Background
The Defendant ran a residential home for young persons with challenging behaviours linked to autism and ADHD. The Claimant was employed by the Defendant as a support worker at the home and had experience in working with challenging behaviours and autism.
The Claimant was attacked by a 12-year-old child (KL) after an external swimming trip. The Defendant had KL in its care. The Claimant sustained permanent injuries as a result of the attack and brought a claim against the defendant as her employer.
This case concerned the risk assessment(s) that the Defendant had in place in respect of KL and, specifically, whether it was negligent for KL to access the community on a 1:1 basis. In other words, could the duty of care only have been discharged by a 2:1 staffing ratio?
Decision
The claim was dismissed at Trial. The Judge found the Claimant and her witnesses to be unreliable, noting that:
"[The Claimant] was reluctant to accept she had experience of working with children with autism spectrum disorder ("ASD") - even though the documents show this to be case. …
She was also insistent that [the Defendant] told her she would not be working with children with challenging behaviour. I reject this because it is contrary to the job description, contrary to her application that emphasised her work with adults and children with challenging behaviour, contrary to the purpose of the residence and, moreover, it was mentioned only for the first time in cross-examination.
She told me every day there were problems with KL's behaviour. The documents show this is simply not true.
She told me that the care plan said KL required a 2:1 staffing ratio, especially outside the home and that [the Defendant] refused to adopt it. This is simply incorrect…. the care plan says no such thing.
She told me in cross-examination that she had never taken KL alone to swimming. Her own evidence-in-chief contradicted this."
Causation was a key issue in the claim. The Defendant admitted that refresher training was overdue and that there was no individual activity risk assessment for swimming.
The Claimant argued that if the Defendant had risk assessed the activity properly this incident would never have happened. In particular, the Claimant submitted that had a second member of staff been present when taking KL out on the day of the incident, the Claimant would not have been injured.
However, the Defendant's case was that it was for the Claimant to prove that the attack would have been prevented even had various alleged precautions been taken. It was not enough to suggest that the mere risk of the attack would have been reduced by such precautions.
Even if, which was denied, the Defendant was required to have had a 2:1 staffing ratio for swimming trips, there was no evidence provided to show how that additional member of staff might have foreseen and prevented KL’s attack.
Against that submission, it was argued by the Claimant that she was not required to prove on balance what specifically the Defendant should have done to prevent her being injured by KL.
The Claimant’s case was that the Defendant’s negligence took place over a considerably longer period than just the day in question. As per Vaile v Havering [2011]:
"Where a Claimant proves both that a Defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a Court to infer that it was probably so caused, even if the Claimant is unable to prove positively the precise mechanism.'
Although the Judge found that the employer had breached its duty of care by failing to assess the risk for KL when being taken swimming, the Judge then went on to find that:
"…I can see nothing else that [the Defendant] should probably have done that probably would have prevented the attack. In essence I conclude that there is before me nought but a bare assertion not backed by evidence…
…I agree with [the defendant] that it is notable that even the claimant does not suggest in her particulars of claim the precautions the risk assessment should probably have identified and how they would probably have prevented injury.
…The lack of evidence about KL behaving in a challenging manner on other occasions outside the home suggest that in fact no such risk would have been identified."
More specifically, the Judge found that even had a risk assessment been done, there was no evidence that the recommendation would have been for 2:1 supervision when taking KL swimming. Indeed, noting his finding that the Claimant expressed no such concerns, it seems more likely that in fact it would not.
The Judge accepted the Defendant's submission that the Claimant’s case was based on a misunderstanding of Vaile, which did not establish any new or different approach to causation:
"…the Court of Appeal were not simply saying the Court can skip over working out what precaution ought to be taken and whether that would have avoided the injury, but saying on the facts of that case (and with the benefit of the experts' evidence) causation was made out".
Comment
The decision is a helpful one for Insurers and Defendants as it demonstrates that even if breach of duty has been found (as in this case), it does not necessarily mean the claim should be settled. It is for the Claimant to prove that, had the measures been put in place as alleged, then the accident would have been prevented.
DWF acted on behalf of the successful Defendant.
