England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Garland J

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 23rd January 2002

Lord Justice Judge:

1. This is the judgment of the court in an appeal from the decision of Garland J dated 8^th November 2000, dismissing the claim for damages for psychiatric injury and consequent loss, brought by a former pupil of Ifield Middle School (IMS) Leah Bradford-Smart, against the defendant council which maintained and was responsible for the school. The alleged cause of her illness and loss was bullying, both within the school and outside it.
2. Leah was born on 19^th May 1981. Shortly after her birth, her father abandoned her mother, who was left to bring up Leah on her own. She was provided with local authority accommodation on an estate, where, as the judge summarised it, "life could at times be uncomfortable". While living there, between 1985 and l990 Leah attended the Good Shepherd R.C. Primary School.
3. In July 1990 Leah's mother managed to organise a change of home to two bed-roomed house with a garden in Crawley in Sussex. Although no one could have foreseen it at the time, the move was eventually to make their lives even less agreeable than before. No proceedings were taken by Leah in respect of bullying at the Good Shepherd school. She was removed by her mother a few days before their move to their new home in Crawley. Garland J concluded that Leah had been the victim of bullying at that school, which went beyond a single nasty incident.
4. Leah enrolled at IMS in September 1990. When she started, her mother asked the staff to keep an eye out for bullying. The concern is best encapsulated in a note made of a meeting between Mrs Bradford-Smart, and Leah's new class teacher, Mrs Cockram, during a parents' evening in October 1990. It reads:

"Mother thought Leah had settled fairly well into her new school. She was concerned that Leah would come against problems with bullying, as previously. I agreed to watch for any problems."

5. There were some 470 pupils at IMS. The newly appointed headmaster was Paul Harvey. Leah's class teachers were Mrs Cockram in year 1 (1990-1991) Mrs Reed in year 2 (1991-1992) and Mrs Ashworth in year 3 (1992-1993). In March 1992 Leah was accepted for a place at the Ifield Community College, but in February 1993 her mother determined that she should attend Hazelwick School. Leah left IMS at the end of year 3. In the meantime, as a result of the actions of the mother of another pupil, IMS had received very bad publicity, in the media, on the issue of bullying, and the alleged failure of the school authorities to control it. When her plans for Leah's attendance at Hazelwick school failed to mature, Mrs Bradford-Smart kept Leah at home and taught her herself for just over a year. She took up complaints of bullying of Leah at IMS with the media. In October 1994, although very young for the placement, Leah started to attend Crawley College. The writ in the present action was issued in April 1998. Leah was nearly 17 years old.
6. The case at trial was that Leah had been bullied at IMS during both year 1 and year 2, and bullied both outside and on the way to and from school, (using public transport) and within the school itself, in year 3. Although Garland J accepted that Leah had been disappointed and unhappy during years 1 and 2, he rejected the contention that she had been bullied at school. As to year 1, Garland J said:

"I cannot conclude from the evidence before me that there was bullying let alone that the school knew about it and failed to take appropriate action".

As to year 2, he concluded that:

"there was some name-calling and uncouth behaviour on the bus but nothing of the targeted and persistent nature required to constitute bullying ".

7. His conclusions in relation to year 3 were:

"I have no hesitation in finding that from July 1992 Leah was seriously bullied at home and on the bus going to and from school. I also find that threats were made as to what would happen in school. ... In the third year Mrs Ashworth's defensive actions prevented bullying in school although Leah was fearful as a result of what happened outside school".

He further held that Mrs Ashworth did all that she could as a class teacher "to safeguard Leah while she was at school. I do not consider that her conduct fell short of that to be expected of an ordinarily competent class teacher or that she did or failed to do anything which no class teacher of ordinary skill would have done or refrained from doing if acting with ordinary care".

8. These conclusions were criticised by Mr Roger ter Haar QC for Leah. He contended that they were wrong and that the erroneous findings were the consequences of the judge's failure to grapple with the evidence. He made detailed submissions in relation to each of the relevant years, but he laid particular emphasis on two areas of the evidence. The first was the judge's dissatisfaction with the evidence of the headmaster at IMS, Mr Harvey, which caused him "considerable difficulty", and which he regarded as "unreliable". Second, Mr Ter-Haar focused on the commendations made of Mrs Bradford-Smart by Leah's three class teachers, as a supportive and sensible parent, not prone to exaggeration. With considerable forensic skill, he proceeded to mount an argument, which carried to its logical conclusion, meant that Mrs Bradford-Smart was a witness whose evidence should have been accepted by the judge. On this basis Garland J's conclusions were not sustainable.
9. While not conceding that the judge's assessment of Mr Harvey was correct, Mr Edward Faulks QC accepted that he could not restore Mr Harvey's standing as a credible witness before this court. However, he submitted that Mr Harvey's inadequacies as a witness did not establish that Leah had been bullied in school. On the second issue, he convincingly demonstrated that it was fallacious to proceed from the respectful, even admiring views, of the teachers about Mrs Bradford-Smart as a mother of a pupil between 1990 and 1993 to the conclusion that they accepted the truth of what she was now saying about events during those three years, or more important, that those views obliged the judge to do so. To illustrate and underline the logic of his submission, he highlighted the evidence of Mrs Ashworth, which was examined in detail.
10. Mrs Ashworth accepted without hesitation that Mrs Bradford-Smart was a very caring woman, not over-protective of her daughter, whose contemporaneous complaints did not appear to her to be exaggerated. However, she went on to give evidence that when she had read Mrs Bradford-Smart's witness statement she could "not myself remember the things she said about bullying in school... at the time Mrs Bradford-Smart was not referring to things that were happening in school at all."
11. Her attention was drawn to a letter dated April 1993 where Mrs Bradford-Smart had written: "She has been bullied and harassed inside and on her way to and from school constantly by a gang of girls." Mrs Ashworth responded that she had seen that letter. "I would not have agreed that she was being bullied or harassed inside school". She accepted that bullying and threats went on outside school, and that these were sufficient, on occasion, to make Leah fearful about going into the playground. On such occasions she allowed Leah to stay in the classroom with her. She was "absolutely unwilling to withdraw Leah from where she should have been from the playground, and I felt it was the wrong thing to do, that every time she stayed in with me she had a little less practice in going out and looking after herself. I did not want to keep her in very much, and I did not keep her in more than I could possibly help".
12. She was then asked whether she had seen what Mrs Bradford-Smart had told the newspapers. She said that she had, she "was very, very shocked". She was asked whether she was suggesting that Mrs Bradford-Smart had deliberately told lies to the newspapers. She said she had no opinion on that. Counsel returned to the letter dated April 1993. Mrs Ashworth said "I was a bit surprised about that and felt rather let down by it when I read the statement about the letter to Mr Patten, because I had felt that it denigrated the effort I had made to give Leah a happy, progressive year." She was then asked:

"Did you accept then that Mrs Bradford-Smart believed that Leah had indeed been bullied at school?"

She replied:

"I did not know what Mrs Bradford-Smart believed. I knew what was being expressed".

13. She was asked whether "at that stage" or "afterwards" she considered that Mrs Bradford-Smart had told deliberate lies. After a pause, she responded: "All the time I have known Mrs Bradford-Smart I have never doubted anything she had said up to then".
14. These were very careful, deliberate answers. They do not mean that Mrs Ashworth accepted the truth of what Mrs Bradford-Smart was alleging about bullying in school (as opposed to outside school). To the contrary, notwithstanding the measured terms in which her reservations were expressed, Mrs Ashworth was adamant that Leah was not bullied in school. The judge regarded her as an impressive, accurate witness. To the extent that any transcript may do so, it provides ample confirmation for the judge's assessment. In short, therefore, we do not accept that the commendations made of Mrs Bradford-Smart by the teachers who knew her while Leah was at school means, or should have meant, that Garland J did, or ought to have believed her evidence. Accordingly, Mr ter Haar's detailed analysis of what she said in evidence fails to reinforce his submission that the judge's conclusions of fact were wrong.
15. As a separate argument Mr ter Haar relied on the absence of any express judicial finding that Mrs Bradford-Smart or Leah were lying or inaccurate in their evidence. Certainly, the judge did not say so expressly, and we can readily understand why he did not. On his findings, whatever the truth about the issue of bullying in school, Mrs Bradford-Smart and Leah, had both been victims of what he described as a "vendetta" by their neighbours, which began in the summer of 1992. The details need no repetition. It is sufficient to note that false, and extremely serious, allegations were made maliciously against Mrs Bradford-Smart. Despite her complaints, neither the police nor social services had been able to provide any practical assistance to reduce or diminish the difficulties to which she and Leah were being subjected. Mrs Bradford-Smart was a devoted mother, always encouraging her daughter to achieve her best. Leah herself was a talented girl who, on the judge's findings, had suffered from a depressive illness. She had been a victim of bullying, albeit outside the school.
16. In this case brutal language of judicial rejection was not a necessary pre-requisite to the judge's decision that he should not accept or rely on the evidence of either of these witnesses. What he did say however, clearly indicated his considerable reservations, and the reasons for them. He noted the conflicts of evidence between Leah and her mother. Leah's evidence was more consistent with the evidence of the teachers. He studied the contemporaneous documents, which Mr Faulks took us through. Although the documents were not complete, they included favourable school reports on Leah throughout her time at IMS, together with warm, but not extravagent praise, and the notes of interviews with parents during the formal evenings which took place throughout Leah's education at IMS. Significantly, in October 1992, notwithstanding the publicity which had already taken place about bullying at the school, the only record is that Mrs Bradford-Smart was "pleased" with Leah's progress. In March 1993, the interview records that Leah worked well and that there were "no problems in school". The concern was the non-acceptance at Hazlewick, and the note records that "the mother does not want her to go to ICC because of problems with neighbours' children who are there." The judge took account of the unsuccessful campaign started in February 1993 by Mrs Bradford-Smart for Leah to be admitted to Hazlewick, and her consequent disappointment, which formed a significant part of the context in which the allegations of bullying within the school came to be made. The note of the meeting in March 1993 is not consistent with a complaint of bullying within the school but demonstrates the anxiety to achieve a place at Hazlewick. The judge also took as an example of what he concluded was exaggeration made by Mrs Bradford-Smart in a comment subsequently written by her on a letter dated 27^th August 1993. She wrote: "if this being the case, why on both of the last days of term at Ifield Middle School did Leah get beaten up?". In his judgment the judge commented that she had made no reference to any such incidents "in the course of her evidence, and that the only passage in Leah's evidence which could possibly refer to any such incident is paragraph 24 of her witness statement in which she says she was attacked by a girl named Emma. The attack could hardly be described as a beating up and Leah seemed to have got the better of it.".
17. Given the judge's express endorsement of the evidence of Mrs Ashworth, which undoubtedly conflicted with that given by Mrs Bradford-Smart in relation to year 3, not on the issue of bullying generally, but the place where it took place, the judge gave ample indication of the fact that he did not find it possible to rely on the evidence of Leah and her mother, and also the reasons for his inability to do so. It was not necessary in the circumstances of this case for him to do so with any unnecessary or additional emphasis, merely for the sake of effect. There is no doubt that the judge rejected this evidence, and the implied criticism of the sensitive way in which he dealt with it, and made his findings, is not justified.
18. Mr ter Haar made a number of further submissions about some of the factual issues. For example, he referred to Mrs Cockram's difficulties with memory, pointing out that it did not follow from her inability to remember something, that the particular incident about which Leah was speaking had not happened. Garland J would not have assumed that it did. Mr ter Haar suggested that it was a matter of surprise that Mrs Reed could not remember the publicity surrounding the bullying allegation made by the first girl. Accordingly, as we understand it, he suggested that her memory was deficient, so her inability to remember any bullying of Leah in year 2, should carry no weight. Again, we do not think this point can have been overlooked by Garland J, who expressly noted Mrs Reed's inability to remember the incident in his judgment.
19. It is unnecessary to recite any of Mr ter Haar's further submissions on the facts. Taken separately, or cumulatively, and notwithstanding the justified criticism made of Mr Harvey's evidence, which was closely considered in its proper context by the judge, the attack on Garland J's factual conclusions fails.
20. In summary therefore, so far as years 1 and 2 are concerned, the question of bullying does not arise for consideration at all. In year 3, the only bullying suffered by Leah was bullying when she was away from the school. The troubles at home began at the very end of year 2 and became more acute during the summer holidays. At the beginning of year 3 Mrs Bradford-Smart confided in Mrs Ashworth that Leah was having troubles with neighbouring children, who were pupils at IMS in Leah's year. From time to time, while bullying her at home, they also threatened "to get Leah when they were all at school together". Naturally enough this was very alarming, both for Leah and her mother, and approximately every three or four weeks, Mrs Bradford-Smart would send a long chatty letter to Mrs Ashworth asking her to keep an eye out for possible trouble at school in view of threats which had been made.
21. Mrs Ashworth was anxious that Leah should be protected, but not over-protected. On the basis of the judge's findings, she achieved an admirable balance. When Leah was worried, she was permitted to spend the whole or part of break periods in the class with Mrs Ashworth. On other occasions, when Mrs Ashworth observed one or other of the troublesome children hanging about the classroom, they were told to go away. And they did. Their teacher, too, kept an eye out for trouble, and when it seemed likely to arise, distracted them. All these episodes were quickly over, and tensions dissipated as the children then got on with more normal playground activities with friends. Leah herself was not a stranger to the playground, nor friendless. She stayed behind with Mrs Ashworth "not more than once a week, but say, every two or three weeks". For the rest of the time Leah was in the playground as normal, under the watchful eye of Mrs Ashworth whose classroom overlooked the playground, and who had also arranged for those monitoring the playground to keep an eye out for her as well. Apart from the inevitable ups and downs of playground life, Leah appeared to be happy, playing and chatting with her friends, apparently enjoying the breaks. In truth she was a confident girl, well liked by other children, and quite capable herself of "putting down" some of her contemporaries.
22. There were a number of specific troubles. On examination, these were unconnected with neighbour troubles at home. There were also the usual disagreements and quarrels, quickly over. But Leah did not speak to Mrs Ashworth of being bullied at school, nor did her mother. And Mrs Ashworth, who was a very experienced teacher, specifically directing her attention to Leah, never saw or became aware of anything to lead to the conclusion that Leah had been victimised at school. Her impression of Leah was that she was "... a positive child... very well informed.....happy to put her view forward. She was happy with her three close friends, and she was also very kind and thoughtful, and I feel that those things together are a sign of a happy child."
23. Mrs Ashworth accepted that she was responsible for the pastoral care of Leah, and concerned that there had been problems outside school. Within the school she said that she:

"wanted to protect her, but I wanted her to feel more confident about these children and not to be fearful and withdrawn in my classroom. So I sent her out when I did not feel it was essential" (to keep her in the classroom)

She accepted that she felt it was part of her duty "to take on board what had happened outside school and be very sure that it did not have consequences inside school", and she felt that she had succeeded in doing so.

24. Toward the end of the year 3 Mrs Ashworth developed concerns about Leah, which she attributed to the uncertainty over her schooling arrangements for the following year. That analysis was not unreasonable, and even if it were wrong, did nothing to undermine Mrs Ashworth's adamant view that Leah had not been subjected to bullying at school.
25. In summary therefore, the bullying which took place at home or on the way to and from school, was not allowed to and did not spill over into school. Leah was closely and affectionately monitored by Mrs Ashworth, who saw to it that any threats raised at home were never fulfilled, and unostentatiously contrived to give Leah the support and encouragement she needed to deal with the problems which confronted her at school. Without the dedication and experience of Mrs Ashworth, or a teacher like her, the problems at home might well have developed into bullying at school. As it was they did not. The judge's finding was quite explicit and needs no repetition. We shall not interfere with it.
26. Mr ter Haar's principal argument, however, was that the judge had applied too restrictive a test in determining the scope of the school's duty of care towards its pupils. The judge put it this way:

"I have come to the conclusion that granted a school knows that a pupil is being bullied at home or on the way to and from school, it would not be practical let alone fair just and reasonable, to impose upon it a greater duty than to take reasonable steps to prevent that bullying spilling over into the school. . . . I would regard the duty as going no further than to prevent the bullying actually happening inside the school; in other words, to take effective defensive measures. If the school chooses, as a matter of judgment, to be proactive then that is a matter of discretion not obligation."

27. Mr ter Haar argues that it was wrong in principle to adopt a line of demarcation at the school gate. The school owes a duty to take reasonable care to protect its pupils from abuse by other pupils even if this occurs off school premises. As with any other professional duty this is to be judged in accordance with the test laid down in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: i.e. whether a responsible body of professional opinion would have taken that course.
28. It was common ground in this case, as it had been in Van Oppen v Clerk to Bedford Charity Trustees [1990] 1 WLR 235, 250, that 'a school is under a duty to take reasonable care for the health and safety of the pupils in its charge'. As Croom-Johnson LJ pointed out at 266, in some respects this goes beyond mere parental duty, because the school may have special knowledge about some matters which the parent does not or cannot have: in that case the unusual dangers in playing certain sports, such as rugby football. But otherwise the school is under no greater duty than the parents: in that case to arrange personal accident insurance for its pupils.
29. In X v Bedfordshire County Council [1995] 2 AC 633, at 766, Lord Browne-Wilkinson took the matter a stage further, in the context of whether a claim against the headteacher and members of the Local Education Authority's advisory service for failing properly to assess and detect the child's special educational needs should be struck out:

"In my judgment a school which accepts a pupil assumes responsibility not only for his physical wellbeing but also for his educational needs. The education of the pupil is the very purpose for which the child goes to the school. The headteacher, being responsible for the school, himself comes under a duty to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of the headmaster that a pupil is underperforming, he does owe a duty to take such steps as a reasonable teacher would consider appropriate to try and deal with such under-performance. . . . If a headteacher gives advice to the parents, then in my judgment he must exercise the skills and care of a reasonable teacher in giving such advice."

30. The scope of a school's duty of care towards its pupils was summed up thus by Auld LJ in Gower v London Borough of Bromley [1999] ELR 356, at 359:

"(1) A headteacher and teachers have a duty to take such care of pupils in their charge as a careful parent would have in like circumstances, including a duty to take positive steps to protect their well-being. . .

(2) A headteacher and teachers have a duty to exercise the reasonable skills of their calling in teaching and otherwise responding to the educational needs of their pupils. . . .

(4) The duty is to exercise the skill and care of a reasonable headteacher and/or teachers, applying the Bolam test, namely, whether the teaching and other provision for a pupil's educational needs accords with that which might have been acceptable at the time by reasonable members of the teaching profession. . . "

This approach was upheld when that case, along with others, reached the House of Lords in Phelps v Hillingdon London Borough Council [2000] 3 WLR 776. But Lord Slynn gave this warning, at 792:

"The difficulties of the tasks involved and of the circumstances under which people have to work in this area must also be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged and the courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded."

31. Although these are all aspects of the duty of care, there are practical differences between what might be called the 'health and safety' duty and the 'educational' duty, among them that the latter is more likely to lead to 'pure' economic loss. Bullying may be either a 'health and safety' or an 'educational' issue or both. It may lead to physical or psychiatric injury to the victim. It may also lead to educational under-achievement and consequent psychiatric injury or economic loss.
32. The school does not have the charge of its pupils all the time and so cannot directly protect them from harm all the time. At a day school that charge will usually end at the school gates, although the school will have a duty to take reasonable steps to ensure that young children who are not old enough to look after themselves do not leave the school premises unattended: see Lewis v Carmarthenshire County Council [1953] 1 WLR 1439, CA, at 1443 (the speeches in the House of Lords proceeded on the same assumption: see Carmarthenshire County Council v Lewis [1955] AC 549). One can think of circumstances where it might go beyond that, for example if it were reasonable for a teacher to intervene when he saw one pupil attacking another immediately outside the school gates. It will clearly extend further afield if the pupils are on a school trip, educational, recreational or sporting. But the school cannot owe a general duty to its pupils, or anyone else, to police their activities once they have left its charge. That is principally the duty of parents and, where criminal offences are involved, the police. There was evidence from Mr Watling, an educational consultant, that some schools do patrol 'areas of concern' outside school to prevent incidents after children have left. But we agree with the judge that this is matter of discretion rather than duty.
33. The school's conduct in relation to Leah herself cannot be faulted. Leah was not under-achieving at school. Her reports were good. She was one of the brightest pupils in the class, particularly in science, and made a sparkling contribution to class discussions. Her teacher knew about the problems outside school and was taking thoroughly sensible and well balanced steps both to prevent the same thing happening in school and to counteract any effects upon her educational performance and development.
34. The nub of the complaint made on her behalf is not what the school did in relation to Leah herself but what it did not do in relation to the bullies who were pupils in the same school albeit in a different class. In general A has no duty to prevent B deliberately causing harm to C. But there are exceptions where A is in control of B: see Home Office v Dorset Yacht Co [1970] AC 1004, at 1055. A day school is not directly in control of the activities of its pupils once they have left its charge: that is the responsibility of their parents. In R v London Borough of Newham ex parte X [1995] ELR 303, at 306-7, Brooke J (as he then was) rejected the argument that a head teacher could not use his disciplinary powers against a pupil who had attacked another boy outside school. We agree. We also agree that there may be circumstances in which a failure to exercise those powers would be a breach of the school's duty of care to another pupil. We therefore disagree with the very restricted way in which the judge expressed the relevant duty.
35. The question is whether it was a breach of this school's duty of care towards Leah to fail to take any action against the pupils she said were bullying her outside school. The usual factors are all relevant in determining what a reasonable school might be expected to do: the extent to which it was foreseeable that failure to do so would result in actual harm to the victim, the extent of the risk, the magnitude of the harm, and the practicability and likely effectiveness of any steps which might be taken. We also accept the point made by Mr Faulks QC, on behalf of the school, that the school's duties arise because of its educational duties towards the child. Indeed those duties are also owed to all the other children in the school. Like any parent, the school will often be faced, in this or in any other context, with the problem of balancing one child's interests with another's. There will also be difficult questions of judgment as to how far the school should seek to step in where the parents or other agencies such as the police and social services have not done so. Above all, an ineffective intervention may in fact make matters much worse for the victim because she cannot be protected while she is out of school. It cannot be a breach of duty to fail to take steps which are unlikely to do much good. All of these considerations are also subject to the Bolam principle: if a reasonable body of professional opinion would not take such steps, then this school is not liable for failing to do so.
36. Hence, although we accept that a school may on occasions be in breach of duty for failing to take such steps as are within its power to combat harmful behaviour of one pupil towards another even when they are outside school, those occasions will be few and far between. Mr Watling agreed that there were differences of view as to how far to go. The experts did agree that where an incident between pupils outside school carried over into school a reasonable headteacher should investigate if it had a deleterious effect upon the victim. In this case there were no adverse effects upon Leah's educational performance and development clearly attributable to what was going on. There was manifestly impressive evidence from Mrs Ashworth of the steps she did take to protect but not over-protect Leah. It is clear that a responsible body of professional opinion would have agreed that enough had been done. We thus conclude that the judge would have reached the same conclusion had he directed himself a little less restrictively upon the law.
37. We would add that in all these cases it is necessary to identify with some precision any breach of duty found. It is also important to consider whether the steps proposed would have been effective in preventing the bullying. It is not enough to find that there has been bullying, to find some breach of duty, and then to find that the bullying caused the injury. There must be a causal connection between the breach of duty and the injury. That will often be difficult to prove.
38. There is no magic in the term bullying. Any school has to have sensible disciplinary policies and procedures if it is to function properly as a school at all. It will no doubt take reasonable steps to prevent or deal with one-off acts of aggression between pupils and also recognise that persistent targeting of one pupil by others can cause lasting damage to the victim. In seeking to combat this it is always helpful to have working definitions such as those contained in the documentation we have seen. The problem is now well enough recognised for it to be reasonable to expect all schools to have policies and practices in place to meet it; indeed, this school developed just such a policy in 'Working Together'. We agree that such policies are of little value unless they are also put into practice. But in order to hold the school liable towards a particular pupil, the question is always whether the school was in breach of its duty of care towards that pupil and whether that breach caused the particular harm which was suffered.
39. We would dismiss this appeal.

Order: Appeal dismissed with costs, such costs to be subject to detailed assessment if not agreed; the determination of any personal liability under Section 11 of the Access to Justice Act adjourned generally, with liberty to the defendant to apply.

(Order not part of approved judgment)