England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWCASTLE UPON TYNE COUNTY COURT
(HIS HONOUR JUDGE MOORHOUSE)

		Royal Courts of Justice The Strand London
		25 February 2003

Tuesday 25 February 2003

THE LORD CHIEF JUSTICE: Lord Justice Scott Baker will give the first judgment.

LORD JUSTICE SCOTT BAKER:

Introduction:

1. The respondent, Dominic Harvey, was employed by the appellants, the Northumberland County Council, as a residential social worker at Kyloe House, which is secure accommodation for children at Netherton, near Morpeth, in Northumberland. On 9 June 1998, in the course of his employment, he sustained an accident to his right knee while trying to restrain an unruly child to whom I shall refer as Aaron.
2. The judge, His Honour Judge Moorhouse, found for the respondent and awarded him £10,000 agreed general damages, inclusive of interest, and a further £9,000 for his thwarted ambition to become a policeman -- a total sum, therefore, of £19,000.
3. Potter LJ granted permission to appeal on grounds 6-9 of the grounds of appeal which broadly relate to the judge's finding that the respondent had not been given adequate training of how to cope with children who needed to be restrained. He refused permission to appeal on grounds 1-5, which broadly relate to the judge's acceptance of the respondent's evidence rather than that of a witness, Jill Barnes, and also ground 10, the award of £9,000. Miss Foster, who has appeared today for the appellants, has renewed the application for permission to appeal in respect of grounds 1-5, but not in respect of ground 10.

The Background:

4. Kyloe House began taking children in September 1997. Between July and September 1997 there had been a delay due to the need to complete certain buildings works. There was an induction course for staff. This was obviously needed because the residents were going to be disturbed children with behavioural problems and they were likely to be volatile and aggressive. The course was apparently intended initially to last for four weeks, but in fact it lasted for nine. It may be that the extension was in part due to the fact that the building works were incomplete.
5. The course covered the content of Northumberland County Council Social Services Department circular dated April 1992. This dealt broadly with restraint in Social Services establishments. The circular is to be found at page 63 and following of the defendants' bundle. It is unnecessary to refer to it in any detail but, significantly, it gave no advice as to how employees should restrain individuals.
6. The respondent is aged 39. He worked at Kyloe House from the day that it opened. It was not disputed in evidence that no training was given to him or to any of the other members of the staff, apart from the induction course, during the first year of the operation of the house, which included the accident in the following June.
7. On the day of the accident there were six staff and five children present at the house. The respondent had worked for some time with Aaron, who was known to be difficult, volatile and often violent. He had indeed had to be restrained on no less than three occasions on the morning of the accident. He was very unsettled during that day and was liable to erupt without warning.
8. There were two versions of the accident: the respondent's version and Miss Barnes' version. She was the only other person present at the time, apart from the respondent and Aaron. The respondent's version is recited by the judge at paragraphs 12 and 13 of his judgment. He said:

"12. .... he was with Miss Barnes in the small lounge. They were trying to calm him down, trying to get him involved in activities but unfortunately he was showing anger towards the claimant. A time came when he kicked both the doors to that room and at that point apparently Miss Barnes (and there is no dispute of this fact) wisely thought it appropriate that the claimant should leave the room. The claimant says he started making his way to the door, walking backwards, keeping an eye on the situation when he suddenly interpreted Aaron's movements to be going towards Jill Barnes. Because of this he went towards him, got hold of his arms as he was clearly very angry. He held him on the mid-forearm and as he did that he crouched down to try and diffuse the situation. At that point he says Aaron started swinging to the left and right and on one of those occasions was when his knee went. Notwithstanding the stature of Aaron [the evidence was that he was quite small], the claimant said he was capable of creating considerable force when escalating himself in the manner in which I have described."

9. It was at the point that his knee went that the respondent says that he made it clear to Jill Barnes what had happened.
10. Miss Barnes' account is at paragraph 14 of the judgment as recited by the judge:

".... the incident occurred between 1.40 and 1.45 She said some furniture had been overturned. Aaron had been hiding behind furniture, being very abusive, making threats, and they were both trying to contain the situation. She said she asked [the respondent] to leave as most of the accusations and threats were against him. She said that [the respondent] was on the seat to the left and started going towards the door. He backed up to the door, so he was still facing Aaron and she says Aaron ran towards him with his fists flying and that [the respondent] simply put his hands up to fend off those blows but as he got to the door he went for his pouch so he could get his key out and turned. It was at that point that his knee went at a time when there had been no physical holding of Aaron by [the respondent] and, therefore, no formal restraint."

The judge accepted the respondent's account of the accident. He said at paragraph 20:

"I have listened very carefully to the submissions made by Mr Freeman on behalf of the defence. What he says is that there were no inconsistencies in the evidence of Jill Barnes. She is quite clear that the anger directed was to the claimant and not her. She did not see any restraint, although there was some minor contact, and she is quite adamant that the injury was caused in the manner that she described, simply when he was unlocking the door and turning to his right. It is submitted she is an impartial witness. She has got nothing to lose by giving evidence in this case and the reason she remembers the 9th June 1998 was because someone was injured. She made out the report on the accident the day after the incident in question. She says it was not recorded as a restraint by the claimant and indeed what entry was made in the log did not constitute what is called a single separation because that means that after an incident the person concerned would be locked in an isolated room on his or her own."

At paragraph 28 the judge then said:

"Having listened carefully to the evidence and submissions, I am satisfied on the balance of probabilities that this was a restraint situation in the manner described by the claimant. I am similarly satisfied that this claimant did restrain Aaron in the way that he described and that it was necessary to do so because he was under attack and that Aaron in the course of the attack started throwing his weight or moving from side to side. I am of the view that this was a dangerous situation, one which had been occurring for many months with many of the children in this hostel and that training should have been adopted by the Local Authority to ensure that all staff knew exactly what to do in order to protect not only themselves but, more importantly, the children when situations such as this arose."

11. The appellants rely on the fact that the accident was not recorded as a restraint. It seems to me that one can read too much into whether the incident was or was not technically a restraint. There was some difference in the account between the respondent and Miss Barnes as to what actually happened, but even on Miss Barnes' evidence what happened was, it seems to me, close to something that required physical restraint or some action on the part of the respondent.
12. At paragraph 9 of his judgment the judge observed:

"It is the procedure laid down in [the] manual that if a restraint ever took place, it was important that an entry should be placed in various booklets, namely in the day log, separation log and a restraint log."

The point is strongly taken by Miss Foster on behalf of the appellants that no such entry was made in this case and therefore that supports the account given by Miss Barnes rather than the account given by the respondent.

13. The respondent's answer to this is that there were so many restraints occurring at Kyloe House that many of them were not recorded, or if they were they were not recorded until some time afterwards. The evidence of a witness, Wendy Strang supported this. She described how one restraint was not recorded until six months after the event.
14. The respondent's answer to this is that, albeit that the incident was never reported by him as a restraint, he nevertheless reported the event. That is referred to by the judge at paragraph 27 of his judgment. The respondent reported the incident in an accident note on the day following the accident in these terms:

"While holding a young person, they moved to one side, this caused me to twist my right knee."

Miss Barnes also made an entry. Hers was in these terms:

"A young person was having difficulties in managing behaviour, was trying to assault Dominic. Dominic moved to one side, twisting his knee. Dominic was taken to hospital to have it checked out."

The judge said that the reference to "Dominic moving to one side" to some extent supported what the respondent was saying, namely that he was pushed to one side by the twisting movement of the boy.

15. In the light of having analysed the evidence in this way, the judge reached the following conclusion:

"I am satisfied on the evidence that there was a restraint. It is obvious that this claimant failed to complete those documents but I do not hold that against him because at the material time he was in pain notwithstanding it is rather strange that an hour or so later he should be in a position to complete the various forms on behalf of Miss Barnes who, by that time, had been punched in the face."

So there was this oddity, and to some extent inconsistency, that the respondent had reported an incident involving Miss Barnes at that time, but nevertheless, for whatever reason, had not recorded the incident in which he had been involved as a restraint.

16. Earlier in his judgment the judge had said:

".... the question really comes down to is this claimant lying, is he dishonest or has there been a misinterpretation by the defendant's witness, Miss Barnes, of how the claimant saw the situation."

Miss Foster submits that the judge was wrong to polarise the issues as he did in the passage that I have just read. But the judge saw and heard the witnesses. In reality, he had to choose whose evidence he preferred. Others might have reached a different conclusion. On the one hand, there were contemporaneous records that were consistent with the respondent's account; and on the other, he did not fill in the restraint logs. But in my judgment the judge was entitled to take the view that he did.

17. The Grounds of Appeal in this regard are set out in six separate sub-headings in paragraph 2. It is said that the judge failed to give sufficient weight to a number of matters: first, that Miss Barnes was an independent and impartial witness; second, that she had a clear and unobstructed view of the incident; third, that if it had been a "restraint" situation, undoubtedly, she would have become involved in controlling Aaron; fourth, had it been a "restraint" incident, she would have so described it in the accident report form which she completed on the following day; fifth, had it been a "restraint" incident, she would have ensured that appropriate entries were made in the Restraint Log and the Separation Log, and that the Restraint Incident Form was completed; and sixth, that she had good reason to remember the circumstances of the incident, not least because she completed the accident report form on the following day.
18. Those are all no doubt points that were urged on the judge at the time. But, having listened carefully to Miss Foster's renewed application on grounds 1-5, I would not grant permission to appeal. Any appellant who seeks to overturn a judge's decision on which of two witnesses' evidence he preferred faces a very up-hill struggle in this court, unless there is some manifestly clear reason why the judge was wrong. After all, the judge heard the evidence, saw the witnesses and was far better placed than this court to form his view. In my judgment, the conclusion that he reached on which witnesses' evidence he preferred was one to which he was fully entitled to come.
19. The thrust of this appeal, however, relates to training. It was on that ground that permission to appeal was granted. The respondent's case was that in order for his place of work to have been made reasonably safe by his employers, he should have been given specific training on how to restrain children. The children with whom he was concerned in this case ranged up to the age of 18 years, albeit the boy in question was a small but physically very strong 11 year old. The question it seems to me is: were there techniques that should have been available to help the respondent deal more safely with the situation that he faced?
20. There is now a course named CALM (Crisis and Aggression Limitation and Management). Instructors in this course undergo a five-day period of training, as can be seen from page 69 in the respondent's bundle. Jill Barnes subsequently attended this course and was accredited for the period June 1999 to June 2000. The aim of the techniques used is to minimise the risk both to the aggressor and to the restrainer. Neither the respondent nor other employees of the appellants attended a CALM course before the accident, but he eventually attended one in the spring of 2000. He spent two-and-a-half days on the course on how to de-escalate situations, and another two-and-a-half days on how to handle youngsters. One thing he learned was the fact that crouching in the way that he did on the day of the incident was to put himself in a very vulnerable position when under attack. It is something that he would not do in the future if faced with a similar situation.
21. The judge's findings on the issue of training are at paragraphs 16 and subsequently in the judgment. He said:

"As far as Miss Barnes is concerned [she was the Assistant Manager of the unit], she said the training policy was formulated in 1992 and that was the system they relied on. It was also considered again in 1996, but it seems to have been in a similar format. She conceded that no guidance had been given on how to physically handle children. She said the team meetings regularly discussed the handling of restraints and there were always requests by her and others asking the Authority to introduce some form of training. She confirmed that at the induction course ... she did not receive any demonstrations of how to hold or handle a child.

17. Mrs Macdonald [the Acting Centre Manager of the Willow Unit], was .... a lady with a vast amount of experience in connection with care of this kind. She had been there for 14 years with nine years in secure accommodation. She says she was involved in the induction training which lasted for nine weeks. She said there was no instruction on techniques.... She said the County Council could not take the risk of implementing any form of training in dealing with how to restrain a child because at that time the whole system of how to deal with situations of that kind was under review.

18. Mrs Macdonald said she found out about CALM by chance when one day a leaflet fell on her desk in 1999. .... she was relieved at long last something was going to be done in training people how to manage young children when being restrained. She also told the court she was not aware of any kind of training and restraint before 1998 other than which appeared in the manual and she also confirmed that CALM came into being in 1997...."

22. Miss Foster makes a number of complaints about the judge's findings in those three paragraphs. She contends that they were not justified on the evidence. In the first place, she complains that the judge said that Miss Barnes conceded that no guidance had been given on how physically to handle children, and that he said that her evidence was that there had not been hands-on training in restraint techniques. The fact is that the staff were not given the kind of training that they were given later. In my judgment, there is nothing of substance in that complaint.
23. Secondly, Miss Foster complains about the judge's statement of the staff asking for further training. She contends that the evidence did not go that far; the evidence was that staff recognised that some training in restraint techniques would be helpful. It seems to me that the judge may to some extent have overstated the evidence at that point.
24. The third complaint relates to the Gilbert Report to which I will refer in a little more detail in a moment. Miss Foster complains that the judge misrepresented the Gilbert Report as criticising the appellants' failure to give advice on restraint techniques. In my judgment, the judge did not misrepresent the Gilbert Report.
25. It is necessary to refer to some of the evidence that was before the judge on the training that had been received. The respondent was asked:

"Q. Did anyone act out or role play in any of those sessions how an aggressive individual would be restrained?

A. There was .... No, scenarios were played to on how to diffuse situations, something like de-escalation, to try.... But there was no physical restraint training.

Q. Where did you draw your guidance from in exercising your restraint there and on 9th June? A. Erm, you took it from your .... You learnt on the job. As you were going along you were talking to people and every restraint, well not every restraint, but restraints that happened that maybe didn't go right, we discussed it, so we'd try and, you know, move forward was our practice.

Q. You say on the job training. Who was training you?

A. There was more... Some were more experienced staff like Jill and Andy Campbell, the managers and that, I think, had been involved in restraints in the past. With that experience, and the guidance notes, if there were mistakes made we would discuss them and try and rectify them as we went along."

26. When Miss Barnes gave evidence she was asked by Mr Ditchfield:

"Q. It is fair to say, I mean moving aside then from the availability of training, training was something that the staff themselves often requested, additional assistance, additional guidance, in restraint technique?

A. It was something that was always discussed within the team meetings and within supervision. I can't recall specific individuals. I can remember conversations in general conversation.

Q. Right.

A. When we were reflecting on a situation that we may be had been involved in in a restraint and looking at ways we could have managed that better and it was acknowledged that physical intervention training would benefit everybody involved.

Q. Yes, and that was a request which was made certainly before June of 1998?

A. I think that's a request that staff in residential care have been making since I certainly started in residential care in 1988."

27. Mrs Macdonald during her evidence was asked:

"Q. But it is also agreed that there was not instruction given as to specific techniques to be adopted in particular circumstances?

A. No, because the County Council couldn't take the risk of instructing staff at that time. I don't know if you're aware of the Pin Down investigation where staff had allegedly, well had harmed children and it was evidenced so, you know, the government were very much leading on this for children's services in that we were not given any physical intervention training because the training that had been given had caused injuries to young people and Pin Down, the report, Pin Down raised those issues so it was the County Council and we just sort of believed that they wouldn't want to advocate training staff.

....

Q. Were you saying that you could not give hard and fast rules, is this right, provide hard and fast rules about how to restrain children?

A. That's correct. Also the Social Services Inspectorate who licensed secure units were not advocating physical restraint training at that time and they are the people who, you know, laid down the law really for us within the secure environment.

....

Q. .... What about more senior management?

A. David Clark, who was the Regional Co-ordinator for secure accommodation, he had worked for many years in Sutton Place, which is our nearest neighbour other than Aycliffe, is a secure unit and David did not know of any restrain training either and he obviously had much more experience than myself...."

She was asked about CALM. She said that it must have been around in 1999. But we now know that it was available as a course from the beginning of 1997. She said that when she found out about it in 1999 she talked to David Leadbeater and she decided to send two staff to undergo the course so it could be compared with Team Teach, another course on which they had been sent at about that time. She was asked why they had not adopted the CALM course before the accident. She said:

"One, we weren't aware of it. No one else seemed to be aware of it. I also wouldn't, as I've said earlier, you would need to have something that was tried and tested before you signed up to it because it's such a serious issue, you know, manhandling, because basically that's what restraint is, it's manhandling young people."

The Gilbert Report

28. In early February 1998, staffing problems at Kyloe House led to serious concerns. There was concern about safety of staff and children, low staff moral, lack of systems and structures, inconsistency of approach, loss of control and lack of guidance. As a consequence the Directorate decided to ask Mr Gilbert to undertake an independent review. The Centre Manager was given extended leave and the Caretaker Manager was asked to take over in the meantime. One of the terms of reference was to carry out an assessment of whether the establishment provided a safe environment for both young people and employees. One of the facts identified by the Gilbert Report was that there had been over 200 restraints in the first five months of the operation of Kyloe House. This was felt to be too high and indicative that something was wrong. Many members of the staff were interviewed. Amongst the comments brought up in the Gilbert inquiry were:

"It is always a safe place for young people, but not necessarily for staff". "It was unsafe". "There were not enough staff". "We were having to think all the time about safety". "There were no written individual programmes for behaviour programmes."

At paragraph 4.43 of the report the author writes:

"A constant theme in the feedback of commissioning social workers was that communication was poor; different residential social workers would ring up about the same issue, or information from social workers did not get passed on. Administrative staff felt that communication to them from the units had often been poor ...."

At paragraph 5.9, having referred to the high level of restraints and violent incidents, the report went on:

"At times staff felt helpless and powerless. Many felt that they were receiving no support or clear guidance from the Centre Manager; some in fact felt that they were being undermined by him. There was inconsistency throughout, and many were operating merely to survive. .... For much of the time staff and young people felt uncontained. Staff felt that they were being left to get on with it by themselves, and that the Centre Manager was not listening. This was not a healthy environment, and it appears to have been building up over the first five months of Kyloe House's operation."

In paragraph 5.10 reference is made to:

".... a constant thread running through staff feedback is that they felt confused, undervalued, and expected to put up with the intolerable. .... some felt that they were not being listened to by the Centre Manager....

5.11 The question must be asked why these issues were not dealt with earlier ...."

Under the heading "Recommendations" appears the following:

"6.7 That induction training is given to all new staff to develop basic practical residential care skills with particular reference to secure accommodation.

6.8 That regular 'top-up' training is provided for all staff, linking practice and experience with theory, and introducing new areas of knowledge as appropriate."

29. Miss Foster submits that there is nothing that assists the respondent's case in the Gilbert Report because it does not make any recommendations suggesting that restraint techniques are inadequate or that more training is required in that area. It seems to me, however, that the report dealt with the subject in general terms rather than specifically referring to training for restraint techniques; and more particularly, the whole theme of the report paints a picture of wholly inadequate management at this establishment and where in other fields just the sort of things were happening or rather not happening of which complaint is made in this case.
30. It was, in my judgment, self-evident that there were safer restraint techniques available than those that were being used at Kyloe House in June 1998. It was agreed that training was required, but it was put on hold pending a government response to the Pin Down Report. There was no evidence of any active steps by the appellant's senior manager, or indeed evidence of any steps at all to find out what kind of training and techniques might be available. In fact CALM was, we now know, available from early 1997. Although it is correct that there are no allegations in the pleadings of specific complaints being made but not acted upon, it is perfectly clear from the whole of the evidence that the appellants knew that training was needed, but they did not trouble to look and see where it might be found. They had a common law obligation to take reasonable steps to ensure that the respondent's place of work was safe. In my judgment, they cannot discharge that obligation by saying that they are putting matters on hold pending advice from central government or somewhere else as to what they ought to do. This was a responsibility that lay on their senior management and no one else. In my judgment, they failed to discharge it. In these circumstances I would dismiss the appeal..
31. THE LORD CHIEF JUSTICE: I agree.

ORDER:

Appeal dismissed with costs; stay to be removed and damages payable.