England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(MR RECORDER STOREY)

		Royal Courts of Justice Strand London WC2 Thursday, 1st November 2001

Thursday, 1st November 2001

1. LORD JUSTICE SIMON BROWN: I will ask Lord Justice Buxton to give the first judgment.
2. LORD JUSTICE BUXTON: This is an appeal from a decision in the Manchester County Court after a trial conducted by Mr Recorder Storey QC. The proceedings from which the appeal emanates are an alarming reminder of how litigation could go wrong in the days before the Civil Procedure Rules. As I shall demonstrate shortly, the course of the case was in many respects unsatisfactory. It was clearly a case that called out for what is now provided under the rules, that is to say firm judicial management from an early stage. Instead of receiving that firm judicial management the matter proceeded by way of adversary pleadings, and it was only shortly before the trial that it became apparent (indeed I venture to suggest became apparent even to those advising the claimant, who had not been those originally responsible) how the case should be put. I revert to all that in due course.
3. The claimant, Mrs Hall, had been a teacher since 1978 at a special needs school operated by the defendant Metropolitan District Council. In May 1995 she suffered significant injuries as a result of an attack upon her by a pupil at that school, who we will refer to only as "A". Nor will we identify the name of the school, again in the interest of protecting the legitimate interests of the girl A.
4. Mrs Hall was a fully qualified nursery nurse and had spent effectively the whole of her career at that single school. The school had about 70 pupils, running over a variety of ages up to 18 years, all of whom suffered learning difficulties, and a number of whom had the misfortune to suffer profound handicap of one type or another. The girl, A, was at the time of the incident 17 years old. She had been at the school, as I understand it, for some considerable time. She was not only 17 years old but also effectively fully developed as a young woman, the evidence being that she was 5' 4" tall and weighed some 70kg. I mention that only to put into context the assault that in due course happened.
5. A not only had profound learning difficulties, but also serious behavioural problems. Various methods of drug and other types of therapy had been prescribed in her case, and there is no doubt that she was a severely handicapped and most unfortunate young woman. She in particular manifested outbursts of violent and aggressive behaviour, which of course became more serious in their effect upon others as she grew older and larger, these being associated, in particular, with her finding herself in any form of confined space such as a lavatory or on the transport by which she was brought to the school.
6. A series of incidents occurred in which attacks on members of the staff and other pupils of a significant degree of violence took place. A witness, Mrs Penketh, who was a colleague of Mrs Hall at the school told the judge, and he accepted because he accepted the whole of her evidence as truthful and accurate, that A had been the only pupil in the school whom she regard as actively dangerous.
7. The ethos of the school and its objective was to try to promulgate a policy whereby pupils interacted together and with members of the staff and, from the educational point of view, it was seen as important that A should not be discouraged from relationship with the other children unless there were good reasons for so doing on a particular occasion. This, I emphasise, was in the context of her particular difficulty when she found herself in a confined space or, as she thought, threatened by the presence of other people.
8. The witness who gave evidence in respect of these matters on behalf of the defendant was a Mr Frew, who had been the deputy headteacher of the school until very shortly before the incident involving Mrs Hall had occurred. In 1993 he promulgated a general policy that was to be followed in respect of all students, requiring every incident of violent behaviour or physical harm to pupils and staff to be recorded in what was called a "class book", and also to be reported either to the member of staff who was designated as child protection officer, or to himself or to the headteacher. The object of this was to provide appropriate information and control from the point of view of the safety of the staff and pupils, while seeking at the same time to promote the educational aims of the school. There was dispute before the judge as to how thoroughly that policy with regard to recording of incidents was in fact carried through, and I shall therefore not at this stage say more about that.
9. Further incidents occurred in respect of A. The judge listed four of those in 1994 and 1995, all of them of an unpleasant nature, to put it at its lowest, principally involving clawing or scratching members of staff, on occasions drawing blood.
10. Mr Frew told the judge that because the position did not seem to be improving further guidelines were formulated, on this occasion specifically in respect of the girl A. A handwritten document was drawn up on 15th March 1995 by Mr Frew, and I shall refer to it hereafter as the March document. It appears to be a standard form sheet which in type asks two questions: first, "What are we going to do?" and second, "Who is going to do it?" The way of handling A under the heading, "What are we going to do?" was divided into two categories: 1. "Class"; and 2. Assembly.
11. The incident with which we are to be concerned occurred during assembly, and it is that part of the document which is principally relevant; but, so far as "class" was concerned, a series of general policies were set out in this document indicating in very broad terms how uncooperative behaviour by A might be dealt with.
12. We then come to the category "assembly", which read as follows:

"If agitated.

Escort needs to inform staff and hall and sit her a couple of seats apart from other students. AT NO TIME CONFRONT HER."

13. Under "Who is going to do it?" is the record "classroom staff".
14. Before coming to the incident complained of in this case, it is necessary to say something about the background to that separate concern expressed in Mr Frew's policy statement with regard to assembly. We were told by Mr Wilby QC who appears before us on behalf of the respondent but who was not instructed at the trial without objection by Mr Braslavsky QC who appears for the local authority both here and below, that there was a significant difference in the management and social structure of the school, on the one hand in respect to the classroom work, and on the other in respect to the assembly. In the classroom, as would be expected, there was a significant and helpful ratio of teachers (and no doubt other helpers) to pupils, it being borne in mind that these are all seriously damaged young people who needed a great deal of help.
15. The position about assembly was different. This was not an assembly of the sort that the members of this court, and indeed others in court, may have been familiar with during their own education. What appears to have happened in broad terms is this. The students arrived at school on buses and other forms of transport. One assumes, though we had no evidence to this effect, that they were the sort of pupils who could not safely be allowed to make their own way to the school; and, no doubt, as this was a special school, many of them came from a distance. A herself travelled by local authority dedicated transport.
16. These buses and other transport arrived at different times. The assembly, which went on for some 20 minutes, involved the pupils not all coming in together but collecting in the hall where this took place to wait for something to happen. In the nature of things there was likely to be a lower level of supervision than would be the case in the classroom.
17. Further (and this is another matter to which I shall have to revert) Mr Frew was clearly aware of, and concerned about, the relationship of the situation in assembly to the particular problem that A had, which had been identified as being a problem brought about by being confined in a small area such as when she was on the school transport. In some of the survey documents in respect of her case it is indicated that difficulty was entertained in managing the transport operation because A found it intolerable to be accompanied in the 8-seater bus used to collect her by more than one or two other persons. The situation was that as soon as she had been delivered from that situation, which as I have said was recognised by the school as one of risk, she was placed in the assembly in order to wait for the assembly proper to start. It was with that in mind that the policy that we have already seen was formulated by Mr Frew, requiring her "if agitated" to sit or be placed by the staff a number of seats away from other students.
18. On 24th May 1995 the normal assembly was taking place. When it started, another pupil (whom we will call "B"), sitting immediately behind the seat that was occupied by A, became distressed and started to scream and wave her arms. She was somebody whom Mrs Hall taught in her class, and she therefore properly and understandably went to B in order to comfort her and seek to resolve her distress. A was seating close to B, though in a different row from her. Mrs Hall, in order to reach B, had to go very close to A. A reacted to Mrs Hall's closeness to her with physical violence, took her by the arm and swung her round so that Mrs Hall suffered really quite serious injuries to her right shoulder. Most unfortunately she has had because of that injury to retire from the career that she had been following since effectively the start of her adulthood, looking after the unfortunate children who find themselves in this establishment.
19. That is the factual background and the nature of the incident complained of.
20. I must now trace as best I can the history of the proceedings. A writ was issued in February 1998, that is to say nearly three years after the incident. It was supported by a statement of claim of the same date. That claim was not drafted by anybody now concerned in the case. The significant part of it, for present purposes, is paragraph 5, which it is necessary to set out in full:

"This attack was caused by the negligence of the Defendant its servants or agents.

Particulars

The Defendant its servants or agents: -

i)failed adequately or at all to devise and put in place a system for the management of this student's behaviour;

ii) so failed in the knowledge that the student represented a danger to other students and to staff;it will be specifically alleged that 'A'frequently attacked other students by meansof nipping, scratching, and hair pulling. Itwill be further specifically alleged that 'A'had previously attacked Mrs Lyn Penketh, MrsPat Owen and other staff responsible fortransporting the students to and fromschool. The week before this incident tookplace she had tried to attack the Plaintiff;

iii) so failed in the knowledge that 'A's' large size made other people vulnerable. 'A' isapproximately 5' 9" tall and weighs anestimated 15 to 16 stone;

iv) so failed in the knowledge that frequentcomplaints were made by members of staff asto the dangers to students and staffpresented by 'A's' behaviour. It will bespecifically alleged that prior to thisincident 'A' had been the subject of several'Behaviour' meetings held at F School to discuss these difficulties. Further, oralternatively no effective action was taken;

v)failed to take any or any adequate steps toprevent this attack for example, by ensuringthat 'A' wore gloves or mittens when out ofthe classroom;'A' was known to attack using her hands.

When attacking the Plaintiff 'A' tripped andscratched at the Plaintiff's right arm and then seized the arm and twisted it up behind the Plaintiff's back. The use of gloves ormittens would have prevented alternatively rendered less effective 'A's' attack;

vi) failed to provide any or any adequatesupervision for 'A' when she was out of theclassroom. It is averred that 'one to one'supervision of 'A' was necessary for the protection of students and staff;

vii) failed, in the knowledge of 'A's' violent tendencies to have any or any adequate regard for the Plaintiff's safety;

vii) failed, in the knowledge of 'A's' violent tendencies to have any or any adequate regard for the Plaintiff's safety;

viii) in the premises failed to provide the Plaintiff with a safe place of work and/or a safe system of working and unreasonably exposed her to the risk of injury which in fact occurred."

21. The principal, though general, complaint is to be found in subparagraph (i). There are then from subparagraphs (ii) to (iv), as will be observed, some complaints about the failure that the policy had been formed without proper knowledge. Subparagraphs (v) and (vi) were in due course abandoned, and I will ignore them. Subparagraph (vii) and (viii) can be regarded, in my judgment, as merely a repetition of the general and uninformative complaint that is to be found in subparagraph (i). This was not a satisfactory pleading. At the same time, however, it clearly and undoubtedly alleged that the system for the management of the students' behaviour had been formulated without adequate knowledge of, or alternatively without adequate regard to, a series of incidents that had occurred in the past, and to discussion amongst the staff as to the difficulties presented by A.
22. The defence of the local authority effectively consisted of a general traverse. The allegations set out in paragraph 5 of the statement of claim (which I have set out) were simply denied. At the same time a counterclaim was made in respect of what was alleged to have been the contributory negligence of Mrs Hall. That claim was abandoned before the trial. At that stage, therefore, although it was not easy to identify the particular policy complained of, it was clear that complaint was made as to the level of knowledge of the local authority and as to dealings with that knowledge within the school. In my view (and this was also the view of the judge) that placed upon the local authority an obligation to give discovery of such records as it had as to the behaviour of A, the steps taken to counter it, and what complaints had been received. It does not appear that any such discovery was given, or that anybody took any step either to pin down exactly what was being complained of, or to give thought as to the evidence that might be induced in respect of that particular complaint.
23. In her reply to counterclaim the plaintiff went on to say (in addition to what she had said in the points of claim) that A's behaviour was such that she should have been excluded entirely from the school. That is another complaint that disappeared before the trial.
24. Witness statements were produced, as were expert reports, on both sides. The plaintiff employed an expert, a Dr Male, to whom I shall have to revert in due course. It appears by that stage to have been assumed in the case (though I for my part have not been able to pin down any document in which this matter was dealt with) that an issue - and a serious issue - was as to what has been called the "balance" between the proper educational interests of the girl, A, and other pupils on the one hand, and the safety of other pupils and staff on the other: because it will already have been apparent from what I have said that there was a tension in the school's policy between on the one hand its desire to give the girl, A, as much freedom and room for personal development as was possible, and on the other hand the danger that if she was brought too closely into contact with other people she would react in a violent way.
25. Dr Male's report talked exclusively about failures in the overall organisation of the school, and spoke of that in very general terms. I have not been able to discern any way in which that particular issue had been pleaded; and why Dr Male wrote her report in that way remains something of a mystery.
26. That was the state of affairs, with no attempt to bring the matter together or to understand exactly what was complained of, until a week before the trial. A week before the trial Mr Copnall, who appeared for the claimant at the trial and appears led by Mr Wilby before us, produced a skeleton argument. Mr Copnall, as we understand it, had not been for long engaged in the case, and certainly had not drafted the original claim. The crucial paragraph of the skeleton was paragraph 2:

"It is the Claimant's case that:

1) In order to minimise the risks of assaults by A on those 'invading her personal space' in the course of school assembly: on 15/3/95, the school recorded the following strategy

'Assembly If agitated. Escort needs to inform staff in hall and sit her a couple of seats apart from other students'.

ii) In order to provide the Claimant with a safe place of work, the Defendant ought, reasonably, to have applied that strategy on the day of the accident irrespective of whether A had appeared 'agitated';

iii) Had the Defendant done so, the Claimant could have assisted B without 'invading A's personal space' and the assault would not have occurred."

27. The last of those claims (paragraph iii) raises questions about causation in respect of which the learned single Lord Justice did not give permission to appeal from the judge's judgment and have not been ventilated before us.
28. The allegation not previously made in the case was that in (ii): the strategy of sitting A apart from the other students and bringing the specific attention to the staff in the hall to her presence and problems should have been applied universally, that is to say on every day, and not only when there was an appearance of agitation on the part of A. I have no doubt that that was a new case, not in the sense that it was inconsistent, with what had been previously pleaded, but rather because it raised allegations and issues that could not have been deduced from the original pleading.
29. That was promptly responded to by a skeleton drafted by Mr Braslavsky. Mr Copnall's skeleton was the first of the departures in the case that I fully accept placed Mr Braslavsky and his clients in difficulties. They had to decide how to respond to what was, at the lowest, an unorthodox way of conducting the case on the other side. What they decided to do was to join issue on the basis of the skeleton produced by the plaintiff. Paragraph 1.3 of the defendant's pre-trial skeleton said:

"The Defendant agrees that the issue of liability ought to be determined on the basis of the allegation now pursued."

- that clearly being the allegation that I have just set out. It then makes some observations about the background, and in paragraph 4 set out:

"The Defendant's case on the allegation now pursued".

30. The particular aspects of that case to which Mr Braslavsky drew our attention were paragraph 4.3 indicating that the claim he now faced had not been pleaded; and paragraph 4.7 indicating that the claimant's expert, Dr Male, had never given evidence in support of the new allegation. Both of these objections are, if I may respectfully say so, entirely correct. They were, however, points and good points, to be made by Mr Braslavsky at the trial. They were not, and were not presented as, reasons why the trial should not take place at all, nor as reasons why it should not take place on the basis of the allegations now made.
31. One difficulty about this change of tack, which Mr Braslavsky had already identified in his skeleton, was that it left the expert evidence already settled on both sides high and dry; because that evidence was not directed to the nub of the case as it now appeared. That caused further difficulties in the case, again which I shall have to revert to.
32. The parties then turned up before the recorder on the first day of the trial. There was a brief attempt to introduce an argument based upon an European directive on the part of the plaintiff, which the recorder rightly refused to allow to happen. I, of course, was not there, and one must be cautious about what one says simply on the basis of the transcript, but it seems to me that that intervention, interesting though it was, may have distracted everyone's attention, including the attention of the judge, from the difficulties that still persisted with regard to the trial of the case. When the judge investigated that with counsel it was agreed that the case could proceed on the basis of the skeletons as they now were, the question being, as the recorder formulated it at page 138 of our bundle:

"Has the employer acted reasonably. In other words, has it taken reasonable steps to provide a safe system and place of work."

33. Both counsel agreed with that. I will be forgiven for saying that that agenda, as it were, was wholly uninformative. Of course that was what the case was about, because this was a health and safety at work case. But that formulation went not an inch further towards telling anybody what was actually going to be in dispute at the trial.
34. Mrs Hall gave evidence and was cross-examined. Then Mrs Penketh gave evidence. The only witness then outstanding on behalf of the plaintiff was Dr Male. She entered the witness box at the end of the first day, and the recorder understandably then asked why she was giving evidence at all. His view was that what she had to say had nothing to do with the case as now pleaded; and a lengthy series of exchanges took place in respect of that matter. I am not wholly clear how the matter was left, but in any event that was the end of day one.
35. After those exchanges the judge pointed out that what had been called the "separation policy" (that is to say the policy referred to in the small paragraph (ii) of the pre-trial skeleton) was the only thing that Mr Copnall relied on. Mr Copnall agreed that that was so. The judge then said he had no expert evidence about it. Neither expert had directed their mind to it because they did not know when they gave their evidence that that was what the plaintiff's case was.
36. It was agreed, therefore, that there should be a meeting of the experts to attempt to comment on the new policy. They produced a joint document, which I have to say does not advance the matter at all because they opine solely on whether the policy was reasonable "from an educational point of view". That was one side of the issue. But the real issue before the judge, as will become clear, was whether the policy gave adequate attention to the health and safety issues.
37. That document was produced at the beginning of day two in the assumption that Dr Male would then either give evidence or be told that she could not give evidence. Dr Male was delayed in travelling, and it was therefore decided that there should be interposed within the plaintiff's case the defendants' leading, and as it turned out only, witness, Mr Frew, the author of the policy, to whom I have already referred.
38. I shall have to return to the content of his evidence in due course. The suggestion of interposing Mr Frew was a perfectly sensible one in the circumstances. It did, however, have, in the events that actually occurred, an unfortunate effect. After Mr Frew had given evidence and been cross-examined in some detail Dr Male reappeared in the witness box. After a number of exchanges the recorder said that he was now unclear in the light of what was being sought to be elicited from Dr Male, other than that which had been in her witness statement, what the case was. Mr Copnall assured him that it continued to be in accordance with the skeleton. The judge said, and was supported in this by Mr Braslavsky, that he still did not understand the matter. What he said he wished Mr Copnall to do was over the luncheon adjournment to set out on paper what his case was. That is what Mr Copnall did. He produced a document for the judge which set out the way in which he now put the case:

"... the final case upon which the Claimant relied was that the failures set out at particulars i to iv and vii and viii of the Statement of Claim were made out and in addition that

i. the policy of 15.3.1995 struck the correct balance between educational need and risk of injury when A was agitated

ii. however, the policy of only leaving a space round A when she was agitated was negligent because

a. the devising of the policy was left to Mr Frew, who had neither experience in, nor guidance upon, health and safety matters, nor upon the factors to be considered when balancing safety risks against educational considerations

b. the policy was devised without any empirical assessment of the question of the difference in risk of attack between agitated and calm states by reference to such written records as were available iii. The defendant's failure to strike a correct balance arose because it a. Overestimated the difference of likelihood of attacks between the calm and agitated states

b. Attached too much importance to the harm which might result to A if she was required to sit apart from other students by a margin of 'a couple of seats.'"

39. Mr Braslavsky had already indicated that he wished to reserve his position with regard to any further departure, as he thought it would be, from the case as pleaded. When he saw Mr Copnall's document he said that it was not, as the judge was minded to regard it as being, "further information" under the provisions of the Civil Procedure Rules, but was a significant departure, a new pleading, for which permission should be sought and for which the judge should not give permission. After again somewhat lengthy exchanges the judge rejected that application, and then heard submissions from both sides, together with further evidence from Dr Male.
40. The complaint made in the present appeal is that this way of conducting the case was simply unfair. There was originally minded to be complaint made about the production of the claimant's skeleton which did put a new case a week before trial; but such complaint cannot stand in this court because the local authority decided, and in my judgement reasonably decided, that it would fight the case on the basis of that pleading.
41. The situation with regard to Mr Copnall's second document on the second day of the trial is different. Two complaints are made about it. One is that this is a further departure not identifiable from the pleadings and raising factual issues of which no warning had been given. Second, and more pressingly, that the document was only drafted after Mr Frew had given his evidence. So two things arise from that; first, the claimant was unfairly advantaged because she could state what her case was only after she had heard what the other side's evidence was; and second, that Mr Frew, when he was being examined and cross-examined, did not have the benefit of knowing what was in fact contained in the plaintiff's case.
42. The second group of those complaints does, however, substantially turn on whether it was open to the claimant to put her case in the way that it was put in Mr Copnall's document in the light of the existing pleadings, it including the skeleton produced one week before the trial.
43. In my judgement it was open to the claimant to put the matter in this way. The allegations contained in the document expand on and explain the circumstances why it is said that the policy should have been applied to A universally and not simply when she appeared to be agitated; and further express that in the context of those parts of the points of claim that the claimant did maintain, in particular points (ii) to (iv).
44. True it is that the document had the benefit of being formulated only after Mr Frew had given evidence. But it seems to me that in the circumstances that in fact fell out at the trial, it would have been entirely open to Mr Copnall, having heard all the evidence, to make these criticisms within the context and parameters of his existing case in his closing speech. In fact what he did at the judge's invitation was to make them before that stage. Nor is it clear what further evidence the defendants might have called had they had the benefit of this document in advance. Mr Braslavsky did not, in my judgment, succeed in identifying such evidence, much less has he made any application to this court to call any further evidence in the light of this departure at the trial.
45. I have however been exercised by this consideration. As the trial turned out, Mr Frew gave his evidence before Dr Male. When Dr Male gave evidence it is, to put it at its lowest, she gave no evidence in support of the case as put in the claimant's skeleton argument. If she had given that evidence when she properly should have (at 10.30 on the second day of the trial), it could have been argued that, no evidence had been given on behalf of the plaintiff, and no evidence existed in the case, in support of the criticisms of the defendant's policy. How the judge would or should have dealt with an application in those circumstances simply to dismiss the action I would not know. But I do not think that that hypothetical possibility should prevail against what actually happened in the case. At the end of the trial, for whatever reason, the judge did have evidence in respect of the propriety of the policy upon which he felt able to act. In my judgement it would be quite artificial to say that it was unfair for him to act on that evidence, or alternatively that this court should interfere with his judgment simply because it felt that had the trial fallen out in a different way it might have been possible to make a different application to the judge which might have succeeded.
46. In my view, therefore, the complaint that this trial was unfair to the extent that the plaintiff should lose her judgment is not made out. At the same time, however, the way in which this trial was prepared; the difficulties that the judge had in pinning down the nature of the action; and the intolerable length of time that was taken at the trial in exchanges between judge and counsel in trying to formulate the case; were very far from the way in which one would wish to see a trial conducted. As I said at the beginning of this judgment one hopes that with the advent of the Civil Procedure Rules this sort of difficulty will not in future occur.
47. I now turn to the second part of the appeal. The case having gone on in the way that I have described, in the first instance in respect of the original skeleton by agreement, in the second instance in the context of Mr Copnall's document by a ruling of the judge, the matter had of course to proceed to judgment. The judge, if I may be permitted to say so, plainly took considerable care over his judgment and, if I also may be permitted to say so, succeeded in isolating from the disorderly material before him the particular issues that he had to decide.
48. It will be convenient to set out his conclusions which are to be found at paragraphs 33, 34 and 35 of the judgment:

"33. I have great sympathy for Mr Frew, because in essence it is his decision which is criticised, but in the end I have concluded that the Claimant has demonstrated that it was not one which a reasonable employer should have reached. I think that Mr Frew is blameless personally, but I have concluded that had he been in possession of all information which he should have received under the 1993 policy, and had he been instructed in a proper approach to balancing safety risks against educational requirements, he would have seen that the desirability of encouraging social interaction between A and other pupils did not outweigh the increasing risks to safety posed by her attacks, a full appreciation of which would have revealed an increase in frequency and violence of attacks which sooner or later was bound to result in serious harm to someone - the facial and eye gouging attacks were particularly serious.

34. Furthermore, I find that there is an inconsistency between a policy which advises placing A in close proximity to others, with a knowledge that this is the very factor which upsets her; similarly, it seems to me to be inconsistent to advise, with obvious emphasis 'AT NO TIME CONFRONT HER', and at the same time encourage the policy of placing her very close to other pupils who by their very nature would not be as tactful in handling A as was plainly necessary, in circumstances which by their very nature, with a room full of 74 pupils, could not be closely controlled.

It seems to me again that had Mr Frew had full reports available, he would have been aware of the very unpredictable nature of A, and would have been likely to conclude that, for the few minutes each day of high stimulus which assembly constituted, it was desirable to minimise the upset to A, which in itself would be more beneficial than forcing her into close proximity with others. As Mr Braslavsky pointed out, Mr Frew's own experience at assembly had not suggested that there was a problem: had he been in possession of full reports, he would in my judgment have seen that this personal view should not be a deciding factor in formulating the policy, particularly when, as Mr Frew said, the policies did not take into account A's strength and physical maturity.

35. Thus I conclude that Mr Frew arrived at his decision without proper information, as a result of negligent failures of the Defendant through its servants a. to follow the policy laid down in 1993, and b. to instruct Mr Frew in the appropriate approach to the balancing exercise. Had he been properly instructed, then I think he would have seen that to conduct the exercise without reference to the proper information was to negate much if not all of its value."

49. On the basis of the findings of fact that he made and his assessment of the evidence, it seems to me that it was entirely open to the judge to reach the conclusions that he did, and I did not understand Mr Braslavsky to differ from that view. What he complains of is that the judge reached evidential conclusions that he should not have reached, and placed too much weight on a number of witnesses.
50. It will be convenient to review those witnesses in turn. The first witness to whom the judge attached importance was Mrs Penketh, a colleague of Mrs Hall. She gave, both in her witness statement and in her oral evidence, relevant evidence which did not appear to have been significantly challenged, both about A's propensity to violence, that the behaviour and attacks of A were unpredictable, and also and importantly, in view of the judge's finding about lack of information for Mr Frew, that, as the witness, said:

"Because of the pattern and frequency of her violence not every single episode of hair pulling and scratching would have been logged".

51. Mrs Penketh's view was that A had to do something more serious than simple hair-pulling and scratching to find herself in the classroom incident book. The judge accepted that evidence. He accepted Mrs Penketh, as he accepted all the witnesses he heard, as a witness of truth and reliability; and he was entitled to do so. That was important evidence because it undermines the contention that Mr Frew could only base his view of A's behaviour upon the records, even indeed if he had looked at the records (and as I have already observed the records were not available to the court and that they were not available to the court was because of a failure on the part of the defendants to understand that the original pleadings made the evidence relevant).
52. Second was the evidence of Mr Frew. I do not intend to go through that in any detail, but to concentrate upon one very important finding, which is in paragraph 10 of the judgment in respect of the March 1995 guidelines. The judge said this:

"Unfortunately Mr Frew also told me that in drawing up these guidelines he had not seen the class records which might have disclosed the full extent of the problems."

53. When he gave his evidence about that Mr Frew explained at some length what he had relied on when drawing up the guidelines. It became clear that he had not himself consulted the documents, but had relied upon meetings with, and verbal reports from, colleagues who themselves were at liberty to look at the documents if they were so minded to do. The judge was justified in regarding that as a serious defect in the drawing up of the guidelines, and his finding that they were not informed by the documents was entirely justified on the basis of Mr Frew's evidence - as were his findings as to other aspects in Mr Frew's activity.
54. Third, the evidence of Mr Male. I have already indicated the unsatisfactory nature of this. However, the plaintiff having insisted that Dr Male should give evidence, Mr Braslavsky effectively cross-examined her and persuaded her to say that in the particular situation of the girl, A, it was perfectly acceptable for her to sit with other students if she was apparently calm, and the policy adopted was not inappropriate. But she also said that if she had been making the decision she would have made the same decision as Mr Frew.
55. The judge was well aware of this evidence, because what I have just set out is effectively a repetition of what he said in paragraph 22 of his judgment. He, however, indicated that he was not minded to act on Dr Male's evidence, despite the striking fact that it had disagreed with the case put by the party that called her. The judge said that he found what she said in cross-examination to be inconsistent with views that she had previously expressed to him. The source of that, it seems to me, was as follows. I do not set out any more of Mr Frew's evidence, but it was clear from many parts of it that he was particularly concerned about the problem that I have already identified, the translation of A from the very vulnerable situation of the transport directly into the assembly. The judge also identified that as a matter of concern, and he asked Dr Male about it. At page 260 of our bundle she said this in answer, to the recorder:

"The problem is that she is in a situation which precipitates her distress, the transport. She then comes off the transport and is put into a second situation which precipitate her distress, assembly. Therefore, there is a high risk I would think of her distress carrying on. Her initial distress subsequently carrying over to the assembly situation...

If however she was distressed by the transport but then managed to calm once she had come off the transport and then was in an environment other than one that was the same sort of environment which stressed her, it would be more likely that she would calm down and that the stress wouldn't carry on...

It is taking her from one environment where it is known that she has difficulties into a second environment where it's likely that she has difficulties and therefore the risk is relatively high that she will challenge again."

56. Mr Braslavsky then cross-examined her at some length and, as I have said, put to her that there had been occasions when the staff on the transport made reports about A. If they made reports that she was not at that point distressed, would it be all right for her to sit with other children? Dr Male agreed that that was so.
57. In my judgement it was entirely open to the judge to regard these two broadly conflicting views expressed by the doctor as casting doubt on whether he could rely upon her evidence at all. Other judges might have taken a different view; but it was plainly open to the judge to regard the whole of Dr Male's evidence with a degree of scepticism that prevented his acting on it.
58. I would say one further thing about Dr Male's evidence. The central issue in this case was whether Mr Frew had adequate information about A in order to formulate the policy that he did. Dr Male inevitably had a great deal less information about A than Mr Frew did. She had not examined A. She could not have looked at the records because the records had not been produced. She was neither qualified nor in a position to form any view about whether the information at Mr Frew's disposal was adequate for his purpose. The judge did not take that point, but I do, as another reason why Dr Male's evidence not only could not be dispositive but was properly discounted.
59. The fourth witness, Mrs Hall, was not referred to at all by the judge in his judgment. Mr Braslavsky took us to passages where Mrs Hall again had been prevailed upon to say that, bearing in mind the interests of the child, the policy formulated by the school was not unreasonable. Those observations, if I may be permitted to say so, cast great credit on Mrs Hall as showing the concern that she continues to have for this young girl, despite the unfortunate experience that she had had with her. But as the judge pointed out at one stage of her evidence, it is for him to decide what is right and reasonable, not for a lay witness, and certainly not for the plaintiff under cross-examination to decide that. It was not suggested, nor could it have been suggested, that Mrs Hall's responses involved any sort of abandonment of her case, or indeed that they should be taken as dispositive as answering the question which the judge had to answer. It might have been better if the judge had actually said that in terms in his judgment, but there was absolutely no reason why he should go in any detail to Mrs Hall's evidence, and every reason why he should not act upon what she said.
60. I am therefore entirely satisfied that the clear and careful judgment that eventually emerged from the disorder of the trial was based upon evidence that was properly before the judge and cannot be criticised.
61. For those reasons I dismiss this appeal.
62. LORD JUSTICE SCHIEMANN: I agree.
63. LORD JUSTICE SIMON BROWN: I too agree.
(Appeal dismissed with costs).