Our popular bulletins and events will keep you abreast of the latest legal developments.

Our annual keynote seminar was held on Tuesday, 18 June 2019 at the Vale Resort. Speakers included Simon Evans, Peter Bennett, Amanda Evans and guest speaker, Steven Ford QC.

This edition considers a claim brought under the Occupiers’ Liability Act where the Claimant slipped and fell whilst visiting a leisure centre, as well as various case summaries.

This edition considers recent case-law regarding fundamental dishonesty, the meaning of ‘use of vehicle’ and apportioning liability for speeding.

Our annual keynote seminar was held on Tuesday, 18 June 2019 at the Vale Resort. Simon Evans considered the impact of the Civil Liability Act 2018, Peter Bennett provided a regulatory update and Amanda Evans and guest speaker, Steven Ford QC, discussed recent developments following CN v Poole BC [2019] UKSC 25.

Our monthly review of developments in the insurance and public sector. This edition considers a claim brought under the Occupiers’ Liability Act where the Claimant slipped and fell whilst visiting a leisure centre and case summaries relating to the recoverability of Counsel’s fees and the Court’s approach to Blamire awards.

This edition considers recent case-law regarding fundamental dishonesty, the necessity for bespoke life expectancy evidence, the meaning of ‘use of vehicle’ where a vehicle had been parked in a private garage which caught fire and apportioning liability for speeding.

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Assault by a pupil on a teacher

X v Cardiff Council [2017]

Dolmans acted for the Council in this employers’ liability case. The case is an example of how methodical and detailed handling of a claim by a Defendant team can lead to significant financial savings for a Defendant.

 

The claim was discontinued. This was a claim that was issued under the old costs system and the Defendant was able to recover its costs in full from the Claimant’s After-The-Event Insurers. There was no outlay at all to the Council and the Council and their Insurers made a saving of over £300,000.

Facts and background

The Claimant was employed as a teacher in one of the Council’s special needs secondary schools for pupils who have moderate educational and learning difficulties. The Claimant was hit on the head with a helmet by a pupil on that pupil’s first day at the school during a break time.

The pupil suffered from Sturge Weber Syndrome and epilepsy and was required to wear the helmet at all times. The pupil had a history of challenging behaviour, having assaulted teachers at a previous primary school.

Allegations

The claim was issued in the High Court of Justice due to the pleaded value of over £300,000. A Schedule of Special Damages in the sum of £300,000, comprising mainly of past and future loss of earnings, was served, and General Damages were asserted by the Claimant to be in the region of £40,000. The Claimant alleged that as a result of the injuries sustained in the incident (acquired brain injury with cognitive dysfunction), capacity was not present to enable the claimant to conduct the proceedings directly.

The Council was alleged to be liable in failing to assess the risk that the pupil might become violent, devise a Positive Handling Plan for the pupil, train the Claimant in relation to the pupil’s needs and ensure that the pupil had 1:1 support.

Evidence and liability

Investigation of the circumstances revealed some evidential shortcomings for the Council. There was no risk assessment prepared by the secondary school in relation to the risk of the  pupil becoming violent. Instead the secondary school had sought to rely upon documents prepared by the pupil’s primary school. At the pupil’s previous primary school, she had received full time 1:1 supervision with a single Teaching Assistant, whereas at the secondary school supervision of the pupil in question was conducted by a number of different members of staff during the course of each day.

However, the school had a transition programme which provided for the school to get to know the pupils who were coming to it from the feeder primary schools in order to consider the feeder school’s documentation and to make appropriate provision for staff/pupil supervision.   In addition, the Claimant was an experienced Special Needs Teacher who had received training in dealing with challenging behaviour and was involved in the process of assessing pupils for the purpose of preparing risk assessments. The pupil was one of only five who were going to be taught by the Claimant in year 7 of the school and, therefore, it was part of the Claimant’s role to gain information about the pupil and their needs.

Witness evidence was not straightforward to obtain as there were numerous relevant witnesses to the accident and the school’s procedures. Further, it was necessary to revert to the witnesses on several occasions as the Claimant’s claim developed throughout the case. 

Notwithstanding these difficulties, Witness Statements were obtained from a significant number of Teachers at the school and from the feeder primary school to deal with any deficiencies posed by the documentation and to evidence the positive steps taken to provide for an appropriate transition of pupils from primary to secondary education.

Liability expert evidence was obtained by both parties. The Defendant’s expert was carefully chosen, having been an expert who had been previously used many years ago and who it was aware had been involved in a Court of Appeal case involving similar circumstances. Whilst recognising that experts have a duty of impartiality to the Court, the choice of expert benefitted the Council as possessing the greater experience in these matters meant that the Claimant’s expert made several concessions at the joint meeting of the experts. 

In conjunction with Insurers, surveillance evidence was obtained of the Claimant, which identified that the Claimant was able to carry out activities which the Claimant contended not to be able to undertake as a result of the alleged injuries. This exaggeration brought in a potential fraud issue, particularly as to quantum.

Associated with this, TXT message evidence was adduced, which also indicated that the Claimant was able to do more than was contended. The Claimant part-owned a buy to rent property with another member of staff at the school and had, since the incident, sent that colleague TXT messages about purchasing items for the property, accounting for money and work that the Claimant was able to carry out to the property which, on the face of it, appeared inconsistent with the Claimant not being able to manage her own affairs. The staff member with whom the Claimant part-owned the property was, therefore, extremely surprised on becoming aware of the allegation that the Claimant did not have capacity and was prepared to come forward with this TXT evidence. This evidence undermined the Claimant’s alleged lack of capacity and significantly reduced the allegations as to quantum.

Neuropsychiatrists were instructed by each party on the issue of the Claimant’s capacity and the impact of the assault upon the Claimant. The Defendant’s Neuropsychiatrist was of the view that the Claimant did have capacity to conduct the litigation.

Outcome

Shortly after the Joint Memoranda from the experts was delivered and following discussions between the Solicitors, the Claimant, faced with the evidence which had been assimilated, discontinued the claim. 

The Defendant recovered its costs in full and so there was no outlay by the Council or their Insurers to be paid on the claim. The claim was pleaded at over £300,000 and, on full value, was potentially worth about £340,000. The costs were likely to be over £150,000.

Not only were there substantial financial benefits to the Council associated with the discontinuance, but other less tangible, yet also significant, benefits occurred. The claim was due to be listed for a 7 day Trial in the High Court in London and this would have created significant resource issues for the Council and the school with a large number of its staff having to be away from the school in order to provide evidence. This would have created inconvenience, tensions between the staff, financial and continuity difficulties for the school.  

This claim went from one where it appeared that the Council had litigation risks and evidential hurdles to overcome on liability to a case with a strong defence due to the Defendant team’s detailed approach to obtaining witness, documentary, surveillance and expert evidence.  Such an approach enabled the obtaining of the best outcome possible for the Council.