Over the last two decades we have worked with many schools, often reviewing risks after accidents arise. In our experience, providing insight into lessons learned from these experiences is invaluable; whether that means that changes are required, or whether it gives reassurance that policies and procedures are reasonable. It is essential that schools reflect on events that arise and take stock.
One of the most difficult aspects of advising on school’s claims relates to the issue of challenging behaviour. Understandably if a pupil or teacher is injured by another pupil procedures and risks assessments are quite rightly placed under scrutiny. Changes to procedures may well follow the event, however it is important to note that making changes does not signal an acceptance that the school’s previous procedures were negligent. When faced with a claim following an incident the key is to determine whether the events were ‘foreseeable’.
Claim by a Teaching Assistant
By way of example, we recently defended a claim to trial which focussed on the issue of foreseeability. The claim arose from an incident when a special needs teaching assistant was taking a disruptive Year 4 pupil out of the classroom and into the playground. As they exited a fire door, the pupil unexpectedly slammed the door with her foot, causing the teacher to sustain a significant injury to her right finger and shoulder.
The claimant’s case was that the risk of this pupil displaying challenging behaviour of this nature was foreseeable and she argued that the school had not taken appropriate steps to protect her. However evidence was given by the witnesses for the school to the effect that the pupil had not previously displayed behaviour which could have led them to conclude there was a risk of injury to pupils or teaching staff. The pupil’s behaviour had though deteriorated significantly following the incident in Years 5 and 6.
It was also alleged by the claimant that she did not receive appropriate training to deal with challenging behaviours. However the court agreed with our submission that the issue of training only became relevant if the level of the behaviour was foreseeable.
The Court’s finding
The court concluded that the behaviour of the pupil in years 3 and 4 i.e. before the incident was no more that that of a “naughty child” and that the incident which occurred later in year 4 was not foreseeable. The court held that the school had not omitted to take action or breached its duty of care to the claimant. As a result the claim was dismissed.
This is another reassuring decision by the court and it highlights that not all accidents are caused by the negligence or breach of duty of another party.
It is also important to point out that we could not have secured this favourable decision without the support of the teaching staff. The primary focus and drive of our teaching staff is to provide a good quality education to pupils, in a supportive and safe environment; rather than to act as witnesses in a case. In our experience of investigating and defending schools claims, it is vital to secure the co-operation from teachers at an early stage in the investigations.
The local authority that instructed us in this case was experienced in supporting witnesses and committed to supporting schools to defend claims where there is a defence. This reassured the witnesses, who gave us their invaluable time and insight thus enabling us to defend the claim. Ultimately the favourable decision provided the school with reassurance about their policies and procedures, and the actions taken by the teaching staff at the time.
Caroline Elson is a Senior Associate in the Public Sector team, within the Insurance Law Division.