Autistic spectrum disorder - Employers’ liability

Janet Vaile v Havering London Borough Council CA (Civ Div): (Lords Justices Longmore, Etherton, Sir David Keene): 11 March 2011

The appellant former teacher (V) appealed against a decision [QBD (John Leighton Williams QC) 31/3/2010] dismissing her claim against the respondent local education authority for damages for personal injury sustained during an assault by a pupil (X).

V had worked at a special school for children with learning difficulties where X was a pupil.

His statement of special educational needs stated that he suffered from developmental delay. X had previously attacked V by biting her. A few weeks later, X violently assaulted V by stabbing her with a pencil and shaking her head violently.

V suffered severe physical and psychological injuries and was not able to work again. She sued the local authority for negligence and failing to provide a safe system of work.

The issues at trial had included whether (i) X was autistic or should have been treated as if he was;

(ii) the school should have carried out appropriate risk assessments both of the risk to V’s health and safety and the risk of danger from X;

(iii) the school should have removed X from her class following the first assault or at least have involved the local authority’s specialist Treatment and Education of Autistic and related Communication Handicapped Children (TEACCH) team with their knowledge of autism to consider the problems of having X in the classroom.

The judge found that X was autistic or within the spectrum of autistic spectrum disorder (ASD), although he had never been diagnosed formally.

He found that the local authority had been deficient in its duty to X since it had failed to take account of his ASD, or identify that fact earlier, and implement TEACCH or equivalent procedures for his benefit.

The judge pointed out, however, that those deficiencies were not conclusive on the issue of whether the local authority had taken proper care to provide V with a safe system of work for teaching X.

He went on to find that, while V had not been trained in TEACCH procedures and an appropriately highly structured approach had not been employed for X, there was no evidence that the teaching for X was unacceptable or inadequate or that no safe system of work had been provided for V, and that even if there was any negligence on the local authority’s part, it was not causative of the injury suffered by V.

He therefore dismissed her claim. V accepted the judge’s primary findings of fact, but submitted that he had erred in failing to draw the obvious conclusion that the local authority had not provided her with a safe system of work and that such failure had caused her injury.

Held: (1) The judge’s findings of fact logically compelled one to the conclusion that the local authority had not taken adequate steps to provide V with a safe system of work.

There should have been a system for revealing whether pupils at the school had ASD and for informing teachers of that fact.

Once the local authority had appreciated that a pupil had ASD, it should have ensured that those teaching that pupil were properly instructed in appropriate techniques.

TEACCH provided an appropriate system and technique but, to the extent that there was instruction about it, its application at the school had been haphazard.

The judge’s conclusions were not readily reconcilable: his finding that X’s teaching did not fall below what was educationally acceptable for him was not justified in the light of his earlier findings.

The proper conclusion from those earlier findings of fact was that the local authority had failed in its duty to provide V with a safe system of work (see paragraphs 22-24, 28 of judgment).

(2) The judge’s conclusion on causation inevitably lacked the focus he would have been able to give if he had found any negligence.

The issue of causation looked somewhat different once negligence had been found. The failure to provide a safe system of work had persisted over a considerable time.

Where a claimant proved both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, that would ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant was unable to prove positively the precise mechanism, Drake v Harbour [2008] EWCA Civ 25, 121 Con LR 18 applied.

While it might be difficult for V to show precisely what the school could have done to avoid the incident in which she was injured, if she had been appropriately instructed in suitable techniques for dealing with ASD children, the probability was that, if proper care had been taken over the relevant period, she would not have suffered the injury she had.

Accordingly, the judge had also been wrong on the issue of causation. V’s claim therefore succeeded and the matter was remitted for an assessment of damages (paragraphs 29-30, 31-32, 35-36).

Appeal allowed.

Andrew Prynne QC, Marcus Grant (instructed by Dickinson Ltd) for the appellant; Lord Faulks QC, John Norman (instructed by Barlow Lyde & Gilbert) for the respondent.