COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE QUEEN'S BENCH DIVISION
JOHN LEIGHTON WILLIAMS QC
(Sitting as a Judge in the High Court)
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE ETHERTON
THE RIGHT HONOURABLE SIR DAVID KEENE
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|LONDON BOROUGH OF HAVERING
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Lord Faulks QC & Mr John Norman (instructed by Barlow Lyde & Gilbert LLP) for the Respondent
Hearing date: 2nd March 2011
Crown Copyright ©
Lord Justice Longmore:
"Treatment and Education of Autistic and related Communication Handicapped Children."
Dycorts was not a specialist autistic school but had some autistic pupils and could call on the assistance of the TEACCH service as necessary. One of these services was the provision of techniques and systems for educating and dealing with children with ASD and consequent learning difficulties.
"ASD Individual timetable – seniors. Work Station/Tasks. Social Stories. Notify Changes."
Mr Wroe recently wrote on the document "31.8.00 Given to all staff at Staff Meeting". Mrs Stanbridge told the judge that the entry "ASD" was not based on any formal diagnosis but was the result of observation and discussion. She stated a formal diagnosis was only sought if parents requested it. This appears to have been the first recorded reference to X having ASD. At this time X was not in the claimant's class. The judge accepted the claimant's evidence that she never saw this document.
"Just beginning to communicate with world around him – he's on the autistic spectrum."
i) have carried out an appropriate risk assessment both of the risks to Mrs Vaile's health and safety and of the risks of danger from X; such an assessment would have made clear:a) that the school could not accommodate a child with violent tendencies who had become more suited to a school for children with severe (rather than moderate) learning difficulties;b) that X was becoming inappropriately obsessed with the claimant;c) that a quiet room should be provided for children with aggressive outbursts;d) that X needed to be removed from the claimant's class and be taught by a male teacher;
ii) have provided the claimant with information, advice and training about risks to her health and safety from potentially violent pupils, in particular have identified X as requiring specialist insight and training and informed Mrs Vaile of that fact;
iii) have obtained and acted on a written report from Mr Jarrett;
iv) removed X from her class after the first assault on 10th June 2003 or at least have involved the specialist TEACCH team with their knowledge of autism to consider the problems of having X in the classroom.
i) Dycorts was a suitable school for X, but
ii) there should have been appropriate training for staff in specific approaches to the education of children with ASD;
iii) so a structured and consistent teaching approach such as that provided by TEACCH should have been employed in teaching X;
iv) there was no requirement for Havering, despite X's increasingly challenging behaviour in June or July 2003, to have considered a change in school, but they should have considered a graduated response to X's change of behaviour.
"Staff trained in TEACCH procedures … log systems using ABC procedures … Pen Portraits, minimum of two staff members in class … access to pupil files, staff informed of any incident and given advice, staff reminded of behaviour modification techniques."
He held (para 109) that Mrs Vaile had not been trained in TEACCH procedures "whatever that is intended to mean" and (para 121) that an appropriately highly structured approach was not employed for X. Nevertheless he said he had heard no evidence that the teaching for X was unacceptable or inadequate either for him or for the provision of a safe system of work for Mrs Vaile. There was no reason for concern until 10th June 2003. An analysis of X's behaviour was then required but that analysis would not necessarily have been completed by 3rd July and there was no reason why X should have been taken out of school meanwhile. He therefore dismissed the claim.
i) The defendant failed to advise Mrs Vaile that X was autistic or within the Autistic Spectrum (ASD). She was teaching him on the day of both assaults in ignorance of this vital information.
ii) The defendant failed properly to instruct Mrs Vaile in the "TEACCH system" of teaching ASD children as virtually admitted by Mr Wroe's feeling the need to falsify the school diary and make it state that such instruction had been provided and that Mrs Vaile had been told to use it. To the contrary she had not been trained in TEACCH procedures and the ABC procedures were inappropriate for ASD children
iii) The defendant failed to implement the Statementing process properly. The Statement had not been amended to reflect that X did not just suffer "Development Delay" (as his amended statement dated 22nd March 2000 recorded (para 13)) but that he was ASD. Mr Wroe and Mr Holme had conceded that the determination that X was ASD and not just suffering from Development Delay was significant and should have been reflected in X's statement and that it was unfair not to have passed that information to Mrs Vaile. The result of this was that, if X was not being adequately educated, he was liable to let his anger get the better of him.
iv) There should have been but was not a further assessment of X after the first assault. The judge did not believe Mr Wroe when he said he had advised Mrs Vaile about Mr Jarrett's observation of X. In any event it was not enough for Mr Jarrett merely to observe X on one occasion and make no report on what he observed.
"I am satisfied that the defendants failed to make appropriate educational provision for X, according both to standards required of them and to standards they set for themselves, insofar as they failed to take into account that he formally identified X as ASD. They failed to implement the statementing process properly. They never formally identified X as ASD. Having initially recorded his difficulties as being caused by delayed development simpliciter they never recorded him as being ASD and maintained that error. They failed to implement their own strategies for dealing with autistic pupils. Having identified X as ASD in their 2000 TEACCH audit they failed to implement TEACCH or allied procedures for X, apart from the pictorial diary. And this despite having what appears to have been an enthusiastic TEACCH unit readily available to help. "
"Whilst I conclude in the light of the expert evidence that a highly structured approach should have been but was not employed for X, I have heard no evidence that the teaching for X fell below what was educationally acceptable for him, was in fact inadequate for him, or more particularly, was unacceptable or inadequate in that it resulted in an unsafe system of work for the claimant which manifested itself on the occasion of the assault."
"where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism."
It may be difficult for Mrs Vaile to show precisely what she or the school could have done to avoid the incident if she had been appropriately instructed in suitable techniques for dealing with ASD children but the probability is that, if proper care had been taken over the relevant three year period, she would not have met the injury she did.
Lord Justice Etherton:
Sir David Keene: