Plans and the staff in her department.

She had discussions with Miss Rigby on how to manage LS having seen him pull her arms on more than one occasion. She suggested that Miss Rigby encourage LS to link arms with her and the other staff instead.

All new contact staff are asked to spend a period of time in the class or team prior to interview, as when they attend it is made clear to them the type of pupils they may have to deal with. Miss Rigby was well aware of the kind of work being a teacher there entailed. She had had the luxury of two terms induction when she was curriculum consultant. She had 1:1 support and training from Mr Furze on autism, Sarah Dunn on behaviour, Jasmine on speech and language, policy, procedures and management of staff from Ms Boyce.

There were Education Management Committee meetings every Thursday morning and Senior Management meetings every Monday evening and all issues were discussed. Miss Rigby also had every opportunity to raise issues with herself and Ms Dunn, because the three of them shared an office.

When Miss Rigby discussed her concerns in the classroom, four pupils were mentioned including LS, but he did not dominate the conversations. To the contrary, it was the other three who did. She did not recall a single occasion when Miss Rigby complained that she did not have enough staff support for him. If she had raised the issue, they would have discussed it and Ms Boyce would have told her to re-organise the staff in a different way. If she still could not manage, then it would have been her responsibility to bring it to everyone’s attention by raising it at an internal review and then by going to see Ms Boyce or Mr Furze.

Cross examined she said:

Re-examined, she said that with reference to the Health and Safety and IIP reports, they were discussed at the management meetings. Miss Rigby never complained that she had not received any induction or risk assessment training.

Steven Vickery is a teacher at the school. His statement is dated 19^th July 2005. He came to work at the school after his degree in 1994. In 1999 he became a fully qualified teacher. LS has been a pupil of his for much of his time at the school save for September 2000 to July 2002.

LS is not the most challenging student in the school by far, but he is demanding, as he is hyperactive and needs a high level of support. In practice he has been given 1:1 supervision from the school’s established staff. This is not unusual even if funding has not yet been obtained.

When he was teaching LS, it was in a class of 6 pupils with 2 or 3 assistants. He was responsible for allocating the staff to support the students. He never had any difficulties with LS, because his behaviour followed a predictable pattern for which there were stratagems to deal with it. These patterns are written up in the Behaviour Support Plan, and that, plus other information was handed to Miss Rigby when she took over from him the responsibility for teaching LS. The BSP is part of the SCIP training. Even when Miss Rigby had not been LS’s teacher, as head of the junior school she would see him most days. On the handover, Mr Vickery gave Miss Rigby a thorough briefing on LS.

Looking at the incident sheets at the beginning of 2000, he was LS’s teacher then. The incidents were discussed at the time and put down to puberty. It was a confusing time for LS and he did not understand his feelings. There was an improvement later.

When he handed over to Judith Rigby, he gave her the relevant documents for LS and discussed him with her. There were two files, an IEP file which had all the current documentation including long-term and short-term targets and behaviour information and a historical case file, which included annual reviews. The class teacher was responsible for updating the files and making changes in the behaviour plans.

Dealing with the second incident. If he had taken LS down to the post box, he would not have taken him by himself. He would have taken an additional staff member, as LS has no sense of danger and may have run into the road. He would not have pulled LS from the car, as LS likes tapping on car windows, but not in a violent way. This would have avoided any response from LS on being pulled away from what he was enjoying doing. One of the strategies for LS is not to allow staff to pull him nor LS to pull staff.

Cross examined, he said that LS needed 1:1 or his behaviour would escalate. There were two forms to his behaviour – when he was demanding attention he would be hyperactive and if in pain or distressed he would become aggressive as he could not express his pain. They did provide 1:1 and everyone was aware that he had been provided with 1:1 historically.

Dealing with the “Statement of Education Needs”, which had as its objective to reduce his challenging behaviour by modifying it – he said that it was not a matter of trying to contain LS, but to put in strategies to enable him to learn, which would keep him occupied and reduce his need to be hyperactive and that is what they did. Although they did not have a document called a Behaviour Modification Plan at that time, he had the BSP and the IEP and targets, which included behaviour modification. Behaviour and learning went hand in hand – you could not learn without dealing with the behaviour and you have to deal with that first before the education. All the pupils needed to be supervised at all times to access learning opportunities.

He had six students and 2 -3 assistants and if he ever had a particular problem regarding behaviour, he could always ask for someone to assist him. He himself could not provide constant supervision of LS but was aware of what he was doing all the time. Most of the time LS had 1:1 supervision.

He had a good relationship with LS and if LS had a relationship with one person they would get to know him. Someone who had a relationship with LS would better manage him than someone who had not, but it would not be only one dedicated person who would deal with him.

He was taken through the incident sheets for early 2000. He said that he himself would not describe LS as spiteful. Staff did discuss the incidents and ways about how they could better manage the situation and the reasons for the behaviour. He had suffered injuries from LS when LS was in pain or distressed. It was more a form of asking for help. If he was injured he would complete an incident sheet or an accident form, if it were a serious injury.

In relation to the summary of support plans and other documents, Sarah Dunn would give them the template and an example and guidelines on completion and then there would be training at teachers meetings on how to complete them. He accepted that he had not written anything about LS banging on glass or not going out without 1:1, but said he would have passed the information on to Judith Rigby at handover. Some of the matters were dealt with in the guidelines and SCIP in any event.

If he had a concern about the incidents in 2000 he would have gone to Sarah Dunn which he did.

Re-examined, he explained how Sarah Dunn would do the training for behaviour support plans and risks assessments, explaining the philosophy behind it and how to do it. They were provided with files on each topic in this respect.

Going through the 2000 incident sheets – on each save for one day LS was in a 1:1 situation.

Two witnesses were called to deal with a similar point: Tracey Smith (statement dated 22^nd November 2005) and Denise Houlker (statement dated 24^th November 2005). They gave evidence that they have no recollection of the headmaster making jokes about staff inadequacy. He was supportive of staff and had an open door policy. They did not recall any incident with Jules Ward and a comment being made by the headmaster about her inadequacy. Tina Byrne another assistant did not get impatient with Jules Ward.

Denise Houlker in her statement indicated that she had never had to use physical intervention with LS although he is very bouncy. He did not pull her, but usually walked alongside holding her hand. Judith Rigby did not always attend the weekly SCIP sessions of which she was monitor. She told Miss Rigby therefore that if she needed help or had any problems to let her know.

Tracey Smith in her statement and in cross examination said that Judith Rigby had told her when she first came to the school and they shared an office, that she had previously injured her left shoulder playing badminton at a high level.

Susan Flockton is an education and consultant and inspector. She qualified in 1967 and has various subsequent qualifications including an advanced diploma in Special Education Needs and an M.Phil in 1997. She has an extensive cv including accreditation as an Ofsted inspector, which includes schools for pupils with learning difficulties. She has also been a school governor in various LEA’s. Her report is dated 4^th November 2005. In it, in summary, she indicates a number of areas of concern: lack of induction, support and training in working in a setting for children and young people with ASD; lack of policies and procedures for dealing with violent incidents; lack of risk assessments in relation to children with ASD; lack of effective policies and procedures in relation managing behaviour and failure to provide 1:1 supervision as described in the statement of educational needs. She sets out the various educational reports and policies from which she cites various passages in relation to her concerns. Miss Flockton’s conclusions are that had these areas of concern been addressed, Miss Rigby would have been better placed to deal with the circumstances she found herself in and would have been less likely to suffer injury. The defendant, in her opinion, failed to exercise reasonable care and skill to ensure that Judith Rigby was provided with a safe system of work.

In evidence, she indicated that there was a requirement for schools to keep up to date with health and safety requirements, such information being disseminated by the Health and Safety Executive either directly to schools or via the local authorities, which would pass them on to the school. Regrettably, there was no logic in how the information was disseminated.

There had been concerns about teachers being involved in violent incidents at school and thus the documents about violence at work were introduced. The edition relevant to this case was the second edition of the “Violence at Work” document 1997 and reprinted in 2003. The earlier document had indicated that there should be a “statement of intent”, which should include a number of elements. She could not explain why the later and then current document changed the wording to say “may” include the elements. She had not seen a “Violence at Work” policy nor a “Statement of Intent” in the papers in this case. Such a document would set out that the employer was aware of the issue of violence at work and would develop procedures to deal with it, looking at ways to protect staff, recording incidents and following up. Violence at work was wider than SCIP, which does not really address the needs of staff. Looking at the various documents in this case from the school, none of them amounted to a “Statement of Intent” or “Violence at Work” policy.

She had not seen a risk assessment for the hazard violence towards members of staff. None of the documents she has seen amount to a risk assessment for the health and safety of staff. The fact that this was a special school did not mean that such assessments need not be prepared. The regulations apply to any school setting.

Information about whether a student should not be pulled should be recorded, as should information that the student has a propensity to bang his head on windows but is safe to do so. None of the documents seen amount to a Behaviour Management Plan as they do not pull together all the information and do not give clear guidance as to how to manage the behaviour. The documents provide useful information, but do not amount to a BMP. The Health and Safety risk assessment is not a proper risk assessment.

The people most closely associated with the pupils should do the BMP and if they did not have the training someone more senior should help them. Looking at the document it would appear that more training was required. The Ofsted report identified that injuries were being caused, so you need to have procedures in place as staff need to be protected. In the context of Bradstow, there will always be injuries, you can never eliminate them 100% but you must do everything in your power to minimise it. Ofsted would only follow up a report if it put the school into “Special Measures”, otherwise there was an action plan to be drawn up which would be monitored by the LEA.

She had seen no document indicating that the incident sheets had been analysed or reviewed. They should have been reviewed to see what happened and why and come up with strategies to prevent it happening again.

Judith Rigby had been in mainstream education. She had been child protection liaison officer. This did not require a knowledge of risk assessment. Any new member should have an induction dealing with all aspects of the school and all procedures should be explained.

Looking at Miss Rigby’s Threshold Application dated 29^th May 2000 (page 401), she agreed with Mr Furze assessment that Miss Rigby needed some additional training in ASD and challenging behaviour. SCIP is part of the answer but not all. The TEACH course is very good but it is not managing challenging behaviour per se.

The recommendations in the Health and Safety report represent the ideal, but you would expect a new teacher to be able to observe and at least have an experienced teacher working alongside and observing so she could be given some advice and mentoring.

The behaviour audit and the summary of support plan do not amount to a behaviour modification programme. The support plan has some very useful information and there is some intervention there but not enough and not focussed. One is trying to change inappropriate behaviour into appropriate behaviour. One has to focus on those behaviours you think you can change and work on them.

Looking at the incident sheets, a reasonable employer would be looking at an alternative way of interpreting the 1:1 provision in the statement, using the same person as the 1:1 who would understand him better. As the incidents had increased in this period in January, one needed to be looking at what could be done to lessen the risk and modifying the students behaviour.

If there had been 1:1 funding, it would have made a difference in a number of ways in relation to the first incident. If someone had built up an understanding of LS they might have noticed that he was becoming agitated and wanted to run and could have taken appropriate action. The person could have either prevented him running or caught up with him. After the incident there should have been a review and the safety risk sorted, by putting a bolt on the kitchen door, which they did and then looking at what was going on in the classroom, what support he had and that could have led to consideration of a dedicated person. They could have also looked at the aspect of training.

Dealing with the second incident, there was nothing in the documentation to say that he should not be taken out of school without 1:1 supervision. If there had been 1:1, that person could focus on him and be aware of his behaviour, they could have stopped him or gone after him and assisted in a two person hold. Asked the question “could Miss Rigby be criticised” for not having 1:1 supervision with regards to the second incident, after a long pause she said, that it is not a decision a class teacher would want to make, it is something that needed to come from senior management. When reminded by the court that Miss Rigby was senior management, she responded that someone like the head master or the head of behaviour management needed to make the decision. She went on to say that, it is a matter for the teacher’s discretion, but it is difficult to make a decision particularly if one has no background in these matters. In theory she could have asked for advice as to whether it was appropriate to take him out, but one has to look at the alternative scenario to see what other staff were doing and they were taking him out. Also Miss Rigby may not have had a good relationship with the head.

A reasonable employer should have been looking at Judith Rigby’s requests for 1:1 funding as part of the whole package. If the class staff are saying you need 1:1, it would have to be taken seriously and they should be asked why they are saying that. From what Miss Rigby says, the issue was not properly considered prior to the April Young incident.

Cross examined, she said:

Re-examined, she said that she had seen no evidence that the incidents in the incidents sheets had been investigated, what follow up there was and what support the staff received. She had only seen one observation sheet relating Miss Rigby for November 1999 and if that was the only one in existence then she would have real concerns about the school’s monitoring of teaching and learning.

Bernard Allen has worked for a long time with children with severe emotional and behavioural problems, including autism. He has a number of publications to his name including guidance on the use of reasonable force in school. He is now a publications and training consultant.

Staff who chose to work in special schools are aware of the enhanced risk they must face. Risk of injury from children who exhibit extreme challenging behaviours cannot be entirely eliminated but can be reduced.

The SCIP training undertaken by the school in 1999 was the appropriate model of comprehensive training to implement for a school of its kind. Moreover it was clear that the school was implementing new measures following the Ofsted report in 1998 and had made considerable improvements to the policies and procedures between 1999 and 2001.

He disagreed with Mrs Flockton’s assessment of 1:1 funding. If additional funding is made available for a pupil, it does not mean that the same person works exclusively with the one pupil, as that would not be possible 24 hours a day. It merely provides an increased level of staffing around the child, so when the child demands attention, there is always somebody to give it. If there is no funding, then the management has to re-locate staff, which may affect other areas of work. It is a balancing act and the correct time for review and any considered decision on change is the annual review of the statement.

There were a number of reasons why you should not have a dedicated person attached to the pupil. These included the health and safety aspect of exposing one person to the risk of that difficult pupil all the time instead of rotating staff; the pressure on that person working with the difficult pupil all the time; the desirability of pupils working with a number of staff rather than getting dependent on one. He agreed with Melodie Channing’s description of 1:1.

He had not seen the two documents on “Violence in the Education Sector”. He made enquiries to get hold of the 1997 document as the copy presented in court is incomplete. No-one had heard of it and he could not obtain a copy, even from HSE. The documents were not distributed to schools. If he had received the document, having looked at the first few pages, he would have discarded it, because it was far too general for his special school and he had much better guidance available to him. Government circulars and other guidance were distributed to schools.

He is experienced in risk assessment. He took the view that the documents he had seen from the school were appropriate ones and quite competent. Whilst the risk assessment carried out by Miss Rigby was not necessarily a model risk assessment, it was more than adequate as it identified the risks.

He did not subscribe to the importance of an overall risk assessment as set out in the Health and Safety report, preferring smaller documents which were easier to read and which focussed on the individual pupil. To do an overall risk assessment in the format suggested in the report, in a special school, would make for a voluminous document, which would be hard to digest.

His conclusion is that LS was receiving 1:1 support from an experienced senior member of staff who knew LS well and was aware of the risks he presented.

Cross examined:

Re-examined - dealing with the action plan, he indicated that Ofsted would only audit it if in their judgement the school was not providing a safe system of work. They would then put the school into “Special Measures” and a special officer come and would oversee and work through the plan with the school. Where special measures had not been used, at the next Ofsted inspection, they would check to see the action plan had been carried out.

He thought the various documents did contain the necessary information in relation to violence policy and risk assessment, induction training and behaviour modification strategy.

Miss Swee Chai Ang is a consultant orthopaedic and trauma surgeon in London. She has written two reports dated 18^th October 2002 and 11^th October 2004 and a note in November 2005. She examined Miss Rigby in October 2002. She was not involved in any of the medical intervention with Miss Rigby prior to this date.

The history of the present injury can be summarised as follows – following the incident in early 2001 Miss Rigby underwent physiotherapy to her left shoulder with some improvement. After the May incident, she had physiotherapy and took pain killers, but was eventually signed off sick. In August 2001 she consulted Mr Brooks who noted that physiotherapy and a steroid injection had not assisted her condition. His diagnosis was that clinically she had adhesive capsulitis, which may be secondary to impingement syndrome as suggested by the MRI scan. He recommended manipulation under anaesthetic and steroid injection into the shoulder. This took place in October 2001. She had reasonable improvement in the range of movements but still suffered pain and discomfort.

She was further reviewed in December 2001 where it was indicated that she was on the waiting list for EUA, arthroscopic subacromial decompression. The arthroscopy was carried out on 7^th May 2002. This resulted in improvements to the extent that Miss Rigby can now carry out a number of tasks and has stopped physiotherapy. There is still significant ache and limitation of movements.

Miss Ang’s conclusion on examination in October 2002 is that Miss Rigby has suffered a rotator cuff injury with impingement to the left dominant shoulder following a wrenching injury in May 2001. She recommended a repeat arthroscopy by an exclusive shoulder arthroscopist. At that time she did not recommend return to her pre accident employment, but rather that it should be reviewed following further surgery.

In her second report, following an examination of Miss Rigby on 9^th October 2004, she notes that there had been no treatment in the interim, since the last examination and that Miss Rigby and Mr Brooks had agreed on balance that there should be no further arthroscopy. She sets out the difficulties experienced by Miss Rigby in carrying out certain activities. It appears that Miss Rigby’s concern about a further operation was that it would incur further time off work with disruption to her life. Given her current financial situation, having secured her teachers pension and doing some self employed work, she was not prepared to disrupt her work pattern, risking further financial problems. She still has evidence of the same condition and takes various painkillers. The condition will not get worse by itself.

In her recent note – Miss Ang disagrees with the view of Mr Belham that in the absence of the accident Miss Rigby would have developed rotator cuff injury within at most 3-4 years and gives her reasons for her disagreement. These simply put, are that as four years have passed and Miss Rigby’s right side is now her dominant side, you would have expected, if Mr Belham were right, to see signs on the right side. There are not.

Miss Ang agrees with Mr Brook’s decision that there should be no more surgery. Having looked at the video, there was nothing inconsistent in the video with the diagnosis she has made. She thought that she may be able to work full time if the week were divided up, but thought it could be difficult, as the painkillers can cloud the brain. She thought the medical expenses both past and present were reasonable.

Cross examined:

Re-examined, she said that there was no scientific basis for Mr Belham saying that the injury had accelerated the condition by 1- 4 years. He was plucking figures out of the air. If Miss Rigby worked for a long stretch, she would need to have a rest. It was a question of pacing her week. However she needed to cut down her intake of painkillers as they were too much and could cloud her brain power.

Mr Belham is a consultant orthopaedic surgeon in Northwood. He examined Miss Rigby on 11^th January 2005 and his report is dated 7^th February 2005. Following examination, his conclusion was that Miss Rigby had ongoing impingement syndrome, with rotator cuff dysfunction and probably some pain arising from a degenerative acromioclavicular joint which may well be contributing to the impingement, as well as the acromial impingement previous noted on her MR scan.

In his view, there is a constitutional predisposition to impingement. It is his view that the injury of the shoulder produced swelling of the rotator cuff, which renders symptomatic an underlying predisposition to impingement, which was not previously troublesome. The frozen shoulder, which Miss Rigby developed by August 2001, could be reasonably attributed to her injury and her symptoms were consistent with that. In his view, she would have developed symptoms of impingement within one to two years, but that the injury may have precipitated it. If there is no further treatment, her disability will continue at the present level and there is likely slowly to be deterioration, with risk of a further episode of adhesive capsulitis and in the long-term rupture of the rotator cuff. He believes that there should be further treatment.

Her current level of disability is such that she should not return to her former work, but she is capable of less vigorous forms of employment. If she were to undergo further surgery, she could return to her former employment. In a letter dated 26^th May 2005, he indicates that what underlines his opinion is the abnormality of the MR scan, which shows an underlying structural abnormality. They are not the consequences of the injury at the school. He would accept that the injury may have accelerated the impingement syndrome by up to 3-4 years at the outside. The frozen shoulder could be attributed to the injuries. He reiterates his view that her treatment has been discontinued too early.

If she has an injury from badminton previously, it could be relevant to the present claim but not necessarily. It would however, probably be the beginning of her problems, which have now come to a head. From the letter written by Mr Brooks regarding the fact that he found it interesting that she played badminton at a high level in her youth, he interpreted this as meaning that her shoulder had taken a beating over the years and it is not surprising that there is a problem.

What he saw of Miss Rigby’s shoulder, was precisely the sort of thing he sees regularly in his practice, where patients come in with niggling problems. Within a period of time, 1-2 years or 4 years, they come back with marked impingement and require surgery.

There was nothing to prevent Miss Rigby from undertaking full time work, but she should avoid the shoulder being yanked or put under physical strain.

Cross examined:

Re-examined, he said that if Miss Rigby were his patient suffering the pain claimed by her, he would re-image her shoulder to see what was happening with a view to doing open surgery. For a secondary procedure, as in the case of Miss Rigby, his success rate was about 80%. One had to chose the patient carefully though. If the operation were successful there would be a near normal shoulder.

I do not intend to rehearse the submissions of counsel in full. I have read the detailed 48 page document entitled “Claimant’s closing submissions” and the 10 page document entitled “Closing summary on behalf of the defendant”. Both documents have been supplemented by oral submissions. My findings will be dealt with in the order of the headings as set out in the closing submissions of counsel for the Claimant, and each heading will be prefaced by a short summary of the submission made.

Before dealing with the main arguments, and in order to put my findings into context, I deal with the question of the resolution of conflict of fact, as per the first heading of the Claimant’s closing submissions. As has been pointed out by counsel for the Claimant, credibility of the witnesses is of the utmost importance in this case. I therefore propose to begin by setting out my overall impressions of the witnesses. This does not purport to be a detailed analysis of every part of their evidence. Where a witness is found to be reliable overall, it should not be taken as an indication that the witness is reliable in every detail of his/her evidence. Where a comment is made that the witness is unreliable or unsatisfactory, again, it may not be in respect of every piece of evidence. These impressions have been formed after consideration of the witnesses in the context of all the evidence.

Miss Rigby is clearly someone who has accumulated a lot of experience over her years as a teacher. She has a very good cv. Teaching is a profession she has enjoyed and continues to enjoy, albeit in a different situation now. She is a person who has been through much in the last four years. She is someone who is suffering discomfort and pain a lot of the time. Although resigned to the incapacity which she now suffers, she comes over as a person with a sense of being hard done by and someone who has now become convinced that a certain state of affairs existed, a conviction which has often been shown to be wrong when looking at other evidence in the case. Overall, I did not find Miss Rigby to be a compelling or indeed a very satisfactory witness for a number of reasons including: a) internal inconsistencies, as shown by her different versions of the same event (e.g. the description of the second incident as related to Dr Ang (pages 278 to 279), compared with the accident report sheet, her statement and evidence in court; the cause of her bad shoulder as being LS pulling on her arm as opposed to what is recorded by the doctor as “many” children pulling on her arm (page 239) and what the consultant wrote “constant pulling on the arm” (page 1694)); b) her evidence was contradicted by the evidence of others (e.g the medical examination of LS compared with the doctor’s report (page 420) and evidence of Nita Kennedy); c) her evidence is contradicted by documentation, some of her own compilation (e.g the numerous plans and documents re LS, the statement that LS did not always get 1:1 supervision compared to what she wrote in the annual school report 24^th March 2001, that he had 1:1 and on many occasions 2:1 support (page 179); d) unwillingness to accept proper responsibility for the role which she occupied as head of the primary department (during cross-examination in particular); e) her inability to give direct answers to direct questions in cross-examination, so much so that counsel for the defendant often had to ask her to answer the question. I make it clear that I do not suggest that she was deliberately trying to mislead the court.

I did not find Nita Kennedy to be a particularly accurate witness in relation to the medical examination of LS in January 2001. This is not surprising. This evidence only emerged at trial, almost five years after the event. It became clear in cross-examination, that she did not really have a clear recollection of what transpired. What recollection she does have is at variance with that of Miss Rigby in some respects. Moreover, the effect of the evidence of both women implies that the doctor carried out no examination at all, but wrote in his report that he had carried out a full examination, then sent the report to the school, knowing that Nita Kennedy, the nurse who was present and who was an addressee of the report, would see his report. Had there been no such examination, as suggested, Nita Kennedy would have raised the issue when she received the report as it would be a very serious matter. She would have recalled doing so and she does not. This undermines both her evidence and that of the Claimant on this issue.

I found Sue Costa to be a credible witness, although her approach was slightly tainted by her unfortunate experience at the school. Her evidence was more supportive of the Defendant than the Claimant in relation to the important issue of 1:1 supervision of LS.

April Young and Melodie Channing were basically credible witnesses, albeit understandably hazy about dates. The evidence of Miss Young, in so far as it touches on evidence of the Claimant does not support her on the question of 1:1. The evidence of Melodie Channing although supportive in relation to LS’s general behaviour, is at variance in material respects with that of the Claimant regarding the first incident. She also gives evidence about another occasion about which the Claimant has given no evidence, but which supports an entry made in the GP’s notes which the Claimant has said was inaccurate (entry dated 27^th July 2001, page 1681)

Sue Flockton was the expert called by the Claimant. She is a person with a wealth of experience in education. Despite this I found her to be a partial witness for the following reasons. I had the opportunity of observing her during the whole of the trial. Her personal views on the various defence witnesses were quite apparent from her body language and facial expressions, which ranged from contempt, dislike, disbelief to wry amusement, particularly when Mr Furze was giving evidence. Later, when Mr Allen the defence expert, was in the witness box being cross-examined, he indicated that he was being distracted by the behaviour of Miss Flockton. During cross-examination, when faced with questions which demanded a proper concession from her, Mrs Flockton would make grudging concessions and then immediately attempt to undermine her own concession (e.g when she was asked questions about the Interview Assessment form which heaped fulsome praise on Miss Rigby’s abilities and experience (page 630)). Similarly, when faced with a question at the end of examination-in-chief which she clearly was not expecting, a question which put her in a difficult situation, the impression gained from the length of time she took to answer it and her obvious discomfort, was that she was thinking about how to answer the question so as not to damage the Claimant’s case. This is not the degree of impartiality expected from an expert witness. Her evidence about systems, procedures and policies had much to commend it, but the level of detail advocated by her, in my view, was unrealistic, given the pressures on, and the nature of the school in question. If her counsel of perfection were followed, the result would be that the staff would spend more time filling in forms and documents than teaching and controlling their difficult pupils. Her ultimate conclusions as to causation were weak.

Mr Furze is a very down- to-earth and direct individual. He uses humour in difficult situations, which is not to everyone’s liking. He himself would not be to everyone’s taste. He is passionate about his work and committed to the school. He is a man clearly labouring under immense pressure. This showed during the course of his evidence, when from time to time, he lost his train of thought in mid sentence. He also reacted with some irritation and, on occasions, in a cavalier fashion to the very repetitive cross-examination to which he was subjected. He sometimes answered questions in a roundabout way. He was confused about some matters, dates in particular, and was unable on occasions to remember detail. I have considered his credibility in relation to the issue of disclosure as well, and although he had read the Particulars of Claim, which indicated the documents sought by the Claimant, I do not find that he or any of the staff in the school have deliberately withheld documentation. They have supplied what has been required of them by their lawyers and indeed, after giving evidence in court, some further documents have been made available – documents which the Claimant submits actually support her case. I am invited to find that the various general criticisms of negligence which are levelled at the school adversely affect the credibility of Mr Furze. I do not find that they do. The picture that has emerged in evidence in relation to Mr Furze, is that from the time he first arrived at the school in 1997, he has been doing everything he could to turn it around, to raise standards and improve procedures. It is clear from subsequent reports from various bodies that he has been successful. Overall I found him to be a credible witness, if not altogether accurate with regard to dates and the chronology of events.

Sarah Dunn and Cathy Evaristo Boyce presented a sharp contrast to Mr Furze. Both women came over as very efficient and focussed individuals. They take their responsibilities very seriously. They were obviously offended by the criticisms levelled at them. This put them somewhat on the defensive when giving evidence, but it did not prevent them from attributing high praise to the Claimant where they thought such praise was due. I found them both to be direct, honest and essentially reliable witnesses. Their evidence substantially undermines that of the Claimant.

Steven Vickery was a slim, slight and gentle person. He too is obviously very committed to his work. He came over in an understated way as professional and knowledgeable. I found him to be an honest and reliable witness. His evidence supports the Claimant’s case to a limited extent but in the main undermines it.

Mr Allen. He is criticised by counsel for the Claimant as lacking independence and feeling he had to fight Mr Furze’s corner. I disagree. Mr Allen did come over very forcefully when dealing with questions of how to run such a specialised school. He was speaking with the passion of someone who has been in a similar position to Mr Furze and thus one who understands the issues and problems he faces. To that extent he is partial. However he was generous in his praise for the Claimant, unlike her own expert who seemed to undermine much of what the Claimant had done at the school. Moreover, Mr Allen was not at all times endorsing what had been done by the school. He agreed with many of the recommendations in the Health and Safety report so heavily relied upon by the Claimant. In relation to some of the school’s documentation, he variously described them as adequate or more than adequate but not documents which he would necessarily hold up as a model. On the whole, despite the criticism of counsel for the Claimant, I found him to be a good, down-to-earth witness with a common-sense approach to the issues.

Before dealing with the criticisms raised in the closing submissions, it is instructive to note that since the Particulars of Claim dated 30^th December 2003 signed as true by the Claimant, there have been some marked changes in the claim as set out in the final submissions. The Claimant has been invited to amend the Particulars of Claim but has not done so. Apart from the issues highlighted in paragraph 6 of the defendant’s “Closing summary”, the following matters are also not included in the Particulars of Claim: an overall health and safety policy; failure to complete incident sheets; failure to carry out health and safety monitoring; and failure to carry out a proper investigation after the first incident. This is relevant to the credibility of the claim and the Claimant in particular.

The first criticism is that there is no overall health and safety policy (paragraphs 3.1 to 3.9 of Claimant’s closing submissions). This was not pleaded in the Particulars of Claim. Further, the criticism is that there was no policy which included measures for reducing the risk of violence at work. Whilst it is conceded by the Defendant that there is no one document in evidence dealing with a health and safety policy at work, it is not conceded that there was not a health and safety policy at the school. I accept the evidence of Miss Dunn in cross-examination when she said that there were staff at the school who dealt with health and safety issues - the school manager being in overall charge of health and safety at the school, with individuals such as Miss Dunn, Miss Evaristo Boyce, the form teachers and the maintenance staff having various areas of responsibility. The Health and Safety report of 28^th March 2001 (page 1229) does not criticise the school for having no overall health and safety policy, nor does it draw attention to a lack of statement of intent as has been commented on by counsel for the Claimant. The report merely points out that there is no risk assessment in relation to the hazard violence to staff.

It is interesting to note that neither the Ofsted report in November 1998 which found that the school had more strengths than weaknesses (page 1069) nor the Health and Safety report of 28^th March 2001 indicated the specific concern that Bradstow was not operating a safe system of work. If that was their view, it would have been their duty to do something about it. As can be seen from the evidence, in the case of Ofsted, had that been the concern, then the school would have been put into “Special Measures”. It was not. The Health and Safety report indicated that they welcomed feedback on their report including what actions if any, the school intended to take as a result of the report. It did not, (and one must bear in mind that this was a report from the Local Authority, the school’s employer), direct that it was mandatory for the recommendations to be carried out, although it pointed out two instances where the school was apparently in breach of specific health and safety regulations. It is also of note that the school received a very good “Investors in People Assessment and Feedback” report in March 2001 (page 1209).

Overall I accept that there was a Health and Safety policy which included consideration of the risk of violence, albeit not in one document. Whatever lacunae there may be, in my view they do not have a causal effect on the facts, as I find them, of this particular case. I find on the evidence, that there were (a) regular discussions between teachers, assistants and senior management about the behaviour and progress of the pupils which would include the risk of violence (Furze, Dunn, Boyce, Vickery, Claimant, Claimant’s diary e.g pages 695,702,713,715,733,746); (b) regular memos, meetings and consideration of the various documents which were being developed in relation to the pupils behaviour including violence, education and other issues. Incident sheets or, where significant injury had occurred, accident sheets were filled in, although there was some confusion about whether both were to be filled in (see Vol 4 of documents); (c) senior staff were aware of and discussed the incidents, their cause and strategy in the school (Furze, Dunn, Vickery, (page 428), internal reviews (pages 696, 697, 698-9, 711, 713, 742, 744 and 747); (d) understanding and dealing with the behaviour of the pupil was an integral part of reducing violence against staff (Furze, Allen, Dunn); (e) the Claimant was well aware of the risks of violence in relation to each pupil in her department and with whom to discuss them (Vickery documents passed to the Claimant on handover at pages 409 and 415). The various plans and risk assessments carried out by the Claimant are in evidence. Weekly SMT and EMT meetings took place and the Claimant was sharing a room with the behaviour manager (Dunn, Boyce, Furze). The incidents re LS in 2000 were discussed and strategies for reduction and/or prevention were considered by the class staff in consultation with Sarah Dunn (Dunn, Vickery); (f) everyone was aware that LS needed 1:1 supervision and he was provided with it: (Claimants report dated 24^th March 2001 page 176 et seq; evidence of members of staff who gave evidence).

Paragraphs 4.1 to 4.10 deal with this issue. Reliance is placed on paragraphs 16 to 19 of the Health and Safety report of 28^th March 2001 (page 1234). The criticism is that there is no document/risk assessment which deals with the hazard of violence to staff. It is accepted by the Defendant that there is no single overall document, but Mr Furze contends that it is to be found in a number of different documents. Mr Furze indicated that he had discussions with the Health and Safety inspectors about that particular finding, as he was in disagreement with them about it, the effect of their recommendation involving in his opinion a lengthy and unwieldy document which, as advocated by Mrs Flockton, would identify all the risks presented by the pupils. Mr Furze and Mr Allen thought this impracticable. To their minds, the most effective measure in relation to violence was the individual pupil’s risk assessment, which in itself provided a risk assessment of the danger to the staff by identifying that individual pupil’s behaviour. This, it is said by the Defendant, was just one of the documents which dealt with risk assessment of violence.

I see the force of Mr Furze’s and Mr Allen’s contentions in relation to a compendious document. However, counsel for the Claimant, contrary to the suggestions of his own expert, suggests that such a document should include the following: an emphasis on the importance of filling in the incident sheets, an account of what should be the procedure for reviewing incidents sheets in the classroom, who is to review them and who is to report the result of review, meetings to discuss reviews and advice to staff about what they should be looking for – e.g. locks to doors etc; what should happen after an incident and who should investigate it. I agree that such a document would be a useful guide to those starting off at the school. There is not such a document in evidence nor is it suggested that there was one. How does this impact on the facts of this case? In my view, not materially, for the reasons I gave in paragraph 172. This Claimant, a member of the senior management at the school, was well aware of the documentation, procedures and the risks of violence in relation to LS and the strategies available to deploy to reduce or prevent the risks including the use of 1:1 supervision. She was the head of the primary department and LS’s teacher, so she could not have failed to be aware of what was going on in the classroom, especially given the short meeting of classroom staff at the beginning of each day and the weekly meeting of the class staff where information including hazards could be shared, considered and reviewed and amendments made if necessary to relevant documentation.

Paragraphs 5.1 to 5.9 and 12.1 to 12.14 deal with the issue of incident sheets. The first assertion is that because there was no health and safety policy, staff were not aware that they had to complete incident sheets; that the format of the incident sheets was inadequate; that they were not properly reviewed and analysed, and the incidents therein were not investigated. Had they been so analysed, it is submitted that the school would have realised that 1:1 funding was necessary for LS at a much earlier stage. Reliance is placed on the evidence of Melodie Channing to the effect, that when she worked with LS, she was bitten and scratched by him every day, but did not complete incident sheets. Also relied on is the evidence of Vickery that LS had broken his skin (by scratching) but he did not complete an incident sheet. In my very full note of the evidence, there is no reference, nor do I have a recollection of Mr Vickery saying that he did not fill in incident sheets re LS.

A close analysis of the incident log (separate file) which records in shorthand, the information from the completed incident sheets reveals the following: i) staff clearly were aware of the need to fill in incident sheets, and the records go back to mid-1997, the year that Mr Furze joined the school; ii) all staff who had dealings with LS on the teaching side were aware of the incident sheets as they have used them to record incidents in relation to LS. To contend that they were not so aware flies in the face of the documentary evidence ( Judith Rigby, Steven Vickery, Maxine Basson, Kami Blown, Jules Ward, Julie Breach, April Young, Melodie Channing and others). It is to be noted that there are many more entries in relation to other students; iii) Steven Vickery has made some entries in relation to LS. This supports the Defendant’s contention that his general behaviour was not such as to demand an incident sheet every time; iv) Melodie Channing was aware of incident sheets and the need for them. Had she thought her daily experiences of LS were of such import, then no doubt she would have filled in a sheet; v) Judith Rigby made fairly frequent use of the incident sheets – rarely in respect of LS but largely in respect of at least two other pupils; vi) An analysis of the incident log from mid-1997 to the end of 2001, shows that LS features infrequently especially when compared with many other pupils. This confirms the description of Mr Furze that he was a low intensity pupil in terms of risk of violence; vii) Analysis of the incident sheets in relation to LS shows that he had a difficult period in January 2000, that thereafter the incidents subsided and were sporadic. This confirms what the doctor had been told at the medical examination in mid-January 2001 and what appeared in the other documents.

Perusal of the First Aid book between March 1999 and May 2001 shows that Melodie Channing received treatment twice, once for a scratch and once for a bite in January and February 2001. Steven Vickery received treatment on two occasions for a cut and scratch in March and May 2000 (page 455 et seq.). The First Aid book does not identify the perpetrator.

The real problems with LS would appear to have started in the autumn/winter of 2000/2001. Following the incident involving April Young, a decision was taken to apply for 1:1 funding at the annual review. It has been said by a number of witnesses in evidence that the appropriate time for review of the student’s behaviour is the annual review although there are mechanisms for considering it earlier (Furze, Dunn, Allen, Claimant @ page 179). In relation to the evidence of the incident sheets, I do not find as submitted by the Claimant, that the defendants were negligent in not applying for 1:1 funding earlier.

The incident sheets in my view were perfectly adequate for their purpose. They were reviewed by Sarah Dunn. Mr Furze also had copies and would look at them and comment if he identified a trend. It was also for the teacher to look at the incident sheets and get the information needed for internal reviews (Dunn & Furze). Incidents concerning LS were discussed at the time (Vickery).

In paragraphs 6.1 to 6.9, it is contended that the defendants were negligent in failing to provide adequate behaviour management plans; that the plans should have included a note that locks were required for all rooms adjacent to where LS was likely to run, including the pantry plus a direction that LS should not be taken out without 1:1 supervision and instructions about not pulling LS away from glass.

There are a number of documents which deal with LS’s behaviour and various strategies to deal with him, whether or not they are called behaviour management plans: Behaviour audit (pages 407 to 408), individual education plan (page 409), individual behaviour management/summary of support plan (pages 415 - 6 and 242 - 250), Health and Safety risk assessment (pages 422 - 6), managing of challenging behaviour policy (pages 1065 - 7). Criticism is made that the documents do not say, for instance – “do not take him out without 1:1 supervision or “let him bang his head on glass”. Steven Vickery acknowledged that in the documents he compiled which were handed over to Judith Rigby, this information was not recorded. He indicated however that he discussed LS’s habits and the strategies on hand over with Miss Rigby. It is to be noted that Miss Rigby was responsible for the compilation of the subsequent documents of which complaint is also made. In any event, in evidence Miss Rigby herself said that in relation to the two incidents, there was no other information that she needed. She knew that LS needed 1:1 supervision both in the class and out of it; she knew that he had tried to get out of class before and that he liked food. Knowing that, it is surprising that she herself, as class teacher, head of the primary department and a member of the senior management team, did not draw attention to any concerns about lack of security surrounding food.

From the incident sheets, it can be seen that LS had run into the kitchen once before, but it was not in search of food, but in relation to a student he did not get on with (page 571). There is no suggestion that he had tried to get into the kitchen before in pursuit of food. It is also interesting to note that as soon as Miss Rigby informed Mr Furze about LS’s running into the kitchen in pursuit of food, he instructed that she arrange for the caretaker to put a latch on the pantry door. These are not the actions of an employer who is not concerned with safety and who is not responding to incidents. As is also clear from the evidence of Sarah Dunn and Steve Vickery, staff were aware that LS liked to tap his head/face against glass. He had a callus on the end of his nose because of it. It was his way of checking things. On the facts of this case, given a) the number of documents in existence, b) the frequent meetings and opportunities for discussions/meetings and c) the state of knowledge of the Claimant, the criticisms advanced concerning behaviour managements plans go nowhere near proving that “it is unlikely, on the balance of probabilities that the Claimant would have been injured” either in the first or second incident.

Paragraphs 7.1 to 7.13 state that the Claimant should have been provided with induction training. In paragraphs 8.1 to 8.5 it is contended that the Claimant was given inadequate training in managing challenging behaviour and autistic spectrum disorder.

Whilst it may be the case that the Claimant did not attend a one week induction course such as is now held by the school, (formerly induction was a two day course with other training spread over six months), I prefer the evidence of the witnesses who say that from the time she joined the school as a consultant she was given substantial induction in a more informal way. She spent time with different members of staff in order to be familiarised with the different areas of the school, its policies and procedures. Additionally, as has been pointed out, it is inconceivable that as curriculum consultant, she did not go into the classrooms to liaise with the teachers and watch them in practice in order to make her assessments about the appropriateness of the curriculum.

The evidence of the witnesses Dunn and Boyce that interpersonal skills were not Miss Rigby’s strong point are relied on for the proposition that she needed training. However, both witnesses indicate that they gave her support and advice on how to deal with situations and provided more staff when possible. What training was required over and above sensible advice on how to deal with the specific pupils with whom Miss Rigby had difficulty has not really been spelled out and is hard to see. It is to be noted that there is a reference to management training with Sarah Dunn in the diary (page 742). Moreover, Miss Rigby had been at the school for two years by the time of the first incident and nearly two and a half years by the time of the second incident, and had been part of senior management for over a year. It is difficult to see, despite the observations of Miss Flockton, how induction training would have made a difference.

With regard to training in challenging behaviour and ASD – it is quite apparent in the Claimant’s application for both Head of the Primary department (page 606) and the Threshold Application on 29^th May 2000 (page 400), that she was putting herself forward as a person who had understanding and experience of both challenging behaviour and ASD. The comments by Mr Furze in the Threshold Application relied on by the Claimant (page 401) that he would like to see Miss Rigby undertake training, were, as he explained, aimed at her achieving a more advanced knowledge of the subject. It was quite clear, he said, from the fact that she was judged to have reached the standards necessary for the application, that she had more than a basic knowledge of and training in challenging behaviour and ASD. It is instructive to note the comments of the chair of the interview panel following Miss Rigby’s interview on 5^th December 2000 for the position of head of the primary department (page 630) where he notes that she demonstrated significant experience relevant to working with children with autism and/or severe learning difficulties; she gave exemplary examples of a broad knowledge of current strategies for teaching pupils with autism and SLD and had clearly demonstrated her ability to work closely with others in providing education that meets the needs of pupils with autism and SLD. As noted earlier, Miss Flockton sought to undermine those conclusions, not having been present at the interview, nor aware of the questions asked and answers given.

Subsequently Miss Rigby attended at conference in Birmingham on 11^th November 2000 and there is a meeting in the diary for 15^th November in relation to the conference (page 701-2). She did an intensive five day TEACH course which covered this aspect of training (Furze, diary pages 728/9).

It is alleged in paragraphs 9.1 to 9.2 that the Defendants were negligent in failing to install a latch on the pantry door. I have already dealt with this issue under the heading of behaviour management plans.

It is alleged that the Defendants were negligent in that they failed to carry out periodic health and safety checks. This is a catch-all contention which was not pleaded and which encapsulates much of what has gone before. In any event, on the facts of this case, and in the light of my previous findings, these allegations do not take the case any further.

In Paragraphs 11.1 to 11.17 it is alleged that the Defendants were negligent in failing to obtain 1:1 funding for LS at an earlier stage. Everyone agrees that LS needed 1:1 supervision. The evidence is that he was receiving 1:1 supervision. (Channing, Costa, Young, Vickery, Rigby in the annual review statement 24.3.2001 (page 179)).

The Claimant contends that 1:1 funding means that the pupil has a dedicated carer. The benefit of this would be that the carer would have a better understanding and rapport with the pupil and would be able to spot and anticipate signs of disturbance and nip them in the bud. This contention is superficially attractive. The Defendant disagrees and says that 1:1 funding, albeit it in the name of the particular pupil, means that an additional member of staff is available in the class. This person will always stay in that class, even if there are shortages in other classes. It does not mean that the funded person would work with LS exclusively. He would not for a number of reasons. Mr Allen also agrees with Mr Furze’s analysis and gave reasons why it is not appropriate for one person to be devoted to the one pupil. I accept those reasons as being sensible and practical.

In any event, dealing with the first incident, the evidence is that Miss Rigby was indeed working with LS at the time on a 1:1 basis. There is no evidence from either Miss Rigby or Melodie Channing of any warning signs which might have alerted the 1:1 supervisor that he was about to abscond. In relation to the second incident, Miss Rigby says that she was not in a 1:1 position with LS, although from the evidence one could infer that she was. If she was not in a 1:1 position with LS, then, given what she knew, (namely that he needed 1:1 supervision and that an application had been made for 1:1 funding), she should not have taken LS out unless she was in a 1:1 situation. She, as senior management, head of the primary department and class teacher does not need anyone to tell her the obvious.

It is said that the Claimant mentioned the pressures on staff caused by LS to Miss Evaristo Boyce following an internal review meeting on 3^rd October 2000 (page 164). Miss Boyce told her to reduce the work pressure on the pupils in order to reduce the load on the staff. Miss Boyce accepts she may well have said this. However, the reasons for the calling of that internal review are recorded as being re LS smearing and the completion of the functional analysis forms, not the issue of his violence (see also dairy page 697). It is instructive also to observe that Miss Rigby, who makes many notes in her diary, in particular in relation to internal reviews concerning pupils, has hardly made any entries in relation to LS, a pupil about whom she claims to have had constant concerns. There is only the one internal review (in October 2000) in relation to him. There are many more in relation to other pupils. As already noted, there are far more entries (by Miss Rigby) in the incident book in relation to pupils other than to LS. This undermines the contention that she regularly raised the issue of 1:1 funding re LS with Mr Furze or any other member of the senior management. It also supports what Miss Dunn and Miss Boyce said in evidence about Miss Rigby having concerns about two or three other pupils rather than LS.

There is no other follow-up complaint by the Claimant that the strategy was not working after her discussion with Miss Boyce until the time that the Claimant states that she indicated to Mr Furze that 1:1 funding should be requested in a meeting dated 18^th January 2001. If that be so (see comments below), then it is clear from her account to the personnel officer in 2002 about the accident report form in relation to her incident at the end of January/beginning of February that Mr Furze agreed that consideration would be given to this question (page 1043). Consideration of an important issue like this does not take place in a vacuum. Miss Rigby says that the meeting was called by her in relation to the doctor’s examination and what the doctor had said about LS needing dedicated 1:1 supervision for LS. I do not accept this. If one looks at the doctor’s report (page 420), he makes no mention that it is his view that LS needed 1:1 supervision. Indeed, as Nita Kennedy said in evidence, he merely re-iterates what he is told about LS needing 1:1 supervision. If that was the doctor’s own view, then he would no doubt have been expressed this in the conclusions about future plans. Moreover, we have heard from Nita Kennedy that it was the routine practice to have a meeting after the pupils’ medical examinations. Looking at the diary (page 725) the entry reads “meeting with Nita, Bert etc” which does not give the flavour of a specially convened meeting to deal with a particular problem, but is more in keeping with a routine meeting following the visit of the doctor to discuss any issues arising. In my view this was a routine as opposed to a special meeting called to deal with concerns over LS.

There is a document relating to a class meeting in the spring of 2001 at which Miss Boyce was present and in which the problems of shortage of staff was discussed. It would appear from the note of this meeting, that the discussion involved concern expressed about the difficulty in staff coping with another pupil called Paul. The note does indicate however, that it was when LS came into a class things could be difficult due to low staffing. It was left on the basis that Cathy Boyce would discuss with Judith Rigby whether someone from another class could come across rather than a completely new member of staff, as offered by Miss Boyce. There is nothing from Miss Rigby about LS needing to have 1:1 funding in order to deal with the problem (page 1424). The Claimant herself, when writing her annual report for the review, states that the annual review is the proper time to give consideration to the matter (page 179).

The day after the April Young incident, Mr Furze alerted the local authority (28^th March 2001) of his intention to apply for 1:1 support for LS (page 428). It is submitted by the Claimant, that the April Young incident was the same as other incidents in early 2000 and thus that 1:1 funding should have been obtained a year earlier. On close analysis of the incident sheets, it was not the same. The other incidents all arose out of assistants or tutors being involved with LS either in a teaching capacity or trying to get him to settle, or to do something, which he was resisting. The attack on April Young was a gratuitous assault, out of the blue, on a member of staff who was not actually dealing with him. It was therefore quite different the and could have marked the beginning of a worrying trend. On the evidence in front of me, the defendant acted appropriately and responsibly and cannot properly be criticised for not applying for 1:1 funding for LS at an earlier stage.

It is pointed out in paragraphs 13.1 to 13.7, that there were staff shortages over the period of the autumn of 2000 and early 2001. I have already dealt with pressures on staff under the previous heading. The shortages did not change the fact that LS was essentially was getting 1:1 supervision. It meant that the other students may have been suffering particularly as a result of the shortages and that there was pressure on the staff to manage a larger pupil-to-staff ratio than normal. Looking at the records provided for the period 28^th April 2001 to the time of the second incident in May 2001, one can see that Judith Rigby’s class was allocated three assistants, although often there were only two. On the face of the records however, there was primary cover available as well as other staff. On the day of the incident on 4^th May, there were three assistants allocated to the class. Jules Ward was on the primary cover list and it was she who accompanied Judith Rigby to the post box with LS and two other pupils. This means that at least two assistants were left clearing up with either two or three pupils.

Paragraphs 14.1 to 14.2, state that, had there been a Health and Safety policy, the defendants would have been reminded of the need to carry out a full investigation after the first incident. This is not pleaded in the Particulars of Claim. Having said that, if the first incident had been so significant in terms of LS’s violence and unruliness, then it is surprising that there is no mention of it in the Claimant’s diary. She did not complete an incident sheet. She was not off work as a result. The matter was clearly given consideration by Mr Furze, because a preventative measure was put into place as a result, and Miss Rigby was advised, as she had been on previous other occasions, not to pull LS’s arm or let him pull her arm – the pulling of arms being contrary to SCIP procedures. On the evidence of Melodie Channing, (see also class list page 1169), there was a teacher and three assistants to five pupils, a more than generous allocation on the accepted tariff for such schools, so shortage of staff was not the problem and thus it would hardly be appropriate to put in for 1:1 funding in that situation in relation to that incident alone.

The second incident is really at the heart of the allegations, as the injury occasioned in May is according to the medical evidence, responsible in whole or in part, depending on which expert is accepted, for the disability Miss Rigby now suffers. In paragraph 15.1 it is contended that if the behaviour management plan had been amended to state that LS required 1:1 supervision when taken out of school, it is unlikely that the incident would have occurred. We know from the evidence that Miss Rigby was the person responsible for making changes to the behaviour management plan. She also knew at the time she took LS out that he required 1:1 supervision. She knew that 1:1 funding for LS had been applied for. She knew all the risks involved. She said in evidence that she did not consider it to be unsafe to take LS out, knowing all she knew about him. She also told us that in the past, when staff cleared up, LS had often been taken off by himself to another room, to stop him from disrupting the clearing up process. She did not have to take him out to the post box. She chose to do so, having all the necessary information available to her and having assessed the risk. The decision was her responsibility. She also, contrary to SCIP Procedures and the advice she had received from Mr Furze after the first incident, pulled at LS’s arm. She has only herself to blame.

Standing back and looking at all the evidence in the light of the Claimant’s contentions and bearing in mind the kind of institution involved, I am not satisfied on the balance of probabilities that the defendant was negligent and/or in breach of contract in failing to exercise reasonable care for the Claimant’s health and safety or in failing to operating a safe system of work. Whatever failings there may have been, do not amount in my judgement, to a breach of duty of care and were not the cause of the injury, unfortunate though the incidents (the May incident in particular) may have been. It follows from this finding, therefore, that I do not need to consider the question of the medical evidence. Judgement is in favour of the defendant. The question of costs is still to be determined.