England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT
HIS HONOUR JUDGE JENKINS

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th October 2011

Lord Justice Pill:

1. This is an appeal against a judgment of HHJ Jenkins sitting at Lincoln County Court on 19 January 2011. The judge held that Mrs Jean Pamela Hadlow, the respondent, was entitled to damages assessed in the sum of £16,432.51 for injuries sustained in the course of her employment with Peterborough City Council, the appellants.
2. The respondent was injured on 29 March 2007 while employed as a teacher at Clare Lodge, a secure unit for young women which was operated by the appellants. The respondent was 63 years' old at the time of the accident. The young women were present in a secure unit because they exhibited what the judge described as challenging, unpredictable and at times dangerous behaviour. On the day of the accident the respondent was due to teach a class of three of the women. The policy at the secure unit was that no member of staff whether a teacher or member of the caring staff would be alone with a group of more than two young women. In the respondent's case that meant that her teaching assistant would normally be present.
3. On that day it was known to all concerned that the teaching assistant would be late for work. The respondent attended a briefing meeting with the head of education, Mr Williams. In the absence of a teaching assistant there was need for a member of the caring staff to sit with the teacher until the teaching assistant arrived, and the respondent expressly told the coordinator that it was the agreed procedure.
4. The lesson was to take place in a locked classroom. The respondent had as part of her equipment an alarm to summon assistance in the case of an emergency. The respondent rang the duty room to say that she was ready for the class and two members of the care staff brought the three young women to the classroom. Having shown them in, the escorts left. Because her attention was on the students the respondent was aware of their having left only when she heard the click of the door closing. The respondent decided that she could try to attract the attention of the staff who had left before they got out of earshot. To do so she got up, the door was on her left, but, because of the way she was sitting, she got up to her right, and she went round her chair between what was on any basis a narrow gap between a book case and the back of the chair, tripped on the chair and fell, injuring herself badly.
5. Later in his judgment the judge found (paragraph 16):

"the claimant needed to get to the door without delay, she needed to move as quickly as she properly could to cover a short distance but there is no evidence to suggest that in doing so she was panicking, that she had in any sense lost control of herself or that she was disobeying the guidance given to her in relation to her CALM procedures and in other documents."

6. The judge's findings were justified, indeed are not challenged, having regard to the respondent's statement which formed her evidence in chief. Paragraph 8:

"I became concerned about my position and also that of the position of the other 2 girls in the room. I took the decision that I would go and bang on the door to attract the attention of the staff who had left the girls with me. I had to do this quickly because at the end of the corridor there is a door and once they had gone through that door they would not be able to hear me if I banged on the door of the classroom. I did have a key to the classroom door which was now locked but I took the view that if I unlocked the door the members of staff would have gone and the girls may have escaped into the corridor. None of the girls exhibited any violence towards me but I was aware of the rule that I should not be alone with them and frankly I did not want to be alone with them. I tried to manoeuvre round my chair in the room in order to get to the door but I tripped over it and fell on the floor and hurt myself quite badly."

In the event, as the respondent accepted, the girls had not behaved badly in the class, but one of them had been troublesome the previous night, and the respondent had been told that the girl would not be attending the class.

7. A member of the caring staff, Mr Ingham, accepted that he knew the respondent needed cover and said that he had told the escorts accordingly. The respondent had been attacked on a previous occasion in November 2005. The service manager, Mr Nerini, accepted that there had been a "clear failure of the system".
8. The judge found that leaving the respondent in the room with the young women on her own was "a negligent failure". He held that the respondent was entitled to take action to remedy the situation and would have needed to make quick decisions. The judge stated at paragraph 18:

"…she ought not to have been left in the room with the girls on her own, it was culpable that she was so left and she was entitled and did take action to remedy the situation. I repeat the proposition that the guidance [that is the appellant's guidance] indicates, that she would need to take quick decisions on her own accord. This failure of the system put her plainly at risk of injury if things went wrong, that she would suffer injury as a result of the defendant's failure was reasonably foreseeable…"

9. For the appellants Mr Waite accepts that what the respondent did was the right thing to do in the circumstances. Further, having made the decision she did, she needed to move quickly in a confined space. Allegations that she should have taken some other course of action, such as setting off her personal alarm, are not pursued.
10. The judge made findings in paragraph 20:

"I repeat that there is no evidence from which the court could infer that the claimant behaved wrongly in this situation. In my judgment not only was she entitled to move without hesitation to protect herself but also she has an obligation to do so and was fulfilling the guidance and training which she had been given. In those circumstances what counsel for the claimant contends is what I find, that there was a direct causal connection between the situation in which the defendant had put the claimant and the other girls at risk and it was in those circumstances that the accident occurred. It does not matter that it is an accident which might not have been the most probable consequence of the defendant's negligence but that, in my judgment, is not material provided that causal connection is established."

11. Permission has not been given to pursue an allegation of contributory negligence rejected at the trial. In relation to that, the judge stated at paragraph 23:

"…the fact that she tripped is no proof of negligence in the circumstances in which she found herself […] It was her case that she needed to act and she did act and the fact that she tripped in a manner of area does not make her guilty of contributory negligence."

12. Seeking to uphold the judgment Mr Sprinks, in his written submissions on behalf of the respondent, submits that the question to ask was whether personal injury was foreseeable in the event of a staff member being left without a second staff member present. The respondent was left alone and acted reasonably and promptly, seeking assistance while a helper was still in the vicinity. She fell while attempting, in an understandably hurried manner, to do that.
13. Physical injury followed a breach of duty to the respondent to take reasonable steps to prevent injury to her. The issue is whether, having regard to the manner in which the injury occurred, the appellants were liable for damages arising from that physical injury. For the appellants, Mr Waite submits that the accident was not reasonably foreseeable. Further, it was the respondent's own behaviour in reacting to the absence of support which was the cause of the accident and the chain of causation was broken. It was not foreseeable that the respondent would injure herself in attempting to attract the attention of a care worker. Foreseeable risk that the young women would be violent did not materialise.
14. Developing those submissions orally Mr Waite submits that the source of the risk was the threat of attack; to create liability that risk must materialise, and it did not. Liability would have been accepted if the action of the respondent had followed an attack, or threat of attack, by the young women. It did not arise when the action was taken to end or avoid the risk by seeking help as the respondent did. The cut-off point had been passed, it is submitted.
15. Mr Waite relies on the decision of this court in Doughty v Turner Manufacturing [1964] 1 QB 518. An employee was injured in the heat treatment room of a factory when molten liquid escaped by splashing from a cauldron following an explosion which was caused by the negligent dropping of a cover into the cauldron. Diplock LJ stated at page 530:

"The former risk [that is a risk arising from the dropping of the cover] was well known (and so foreseeable) at the time of the accident; but it did not happen. It was the second risk which happened and caused the plaintiff damage by burning. The crucial finding by the judge, in a characteristically laconic judgment, was that this was not a risk of which the defendants at the time of the accident knew, or to have known. This finding, which was justified by the evidence and has not been assailed in this appeal, would appear to lead logically to the conclusion that in causing, or failing to prevent, the immersion of the cover in the liquid, the defendants, by their servants, were in breach of no duty of care owed to the plaintiff, for this was not an act or omission which they could reasonably foresee was likely to cause him damage."

The judge had found that the two risks were "in quite a different category".

16. I do not regard that situation as comparable with the present situation. In this case there was a risk of violence; the distinction sought to be made is between liability if that risk materialises and absence of liability if action is taken to end the risk.
17. For the respondent reliance is placed on the decision of the House of Lords in Hughes v Lord Advocate [1963] AC 837. An unguarded manhole in the street was covered with a tent surrounded by warning paraffin lamps. An eight-year-old boy entered the tent and knocked one of the lamps into the hole. An explosion occurred causing him serious injury. The finding of the trial judge that the claimant succeeded in his claim for damages was restored. Lord Reid stated, at page 845:

"The ground on which this case has been decided against the appellant [by the Court of Appeal] is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way."

18. Lord Reid added at page 847:

"This accident was caused by a known source of danger, but caused in a way which could not have been foreseen."

19. Lord Morris of Borth-y-Gest at page 853 cited with approval observations of Lord Keith of Avonholm in Miller v South Scotland Electricity Board [1958] FC (HL) 20 at page 34:

"It has been pointed out in other cases that it is not necessary to foresee the precise accident that happened and similarly it is not necessary, in my opinion, to postulate foreseeability of the precise chain of circumstances leading up to an accident. There does not seem to me to be anything fantastic or highly improbable in the series of happenings that are alleged to have led to the accident here. If it is reasonably probable that an accident may happen from some act of neglect or commission, that may be enough to discharge the initial onus on the pursuer, though it would remain, of course, to show that the pursuer was within the class of persons to whom a duty was owed. The question is:—Was what happened so remote that it could not be reasonably foreseeable?"

20. Lord Pearce stated at page 857:

"to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable."

Miller was cited by Lord Pearce.

21. Those statements have been approved in the House of Lords much more recently in Robb v Salamis MMI Limited [2007] ICR at 175. Lord Hope stated at paragraph 29:

"The employer must anticipate that it may not be possible to predict the precise ways in which situations of risk may arise, especially where the risk is created by carelessness. The employer is liable even if he did not foresee the precise accident that happened: Miller v South of Scotland Electricity Board 1958 SC (HL) 20, 34, per Lord Keith of Avonholm. As Lord Reid said in Hughes v Lord Advocate 1963 SC (HL) 31, 40, the fact that an accident was caused by a known source of danger but in a way that could not have been foreseen affords no defence."

Those high authorities, in my judgment, strongly support the respondent's case on the present facts.

22. The accident did not happen in the way most likely, having regard to the breach of duty; that is, by an attack, or threat of attack, on the respondent. It arose because the respondent entirely reasonably took action to remove the risk, an action which would terminate the breach of duty involved in leaving her alone with the three young women. The known source of danger was the propensity for violence of the young women, the risk of an attack on the respondent by one or more of them. It is not necessary to postulate foreseeability of the precise chain of circumstances leading up to the accident; too great precision in the test of foreseeability is not to be expected in circumstances such as these. In my judgment the judge applied a proper test and was amply justified in reaching the conclusion he did. A risk of injury had been created by the appellants; the respondent reacted in what is conceded to be an appropriate way by hurrying through a confined space to the door before the other members of care staff were out of earshot. While hurrying she sustained injury by tripping over the chair and falling; risk of physical injury was foreseeable and, while it did not happen in the most likely way envisaged, it was sufficiently connected with a risk created by the appellants to render them liable.
23. By respondent's notice an allegation is made under regulation 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992 by reason of the allegedly "cluttered" state of the classroom. On the conclusion I have reached it is not necessary to consider that allegation.
24. For the reasons I have given I would dismiss this appeal.

Lord Justice Moore-Bick:

25. I agree. The real question in this case was whether the injury suffered by the claimant was caused by the defendant's breach of duty. Here the defendant was left alone in a room with three unpredictable young women in circumstances that gave rise to a risk of personal injury. That involved a failure by the defendant to take reasonable care for her safety. The claimant sought to attract the attention of the escorts before they left the vicinity of the classroom and that required swift action on her part. In her attempt to reach the door before they had left the area the claimant caught herself on the chair standing between the desk and the wall as she sought to negotiate the relatively narrow space between them, and in doing so she fell, suffering a considerable injury. In my view the judge was entitled to hold that the injury sustained by the claimant was a consequence of the defendant's breach of duty, which caused her to take the course of action which resulted in the injury. For those reasons as well as for the reasons given by Pill L.J. I too would dismiss the appeal.

Lord Justice Aikens:

26. I agree with both the judgments that have just been given. I too would dismiss this appeal

.

Order: Appeal dismissed; the appellant to pay costs summarily assessed in the sum of £9,500 inclusive of VAT