Norfolk County Council v Durrant

Norfolk’s case involves primarily a challenge to the legal question whether negligence was made out. They say the Judge made findings of breaches of duty which cannot stand, but even if there were errors by Norfolk that could be characterised as breaches of duties owed to the Claimant, there is no finding by the Judge that they were causative of the damage suffered by the Claimant, so negligence could not properly be found. As a secondary position, they argue certain primary findings of fact were not open to the Judge on the evidence.

The following non-contentious principles (which are not exhaustive of the statements of authority) are of relevance here:

See also Lewison LJ with respect to facts, inferences and evaluations in Fage UK Ltd. & anor. v Chobani UK Ltd. & anor. [2014]

See also London Borough of Haringey v Ahmed and Ahmed [2017] EWCA Civ 1861.

It was not disputed that the claim fell to be considered within the framework of common law negligence, informed by the content of various regulations, nor that it had to be shown that any proven breaches of duty were causative of the Claimant’s loss. The nature of the requirement as to a causative link between breach and injury is set out in Charlesworth & Percy on Negligence (14th edition First Supplement. Chapter 5: Causation and Remoteness of Damage expresses the essentials succinctly thus:

Among the allegations of causative breach was a failure to conduct a proper risk assessment. Norfolk denied that there had been any such failure but also emphasised in submissions that a mere failure to conduct a particular assessment, or to conduct one in a particular format, could not without more be negligent.

In Uren v Corporate Leisure (UK) Limited and Ministry of Defence [2011] EWCA Civ. 66 the court considered a case in which a serviceman was injured diving into a shallow pool during an entertainment games event. It was argued in that case that, had a proper risk assessment been carried out, it would have revealed the significant risk of catastrophic injury and the event would not have been permitted to take place in a form which allowed the claimant to enter headfirst and suffer catastrophic injuries. Smith LJ stated at paragraph 39:

“It is obvious that the failure to carry out a proper assessment can never be the direct cause of an injury. There will, however, be some cases in which it can be shown that, on the facts, the failure to carry out a risk assessment has been indirectly causative of the injury. Where that is shown, liability will follow. Such a failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury. A decision of that kind would necessitate hypothetical consideration of what would have happened if there had been a

proper assessment.”

A statement of the standard of care required of an employer and approved as “classic” (in Baker v Quantum Clothing Group, [2011] UKSC 17, [2011] 4 All ER 223 per Lord Mance [9], [21] and [101] per Lord Dyson) is found in Stokes v Guest, Keen & Nettlefold (Bolts and Nuts) Ltd per Swanwick J. It says as follows:

I turn first to the background to the case.

The material uncontested facts were as follows. Clover Hill, a mainstream infant school providing education for 3 to 7-year olds, had in its cohort at the time, a number of children with behavioural and other issues of whom one was Child J. After Clover Hill the children moved to the nearby site of St Michael’s for education between the ages of 7 and 11. Forty per cent of Clover Hill intake were in receipt of free school meals and 45% were registered as having special educational needs with “statements” from the local authority at the relevant time, although J was not among them. The school had received very positive reports from Ofsted the most recent Report of early December 2014, had scored the school “Outstanding” in relation to its “leadership and management”, and outstanding for “behaviour and safety of pupils”.

Child J, who was born in 2009, joined Chapel Hill aged 5 in March 2014. Although not statemented nor diagnosed with any disability it was recognised that J had certain behavioural difficulties agreed by all to likely relate to problems at home and consequent attachment issues.

The trial Judge heard evidence from the Claimant and a witness on her behalf called Sue Painter, the Pastoral Team worker who had worked with Child J until 6 June 2015. The Headmistress and Deputy Head, both members of the Senior Leadership Team gave evidence as did Victoria Chaplin J’s class teacher, and Sandy Griffiths, Pastoral Team leader. Zoe Hanwell a TA who was in the Sunshine Room at the relevant time also gave evidence.

Ms Durrant had joined Chapel Hill on 8 December 2014 as a full time TA from a school that dealt with children with up to late teens with special educational needs and had been trained in various management techniques used with more difficult children. Initially she worked at Chapel Hill with another child, (Child A), described as having greater needs than J, and from March 2015 worked with both Child A and Child J on a one to one basis. Before being in the charge of the Claimant, one of her colleagues, a Ms Painter, had had the care of J. Up until about March 2015 J was one of about 5 boys in class who were difficult to manage and received pastoral support.

Ms Painter’s evidence, which was accepted by the Recorder, was that J was an engaging boy, really liked by members of staff and that the Claimant’s good work had meant the school had de-escalated J’s behaviour. The Claimant’s own evidence was that J was no more difficult than a number of others in the school.

It was not in dispute that the Claimant was injured on 28 September 2015 when Child J who was then 6½, became disruptive and violent while being segregated by the Claimant and Ms Hanwell a senior TA in a room next to the classroom known as the Sunshine

The Recorder rejected a large part of the Claimant’s evidence, finding she had been deliberately untruthful about her health, about complaints and concerning comments she claimed at trial to have made in the run up to the attack, and also about details of the actual incident. The Judge held in terms that Ms Durrant had exaggerated the seriousness of the attack by Child J that injured her.

The only independent witness to the attack was Ms Hanwell. At the time of the assault child J was in the Sunshine Room for reflection, went out to the lavatory and had to be restrained on return to the Sunshine room. It was the evidence of Ms Hanwell that he became aggressive there after about 5 minutes.

The relevant part of the judgment dealing with the attack is as follows: “

The Claimant said she had been trapped in the room and was unable to escape and had signed a statement saying she had fallen to the floor, and that Ms Chaplin had seen the attack on her and done nothing. She withdrew the last two allegations in court but had also claimed she had broken her ribs; she told her doctor she had been pushed against a pole and hit with shoes (which she had not).

Importantly, the Recorder continued

“75.

I make it clear that where there was any conflict on the evidence as to what happened that day in the Sunshine room, I have no hesitation in preferring the evidence of Ms Hanwell to that of the Claimant, the lat[t]er having added to her own descriptions during the trial itself. The Claimant said she suffered “a frenzied attack”, but I reject this. I find that the attack, which started after J and the two adults had been in the Sunshine room for about 5-10 minutes, was not continuous, and that the Claimant was invited to leave, that she could have done so, but cho[o]se] not to.”

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

The Claimant accepted in oral evidence she was in fact fully trained and had significant experience. Her essential case (which was not pleaded) became that there had been such serious behaviour from J that there should have been Red Cards issued and he would then have gone straight to Base before the accident in question. She alleged (again for the first time in evidence) that she had made numerous complaints about the position to relevant individuals. She was shown the forms for recording difficulties. She had completed only 2 between March 2015 and the incident on Monday 28^th September one of which had been on the Friday before, September 25^th. The Rules indicated she should talk to the Senior Leadership Team if she had concerns, – but she accepted she did not.

She claimed she had not looked at Child J’s file even though she had the particular care of him. The same for Child A. She never really thought of where the information was going, she said. She asserted that an incident when he smashed lights was not recorded by anyone

The Defendant asked in terms during the hearing for the Claimant to state more clearly what her case on causation was. The Claimant argued that although there were systems in place within the school to manage and monitor challenging pupils, they did not provide safeguards or operate effectively and there were inconsistencies. The Claimant asserted a “dramatic deterioration in J’s behaviour from 21 September 2019” which was not managed. Eventually, the highest her case was put was that J would have been “escalated”, and if he had been, that would have “created a different psychological atmosphere” alternatively, he would have been removed to “ the Base” and would not have been in class at all, so the incident would not have happened.

The Claimant’s submission was that the Clover Hill “Red Card” system of progressive discouragement from bad behaviour, was not properly applied and that incidents which took place in the week before the index occurrence ought to have been treated differently. She said the notes showed 6 or 7 other occasions of bad behaviour and they should have been treated as “Red Card” incidents. History showed only 2 had ever been issued, in the early months of 2015. The Claimant alleged there were incidents with J that were not properly recorded or discussed.

Ms Durrant accepted that incidents were “recorded”, but she said this was not done on the correct documents which was evidence of the system being improperly applied. Had it been properly applied Red Cards would have been given, the information would have been centrally available, an increased risk of violence and injury would have been noted and this would have led to “meaningful intervention” before the attack on 28 September 2015.

The Claimant argued in final written submissions that Clover Hill had departed from their written policy and it was “prima facienegligent” to do so without good reason, so the Court was compelled to conclude this Policy departure reflected a failure to enforce, and not a considered approach. In particular, a failure to follow up a proposed meeting for an assessment of J with the Inclusion Manager in January 2015 was relied on as a negligent failure: had the various steps been taken, the school would have had a better understanding of Child J and the attack would have been obviated. A properly operated Red Card system would have led to consideration of excluding Child J at “the Base” in July 2015. Even if not excluded, there would have been “renewed efforts … and “far greater likelihood of meaningful intervention” in the week of 21 September 2015.

Norfolk invited the Judge to consider the following matters in particular:

Contributory negligence was also an issue.

Norfolk argued that Ms Durrant accepted she was trained and experienced, and that they had appropriate safeguards and processes in place which were to be - and were in fact - properly, yet flexibly applied. They pointed to daily staff dialogue and leadership meetings about J in which the Claimant participated, one to one support for child J, and particularly J’s improvement through the Summer of 2015 following his transfer to the class of Ms Chaplin, and the very good on-going relationship between J and the Claimant which was recognised by the other staff.

Importantly, they argued, even if it were the case (which was not accepted) that their processes were imperfect, or imperfectly understood by staff, they were all well informed about J and crucially, would have done nothing differently in any event, in respect of his care. He was unsuitable for the further processes that were suggested during the case on behalf of Ms Durrant. They particularly denied that any system breaches had caused the damage of which complaint was made.

Norfolk emphasised that Ms Durrant had had a very good working relationship with J. She accepted she came to know him well and it is clear the Judge accepted she was very well thought of by her colleagues. It was accepted by all sides that it worked well to take child J to the Sunshine Room for reflection time if there was a problem and it would calm him down. There was no previous evidence of him ever assaulting a teacher or causing harm to a teacher or “trapping” a teacher while in the Sunshine Room. J would usually have what was called restorative conversation there to talk about his behaviour and triggers once he had calmed down.

Norfolk highlighted to the Judge that the Claimant was a very unreliable witness. Her assertion that she had felt unsafe or that J should have been sent to Base had never been said until trial when she argued for the first time that J should have been at Base by the Friday before or the Monday lunchtime before the index incident on Monday afternoon 28 September 2015. Furthermore, none of the school’s witnesses bore out what she said on this issue: they denied (rather than failed to remember) the issue ever being raised with them. Anna Gooch, Victoria Chaplin, and Zoe Hanwell said there had been no such conversations at any time.

Sue Painter, called on behalf of Ms Durrant, accepted in evidence she did not think there was any point in time when going to Base, or exclusion should have been (even) considered in respect of J whilst she was working with him until June 2015. She did not believe there had been any need to re-refer to the Inclusion Manager, he was progressing in the right direction even if a few incidents did take place. There were 2 episodes in June and one in July when he was supervised by assistants that he did not know as well as other staff. Norfolk emphasised that steps were taken, and a new permanent mentor provided for the September 2015 term.

There were no reported incidents until 21 September 2015 and at this time J was attending mentoring sessions. He hit a child in the playground on Tuesday, 22 September. On the Friday 25 September two incidents were reported of J swinging cushions and throwing chairs. He went to the Sunshine Room with the Claimant and also later tried to run away from school, possibly more than once.

Ms Chaplain gave evidence that was accepted in glowing terms by the Recorder. The Court heard from her about the policies for control and the disciplinary system operating at Clover Hill, including the fivestepped process of formal control designated by letters A- E.

Ms Chaplin explained how J was dealt with, and how it was judged entirely wrong to use Red Cards with him given his character and his needs. She said in evidence (Day 2 /58)

“Everyincidentof-ofviolenceisconsideredbytheseniorleadershipteam.Every incidentwithJ,Iconsidered,aswellastheseniorleadershipteam.Andthatiswhy-whenhegotincreasinglydifficultwithinthat,sortof,weekperiod,whywemadeextraeffortsto contact mum,whySharon [Ms Durrant]thensupportedmemorewithhim.Fromtheseincidents,weput actions intoplacestraightawaybecausethat’swhatwedo.”

And

“WhenJmovedintomyclass,we did adapthowwewereworkingwithhimtobestsupporthim.WestoppedflashingaRedCardinfrontofthatchildandputtingitonachartintheclassroombecausewebelievethat would’ve exacerbatedhisemotionsandhewould-andthatwould’veincreasedhisanxiety.Everytimehehadaviolentincident,Irecordedit,andIrecordonthe“Significantconcerns and conversations”document,orIrecordeditonanincidentreport.”

The evidence given by Ms Chaplin (expressly accepted by the Recorder) included that the school had endeavoured to adapt its system of discipline to Child J’s needs. The orthodox Red Card system (involving an ultimate sanction of sending a disruptive Child to “Base” at the sister junior school,) might not work at all with someone like J. Her evidence was that a “3 strikes, and you are out” Red Card system could be counter-productive for this child -who might have Attention Disorder. She is recorded by the Judge as being “adamant that for a child like J who had attachments difficulties one would just not send such a child to “Base””. Rather, “we used other strategies like giving him support”. The Judge expressed it in this way:

Her evidence, as recorded by the Recorder, was that J was being managed effectively, even when he did deteriorate. She was very clear that there had never been any injury to staff before the Claimant’s incident. She did not agree with the suggestion put that, after difficult incidents in the week before the Claimant’s injury, there should have been an incident report and intervention. She described J as “not showing intentional violence … he was a child in crisis … a Red Card to J would not have helped him”.

The Recorder wrote a long judgment in which she sought to set out quite a volume of the evidence that she had heard, interspersing the evidence with commentary and reflecting her observations as she went along. Norfolk have argued that it is difficult to discern which comments constitute findings on the evidence. It is helpful to consider the structure of what was said to understand how the Judge dealt with the issues.

The judgment presents the material generally as follows

and

“I was left with the distinct impression that the school was bending over backwards to help and assist at the disturbed child without actually fulfilling to the letter responses to every infraction of the school behaviour rules… He was being managed by

Thereafter the Judge lists references to a series of documents with a short description of the triggering incidents, and goes on to record more of Miss Chaplin’s evidence:

“[the Claimant] was always very positive about J she never said that his behaviour was too extreme to be dealt with. No other staff raised it.”

She records that Ms Chaplin never felt every part of the school policy had been exhausted or that J’s behaviour was so extreme he would have to be moved to Base. It was not a “dramatic escalation” rather “we are used to this kind of behaviour and worse”. It is at this point the Judge comments again on how convincing and impressive Ms Chaplin was.

Dealing with other witness evidence, the Judge indicates with respect to the incident, and the version of events given by the Claimant:

“I make it clear that where there was any conflict on the evidence as to what happened that day in the Sunshine Room, I have no hesitation in preferring the evidence of Ms Hanwell to that of the Claimant, the latter having added to her own descriptions during the trial itself.…”

Further passages of the judgment include relevantly:

What follows is the only part of the judgment that contains reasoning about the cause of action. In total it is as follows:

“83.

But what really happened was that the teachers on the spot did not think it would have helped this child. They could manage him with inter-teacher discussions: “he was safe within the school and the staff were safe within the school”, said this witness.

84.

The tragedy here is that by not invoking the somewhat cumbersome machinery of checks and balances, a wider overview about J and his problems did not take place. It was, bluntly, negligent. I remind myself that the Claimant herself could have invoked this system in writing, and not just with a word to another teacher over coffee.

85.

By September 2015, Ms Gooch considered that the events of 22 September 2015 which involved J fighting with another child, was a common occurrence between children, which did not merit any upward reporting as J had accepted the consequence of his actions, and his mother came into school the next day. The 23^rd and 24 September 2015 had both been good days. “He was doing really well, and our restorative actions were working”. She did not know of the two events on 25^th September. Even if these had merited exclusion, the Deputy’s range of actions on that Friday were limited. She explained “to stop him being in the school was not a clear option. There had been no opportunity to speak to his mother. Tiffany was not on the site she was at Base with another child”. This witness thought that to have put J in Base at that point would increase the risk for a child with an attachment disorder. The witness thought that the Claimant was dealing very well with J’s initial outburst. The other children were on their break and were not with J. She was rocking him, and he was in a calm place, and appearing to enjoy the physical contact. I note nowhere that, even with her experience of J, the Claimant was willing to treat him thus, and did not appear to object to her own physical contact with this disturbed child. When asked about the later events in the Sunshine room this witness said “I could not have foreseen that assault. We did not wait until something happened. I do care about our duty of care…” When asked about the Claimant’s evidence that she said that she had had complained to Ms Painter [sic) and to Ms Gooch, her reply was: “she never said that to me. I had taken it on board. I have a duty of care.” She was pressed on this but was adamant that the Claimant had never complained to her, I have to say that I by far prefer the evidence of this witness to that of the

Claimant.”

The Judge then continues in rehearsing evidence that was given by other witnesses.

She continues thus…

“88.

I am constrained to find that the rather convoluted system for recording children’s’ behaviour was not fully, nor carefully, implemented. Forms were ignored and reporting up the chain of command to the Headmistress was not rigorously carried through. However, I make it clear that the teachers who were dealing with J were by far more concerned was trying to help him, calm him and settle him. I was very impressed by their professionalism, involvement, and concern to keep J within the mainstream school system. They had little or no support from his mother. I acknowledge that Ms Durrant was regarded as someone who could deal with J, but she too failed to take advantage of the in-house reporting system. With regret I must find that the gaps on reporting results (and the summer holidays may also have disrupted J) meant that an overall view of any risk J might be posing to himself, other children and to staff was not as carefully considered within the apparently rigorous reporting system, which was supposed to provide a platform for just this kind of developing situation, as it should have been. This was negligent.

89.

Because of the failure to record and report, there was no proper overall assessment of how to treat J, or as to what risks/measures were advisable to have due regard to staff safety. No risk assessment to staff and to the Claimant was carried out, as all the information was not recorded, or any overall assessment made, let alone any blueprint for action. This amounted to a negligent failure to have due regard for the safety of staff, which has caused injury to the Claimant.”

The Judge then states the defendant as employer had a duty of care to its staff as well to the child J.

It is worth reiterating that earlier in her judgment [paragraph 68] the Judge had stated she accepted the evidence of Ms Chaplin in its entirety. The judge in so doing makes no distinction between historical matters of fact and the assessment of the situation on the ground to which the witness spoke. That evidence included that after J’s flareups Ms Chaplin had put some strategies in place to deal with J. After he had had a wobble, she had increased her strategies. And with regard to why the risk assessment form was not completed, Ms Chaplin had stated importantly:

“… because we were managing the risks… If we had completed that risk assessment, we would have been covering ourselves. However, we were doing everything that was on that form”.

In other words, there was no material reason for the completion of the form, except protecting themselves with “process” by filling it in. Further, what would have been written down was just what happened in any event: it would have changed nothing about what in fact they did. Furthermore, other evidence apparently accepted by the Judge was all to the effect that no staff- including the Claimant- perceived J to be a risk to staff whether in the past or just before the incident.

The essential challenge from Norfolk is that the Recorder has not clearly identified material failures by Clover Hill, and nowhere said that any of the inadequacies she did find were causative, whether directly or indirectly, of the injury sustained by Claimant.

The Appellant argues in the Grounds of Appeal that it is difficult to discern the learned Judge’s reasoning, her analysis of the chronology of events, and her conclusions as to whether failures were culpable and caused the loss complained of. I regret that I am constrained to agree.

I am mindful that she had the benefit of several days of evidence and saw the witnesses, according, and bearing in mind the admonitions of Leggatt and Lewison LJJ, I have read carefully the 400 or so pages of the Transcript of the hearing to determine whether it can assist me in supplementing the Judge’s reasoning and sustaining her conclusions. It does not do so.

Applying the principles set out above, it is clear that unless I am able to spell out of the Judge’s judgment, a conclusion on causation, the finding that Norfolk were negligent, cannot stand. Regrettably, I cannot find cogent reasoning or a conclusion as to causation.

It is trite that breach and causation are essential elements of the tort of negligence. This requires findings of fact, an assessment of their relevance, and findings as to whether any breaches were causative of the loss in question, whether directly or indirectly and thus in law amount to negligence. Where it is alleged that a risk assessment was not completed, or, as in this case, not reduced into writing, following Uren, the court must be aware that an assessment failure can only give rise to liability if a suitable and sufficient assessment would probably have resulted in a precaution being taken which would probably have avoided the injury. As Smith LJ pointed out a decision of that kind would necessitate hypothetical consideration of what would have happened if there had been a proper assessment.

In this case it is, with respect, firstly, sometimes difficult to discern whether criticisms of the school amount to findings of breaches of duties owed to Ms Durrant, and secondly, very difficult to find any developed consideration of the counterfactual- what would have happened if the alternative courses of action had been adopted.

The highest that the findings on a counterfactual is expressed is as set out above in paragraph 64, citing the judgment at paragraph [82]. It is there held that had, in January 2015, “protocol been followed” [not explained] … “they might have come to a decision that “other forms of referral would have been better”. There is nowhere a finding of what would have happened on the balance of probabilities, nor a finding that on the balance of probabilities, whatever would have been done would probably have obviated the injury.

Immediately after these findings the Judge records the evidence of Ms Gooch to the effect it would actually have increased the risk were J to have been put in Base, as the Claimant says Clover Hill negligently failed to do. The Judge recites Ms Gooch’s views on what was considered to be the appropriate treatment of J, and, as with the evidence other witnesses to like effect, makes only complimentary comments. Clear reasoned views on the steps taken -and not taken- in respect of J were explained by all of Clover Hill’s witnesses, and even the Claimant’s own witness agreed (see above). These were recited by the Judge who takes no issue at all with the unanimous (save for the Claimant) views.

I have come to the clear conclusion it is impossible logically to spell out a finding that any of the failures found were breaches of Norfolk’s obligations to Ms Durrant or that such caused the damage whether directly or indirectly suffered by the Claimant Ms Durrant.

Furthermore, assessing the facts as they emerge from the judgment, I have formed the clear view that even were a coherent finding of negligence discoverable, it would be a conclusion that was not supportable on the evidence.

The submissions on behalf of Ms Durrant resolved themselves before the Judge into essentially the following points:

In my judgement, despite the strong submissions on her behalf both below and before me by Mr Mainwaring, the evidence just did not support the case made by the Claimant. Her evidence was deeply tainted by what the judge characterised, simply, as her dishonesty and, even in respect of the incident in the Sunshine Room, she rejected her evidence. There is no suggestion that what Ms Durrant (alone) said were the appropriate steps to have been taken regarding J, were accepted as such by the Judge.

It should be noted:

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

In my judgement it is impossible to read the Judge’s condemnation of aspects of the school’s systems as an implicit finding that the failures caused the injury, as was urged on me by Mr Mainwaring on Ms Durrant’s behalf. It is quite inconsistent with the evidence which the Judge must have accepted to the effect that everything encapsulated in a formal written Risk Assessment was in fact being carried out.

That the attack was unforeseeable and unprovoked must necessarily carry considerable weight: the evidence was that no one expected or foresaw the flareup of the index event. The Judge makes no finding to the contrary but recites with approval the evidence to that effect. Crucially, nobody suggested anyone would have acted differently, or done anything differently with the benefit of hindsight.

In such circumstances it is impossible to spell out a causative link between any problems with strict adherence to the school’s written systems and the Claimant’s injuries. Likewise, no negligence can be spelt out from the choices made as to how to deal with J up until the index incident.

It is clear the Judge considered the facts in issue carefully and had a close understanding of the pressures and difficulties inherent in coping with child J. She reflected her sympathy with the school staff on numerous occasions and was clear in her dismissal of the Claimant as a witness of truth. She was clear also in her acceptance of the evidence of the other witnesses, all bar one of whom gave evidence on behalf of Norfolk and were senior to Ms Durrant. Nonetheless, I regret that I am compelled to agree with Ms Dobie, counsel for Norfolk here and below, that it is not always easy to see what the process of reasoning of the Judge was. It is certainly not clear, in my judgement, as I have set out, how she could conclude that a case of negligence had been made out. Accordingly, her judgment is appealably wrong.

Analysing the position afresh and drawing such inferences as I may (pursuant to CPR 52.21) the evidence shows in my judgement that Clover Hill did indeed carefully consider the position during J’s period at the school. There was a significant body of evidence from reliable witnesses that they considered the position of J, his behaviour, and the best way to tackle it, frequently and in detail.

Norfolk submitted, and I accept, the written Policy was not a contract, it necessarily had to be adapted to circumstances (its wording suggested as much). Even if, which in this context I doubt, a departure from the letter of the Policy required “a good reason”, then good reasons existed here. To fail to use a system of discipline and control that was actively considered to be inappropriate for this troubled child could not possibly be characterised negligent, indeed, to follow a rigid policy path might attract criticism.

As to failure to keep records, the burden of the evidence from witnesses who had impressed the Judge was that personal notes of meetings were kept, frequent meetings were held, even if informal and seldom centrally recorded.

In the context of a busy and demanding school environment it was important to analyse carefully what difference scrupulous formal records in accordance with the Policy might have made in J’s case. The evidence was again clear; the Judge certainly did not dismiss it, and appears to have accepted it: nothing, on reflection, would have been done differently, or if done differently, would probably have prevented, or avoided the incident.

Considerable reliance was placed on the failure of the referral to Tiffany Howard the Inclusion Manager at the beginning of 2015. It is clear however, that the environment for a reference to her changed. Alternative steps were taken for J between January and June 2015 and it is also clear from the chronology and evidence that in any event from March 2015 there was measurable improvement in J. In my judgement there is no connection between any culpable failure to refer and the incident that caused injury to Ms Durrant.

The Judge herself said in the course of the second day of the trial that it was not the reams of policy documents that mattered, but whether Clover Hill took professional decisions about actions. I agree with that approach, and the evidence in my judgement shows clearly that they did. That approach was not sustained in the judgment however, as explained above, and the finding of liability against Norfolk cannot stand.

In the circumstances I do not need formally to decide whether the Judge’s two findings of fact are unsustainable, as challenged in paragraph 10 above. However, in my judgement there is real force in the criticism made by the Appellant that it is wholly unclear which incidents the Judge refers to in her deciding paragraphs as not being recorded, and which thus prevented an “overall risk assessment” being made.

The Claimant’s evidence did not support the contention that such unrecorded incidents of significance existed. The evidence had shown there were Pastoral Meeting minutes, an electronic log, Incident Forms, and other pastoral notes made. There was in my judgement, no scope for a finding that significant matters remained unrecorded. In any event, it was clear on evidence apparently accepted, that the team at Clover Hill were at the relevant times fully informed of the issues concerning J. The process of Risk Assessment was continuous and there was no evidence that any failures to record adversely affected any aspect of assessing J’s risks.

Accordingly, were it necessary to do so, I would quash those findings.

The Appellants are in my judgement clearly correct that there is no finding of causation in the learned Recorder’s judgement and, on the evidence as I have assessed it, there could be none.

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

For these reasons there can be no sustainable conclusion that Norfolk were negligent and liable for Ms Durrant’s injuries.

Between :

The Appellant’s appeal is allowed for the reasons given in the judgment previously circulated to the parties and handed down on 30 December 2020.

The question of costs and any consequential matters arising be adjourned for representations in writing (if so advised) by 4pm 6 January 2021.

The time for appealing this judgment does not begin to run until 6 January 2021.

Liberty to either party to set aside or vary this Order on 48 hours’ notice in writing by email to the other side and to the Court.