Under established principles of common law negligence, a claimant, who is alleging that their (former) employer was responsible for personal injuries, must prove that the defendant failed to take reasonable steps to provide them with a safe system of work, where the test of ‘reasonableness’ is dependent upon the defendant’s relevant knowledge at the time of the alleged incident/exposure. The claimant must then prove, to the civil standard of proof (on the balance of probabilities), that the injuries/disease sustained would not have materialised but for those failures.
It is this interaction between breach of duty and causation components in individual negligence claims, which forms the backbone of liability.
In this article, we précis a recent High Court appeal of a judgment of liability, which was reached on an unorthodox assessment of breach and causation by Mrs. Recorder Rodgers, sitting in Norwich County Court – namely that the mere ‘condemnation’ of aspects of the employer’s systems served as an ‘implicit finding’ that those failures caused the injuries alleged.
The appeal in question was Norfolk County Council v Durrant  EWHC 3590 (QB). A teaching assistant brought a claim for soft tissue injuries to the left shoulder, chest and limbs, and also for post-traumatic stress disorder, following an altercation with a disgruntled 6-year-old pupil in her care, in the course of her employment.
Her claim was made in common law negligence, with supplementary pleadings under the Management of Health and Safety at Work Regulations 1999.[i]
It was alleged that her local authority employer had failed to undertake suitable and sufficient risk assessments; failed to provide information on risks and the necessary training; and failed to take account of her individual capabilities in her job role.
Were the defendant to have ensured a safe system of work (e.g. by completing Pupil Specific Risk Assessment forms) and operated those systems for the monitoring and management of ‘difficult pupils’, it was postulated that the ‘dramatic deterioration’ in the child’s behaviour would have been diffused and the incident would not have taken place.
The principal challenge on appeal was that the 1st instance Recorder had made a finding of liability without making any ‘actual finding of causation’:
‘… [she] has not clearly identified material failures by [the defendant] … and nowhere said that any of the inadequacies she did find were causative, whether directly or indirectly, of the injury sustained by Claimant’.
The claimant acknowledged the defendant’s argument as technically correct, but nevertheless encouraged the appeal judge to ‘infer’ from the Recorder’s reasoning, ‘read as a whole’, that she must have arrived at her decision by proper application of the law.
Obligingly, Mrs. Justice Foster underscored the backbone of negligence liability, as follows:
‘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,[[ii]] 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’.
On this basis, though, she could not find ‘cogent reasoning or a conclusion as to causation’, whilst also arriving at the ‘clear conclusion’ that it was ‘impossible logically to spell … that any of the failures … were breaches’ of the defendant’s duties to the claimant.
There were several influential factors that led Foster J to make these closing statements. Instrumentally, the Recorder had not expressly defined the system of reporting behaviour as ‘negligent’. Instead, she used adjectives, such as ‘convoluted’ and ‘cumbersome’. What is more, the fact that the attack on the claimant was both ‘unforeseeable’ and ‘unprovoked’ necessarily carried ‘considerable weight’, because it meant that the flareup of the index event could not have been expected of foreseen. It was perhaps for this very reason that the court below did not provide any ‘developed consideration of the counterfactual’. No witnesses who gave evidence to the effect that ‘anything would have been done differently’ with the benefit of hindsight, regardless of ‘whether processes and protocols had been followed to the letter’.
When viewed in the round, there could be no ‘sustainable conclusion’ that the defendant was negligent and therefore liable for the claimant’s injuries. The Recorder’s judgment was ‘appealably wrong’.
Full text judgment can be accessed here.
[i] Note that, in the wake of s.69 of the Enterprise and Regulatory Reform Act 2013, which repealed s.47 of the Health and Safety at Work etc. Act 1974, breach of the Regulations does not of itself give rise to civil liability, but is still relevant to the exercise of establishing common law negligence.