England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/02/2005

Mr Justice Bean :

1. Natalie Shaw was born on 9^th September 1982. From September 1994 to the end of June 1996 she was registered at Valentines High School, Ilford, a secondary school maintained by the Defendant education authority. By this claim issued on 4^th September 2003, 5 days short of her 21^st birthday, she claims damages for negligence consisting of alleged breaches of the duty owed to her by the teachers at the school (for whom the education authority is vicariously liable in law), to take proper care for her health and welfare. An order made by Master Tennant and affirmed on appeal by Dobbs J provided that the existence, nature and extent of any duty of care owed to the Claimant, and whether any such duty was breached, should be tried as preliminary issues. It is those matters with which I have been concerned. If I find in the Claimant's favour, the complex issues of causation and damage which would arise are for another day.
2. At primary school, which she attended until July 1994, the Claimant had been a model pupil. On 26^th March 1994 her class teacher wrote "Natalie is a very popular member of the class. Although shy at times she has developed a good relationship with peers and adults alike. Natalie works hard in class and has been involved in a number of extra-curricular activities. I have enjoyed teaching Natalie and wish her all the best for the future." Her first year at Valentines High School ended with similarly glowing reports. It is not necessary to set out the individual subject reports, all of which have been placed before me, but it is sufficient to note the following:-

i) Tutor Comment. "Natalie is an excellent member of the form – always good-natured, co-operative, thoughtful. She has done well over the past year and I am sure she will have every success in the future.

ii) Student Comment. I have enjoyed my first year at VHS. I have enjoyed being in 7V and having Mr Marshall as a form tutor. I have been involved in a road safety competition which we came second in. I have made lots of friends in this form and have settled down now I am in High School.

iii) Head of Year. I have read this Record of Progress with interest and pleasure, noting Natalie's hard work and achievements across the whole curriculum. The comments for each subject are well deserved, and she is to be congratulated on her progress in year 7.

iv) Parent Reply Form. We are very pleased with the progress Natalie has achieved since joining Valentines and would like to congratulate her and the teachers on doing such a fine job."

3. On 13^th October 1995 an incident occurred in the school playground involving the Claimant, her friend H (another girl in the same class) and five boys at the school. None of these, except the Claimant, gave evidence before me. I suggested to Counsel, and it was agreed, that the other children involved should be referred to by initial letters. They were only 13 years old at the time and have had no opportunity before me to defend themselves. Their identity, in any event, is not a significant matter in this case.
4. The Particulars of Claim describe the incident as follows.

(4) On Friday 13^th October 1995 during the lunch break the Claimant was indecently assaulted by five male pupils who forcibly held her legs and arms, pinned against a set of railings behind the trees at the School playground and each in turn opened her skirt and felt inside it on top of her undergarments over a period of several minutes ("the indecent assault").

(5) Further details of the indecent assault and events before and after it are set out in two written statements signed by the Claimant on 13^th October 1995 and in October 2001, copies of which are attached.

(6) The Claimant immediately reported the indecent assault to Mr Thompson, her then head of year teacher. Mr Thompson responded by telling her she had three choices:

a) He could telephone the police.

b) He could telephone the Claimants parents.

c) He could punish the boys responsible.

(7) The Claimant chose the third option and the boys were suspended for one to two days and made to write lines. No further action was taken against them or at all. The Claimant did not at that stage tell her parents about the indecent assault.

5. That pleading is a summary of the incident as described six years after the event in the Claimant's written statement of October 2001, to which I shall come later. A statement which she wrote on the day was markedly different.

"Today I was with my friend [H]. We walked over to the box by Perth Road and sat on top eating our lunch. [J] came over first and sat with us. [M] came over with [P]. [O] and [U] came over last, then [A] appeared. [A] sat behind me. [J] was already sitting next to [H]. [M] remained standing with [P], [O], [U]. [A[ began to poke me in the back with two fingers. Then [A] took one of my legs and tried to pull me off the box, then [O] grabbed my other leg and tried to pull me off the box as well. As they could not do so they pulled both of my trainers off and swung them over their heads, then they gave them back after me pleading for them back. I wasn't looking and [U] grabbed the split by my skirt and pulled my skirt open. I jumped off the box and went over to the first tree. They followed me and [A] trod on my trainers, so did [U]. We then tried to walk forwards towards the gravel part of the playground. We managed to get there. I was getting really upset by this time. They began to pick plastic bottles off the field and began to throw them at us. A few of the bottles hit [H] on the head but most of them hit me on my arm which I have bruise from. [U] grabbed my jacket and bag, he soon gave it back after me shouting that I was going to tell. [P] stood behind me with [U]. [P] hit me on the back with his fist which really hurt. They then began to try and bribe me by saying that they would buy me new trainers or pay me not to tell. But earlier on in my RE lesson – periods 5 and 6 – they began to tease me. [L] and [H] sat with their legs out but I had my legs just normal. And they then started to say that they wanted me to put my legs out like [H] and [L] but I didn't want to."

6. The Claimant told me in evidence, and I accept, that the skirt referred to was a wrap-around ankle-length skirt with a slit at the side.
7. Each form had a Form Tutor: in the case of the Claimant and the other children involved in the incident it was Mr Robert Tranter. The Head of Year with overall responsibility for discipline and pastoral care for all the forms in Year 8 was Mr William Thompson. In his witness statement he said:

"In the afternoon after lunch each form attends its form tutor to register. The Claimant and [H] and all five boys went to Mr Tranter (I know because he brought them to me). He brought them to me after registration which took about 10 minutes.

I was in my office and Mr Tranter knocked on my door. He told me there had been an incident involving his form and could I deal with it. I could deal with it because I was free.

The demeanour of both girls was similar, neither was crying, both were very coherent. They were angry that the incident had happened but they were calm. They were not swearing or hysterical.

It was the three of them, Mr Tranter and the two girls, who came in. I do not remember if Mr Tranter stayed or left whilst I interviewed the girls. I believe I interviewed them both separately. At this stage Mr Tranter did not have the boys with him.

As soon as it became apparent that there was an issue to deal with I asked Mr Tranter to get the boys.

I was concerned that the boys would collude to make a plausible story between the five of them so when they arrived with Mr Tranter I spread the boys along the corridors outside my office. My office was at the end of a corridor. I asked Mr Tranter to stay outside my office to monitor the boys. So one of the girls was in my office, one was outside with Mr Tranter and then the five boys were lined up along the corridor, separated away from the girls. (I can directly recall all of this).

I am pretty sure I interviewed each girl separately – I would have done but I cannot hand on heart say I recollect this now. The accounts they gave were completely in line with the written statements they made that day, as I have set out in my previous statement".

8. The contemporaneous statement of girl H begins with an account of three of the boys (U, O and P) making a telephone call to H's home the previous Saturday, then putting the phone down. It does not appear to have been a particularly untoward incident and the Claimant was not involved. H then turns to the events of 13^th October, as follows:-

"At lunchtime I was sitting on the box near Perth Road with my friend Natalie Shaw eating our lunch and minding our own business. [J] came over to us first. Then [M] came over with [P] and then [U] and [O] came over and last of all [A] came over. First of all we were just eating and talking. Then they were doing things to Natalie. Then they started to get empty plastic bottles and kicking them at both of us. They also got empty crushed drink cans and throwing them at us too. Then [O] picked up a bottle that wasn't crushed and threw it at me and it hit me in the eye and it hurt. Then [A] started hitting me on the side of my arm near the shoulder and I told him to stop doing it because I already had a bruise on my arm (which wasn't anything to do with the school) and he just laughed and hit me harder."

9. One other written statement was taken that day, but it was from girl L, who does not appear to have been involved in the main incident. She complains of J and another (unidentified) boy pushing her over during morning break on the Friday, of A throwing plastic bottles and bottle tops at her the previous day, and also of U and O swearing at her in their own language. It appears that she was at choir practice during the main incident. The morning break incident is alleged by the Claimant to have been reported by her, H and L to Mr Tranter who in turn took them to see Mr Thompson, so that they had two separate interviews with Mr Thompson that day, the first with Mr Tranter present and the second without him. Mr Thompson has no recollection of being told about the morning break incident at all. Mr Tranter, who was first asked to make a statement two years later, had even then a somewhat hazy recollection of the matter.
10. Reverting to Mr Thompson's narrative of the investigation of the main incident, he continues:-

"As I was going through the incident with the pupils and the accounts were matching up I was getting a pretty clear picture of the incident. Because the split in Natalie's skirt was pulled open I assessed whether or not there was an element of sexual assault. I did not consider there was. I was very careful to explore with the girls and boys exactly what had happened. For example, whether the skirt was held open. It was not prolonged, and at no stage was the Claimant held down. It was one flick of the skirt and Natalie responded by jumping off the box.

As the incident became clearer in my mind the options were a formal exclusion or isolation with me. In my experience it is far more effective to isolate since exclusion is often perceived as a day off. Isolation goes on a pupils file in the same way as exclusion does. I also checked the boys' files to see if they had any record of such incidents or whether it was a one off.

Once I had the verbal accounts from the two girls and the five boys, I did three things:

i. I got the two girls to write down their accounts

ii. I got the boys together and told them their punishments

iii. I got the girls together and told them what I had done.

I am not exactly sure now in which order the above three actions took place. I either got the girls in and said this is what I'm going to do, or I got the boys in and told them and then told the girls. My guess is that I would have got the boys in told them, got them back to class and then told the girls. I also cannot remember now when I got the girls to write their statements, I think it was while they were waiting outside when I was interviewing the boys. I always had a desk outside my office. Both girls had plenty of time to write their statements. Indeed the Claimant finished her description of that day's incident and then went on to describe an earlier incident. Both girls handed their statements in to me that day.

I got the boys in and told them that what they had done was totally wrong. I gave them credit for being honest about it. I told them what their punishment would be and the fact that I would be writing their parents and that if it happened again then it would become more serious (as my letter states). They were humbled, shocked and quiet. All their playground bravado had gone.

With the two girls I told them what I was going to do with the boys and then I said two things:

i. If anything like this recurred in the future then they should let me know.

ii. I suggested they tell their parents and if their parents had any questions or wanted to discuss it then they should contact me.

11. Mr Thompson decided to isolate U for two days and the other four boys for one day. He wrote letters the following Tuesday to each boy's parents. The one to U's parents read:

"I regret to have to inform you that your son was involved in some very unpleasant behaviour at lunchtime on Friday. [U] was in a group of five boys who harassed two girls.

As a gang, they have admitted that they took one of the girls' shoes and bag, pulled one of the girls' skirts up, threw and kicked plastic bottles at them and hit them.

Obviously such behaviour is totally unacceptable. Consequently I am isolating [U] for two days. Any repetition of such behaviour will be dealt with most severely."

12. The letters to the other four boys' parents were identical, except that in each case Mr Thompson wrote that he was isolating the boy concerned for one day.
13. Mr Thompson did not, however, write to (nor telephone) Mr and Mrs Shaw. The core of the Claimant's case is that his failure to do so was negligent and a breach of the school's duty of pastoral care. Mr Shaw says – though it is accepted that this would be a matter for the trial of the issues of causation and damage – that if he had been told what had happened, even in the terms of Mr Thompson's letters to the boys' parents, he and his wife would have withdrawn their daughter from the school.
14. Mr Thompson's evidence that he suggested to the Claimant that she should tell her parents is disputed. On the contrary, the Claimant says, he gave her three options to choose from: he could (1) inform the police; (2) inform her parents; or (3) punish the boys. She says that he said nothing about her informing her parents, though it is not suggested that he told her to keep the matter secret. In fact, since the Claimant herself did not tell her parents, they did not learn of the incident for several months.
15. The Claimant remained at the school. After the Christmas holidays Mr Thompson left the school to take up a new post and Mr Gary Lefley became Head of Year 8.
16. In March 1996 the Claimant received another set of extremely positive school reports. Again it is unnecessary to set out all the individual subject reports. It is sufficient to note the following:

i) Tutor Comment. (Mr Tranter). Natalie has a good record of attendance and she is punctual. She gets on well with other members of the form. Her contribution to PSHE lessons is excellent, whether working alone or in a group. She is very pleasant and reliable in form periods.

ii) Student Comment. These few terms I have really enjoyed being in year 8 and meeting different people throughout the school. I love all lessons and hope to do well in the near future. But I would like to be able to contribute more in class discussions.

iii) Head of Year Comment. (Mr Lefley). This is a very encouraging set of reports. Natalie works with industry and enthusiasm across the curriculum. She writes to a high standard and is also articulate and confident orally. Her behaviour and attitude are highly appreciated. If she maintains her present approach she will continue to make good progress. I recommend that she reads a wide variety of texts at home.

17. In his witness statement the Claimant's father, Mr Anthony Shaw, stated that "in or around March 1996 my wife and I noticed that something was not right with Natalie. She became unwilling to go into school and wanted to stay at home and was not concentrating on her homework as she had always done." In oral evidence Mr Shaw said he could not remember whether this was before or after the March 1996 reports. I find that it was plainly after then, since on 22^nd April 1996 (presumably at the start of the Summer Term) Mr Shaw signed a "parent reply form" acknowledging receipt of the reports and writing "I am happy with the results in all subjects." Mr Shaw's witness statement continues :-

"Normally I would drive Natalie to school and drop her off at the top of the road near the school gates where two of her friends, [H] and [L] would be waiting for her. The girls would then walk into school together. However this arrangement stopped as whenever I dropped Natalie off, there would be no one waiting for her. I remember asking Natalie why the girls did not wait for her any more and Natalie would only say that they were already at the school gates. My wife and I thought that the girls must have had an argument that resulted in this situation."

18. Mrs Shaw told me that at about this time she noticed that H and L, who had been regular visitors to the Shaw household, stopped coming round.
19. Mr Lefley, in a statement made on 23^rd Febraury 1998, said:

"I recall that Natalie was very good friends with [L] and [H]. At some point I recall Natalie coming to me complaining that [L] and [H] were being horrible to her. She said that they were picking on her and whispering about her.

I spoke to [L] and [H]. They told me that whilst Natalie had been going out with [L] she had said unpleasant things about [H]. Whilst Natalie was with [H] she was saying unpleasant things about [L]. As I recall, the issues involved things like family, clothes and personal habits.

[L] and [H] realised what had been going on and had fallen out with Natalie.

I got all three of them together to talk, confront each other and be honest. I recall that there were lots of tears. I left them alone together as well.

I would describe [L] and [H] as honest, reliable, responsible and trustworthy. [L] responded to my efforts and was inclined to be friendly towards Natalie although not friends. [H] was prepared to let the issue rest, though did not really wish to resume any friendship with Natalie.

Natalie found it difficult to accept that she had been horrible to her friends and that she bore some responsibility for the situation.

She became isolated and felt that she was being talked about by her peers."

20. At some point in May 1996 the Claimant stayed at home and did not go into school. There is no evidence as to the dates but Mr Shaw thought that it was for up to three weeks. On 4^th June 1996 the Headmaster, Mr Baker, wrote to Mr and Mrs Shaw as follows:

"I have discussed the situation regarding Natalie with Mr Lefley, Head of Year 8, and have considered all the options. At present there are no vacancies in any of the Year 8 Tutor Groups. Should any Year 8 pupil transfer to another school and another vacancy becomes available we can re-examine Natalie's situation.

In the meantime, it is clearly in Natalie's best interests that she return to school and continues her education. I am confident that if Natalie can grasp the nettle and confront the problems in her relationship with other pupils in her form they can be dealt with swiftly and effectively.

Natalie's Form Tutor and Mr Lefley will endeavour to give her all the support necessary to accomplish this."

21. It appears that from 11^th to 13^th June the Claimant returned to school but was under the personal supervision of Mr Lefley out of class, a process described as being "off time-table". During the same period she was keeping a diary. This indicates serious unhappiness and in places hints at a wish to end her own life. References to school include the following:

i) (11^th June) I know I have to go to school but I just can't take it anymore. I feel like my head is going to explode. …People say I'm a worrier especially my parents but I can't help it. And they say I'm too serious but I'm not. They won't listen. I'm not looking forward to the future. …….My parents say, well, talk to other girls, but don't you think I've tried. They just turn their noses up at me. I hate Valentines. …..This depression has been going on for months but I haven't really let my parents see this until this month and with this letter.

22. There is no mention of the October incident but the boys who had harassed her then make an appearance in the diary:

i) (12^th June) I cried this morning and when I got into Form Class because of [O] and [U] because they started. [L] came over and asked if I was all right. I said yes. I shouted at [O]. I started crying in English because Sir asked what was wrong. [L] and [H] are acting funny….. most of the girls don't really want to talk to me but I don't care any more. …[L] went to Mr Lefley and told him about [O] starting on me so Mr Lefley confronted me about it when he asked to see me. (Further down the page there is handwriting that is accepted to be that of Mr Shaw).

ii) (13^th June) Today I was feeling a bit worried because of knowing they would start. This all started in Science. [O] and [U] again. They started laughing and whispering thing about me, so I was shouting at them but everybody was laughing. I told Mr Lefley and he said he would have a word with them. I told Mr Lefley about how I was feeling and about the situation of the class. He called [O] and [U] out of history and had a word. Then at form time they both said they were sorry. …..[later] I told him [Mr Lefley] I was having trouble so he called me to his office and I told him the problem and how I was feeling and about (concentrate atmosphere) how I wanted to hit [O] and I told him that I couldn't because I was afraid of getting told off. He replied "if it makes you feel tougher then do it but discuss the situation with your parents". He said if I do then I will be suspended for 3-5 days. (Again the page concludes with Mr Shaw's handwriting).

23. On 18^th June 1996 Mr and Mrs Shaw and Natalie had a meeting with Mr Lefley in his room at the school. Unfortunately it was interrupted by a boy barging in unannounced at a point when Mrs Shaw and the Claimant were in tears. Mr Shaw realised that "it would be round the school in no time" and decided that it was the last straw, and that the Claimant would have to be taken out of the school. Later that week he wrote accordingly to Mr Lefley. He said that since the meeting, which Mr Lefley had arranged between the Claimant, H and L the situation had not improved. He went on:

"I cannot envisage how this situation arose as up to the previous events she was happy at school and her work was first class. It has now gone on for over two months and apparently after our meeting, which I now realise was a great mistake on my part in making it during school hours, the word has gone about and it is now not only her own class but others ignoring and taunting her. Due to these circumstances it would obviously be futile to even try to replace her into another class…. I appreciate your time and effort to resolve the problem and attach no blame on the school or it's methods and your judgment. I fully understand that this particular situation is beyond anyone's control…. I would thank you for the standard of education you have given her so far and hope that the last few months will be erased by the earlier happier part of her schooling."

24. In reading that letter I bear two points in mind: firstly, neither the Claimant nor the school had told Mr Shaw about the October incident; secondly, he was aware that the letter might be copied to the head teacher of another school where he hoped his daughter might make a fresh start. Within two weeks of his letter of 18^th June the Claimant had been accepted at the Sacred Heart Convent School and started attending there.
25. Unhappily by the summer holidays of 1996 the Claimant was seriously ill. She was seen for the first time by a consultant psychiatrist, Dr Navin Savla, on 16^th August and on 29^th October was admitted to Grovelands Priory Hospital, Southgate where she remained an in-patient for more than 6 months under the care of Dr Gillian Broster. Towards the end of this period she was also referred to the Defendant's Young People's Unit at Brookside. At about the time of her admission to Grovelands she told her parents for the first time about the October 1995 incident. There is no evidence of the terms in which she did so.
26. It is necessary to record the Claimant's accounts of her experiences at Valentines High School as recounted to the psychiatrists who examined or treated her, and subsequently. Dr Savla in a report of 9^th October 1996, wrote

"Natalie started to have difficulties at school between the age of 11 and 13. She felt her schoolmates were picking on her and she was progressively getting socially isolated. She had a very traumatic experience at the age of 13 when she went to secondary school. In January of this year 5 boys pinned her against the wall and touched her breast and put their hands down her pants and as she shouted they ran away. The boys were suspended. She had been unable to talk of this experience and it has left her with severe school phobia."

27. Dr Broster, in a Discharge Summary dated 23^rd May 1997, a week after the Claimant left Grovelands, wrote:

"On admission Natalie said she had been feeling unwell for approximately 1 year. Prior to that, she had felt fine and did not think there were any problems. Her difficulties began when she had had an argument with two of her best friends and after that in January 1996, she was severely bullied at school. There was much verbal bullying, which she found very distressing. There was also one specific incident, which she had found extremely traumatic. Five boys pinned her against a wall and touched her inside her clothing and up her skirt. She had been very shocked by this, but did manage to tell her head of year about it. Her head of year did not seem to take the problem seriously and at one point Natalie thought that the teacher implied it was somehow her fault. At the time of the assault she was with a friend and there was also a dinner lady who Natalie thought could see what was happening. Neither her friend nor the dinner lady gave her any support or help. The boys involved were suspended for just three days but on returning to school they were again verbally abusive to her. When Natalie told me about these incidents she became extremely upset and tearful. She said her parents kept going up to the school, but the headmaster did not wish to discuss what had happened and the school were not helpful or supportive."

28. Dr Lamb of the Brookside Young People's Unit, in a report of 25^th June 1997, wrote:

"Natalie reports that her problems began in December 1995 when she was assaulted by five boys in the playground at school. Natalie was attending Valentines School in Gants Hill at that time. She said that the boys grabbed her legs and arms and pinned her against some railings and then touched her in her "private parts" through her clothes. Natalie says she was stunned by the assault and by the lack of intervention by friends who witnessed the attack. She subsequently told her teacher and the boys were suspended for two days. However, she did not report the assault to her parents at that time. From the beginning of 1996 Natalie began to be bullied in general at school. She says she was ignored by her previous friends and left out of all activities. "

29. In a 13 page written statement of October 2001 the Claimant describes the events of 13^th October 1995 in elaborate detail. After describing two of the boys grabbing her new trainers she writes:

"I began pleading with them for them back and I remember calling out to two dinner ladies, who were about 50 feet in front of me, asking them to tell the boys to give me back my trainers, and they just stood and laughed and carried on talking. I managed to grab my trainers back, next thing I know I was being held by the boys by my legs and arms against the railings behind the trees and one by one the boys opened my skirt and felt inside on top of my undergarment. I tried to fight back to free myself and to try and shout for help, but the words would not come out, and my body felt numb and my throat really dry. This all lasted for a few minutes and I looked around me for help and saw people feet in front and just wished that someone would turn around and see what was happening. I managed to free myself, and the boys kept trying to trap me. ….I then remember [running] as fast as I could to the head of year's office on my own and reporting the incident to Mr Thompson. I told him what had happened and he made notes. He then told me about three options I could choose from to punish the boys, they were (a) tell the police, (b) tell my parents or (c) punish the boys. I remember telling him to punish the boys, because I was still in deep shock and very distressed and confused, I did not know what to do. I did not choose the police option because I was frightened if the police did get involved I was scared the situation would be made worse and the boys would try and do something even worse to me, the reason above also concludes the reason I did not report the incident to my parents.

Mr Tranter was not present at any time of the matter, only me and Mr Thompson. During and after the assault took place [L] was not present, she was at choir practice which took place on Friday lunchtimes every week.

I remember being asked by Mr Thompson if the third option was what I wanted and I said "Yes" I can remember more or less that he was guiding towards the last option. He told me he would call the boys into the office and talk to them and suspend them for two or three days and give them lines to do and write to their parents.

After I spoke to Mr Thompson he made notes all the way through the conversation and then he phoned someone and the boys were called to come to his office. He asked me to wait outside his office and I remember all the boys arriving to see Mr Thompson, as they approached I was sitting with my head down and they were all laughing while we all waited together. I felt this was totally inappropriate because I should have never been made to sit outside with the boys who had just attacked me because they were all saying comments to me and a teacher was not even with me to support me. I should never have been made to sit and listen to all those cruel comments. I have never felt so alone as I did then.

Mr Thompson called the boys into the office one by one and [H], while still waited outside is office. The boys and Mr Thompson emerged from his office after finally being interviewed together with just Mr Thompson present, Mr Thompson told the boys to apologise to me, but none of them did. He did not comment on them not apologising to me. He then said to them, could you all drop your statements to me first thing before school starts on the following Monday, then they would have to leave the building as they were suspended.

The boys were then sent back to class to collect their bags. Mr Thompson called me back into his office and I was asked to make a statement. I began writing about what had happened but I did not get to finish my statement because it was the end of school and I was anxious to get home, and I was very intimidated by now. I did not write down in full about the assault because I was very distressed and frightened of the police and everyone around me, and especially what I had just been put through with the assault and being sent to sit outside with the assailants".

30. Finally in her witness statement prepared for the trial the Claimant gives the following account:

"On the day in question I was in the playground during lunchtime when five male pupils from my class [A], [U], [O], [J] and [M] pinned me against railings and touched me inside my clothing and up my skirt. The incident lasted as far as I can remember, for some minutes and I was so frightened during the incident that I found I couldn't talk or scream out for help. However, I thought that one of my friends, [H] and a dinner lady whose name I cannot remember, were nearby but they did not come to my assistance.

I finally managed to free myself and ran to tell my head of year teacher, Mr Thompson. I explained to him what had happened and he gave me three choices about what to do. These were (a) that he could telephone the police, (b) that he could telephone my parents or (c) that he could punish the boys."

Pleadings.

31. When I read the Particulars of Claim and the Claimant's witness statement in preparation for the trial it appeared clear to me that the Claimant was alleging that on 30^th October 1995:

i) five boys had one by one put their hands up her skirt and touched her underwear; and

ii) she had reported "what had happened" to Mr Thompson.

However Mr Kerr QC's skeleton argument on behalf of the Claimant for the trial submitted that "C's subsequent accounts of the assault are more consistent with progressive revelation than with exaggeration. Moreover the teachers' response to the incident was negligent on the basis of what they accept was reported to them." Mr Norris QC, for the Defendant, submitted at the start of the trial that this case was a fundamental departure from the case advanced in the Particulars of Claim; that it was not therefore open to the Claimant to advance it on the basis of the statements of case as they stood; and that the Claimant should not be permitted to amend the particulars of claim to rely on the new case or, alternatively, that amendments should only be permitted on terms that the Claimant should pay all the costs to date occasioned by her failure to tell the truth.

32. In his written response to Mr Norris' application Mr Kerr characterised it as "a bogus pleading point", "an exercise in word games" and "a straw at which the Defendant was clutching". Even allowing for forensic exaggeration these descriptions seem to me very wide of the mark. The Claimant's statements in 1995 and 2001 were fundamentally different. If an incident had occurred of the kind described by the Claimant to her psychiatrists and subsequently in her 2001 statement (leaving aside for the moment the factual discrepancies) and she had described it in full on the day to Mr Thompson, he would have been in gross dereliction of duty if he had not reported it both to the Claimant's parents and to the Headmaster or Deputy Head, who would no doubt have involved child protection agencies or the police or both. No one on either side has suggested otherwise. But if the report was only on the lines of the contemporaneous written statement the position is far more finely balanced. Mr Kerr, supported by the Claimant's expert Mr Marland argues that even on the 1995 version the incident constituted an indecent assault which should have been reported to Mr and Mrs Shaw. Mr Norris, on the other hand, supported by the Defendant's expert Mr Sutton, argues that if the report to Mr Thompson was as contained in the 1995 written statement it was a matter of professional judgment whether the incident should be reported to the victim's parents.
33. I considered that it would be a disproportionate response to prevent the Claimant from advancing the case which Mr Kerr sought to argue, particularly since Mr Norris candidly conceded that his client's witnesses were ready and able to deal with the alternative case in evidence. But I did consider that the Particulars of Claim were not apt to cover a case based on an under-reported incident. I therefore required the pleading to be amended in order to clarify the position by the addition of a new paragraph 6A in terms helpfully (if reluctantly) put forward by Mr Kerr.

"For the avoidance of doubt but without admitting the existence of any doubt, the Claimant does not contend that she reported the indecent assault in the same words as those set out in paragraph 4 above, nor that she reported it with the same level of detail as is set out in paragraph 4 above. What the Claimant reported was the sexual assault described in her statement written on 13^th October 1995 and recorded in letters dated 17^th October 1995 from Mrs Thompson to the parents of the perpetrators. "

I reserved all questions of costs to the conclusion of the trial.

Expert Evidence

34. Each party called an expert distinguished in the field of education in support of their respective cases. Mr Michael Marland CBE, called on behalf of the Claimant, recently retired as a head teacher after 30 years leading two large urban schools. Mr John Sutton CBE, called by the Defendant, spent part of his career as a head teacher of secondary schools and part of it as General Secretary of the Secondary Heads Association. In the latter capacity he contributed to the Association's "hotline" service giving telephone advice to its members.
35. Mr Marland's first report was written on 3^rd August 2001. He refers to the Claimant's "reporting of an indecent assault by five male pupils in the school grounds", which he describes as an "aggressive, sexually offensive incident". He refers to the psychiatric report of Dr Broster and to her belief that the Claimant's psychological distress was triggered or developed by the 1995/96 playground incident, and the school's response to it. He also refers to "the high level of continuous verbal and minor physical bullying over a long period of time, of which the major late 1995/early 1996 incident was the severely damaging peak but all occasions of which were distressing".
36. Mr Norris put it to Mr Marland in cross-examination that this report was based on an acceptance of the view that the Claimant had not only suffered the serious indecent assault described in her later statements but had reported it in those terms to Mr Thompson. Mr Marland was unwilling to accept this but it seems quite plain to me that this was the case. Mr Marland made no distinction between the contemporaneous written statement of the Claimant and the far fuller and more lurid statement written six years later. If he had set out the two alternative possibilities and explained why in either case he came to the same conclusion the report would be more helpful; but simply to gloss over the difference substantially reduces the value of the report.
37. Later in 2001, after further disclosure of documents by the Defendant, Mr Marland was asked a series of written questions which I was told were drafted by Mr Kerr. I set out the vital question and Mr Marland's answer.

Question. On the basis of the facts of the incident as described by Mr Thompson in the letters to the parents of boys concerned, including the penalty imposed i.e. a one to two day suspension, was it reasonable according to the standards of normal teaching practice in October 1995 to refrain from contacting Natalie's parents directly and instead to ask Natalie to tell her parents?

Reply. It is shocking that the school did not themselves contact Natalie's parents. To leave a distressed victim to tell his or her parents without the school's words of condolence, support and assurance of school action to both support the victims and work on the aggressors would have been regarded as entirely wrong.

38. In his third report, dated 16^th December 2004, Mr Marland notes that Mr Thompson's statement of 26^th March 1998 confirms that one boy "lifted Natalie's skirt up". Mr Marland comments "this is undoubtedly "indecent" and together with the hitting and pushing is definitely very disturbing for the victim. The actions may not have quite been an "assault" in the sense of "violent" but they were definitely very wrong by all standards, and strongly offensive". He expressed the view that almost every text on pastoral care at that time would have strongly advised the school (through the Year Head usually) to write to the parents or speak personally to them. However the texts which he appended, while emphasising the desirability of heads and teachers keeping parents well informed, did not deal with the specific situation which occurred in this case.
39. Mr Sutton, in his single report written in November 2004, does not criticise Mr Thompson. He writes:

"Both Mr Thompson and Mr Tranter state that they considered carefully the possibility of it having been a sexual assault, before deciding that it was not. The fact that Natalie's skirt had been flicked open momentarily during the course of the incident did not, in their judgment, constitute a sexual assault and Natalie herself did not claim that it was. On the record of the incident, which was made at the time, I believe that this judgment was reasonable.

The conclusion Mr Thompson did reach was that the boys had behaved badly and unacceptably. Their teasing and harassing of Natalie and her friend had gone beyond the limits of high spirits or fun and he decided to impose sanctions which would be proportionate to the misconduct and sufficient to impress upon them the unacceptability of their behaviour….

The Claimant states that she believed that Mr Thompson should have written to her parents about the incident. In fact he advised her to tell her parents, which she said she would do. He also told her that he would be happy to see her parents if they wished to discuss the matter. Mr Tranter's recollection was that the two girls had told him subsequently that they had told their parents. I consider Mr Thompson's decision not to write to be reasonable. He was entitled to think that this was a "one off" incident in which no one had been hurt and that his disciplinary action would be sufficient to close it. On the facts before him it was not a matter which should have caused her parents deep concern and a formal letter might have given it greater significance for them than it merited. It was reasonable to infer from the fact that no further comment was received from Natalie or from her parents that Natalie regarded the incident as closed and wanted no further fuss made about it.

I believe that the conduct of Mr Thompson was entirely consistent with what one would expect from a teacher in his position, and that the actions which he took, including the sanctions imposed, were reasonable and proportionate in relation to the facts which he states were available to him."

The Law

40. There was little if any controversy as to the basic principles of law which are applicable. They were conveniently summarised by Judge LJ in Bradford-Smart v West Sussex CC [2002] ELR 139 at paragraphs [30] [31] and [35] when he said:

"[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.

[35]…..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."

41. The duty of care is only engaged in circumstances which give rise to a foreseeable risk of physical or psychiatric injury. What is foreseeable will depend on the factual context, see Hatton v Sutherland [2002] ICR 613 at paragraphs 22 to 31 (not affected for present purposes, by the appeal to the House of Lords in Barber v Somerset CC [2004] ICR 457). Finally, in the Bradford-Smart case, Judge LJ said:

"[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. "

42. Mr Norris argued, and Mr Kerr accepted, that there is a continuum or spectrum of seriousness of incidents at school. In most schools on most days there are trivial incidents of pushing, shoving and teasing in the playground which no one would think of reporting to the victim's parents. At the other end of the scale there are very serious incidents, such as five boys committing an indecent assault such as that described in the Claimant's 2001 statement, where it would be plainly negligent not to report the matter. The present case obviously lies somewhere in between the two.

Issues of fact and witnesses

43. I do not have to decide exactly what happened in the playground on 13 October 1995. The school cannot be blamed for acting on the basis of what was reported to them. If it were relevant at this stage, I would hold that the Claimant has failed to prove that anything occurred beyond what was reported to Mr Thompson. This is not merely because of the discrepancies between her various statements, substantial though they are, and the fact that some details (not merely of the alleged sexual attack), such as the presence of one or two dinner ladies apparently indifferent to the victim's plight, only emerged many years after the events themselves. It is also because Mr Thompson told me, and I accept, that he was given essentially the same account of the incident in separate interviews with the seven participants, and that account corresponded with the Claimant's contemporaneous statement. Judges are only too well aware that the victims of sexual attacks often keep them secret. But it would have been extraordinary for all seven children to have made up the same story in the short time it took the Claimant, on her own account, to run straight to Mr Thompson and tell him what had happened.
44. I regret to say that I found the Claimant a wholly unreliable witness. That is not to say that she was a dishonest witness. I accept that she believes that what happened on 13 October 1995 was a very serious assault of some kind. But, perhaps as a result of all she has been through, it seems to me that she no longer has any accurate or reliable recollection of an event (both the incident and the reporting of it) ten years ago when she was 13 years old and before her prolonged period of illness.
45. By contrast I found Mr Thompson and Mr Lefley most impressive witnesses (as was Mr Haynes, although his evidence was scarcely contentious). In the case of Mr Lefley it was accepted by Mr Kerr that he was impressive both as a Head of Year and as a witness save in one respect, to which I shall come later. Mr Tranter was doing his best to assist me, but I concluded that I could not rely upon his evidence: it was apparent that he had little enough recall of the events of 13 October 1995 when he was first asked about them in December 1997, and none at all now.
46. Mr Thompson, as a fact finder, had two invaluable advantages denied to me; he heard from all seven children who were present (the Claimant, H and the five boys), whereas I have only heard from the Claimant; and he did so on the day of the incident rather than nearly ten years later.
47. What was reported to Mr Thompson is no longer, as I understand it, in dispute. It is now accepted (and if it had not been, I would have found) that what the Claimant and H reported verbally did not go beyond what they wrote in their contemporaneous statements. The major factual dispute which remains between the Claimant and Mr Thompson is whether he did or did not present her with three "options", namely to choose whether he should tell the police, tell her parents or simply punish the boys. The "three options" were not mentioned in any contemporaneous document nor in any of the psychiatrists' reports of 1996-7; they first appear in a report by Dr Broster of an interview with the Claimant and her parents on 31 January 1999.
48. I accept Mr Thompson's evidence that he never would, and did not in this case, leave such choices – least of all whether the police should be involved - to a 13 year old to decide. He interviewed the seven participants, considered the written accounts of the Claimant and H, and decided for himself. It is common ground between Mr Sutton and Mr Marland that it would have been unprofessional for Mr Thompson to have presented the Claimant with the three options; but I find that he did not.
49. The next issue of fact is whether the Claimant and her assailants were left together unsupervised outside Mr Thompson's office. Mr Thompson is firm in his recollection, which I accept, that the boys arrived with Mr Tranter and were spread along the corridor with Mr Tranter supervising while one by one they were called in to be interviewed by Mr Thompson.
50. The final issue of fact is whether Mr Thompson advised the Claimant to tell her parents what had happened. I find that it is probable that he did, not simply because that was his evidence. A child comes to a teacher complaining of an unpleasant and distressing incident. Whatever else the teacher does, to say "tell your parents when you get home" is the natural and obvious thing to do. The child is likely to feel better for having got the incident off her chest to a sympathetic audience at home. Often, though of course not always, a problem aired is a problem solved.
51. There was no dispute between the parties – indeed it can be said to be a matter of common knowledge – that many victims of bullying and harassment at school tell no one for fear of being labelled as a "grass". But here the Claimant had been brave enough to tell her Head of Year at the school, on the day, and with the knowledge of the boys involved. It was not foreseeable that having done so she would keep the matter from her parents.
52. I do not accept Mr Kerr's suggestion that Mr Thompson refrained from suggesting that the Claimant tell her parents for fear that the police would be involved, or that there would be accusations of racism because he and the Claimant are white and three of the boys (including U) are Asian. There would be no logic in this approach. Most 13 year old children who had been harassed in the way described in the 1995 statement would tell their parents without delay. Mr Thompson had no information to put him on notice that the Claimant would do otherwise. As to the suggestion that he would be concerned that the Shaws would "over-react" and withdraw their daughter from the school, again there was no previous history to warn him that they might wish to do so.

The issue of negligence

53. The central allegation of negligence in the Particulars of Claim is that of "failing to inform the claimant's parents that the indecent assault had occurred and failing in consequence to consult with them about how it should be dealt with."
54. Mr Thompson was not a lawyer. He did not know of the decision of the House of Lords in R v Court [1989] AC 28 holding that the offence of indecent assault (until its replacement in 2003) required proof of indecent intent by the perpetrator; and of course the situation needed handling without legal niceties. But as a sensible layman with substantial experience of dealing with 13-year-old children he considered, rightly in my judgment, that whether boy U or the other members of his group harassing the Claimant had indecent intent or not was very important. After interviewing the seven children on the day he concluded that this was not a case of indecent assault but of "horseplay", by which I understood to mean rough and unpleasant conduct without a sexual element. It is quite impossible for me, having heard one out of seven children many years later, to say that he was wrong.
55. Against that background the central issue in the case, applying the law as laid down by the Court of Appeal in Bradford-Smart v West Sussex CC, is whether a reasonable body of professional opinion would have refrained in Mr Thompson's position from contacting Mr and Mrs Shaw directly.
56. Mr Kerr submitted that at least 90% of parents would be "outraged" by Mr Thompson's failure to contact the Shaws directly. But, as he rightly accepted, that figure was a submission not based on evidence. He naturally sets great store by the fact that Mr Marland, with his long experience as a head teacher, found it "shocking". But I have to say that in oral evidence Mr Marland repeatedly argued the Claimant's case rather than answering counsel's questions. The Claimant, who was most capably represented by Mr Kerr QC, did not need a second advocate. I found Mr Sutton a far more dispassionate expert witness.
57. Mr Marland is entitled to his personal view, but I accept Mr Sutton's evidence that while some teachers in Mr Thompson's position would have written to the Shaws, others quite reasonably would not; and that it was an exercise of proper professional judgment to do either.
58. I also reject Mr Kerr's submission that "there is no intermediate category of cases that are serious enough to be worth advising a child to report to parents but not serious enough to be worth the trouble of the school reporting to parents." For the reasons I have already set out, the two processes seem to me quite different.
59. Mr Tranter too is criticised on behalf of the Claimant for not having told her parents about the assault. But he was entitled on the day to take the view that the matter was being dealt with at a higher level, that is to say by the Head of Year, and that it was for Mr Thompson to decide how the case should be handled.
60. As to subsequent events, there is no evidence of further untoward incidents or anything in the Claimant's behaviour at school before the summer term of 1996 to put Mr Tranter or his colleagues on notice that something was wrong. It was argued that Mr Lefley should have found out about the October incident when he took over from Mr Thompson, but I see no reason why he should. The allegation in the Particulars of Claim of "failing to protect the Claimant against the bullying she endured after the return of the assailants to the School" is no longer pursued.
61. Another itemised allegation of negligence is "failing to refer the Claimant for counselling or other professional help or advice following her complaint of indecent assault"; as to this Mr Kerr accepted that (on the facts as reported to Mr Thompson) the referral might properly have been to staff at the School, and not necessarily to external agencies. But it does not seem to me that the incident as reported was in itself so serious as to warrant such a referral. If the Claimant had exhibited continuing signs of unhappiness in the weeks after the incident it would have been different; but there is no evidence of this, and the evidence of the March 1996 school reports is to the contrary.
62. I have already found that Mr Thompson did not place the responsibility on the Claimant to determine how the incident should be dealt with; and that she was not left unsupervised outside his office. I therefore reject each of the allegations of negligence and breach of duty made against the staff of the school in the Particulars of Claim.
63. For the sake of completeness I should mention that the Defence makes allegations of contributory negligence against the Claimant. These were not abandoned by Mr Norris but were maintained, if I may say so, somewhat half-heartedly. Had I found primary liability against the Defendants I would have rejected the plea of contributory negligence. But in view of my main findings that issue becomes academic.

Conclusion

64. I have no doubt that the deterioration in the Claimant's psychological condition during 1996 was seriously distressing to her and her parents; and it is entirely natural that they should look for an explanation attributable to human failings. But on the evidence before me they have failed to establish their case against the Defendant council. I must therefore give judgment for the Defendants and dismiss the claim. Any post-judgment applications, including for permission to appeal, will be dealt with on a date to be arranged when leading counsel can attend. The time for filing any appellant's notice at the Court of Appeal is extended until 14 days after that further hearing.