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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TRANSFERRED FROM THE CROYDON COUNTY COURT

		Claim No.: 8CR00611 Royal Courts of Justice Strand, London, WC2A 2LL
		15 June 2009

Mr. Roger ter Haar Q.C.:

1. On the 10^th February 2005 the Claimant was teaching at Brampton Manor School. She took a drink from a bottle of water which she kept in her classroom. Unknown to her it had had whiteboard cleaning fluid added to it by one of her pupils. She suffered immediate physical injuries and thereafter significant psychological consequences. She was lucky that the physical injuries were not very much worse than they were.
2. She now sues the Defendant as her employer and as the authority responsible for the school. Her case in short is that a fellow teacher was negligent in giving the keys of the Claimant's classroom to two pupils, including the poisoner, on the previous day contrary to an established practice that pupils should not be given unsupervised access to classrooms.
3. As will be seen below, I fully accept that this was a serious incident causing the Claimant significant injury and mental suffering – indeed the consequences could have been very much worse. This claim is not made against the guilty pupil, for obvious financial reasons. For reasons set out below, I have come to the conclusion that this claim fails, but nothing I say in respect of this claim against the education authority in any way condones the disgraceful behaviour of the pupil responsible.

The Claimant

4. The Claimant was born on the 9^th March 1957 in Grenada. She emigrated with her family to Canada when she was 19. She dropped out of her first college course in Canada as she found it too hard to combine it with working to support herself financially. Between 1986 and 1992 she worked as a photo journalist and reporter. She did not give up on education for long: in 1986 she enrolled at Concordia University in Montreal and obtained a degree in English in 1992. This was followed by a Bachelor of Arts degree in Political Science. During her time as a student the Claimant made time to host a television programme entitled "Blacks in Profile".
5. In 1995 the Claimant returned to Grenada. Between 1995 and 1998 she taught English and Political Science to 16-19 year olds at TA Marryshow College in St. George's, Grenada. In 1998 she became the Public Relations Officer for the New National Party, which was then in power, in preparation for an election in 1999. The New National Party won all 15 seats in the election and the Claimant accepted a permanent position as head of a team of 15 people dealing with public relations for the government.
6. In 2001 she decided to move to the United Kingdom to further her teaching career and to obtain a Masters Degree in Education.
7. At that time there was a shortage of teachers in London, particularly in core subjects such as English and Mathematics. Although she did not have a formal teaching qualification, the Defendant sponsored her to obtain a working visa. The understanding was that for the first four years the Claimant would be required to work in one of the Defendant's schools after which she would be entitled to an unrestricted right to remain and work in this country.
8. Thus it was that in November 2001 the Claimant arrived at Brampton Manor School in Newham. She worked initially as an unqualified teacher of English. She enrolled on the Graduate Teachers Programme. In 2002 she started the Qualified Teachers Status Course which she completed successfully in September 2003. This was followed by an induction period completed on 31^st December 2004.
9. During this period the Claimant found time to write and publish her first novel (published at the end of 2004). By the summer term of 2004 she was performing the functions of Key Stage 4 Co-ordinator in the school English Department, a position to which she was then formally appointed, taking up the responsibilities in September 2004.
10. On top of all this activity, the Claimant enrolled to study part time for a Master's Degree in Education at Cambridge University. This had the support of the school.
11. This history of the Claimant's career reveals what was confirmed by the Claimant's evidence given to me in the witness box: she was intelligent, articulate, capable of hard work and ambitious. She is still intelligent and articulate. In assessing the effects of what happened on the 10^th February 2005 I have to consider the extent to which she has lost her capacity to work hard and the extent to which her ambition has been diminished by that event. As will be seen below I am satisfied that the incident caused the Claimant psychological damage – in assessing this I have to consider what her psychological condition was before the incident.

Brampton Manor School

12. In a report following an inspection at the beginning of 2007, OFSTED said of the school:

Description of the school

Brampton Manor School is much larger than average and serves a culturally diverse area of significant social deprivation. There are a high proportion of students with learning difficulties or disabilities and a large number who speak English as an additional language (EAL), some of whom are at the early stages. Students start school with lower than average attainment, particularly in English. There are also a significant number of students who start school during the academic year.

In 1999 the school was inspected and found to have serious weaknesses but when re-inspected in 2001 it was judged to be an 'improving and much more effective school'. Since that time it has become both a Training School and a Specialist College for the Expressive Arts. Both have had significant positive impact on the school.

Key for inspection grades

Grade 1 Outstanding

Grade 2 Good

…..

Overall effectiveness of the school

Grade: 2

Brampton Manor is a good and improving school with some outstanding aspects. The personal development of students and the curriculum are exemplary. The consistently good achievement in examinations in each of the past three years is a tribute to the hard work of both staff and students. Since 2003 the school has become both a Training College and an Expressive Arts College. Both have had significant positive impact on the quality of teaching, the breadth of the curriculum and on achievement. The progress made in the specialist areas in the short term since achieving Expressive Arts designation is particularly good. The school faces many challenges, but it has made exceptional progress since the last inspection. This is a direct result of the outstanding leadership shown by the headteacher, his senior team and middle managers.

The key feature of Brampton Manor is the sense of security that both students and staff feel. At the time of this inspection Year 7 students had been in the school for one term; many confidently reported how safe they felt and how much they enjoyed school. The continued excellent attendance is an indicator of how successfully the school has created a place where students want to be. Staff feel that they work in a school where they are encouraged to take risks that will benefit the students. They are passionate about ensuring that all their students get the best deal possible.

Senior leaders and middle managers work very closely together. The openness and trust that permeates the school enables the leadership to accurately evaluate its strengths and weaknesses. They are fully aware that more could be done to ensure greater achievement of the more able and there are plans in place to address this. They know that there are good systems in place to track students' progress, but that the information could be used more consistently to further raise achievement. They are also working on improving links with parents.

Brampton Manor produces confident, articulate young people who want to continue learning; the vast majority go on to further education or training. This is a school that the local community can rightly feel proud of.

…

Personal development and well-being

Grade: 1

The personal development and wellbeing of the students are outstanding. Students have very positive attitudes to learning. Attendance is much higher than found in most secondary schools because students enjoy the activities on offer and know that they are very well looked after.

Students have an extremely well developed sense of community and are very responsible in deciding amongst themselves how to improve their learning, the school and the plight of the less fortunate. As one Year 11 student commented 'student attitude is driving improvement'.

Spiritual, moral, social and cultural development is excellent. Students are reflective and thoughtful. They are particularly good at welcoming fellow students with learning difficulties into school life. Behaviour is good. It has improved significantly because students consider the impact of their misbehaviour and make an effort not to behave inappropriately again.

Students clearly know how to keep themselves safe. The strong ethos of care gives students an air of confidence and security …..

13. I heard evidence from Mr. Neil Berry, Head Teacher at the time of the incident, from Ms. Nicola Williams, Assistant Head at the time of the incident (now Deputy Head Teacher), from Ms. Michelle Pitt, a teacher at the school, now moved elsewhere, Ms. Vulpiani, second in charge of the English Department at the time, from the Claimant herself, as well as a number of former students. Although the OFSTED report was produced two years after the time with which I am concerned, what it describes is consistent with the picture I gleaned from the witnesses before me.
14. However it is important to be realistic about the problems facing the school. Only a few years earlier it had been a troubled school. Any school populated by teenagers will have to deal with the ups and downs of youngsters of that age. The education authority had what was described by Mr. Berry as an inclusive policy – which meant that the school included amongst its students those who might otherwise have been in special schools, including children who were classified as Emotionally and Behaviourally Disturbed. The OFSTED report recorded that the school serves a "culturally diverse area of significant social deprivation" and has "a high proportion of students with learning difficulties or disabilities". There were children described in oral evidence as "cheeky", a euphemism for abusive, and "characters", a euphemism for particularly difficult children. The contemporaneous documentation reveals that fights would break out from time to time.
15. I fully accept the Claimant's evidence that when she arrived at the school she experienced a culture shock.

The Claimant's evidence about the school

16. In the Claimant's first witness statement she paints a picture of the school which is the background to her claim against the local education authority.
17. In paragraph 21 of her first witness statement she describes the school as "being a very difficult school because the student behaviour was very challenging … Teachers had to work with very challenging pupils. The pupils were known to be violent and verbally abusive". I accept that there were some very challenging pupils, that there was some violence exhibited between pupils and that some pupils were verbally abusive. However I do not accept that this is a fair way of giving a general description of the school. My impression of Mr. Berry was that he was a tough but fair man who was taking a grip on a school which had experienced serious problems. The evidence given by the other teachers does not support this as a general description.
18. On the other hand, I do accept that some of what the Claimant experienced before the 10^th February 2005 was foreign to what she was used to and to what she, probably reasonably, expected, and that this was disturbing to her.
19. The Claimant continues "The position was so bad that a Police Officer was assigned to the school from Plaistow Police Station. Regularly each week Police would patrol the school particularly at the end of the school day. You would find two or three Police cars parked outside the school gates to monitor pupils. The Plaistow Police would have regular contact with the head teacher, Mr. Berry, and would be invited to the school to run programmes on knife crime prevention and forms of anti-social behaviour". This evidence is put into context and contradicted by the evidence from the other members of the teaching staff, whose evidence on this aspect of the case I prefer to the Claimant's. It is true that from time to time (but not on a regular basis) one or more police officers attended outside the school gates at the end of the day because there could be fights between pupils from different schools. It is also true that a police liaison officer would attend frequently, but this was to be expected as part of the school's function of producing responsible citizens, particularly in an area of significant social deprivation. In so far as the intent was to portray the school as a place with such high levels of violence within its grounds as to require regular police monitoring, I reject the case put forward.
20. The Claimant then describes a number of incidents which she experienced before the 10^th February 2005. I accept her evidence as to what happened:

i) Within the first month of taking up her position in November 2001 the Claimant was teaching a group of year 10 mixed ability pupils. One of them started hurling obscenities at her and violent threats. Mr. Berry dealt with the matter, coming to the classroom at the Claimant's request and imposing his authority;

ii) In a separate incident a little later, the Claimant had returned to her classroom to get some papers. She left the key in the door whilst she was in the classroom. When she left the classroom she found that her key was missing. She went to the Deputy Head, Mr. Whittle, who managed to find the keys in the possession of one of the pupils. He warned her to be careful with the keys and ensure that they were kept on her person at all times.

iii) In 2002 there was an incident with a child called Ziggy. Ziggy was known to be disruptive and difficult. He pulled a chair from under another pupil. When reproved for this by the Claimant he refused to accept discipline and was abusive. Eventually this child left the school, the Claimant says as a result of being formally excluded. The Claimant relies upon this matter not only because it confirms the presence within the school of disturbed children, but also because the school records contain no reference to this incident.

iv) In the following year there was an incident involving a boy called Jordan. The Claimant was at a bus stop with her younger son, who was of primary school age. Jordan was waiting across the road from the bus stop. When he saw the Claimant he started pelting her with potatoes which he took from a nearby corner shop. Eventually Jordan was formally prosecuted. Even after this incident the Claimant had to teach Jordan, which continued to be very difficult. The Claimant believes that eventually Jordan was formally excluded, but Mr. Berry's recollection was that he was sent to a special school more capable than Brampton Manor of dealing with his particular problems.

The problems with Jordan illustrate the difficulties presented to teachers at the school by the Defendant's policy of inclusivity. It was a consequence of that policy that included within the mix of children were some who presented significant management problems and teaching challenges.

Again the Claimant relies upon the absence of reference in her employment file to this incident.

v) Again in 2003, the Claimant was putting laptop computers away in a storage room. On trying to leave the store room the Claimant was unable to get out as the handle of the door was being held firmly by pupils that she could hear giggling on the outside. The Claimant was imprisoned for about 10 minutes. When she got out it transpired that a class was waiting to get into an IT class near the storeroom and had decided to keep her in there until they went into their class. Again the incident was not recorded on the Claimant's employment record.

vi) On the 8^th December 2003 the sixth incident occurred. The Claimant was teaching a year 8 class in her classroom using laptops. At the end of the class the Claimant collected the laptops. As she was closing a laptop a boy approached the Claimant and slammed the lid of a laptop on her finger. On this occasion a record was kept by the school.

21. Thus the Claimant draws attention to six incidents in roughly the first two years of her career as a teacher. What she describes is consistent with a picture of a school containing some very difficult children and some children capable of pranks, the potential seriousness of which probably did not occur to them. Different teachers would react to such incidents with different levels of robustness, but there can be no doubt that teaching in a school such as Brampton Manor brings challenges as well as rewards to teachers. The Defendant says that ultimately the Claimant would have left Brampton Manor School even had she not experienced being poisoned on the 10^th February 2005 because she was temperamentally unsuited to being a teacher in such a school. I consider that submission below.
22. Mr. McCormick, on behalf of the Claimant, is very critical of the record keeping by the school in respect of incidents which occurred there. At least in part the absence of records results from a significant number of files going missing during building works at the school. This is unfortunate and means that I have to examine some parts of the evidence with caution. I also accept that from the records which survive it is apparent that not every incident that perhaps should have been recorded was recorded. The result says the Claimant through Mr. McCormick, is that it is difficult or impossible to form a fair picture as to the level of incidents involving violence or threatening behaviour by pupils towards teachers.
23. Whilst I accept that the records may not have been as full as a perfectionist might require, I do not accept that had fuller records been kept it would have changed my view of the school as expressed above which is based upon the oral evidence before me, particularly that of Mr. Berry. In evidence before me he accepted that he could recollect staff being injured when attempting to break up a fight between pupils, but did not accept that there was any history of staff being attacked by pupils. Mr. Berry was a straightforward and honest witness. Whilst the incident with Jordan (which he recollected) might be said to undermine this evidence, I accept that the generality of what he said was honest and reliable evidence.

Events between September 2004 and 8^th February 2005: tensions in the staffroom

24. At the beginning of the 2004/2005 academic year the Claimant was now a fully qualified teacher. She had been appointed Key Stage Co-ordinator for the English Department. She was about to start her part time study for her Master's degree at Cambridge. A letter of reference written by the Acting Joint Head of English at the school in May 2004 described her as follows:

Miss Alexis is an excellent teacher. She is very passionate about education and cares deeply about the success of her students. Her academic results are excellent and students are happy to be taught by her as they recognise her commitment to the job.

As an example, on top of her heavy workload, Miss Alexis had regularly spent a great deal of time coaching her students on her own free time to ensure their academic success and pastoral happiness. She has shown initiative by organising extra-curricular activities for classes of Year 11 teachers to share her expertise.

Miss Alexis has created an excellent working relationship with her students. Her classroom display is excellent and several of her ideas have been taken as Department policy, such as laminated positive messages being stuck to each student's desk. Her lesson planning and marking are meticulous and as a result her lessons are well delivered and are often used as models of good practice for others to observe and learn from.

Miss Alexis has taken an active part in school life, running a club on Saturday mornings for students to improve their literacy skills. She is also an active member of the department, helping to create schemes of work and Department policies whenever required. She is a lively enthusiastic member and helps to raise every one's morale with her humour and energy.

25. No job appraisal has survived for the academic year 2004/5, which is surprising. However at the beginning of that academic year everything appeared rosy.
26. At the beginning of the year, there was another change: Ms. Abedah Karim became Head of the English Department. Difficulties rapidly developed in the relationship between the Claimant and Ms. Karim.
27. On Thursday 3^rd February 2005 there was a "KS4 Steering Meeting". After this meeting Ms. Karim produced a minute of the meeting. "SAL" refers to the Claimant and "AKA" to Ms. Karim:

SAL praised for work done in LA [Learning Area] meeting – told to stop panicking

…..

Spoke about lateness. AKA very clear about the fact that it was only one incident of lateness (Tues P. 5) SAL felt that AKA should be observing whole department and not be focusing on one incident. However she did point out that she was late on Thurs am and Mon am and AKA, on these days, is to let class into the room. AKA pointed out that using language such as 'You, as head of Dept. should ….' Sounded as though SAL were telling AKA how to run the Dept, and that kind of language should not be used especially around students – referring to incident of Nelson in previous week. SAL felt there was not a problem with her [turn] of phrase. She went on to suggest that AKA was not praising especially concerning corridors and it had been hurtful to SAL that MBU was used in the LA meeting as an example. AKA explained that she had not seen SAL in the corridor and therefore could not comment. Also the meeting had been about encouraging staff to be on the corridors rather than encouraging individuals. AKA suggested to SAL that she should make herself heard when she feels that she is doing something that AKA may have overlooked.

28. Much of this is cryptic and remains unexplained by the evidence. However there is no doubt that it reflects substantial tensions between the Claimant and Ms. Karim. On the 4^th February 2005 the Claimant sent a memorandum as follows:

I am requesting changes to minutes of Thursday's meeting to reflect a more accurate representation of what I said.

I refer to bullet point 9.

What was said was that I will normally be late on Mondays and Thursdays due to the fact that I have my tutor group assembly on those mornings and they always end late.

I also refer to bullet point one. It is your perception that "I panic". Under the present climate and circumstances since we are being careful of terminologies, I suggest that it be made clear that it is your perception and interpretation. I have never said to you that I "panic".

29. Ms. Karim did not alter the ninth bullet point, but altered the first bullet point to read:

SAL praised for work done in LA meeting. AKA, using her own perception, told to stop panicking. This comment was meant as a form of informal mentoring.

30. In paragraph 59 of her first witness statement the Claimant refers to a memorandum written to Ms. Williams and Ms. Karim. It reads as follows (I have omitted the surnames of two of the pupils):

Nicola, I am very concerned that the attendance in my English lesson since the beginning of term has been drastically reduced.

Henry ….I know there is a valid reason

Abijah?

Sheik?

Liam? Has shown up about three times

Shan?

Carly? About twice. I am particularly concerned and [have] spoken with Mr. Wade several times. This is a C right there.

Junior? Very aggressive lately. High levels of discontent. Whatever is happening to Shan is probably affecting him.

Dylan Is very disruptive and is not doing much for the revision process at the moment. It would be better if he was set home to work there.

Media:

Anne-Marie has grown continuously confrontational and down right nasty. I am sorry to say but nothing will happen there and it's very disruptive to others.

Mohamood is also very disruptive. In a private conversation with him he said he didn't care because he's going back to Ethiopia or Somalia or wherever. I am not being disrespectful I can't remember where exactly he said.

I am in a dilemma about Anthony. There is absolutely nothing in his media folder. I do not want to enter him for Media.

31. Mr. Berry attaches to his witness statement a schedule referring in chronological order to documentation concerning the Claimant's employment history. It has an entry unconnected with any identified document for the 7^th February 2005, which Mr. Berry was unable to explain:

Meeting, lasted over an hour. Lost faith in Ms. Williams because after the [Senior Management Team] meeting there was no change.

Had therapy pre-accident.

Relative, brother? Involved in accident in Canada.

32. Whilst Mr. Berry was unable in the witness box to explain this entry in his schedule, the details have the ring of a contemporaneous record which somehow became reflected in his schedule.
33. When Ms. Williams came to give evidence she told me that her witness statement had been compiled over the telephone with the Defendant's solicitor and without reference to contemporaneous documents. In paragraphs 15 and 16 of her statement she said:

I am aware that Ms. Alexis was under a lot of stress before the incident. I am also aware that she had therapy in the past. I also believe that a relative back in Canada had been involved in an accident. It may have been her brother but I cannot be sure.

She was also not getting on well with Ms. Karim, her Line Manager. I had been involved in a meeting between the two of them but cannot really remember what was said. What I can say, however, is that I never witnessed Ms. Karim acting unreasonably at all.

34. Putting all this together, I find that by the 8^th February 2005 the Claimant was under considerable strain partly caused by and reflected in her relationship with Ms. Karim. It is clear that the attitude of some of her pupils was a component in generating that strain. The memorandum set out at paragraph 30 above reflects concerns about the pupils named therein: I must now turn to set out the facts relating to Faye, who was primarily responsible for the incident on the 10^th February 2005, and to two of her fellow pupils.

Faye, Joanne and Jamie

35. In the Claimant's media class were three girls, Faye, Joanne and Jamie. They were all in their GCSE year (year 11) and were aged 15.
36. It was Faye who put whiteboard cleaning fluid into the Claimant's drinking water, as I set out below.
37. The Claimant's evidence about Faye is in paragraphs 83 to 90 of her first witness statement:

It transpired that Faye … was the pupil that actually contaminated my drinking water. Faye had frequent issues of misbehaviour in the class and frequent issues in respect of the use of profane language. I taught her for one year. Her disciplinary record was terrible. I had to keep her in detention a few times for class disruption or for lack of co-operation. You would give her instructions and she would just swear at you. She was absent from classes sometimes even though she would be in the school. Therefore she was the type of student that would miss a class and wander around the school or turn up late for a class.

I would consider the relationship between Faye and I to be a very difficult one, probably one of mutual dislike.

Faye was an underperforming student and more often than not very confrontational and rude. She resisted my authority, combed her hair in the class, put makeup on, arrived late most times as the register would indicate, used swear words profusely to me when corrected or disciplined and most times did no school work while in class. She chatted a lot in class and was overall a negative influence on the other students through her behaviour. It was extremely difficult getting course work material from her since nothing was ever done.

Faye's behaviour was very indicative of the type of difficulties faced by teachers in the school.

I complained to Nicola about Faye's lack of performance and overall demeanour on more than one occasion. I did so because I was concerned that I would not get any GCSE course work from her and I wanted the matter to be known before the fact.

It is alleged by Faye that I referred to her behaviour as that of a white prostitute or indicative of prostitute behaviour. I do not recall that particular incident. However Faye would commonly apply thick cosmetics such as lipstick blusher eye-liner and foundation whilst I was teaching. She was only 15 years old at the time and behaved in a very provocative way when applying make-up. She always wore heavy make-up. I believe that this was also a deliberate attempt on her part to annoy and ridicule me and undermine my authority. This was not the type of behaviour I expected. I am from the Caribbean and I was taught to respect those in authority. I believe in discipline and respect for elders especially teachers.

Therefore I found Faye's behaviour to be unacceptable. I reported her behaviour to Nicola Williams the assistant Head. Nicola knew Faye very well and my concerns about Faye were brought to Nicola on several occasions especially concerning her lack of course work. Faye's behaviour impacted negatively on her performance and that is why there was no course work. I felt under pressure because the responsibility for the course work was not with the pupils but with the teacher. I therefore had the responsibility of ensuring that Faye, an unruly pupil, produced her coursework. Conflict certainly existed between Faye … and myself.

In the meeting held between Nicola Williams, Mr. Berry and myself after the incident, Nicola said Faye felt I was pushing her too hard to achieve and I was hard on her. When I said it was my job to maximise the potential of all my students, Nicola Williams said Faye did not see it that way.

38. In his witness statement, Mr. Berry described Faye (and Joanne and Jamie) as "exemplary and model students". However in cross-examination Mr. Berry said forthrightly that he did not know these students well enough to form such a judgment. It was unclear how in those circumstances this description came to be in his witness statement.
39. In her witness statement, Ms. Williams also described Faye and Joanne as "model students". Ms Pitt said that she remembered that "the pupils involved were model pupils". It seems to me improbable that three teachers separately would have used the adjective "model" about these girls, and, particularly having regard to what appeared in Mr. Berry's statement seemingly without any basis in his own knowledge, I discount the descriptions given in Ms. Williams and Ms Pitt's witness statements. In any event, it seems to me that the expression "model student" or "model pupil" applied to any teenager would have an element of relativity about it, and that would probably be even more the case in respect of pupils at Brampton Manor.
40. In respect of Ms. Williams's evidence, I record that I found her an impressive and honest witness who clearly cared about the pupils at Brampton Manor but was not unrealistic about their characters. She was asked about the complaints and concerns about Faye which the Claimant said she had made to her. She recollected that the Claimant had brought concerns about Faye's coursework (or lack of it) to her attention, although she said she would not have been the first port of call in respect of coursework. She did not remember anything about disruptive behaviour or complaints about putting on make-up. She was taken to paragraphs 83 to 90 of the Claimant's witness statement which I have set out at paragraph 37 above. She said that that rang no bells at all. She continued that when, after the event, she found out that Faye was responsible she was "completely shocked". I accept that that evidence was truthful and accurate. I accept her evidence that the Claimant did not make the complaints to her (other than in respect of the coursework) that the Claimant said she made.
41. In reaching that conclusion I take into account not only my assessment of Ms. Williams's credibility based on her demeanour in the witness box, but also a tendency on the part of the Claimant to exaggerate as set out in paragraphs 16 to 23 above. I also note that Faye was not amongst the children about whom the Claimant expressed concerns in the memorandum set out at paragraph 30 above. These are my primary reasons for that conclusion, but the conclusion is also supported by evidence from other witnesses about Faye to which I refer below in this section of my judgment.
42. As I have already recorded, Ms. Pitt also described Faye as a model pupil. However she had only limited acquaintance with Faye. Faye herself when she gave evidence told me that she had never had classes with Ms. Pitt before the 9^th February 2005. Ms. Pitt denied that there had been any complaints about Faye's behaviour before the 9^th February. It was apparent in cross-examination that she was aware before the 9^th February that the Claimant took the view that Faye was likely to fail her Media Studies GCSE, a view which she, Ms. Pitt, thought was harsh.
43. On the material before me it appears that Ms. Pitt knew that Faye was regarded by the Claimant as an underachiever. She may have known that this had given rise to some tensions. I reject any suggestion that Ms. Pitt had any information which should have led her to conclude that the relationship between the Claimant and Faye had deteriorated to the point that Faye might want to wreak some act of revenge upon the Claimant.
44. The teacher who knew Faye best was Ms. Vulpiani. She was a good, honest and reliable witness. I do not have the same concerns about her evidence as I do about some of the other statements. In paragraph 9 of her statement she said:

Faye was a good girl. She could be silly at times and not as mature as Jamie. She was, however, never naughty and was never a problem. She may have been cheeky but she would never have been intentionally malicious or cruel. She did not intend to upset anyone or cause injury.

She also said at paragraph 31:

When I heard about the incident involving these 3 girls I was totally shocked and stunned. This was totally out of the blue and unexpected conduct. I would never have imagined in a million years that these students would have done what they did.

45. My note of her evidence in cross-examination does not pick up what she said verbatim, but is, I believe, in substance accurate:

When I said that Faye was "cheeky" I did not mean that Faye ever swore at me. I never heard that she swore at other teachers. Sometimes she was cheeky and would speak without thinking through what she was saying – she would speak inappropriately. She would take correction and move on.

I don't know about how she reacted with others.

Ms. Pitt was not her regular teacher. I didn't discuss how Faye was with her.

I had a very positive relationship with Faye. She confided in me- she was a teenage girl chatting. I think they thought they could bring their problems to me.

I can't remember Faye bringing any specifics about Ms. Alexis to me but there was a feeling things were not as they should be in the media class.

Faye conveyed to me that she was not happy about the way she was treated by Ms. Alexis.

I think she felt that Ms. Alexis made inappropriate comments to her and that her learning in class was affected. The comments were that she was white trash, insinuating that she had loose morals. I don't know specifically what was said but kids sometimes elaborate. May be she was too sexualised for her age. She was into boys. She was a girly girl – for example she used pink pens to underline her work. The comment made to her was that she was cheap – there were sometimes comments relating to race.

46. She said that she discussed with Ms. Pitt why the class was underachieving. She said that she was not sure whether she and Ms. Pitt were aware of specific problems, but she knew that there were grumblings amongst Faye and her class. She said that Faye decided that she was not going to try in the media class any more.
47. In assessing Ms. Vulpiani's evidence I must take into account that she clearly liked Faye and got on well with her. To my mind that makes her evidence all the more compelling because she did not use a formulaic expression such as "model student", but spoke from the heart. It is clear from her evidence that Faye was not a model student, although how far that was Faye's fault and how far the result of the way in which the Claimant handled her is another matter. However I take from Ms. Vulpiani's evidence the firm impression that, whatever Faye's problems and behaviour had been before the 9^th February 2005, she had given Ms. Vulpiani no possible cause to suspect that she might attempt to poison the Claimant or to carry out a prank as dangerous as that which in the event occurred.
48. I also heard evidence from Faye, Joanne and Jamie. In trying to assess what Faye was like in 2005 it would be very dangerous for me to base any assessment upon how she appeared to me in very different circumstances in a witness box in 2009. However I can form and have formed an impression that when she gave evidence before me she was in some respects accurate in what she said and in some respects inaccurate.
49. In her witness statement, put in evidence on behalf of the Claimant, she said

I neither liked nor disliked Miss Alexis. I did not intend to hurt her.

I thought Miss Alexis treated me unfairly. No matter who I was talking to in class she would always tell me off and not the other person, so I was always getting into trouble in her class.

There was one time during lesson when I had a rash on my neck and I was putting make-up on to cover it when Miss Alexis called me a "white prostitute from Green Street". Green Street is a street near Brampton Manor School. She completely made me feel terrible. I thought she was racist.

50. I find the assertion that "I neither liked nor disliked Miss Alexis" difficult to accept in the context of the rest of that evidence - and Jamie's evidence supports the Claimant's account that there was more to the putting on of make-up than simply covering up a rash. However I accept the terms in which Faye says the Claimant spoke to her and how she felt about it (i.e. that it made her feel terrible).
51. All the teachers (including the Claimant) were agreed that Jamie was a good and diligent pupil. Ms. Vulpiani said of her "Jamie, in particular, was a great student. She was very hardworking and very able. She is now at Leeds University. I could not be more positive about her". The impression given by Jamie in the witness box entirely supported such fulsome praise. In her witness statement she said:

Faye disliked Miss Alexis because Faye would put lip gloss on in class and she was very chatty in class and Miss Alexis did not like Faye. They did not like each other. I thought Miss Alexis was ruder to Faye than to me. On one occasion Miss Alexis called Faye a "white prostitute" when Faye was putting on lipstick in class. This caused a massive argument between Faye and Miss Alexis and they both never got on. A few of my closest friends found out about this. A lot of our friends in class felt the same about Miss Alexis. My loyalty was with Faye as she was my best friend.

52. In cross-examination Jamie told me that what happened on the 9^th February 2005 was out of character for Faye.
53. Joanne also gave evidence. She had no recollection of the "white prostitute" incident and could not remember the Claimant making any racist comments.
54. Whilst the Claimant is critical of Faye, and she is highly complimentary about Jamie, she comments about Joanne only in paragraph 93 of her witness statement where she says that Joanne was not academic. She may not have been academic but she was an honest witness within the limits of her ability to recollect matters after 4 years. She is now a nursery nurse. I have seen nothing in the evidence to suggest that the teachers had any reason to suspect that Joanne might find herself involved in a serious incident.
55. In assessing the character of each of these three girls 4 years ago I have been hampered by the fact that the school has lost all the records relating to each of them for the last three years of their time at Brampton Manor. Nevertheless I have felt able to come to the conclusions which I will now summarise.
56. Of the three pupils, Jamie might have merited the description "model student". She was regarded by all teachers as diligent and trustworthy. Joanne may not have been academic but there was no reason to suppose that she would take part in a dangerous prank if let into a classroom unsupervised.
57. I do not think that the description "model student" could fairly be applied to Faye. I accept the evidence of Jamie that there came a point where she did apply her make-up in class. Mr. Berry told me that the school rules were that pupils should not wear make-up (although a realistic approach suggested an absolute ban would be impracticable to enforce) – to put on make up in class was obviously inappropriate and could not be tolerated in any sensibly run school. What I find difficult to assess is what was cause and what effect – was Faye's behaviour a reaction to how the Claimant behaved or was the Claimant's behaviour a reaction to how Faye behaved? I cannot decide this: however I am unhesitatingly of the view that nothing justified the Claimant describing Faye as a white prostitute from Green Street, or using words to that effect.
58. I have no doubt that this happened: firstly, Jamie was an obviously honest witness whose account in that respect was placed in evidence by the Claimant. Secondly, the complaints made to Ms. Vulpiani were consistent with such language being used. Thirdly, the Claimant's response to that suggestion is a surprising half denial - for example in paragraph 88 of her first witness statement: "it is alleged by Faye that I referred to her behaviour as that of a white prostitute or indicative of prostitute behaviour. I do not recall that particular incident". Finally, I have Faye's own evidence on the point.
59. The significance of this cannot be understated. It is clear that in this multi-racial school it was rightly quite out of the question for any teacher (or student) to be allowed to act or speak in a racist manner without immediate and unequivocal condemnation. If, as I find was the case, the Claimant had either created a problem relationship or exacerbated a problem relationship by the use of such offensive and inappropriate language, she was in a difficult position in making any complaint to her colleagues about any misbehaviour by Faye. Not only had she humiliated Faye by using racist language, she had done so in front of the whole class – a class with which she seems to have had a difficult relationship in any event.
60. This language was used to an academic underachiever whose sense of inferiority from underachievement was likely to have been already increased by the Claimant's heavy handed approach to trying to get the best out of her pupils. The situation is unlikely to have been assisted by the fact that she was under considerable stress because of the difficulties in her relationship with Ms. Karim.
61. Accordingly it would be unsurprising if the Claimant felt unable to discuss her deteriorating relationship with Faye with other teachers. I have accepted Jamie's evidence that there was a "massive argument" between Faye and the Claimant.
62. Whilst Ms. Vulpiani's relationship with Faye appears to have been good, it was nevertheless a relationship between a teenage pupil and a teacher. I can understand if on Faye's part this led to her being coy about revealing the extent to which she had misbehaved in class, and if on Ms. Vulpiani's part this led to her not fully understanding how seriously Faye had been wounded by the Claimant's inappropriate use of language in front of Faye's colleagues.
63. Thus the position was that Faye harboured a resentment against the Claimant which she never fully revealed to the teachers or to her friends. I emphasise "fully" – others including Jamie and Ms. Vulpiani knew all was not well, but the anger felt by Faye was clearly considerable as revealed by what happened on the 9^th February. It may be that the Claimant had an inkling of how bad the relationship was, but if she did she did not tell anyone else about it – and she had good reason for not doing so particularly given the difficulties she was already experiencing with the head of her department.
64. I find that before 9^th February nobody, teacher or pupil, had any suspicion or reason to suspect that Faye would react to the humiliation she had suffered in the way she did. When I say "nobody", I include the Claimant. I am sure that, however bad she thought the relationship was, she did not suspect that Faye would try to do her physical harm. I say this firstly, because the Claimant does not say that any such thought actually occurred to her; secondly, because if the Claimant had thought so, she would have said something to colleagues or superiors; and, thirdly, because her memorandum of 7^th February 2005 raises no such suggestion, whilst on the other hand raising concerns about threats from another pupil – see paragraph 30 above.

What happened on 9^th February 2005

65. Wednesday 9^th February was the first day when the Claimant was to go to Cambridge for the purposes of her part time course towards a Master's degree.
66. This course had the full support of the school. Arrangements had to be made for someone to cover the Claimant's Year 11 media studies class. Ms. Pitt agreed to stand in for the Claimant.
67. There was conflicting evidence before me as to the practice when one teacher covered for another as to whether the practice for the class to be taken in the absent teacher's classroom or in the covering teacher's classroom. I suspect like many things, it would just depend upon what was convenient.
68. Ms. Pitt elected to take the Media Studies class in her classroom rather than in the Claimant's classroom. Her explanation, which I accept, was that this was not the same as a situation where a teacher covered a solitary lesson (for example when a teacher was absent through illness). In this case for all future Wednesday afternoons this class would be her class. In the circumstances I find that her decision was rational and reasonable.
69. On the day before, Ms. Pitt went into the class and told them that the class the following day would be taken by her in her classroom. She also left a note on the door of the Claimant's classroom directing the pupils to go to her classroom for the lesson.
70. As I have already mentioned, Ms. Pitt gave evidence before me. She was an honest witness, but clearly very upset at what had happened – whether the law regards her as guilty of the tort of negligence or not, without her act of giving pupils the keys the incident could not have happened, and in a manner which does her credit it was obvious that she has taken this to heart. Whilst she was an honest witness, I am satisfied that she was not an accurate witness as I will now explain.
71. On the 10^th February 2005 Ms. Pitt set down her recollections of events on the previous day and that morning:

Shaaira came to me at the start of P1 this morning carrying post-its in her hand. She told me that these had been stuck all around her classroom. She asked me whether I taught her Media group in her room P4 on the 9/2, but I told her that I taught then in E2 instead. I was concerned, however, as I had given Jamie …. and Joanne …. the key so that they could fetch the books. They were gone for around 5 minutes.

Later on during P1 this morning, Shaaira came back to me very distressed. She said that she had drunk her water and had promptly thrown up. She asked me to smell the water, and it smelled as if a chemical substance had been added to it. Shaaira told me that a taxi had been called to take her to the hospital.

72. Ms. Pitt's evidence in her witness statement and in her oral evidence was to the same effect, namely that she had given the keys to Jamie and Joanne. That is contradicted by the evidence of Faye, Joanne and Jamie. I am satisfied that Ms. Pitt was wrong about this, notwithstanding that her note was prepared so soon after the event. Having heard from Faye, Joanne and Jamie, it is clear that what happened is that Faye and Joanne asked Ms. Pitt if they could go to the Claimant's classroom to retrieve their media studies folders. Ms. Pitt gave them her keys (which would open the door to any classroom) and they went off. Once in the classroom Joanne and Faye first of all stuck Post-it notes with messages on them on the walls. Joanne then went to a computer in the room to see if any of her work could be copied from it. Whilst at the computer she had her back to the room. It was at that stage that Faye added white board cleaning fluid to a bottle of water which the Claimant kept in the drawer of her desk. As the two had been absent for a while, Jamie suggested to Ms. Pitt that she should go and get them. Ms. Pitt agreed. When Jamie got to the classroom, she noticed that there were yellow post it notes all over the room. She told the other girls to take them down. Faye took some down but a large number were still there when the Claimant got to her classroom the following morning.
73. Faye told Joanne what she had done with the water when they left the room together. Later, after the class was over, Joanne and Faye told Jamie that Faye had put the cleaning fluid in it.
74. I am satisfied that at the time none of the three girls realised the dangerousness of what they had done. None of them mentioned it to Ms. Pitt.

The Claimant is poisoned

75. There are some small areas of difference in recollection between Ms. Pitt and the Claimant about what happened on the 10^th February. Ms. Pitt's evidence was as set out in the memorandum recited at paragraph 71 above – namely that first thing in the morning the Claimant came to her and complained about the post it notes, and then later came making complaint about the water and asking Ms. Pitt to smell it.
76. The Claimant's description of events is at paragraphs 61 to 64 is as follows:

On 10^th February 2005 I had an English class with Year 7. When I walked into the room some of the students pointed to the wall at lots of pieces of paper that were stuck on the wall and asked me what it was doing there. Some of the classroom displays were torn down. I assumed that a teacher had used my room and could not control the children and that is why the classroom displays had been torn down such as posters and various pictures that were on the wall. I was angered by this and I was going to make inquiries at the end of the lesson to find out who had used my room and left it in such a state.

I also noted that there were lots of tissues from the tissue box that had been stuffed in my desk drawer. I started my delivery to the class. Midway through the lesson I felt thirsty and therefore I reached into my drawer for my 1 litre bottle of water. The bottle was about half full. I swallowed about two or three mouthfuls of water and immediately felt this intense burning in my throat and on my lips and I felt I was choking and I could not breathe. I panicked and checked the contents of the bottle shaking it to find that it made suds. I remember spitting into the waste bin in the classroom and I could not speak.

I raced out of my class down the corridor down the stairs and all the way to the other end of the school to the toilets. I began heaving and when I got into the toilets I vomited several times. I remember great beads of sweat pouring off me as I was hunched over the sink vomiting. Val Thompson a senior management team leader came into the toilet and she asked me what was wrong. I still could not speak so I was showing her my throat and I was able to tell her with a very hoarse voice that I had drunk something so she went into the cafeteria and she brought back a glass of milk and she gave me that to drink. A taxi was called to take me to the hospital.

I was taken to the reception area of the school to wait for the taxi and I was still vomiting in the reception area. I had a scarf which I vomited into. When a taxi did not arrive I had to walk to the hospital accompanied by the nurse. It took between 10 to 15 minutes to walk to the hospital and I vomited as we went.

77. Thus the differences in evidence between Ms. Pitt and the Claimant concerned whether or not on the 10^th February the Claimant came to Ms. Pitt twice, first to complain about the post-its, and then to complain about the poisoned drinking water. I have already held that Ms. Pitt's recollection of events recorded in the memorandum was wrong as related to the previous day – however I do not find that surprising as, for reasons I expand upon below, I do not think that Ms. Pitt thought it was a matter of great substance to lend a key to a pupil. Thus I can understand her having a wrong recollection about precisely what had happened the day before. By contrast, the complaints made by the Claimant were the sort of thing which would be fresh in her memory when she wrote that memorandum the same day.
78. The Claimant's recollection of events was not set down in her statement until the Spring of this year – the statement is dated the 16^th April 2009. Much had gone on in the meantime. It would be understandable if her recollection on some matters on the 10^th February 2005 was wrong in some respects after the lapse of four years. Accordingly I prefer the evidence of Ms. Pitt about what happened that day.
79. I do not believe that anything turns upon this difference of recollection. It is clear, and not challenged, that what the Claimant experienced that day was painful, came completely out of the blue, and caused her not only physical symptoms but also psychological or psychiatric consequences.

Was there a policy in respect of the keys to classrooms, and, if so, what was it?

80. Paragraphs 2 and 3 of the Particulars of Claim allege:

Pupils at the School were known to pose risks to the personal safety of staff, other pupils and themselves as well as to the fabric of the school and its equipment and furnishings.

As a consequence of these risks, the school operated a strict rule under which (among other things):

(1) pupils were not to be left unattended in classrooms;

(2) empty classrooms were to be locked, and

(3) only staff and other specific authorized personnel were allowed possession of classroom keys.

81. Paragraph 4 of the Defence responds:

It is admitted that the school had a policy to ensure that:

(1) Pupils were not to be left unattended in classrooms;

(2) Empty classrooms were to be kept locked; and

(3) Only staff and other authorised personnel were allowed possession of classroom keys.

The Defendant will say that this was a common sense approach to school safety but was by no means a strict rule (hereinafter referred to as "the rule"), nor a written policy.

82. I have referred in paragraph 20(ii) above to the Claimant's evidence that she was told that she should be careful with keys and to ensure that they were kept on her person at all times. She also recorded in paragraph 98 of her first witness statement that "it was the school's policy that pupils were not allowed to have unsupervised access to the classrooms".
83. When Mr. Berry gave evidence he confirmed that it was the school policy that class rooms should be locked – indeed he said that he had worked in ten schools in a 37 year career and in every school he had taught in it was the policy to lock classrooms. He told me that security of keys was a "big deal". However, his evidence was that this policy was not an absolute bar on handing keys to pupils. He said that the policy was that if teachers gave keys to students they did so at their own discretion – it depended on the teacher and it depended on the student. That was what the policy had been in every school he had been in. In his view the teacher had to form a view as to the trustworthiness of the students in a class.
84. Ms. Williams's evidence was that if nobody was in a classroom it should be locked because the school could not afford to replace equipment which went missing. She said that teachers could give keys to pupils but only if the pupils could be trusted. It would be necessary to consider to where the pupils were being given access, for how long, and for what purpose. She gave out keys quite often and would not necessarily remember at the end of the day to whom she had given them.
85. Ms. Pitt's evidence was that the teachers used to lock classrooms because of worries about theft. There was no policy – teachers used their judgment. It was left to teachers' individual judgment. It would make sense to leave classrooms locked.
86. I heard evidence from a number of former pupils in addition to Jamie, Joanne and Faye. Jamie said that it was quite normal for keys to be given by teachers to pupils. Faye said that she had been given keys on other occasions and gave the example of having gone to get coursework on previous occasions, and getting Physical Education equipment from stores. On the other hand, Joanne and three other former pupils called either had no recollection of keys to classrooms being handed out to pupils or were positive that it never happened, save in respect of gym equipment which one witness mentioned.
87. Finally in respect of whether there was such a policy, it is necessary to refer to a grievance procedure hearing which took place on the 16^th December 2005. The background to this was that the Claimant had made a number of complaints about the way that she had been treated by the school. Generally her complaints were dismissed, but the notes of the hearing record that:

The Committee supported Ms. Alexis's view that there had been a breach in the school's health and safety procedures that contributed to the incident of 10^th February 2005 ……

88. In attendance as adviser to the Governors was Ms. French. She had provided a witness statement but in her evidence in chief she withdrew paragraph 14 of the statement as signed and substituted a new paragraph in manuscript which read:

Governors formed this provisional decision. I advised them that they could make this statement should they wish. They also wished to make this concession as we had not agreed with any of the other complaints raised under the grievance procedure by Miss Alexis.

Pressed in cross-examination she accepted that "the school's unwritten procedure had been breached".

89. Understandably, Mr. McCormick relied upon this as being confirmation that the school had the policy alleged and that it had been breached. I found this of little assistance. The governors were faced with a complainant who had made a number of serious complaints which they had dismissed, but who had undoubtedly suffered a very frightening and potentially very dangerous incident which could have been avoided had Ms. Pitt not handed over the keys. I can well understand in those circumstances how this part of the report came to be incorporated but I find it of little assistance in deciding whether there was a policy and, if so, precisely what it was.
90. Despite the admission in the defence, I have some difficulty in accepting that the school had what could properly be described as a "policy" in respect of locking classrooms. What there was was a common sense understanding that it would be unwise to leave classrooms unlocked principally because of the risk of expensive equipment such as overhead projectors being stolen. I am sure that there were also concerns as to whether unlocked classrooms would be vandalised.
91. However whether it be a "policy" or something less formalised, it was never understood that this was a total ban upon any pupil ever being given a key to gain access to classrooms. The evidence of the teachers and of Jamie from amongst the pupils confirms what I would have expected: namely that children who were trusted would be given access to classrooms for such purposes as picking up textbooks or coursework. Indeed showing the pupils that they were trusted in such relatively small ways was precisely the sort of confidence building that a caring teacher could be expected to promote in bringing these teenagers into responsible adulthood.
92. On the other hand, the evidence powerfully suggests that there were some pupils who would be unlikely to be entrusted with keys in any circumstances – for reasons I have set out above in paragraphs 56 to 64 above I reject any suggestion that Faye or Joanne should have been regarded as being in such a category before the events on the 9^th February 2005. A distinction must also be drawn between handing over a key for a short period for a specific purpose such as collecting coursework and giving lengthy and relatively unrestricted access to a student.
93. Accordingly, whilst I have some reservations about the use of the relatively formal word "policy", in substance on the evidence before me I accept the Defendant's case as pleaded in paragraph 4 of the Defence.
94. Before considering the effect of this conclusion upon the Claimant's case, I must turn to consider the authorities as to the circumstances in which a party may be found liable for failing to prevent the criminal acts of another.

Foreseeability

95. The Claimant's case can be summarised as follows: it was foreseeable that children left on their own unsupervised might get up to mischief. That mischief might consist of theft, or damage to property, but also conduct which might result in injury to other pupils or to teaching staff. In cross-examination Mr. Berry accepted that it was known that pupils posed risks to themselves, to the fabric of the school, to equipment and to staff. In respect of injury to staff Mr Berry gave the example of a teacher getting "thumped" when trying to break up a fight between pupils. The Claimant contends that if injury to staff was foreseeable as a result of mischief by pupils, then the Defendant was under a duty to take reasonable steps to prevent such injury, and in particular to adhere to its policy of locking classrooms so as to minimise the risk of injury being caused as a result of mischievous (or malicious) behaviour on the part of pupils.
96. In Lamb v Camden London Borough Council [1981] 1 Q.B. 625, it was claimed that the Defendant was liable for damage caused by squatters who occupied a house which had to be vacated when a sewer was broken by the Defendant council's contractors. Liability in nuisance for subsidence damage caused by the broken sewer was admitted. The question before the Court of Appeal was whether the council could be made liable in nuisance for the damage done by the squatters. The Court of Appeal held that it could not. In his judgment at page 642 B-F Oliver L.J. said this:

… where as a matter of fact the consequence which the court is considering is one which results from or would not have occurred but for the intervention of some independent human agency over which the tortfeasor has no control, it has to approach the problem of what could be reasonably foreseen by the tortfeasor, and thus of the damage for which he is responsible, with particular care. The immediate cause is known. It is the independent human agency, and one has therefore to ask, on what basis can the act of that person be attributed back to the tortfeasor? It may be because the tortfeasor is responsible for his actions or because the third party act which had precipitated the damage is the very thing that the tortfeasor is employed to prevent. But what is the position in the absence of some such consideration? Few things are less certainly predictable than human behaviour and if one is asked whether in any given situation a human being may act idiotically, irrationally, or even criminally, the answer must always be that that is a possibility, for every society has its proportion of idiots and criminals. It cannot be said that you cannot foresee the possibility that people will do stupid or criminal acts, because people are constantly doing stupid or criminal acts. But the question is not what is foreseeable merely as a possibility but what would the reasonable man actually thought about it, and all that Lord Reid seems to me to be saying is that the hypothetical reasonable man in the position of the tortfeasor cannot be said to foresee the behaviour of another person unless that behaviour is such as would, viewed objectively, be very likely to occur.

97. This passage was relied upon by Mr. Katyar on behalf of the Defendant. The issue before the Court of Appeal was whether the damages claimed were too remote, but I understood Mr. Katyar to rely upon the case as supporting his argument that no duty of care was owed by the Defendant to take steps to prevent an incident such as that with which I am concerned. I note that Oliver L.J. excluded from consideration the situation where "the third party act which had precipitated the damage is the very thing that the tortfeasor is employed to prevent".
98. In Smith v Littlewoods Organisation Ltd. [1987] 1 A.C. 241 the House of Lords were concerned with a fire claim. The defenders had purchased a cinema building with the intention of demolishing it and replacing it with a supermarket. In the meantime the building stood empty. Children or teenagers started a fire which damaged the pursuers' property. The issue before the House was whether the defenders owed a duty of care to adjoining occupiers in respect of acts of damage on his property resulting in damage to adjoining properties. Accordingly in this case the issue of the existence of a duty of care was squarely before the House. In his speech Lord Mackay of Clashfern said this at page 261 B-G:

It is true, as has been pointed out by Oliver L.J. in Lamb v Camden London Borough Council [1981] QB 625, 642, that human conduct is particularly unpredictable and that every society will have a sprinkling of people who behave most abnormally. The result of this consideration, in my opinion, is that where the only possible source of the type of damage or injury which is in question is agency of a human being for whom the person against whom the claim is made has no responsibility, it may not be easy to find that as a reasonable person he was bound to anticipate that type of damage as a consequence of his act or omission. The more unpredictable the conduct in question, the less easy to affirm that any particular result from it is probable and in many circumstances the only way in which a judge could properly be persuaded to come to the conclusion that the result was not only possible but reasonably foreseeable as probable would be to convince him that, in the circumstances, it was highly likely. In this type of case a finding that the reasonable man should have anticipated the consequence of human action as just probable may not be a very frequent option. Unless the judge can be satisfied that the result of the human action is highly probable or very likely he may have to conclude that all that the reasonable man could say was that it was a mere possibility. Unless the needle that measures the probability of a particular result flowing from the conduct of a human agent is near the top of the scale it may be hard to conclude that it has risen sufficiently from the bottom to create the duty reasonably to foresee it.

In summary I conclude, in agreement with both counsel, that what the reasonable man is bound to foresee in a case involving injury or damage by independent human agency, just as in cases where such agency plays no part, is the probable consequences of his own act or omission, but that, in such a case, a clear basis will be required on which to assert that the injury or damage is more than a mere possibility.

99. In this case it was foreseeable that if unsupervised pupils got up to mischief a situation might arise in which there was a risk of injury to teaching staff – one only has to think of a banana skin being left for the teacher to slip on. It was also foreseeable that within the school population there were likely to be emotionally and behaviourally disturbed children who might pose a physical threat to teachers.
100. There is nothing to suggest that it was foreseeable in general terms to the teaching staff that any pupil might seek to poison a teacher, and I have found that it was not foreseeable in respect of Faye in particular that she would attempt to do so. However, I do not believe that Faye deliberately set out to injure the Claimant but rather indulged in a foolish prank, the extremely serious consequences of which she did not anticipate. Thus I conclude that what took place can be regarded as being within the same type of behaviour which it was foreseeable might follow if pupils got up to mischief (namely the playing of what the pupil might regard as a prank whilst not understanding the dangers created thereby), but the precise form of behaviour which took place was not reasonably foreseeable.
101. Accordingly I do not think this claim can be dismissed upon the basis of remoteness or lack of foreseeability in the way that the claim was dismissed in Lamb v Camden Council.

What duty of care did the Defendant owe to the Claimant?

102. On the authorities the mere fact that loss or damage is foreseeable is not in itself sufficient to establish a duty of care (see for example Smith v Littlewood), although without foreseeability no duty of care can arise.
103. The duty of care owed by the Defendant to the Claimant was that of a reasonable employer to an employee. As I have said above, one can easily postulate examples of injuries which could be suffered by teachers as a result of mischievous or malicious behaviour on the part of pupils. Although there was no evidence of any significant injury having been caused to any teacher at the school by reason of such behaviour, it was not such an improbable eventuality as to render it unreasonable or unjust to impose upon the Defendant a duty to take such precautions as were reasonable in all the circumstances to prevent or minimise the risk of such injury.
104. Accordingly, I accept that the Defendant education authority did owe a duty of care to take such steps as were reasonable in all the circumstances to prevent teachers suffering injury as a result of mischievous or malicious behaviour on the part of pupils.

Was the Defendant in breach of its duty of care?

105. Whilst accepting that the Defendant owed such a duty of care, I do not accept the Claimant's case that the Defendant through Ms. Pitt was in breach of that duty.
106. On behalf of the Claimant Mr. McCormick did not contend that any school which did not have a policy of the sort pleaded would be by that fact alone in breach of duty to the teachers employed. No expert evidence was called as to the practice in schools or particular types of school. What I did have was the evidence of Mr. Berry, which I have recorded at paragraph 83 above, as to his experience over a long career in a number of schools, but against that I had evidence from Mr. Clifford Bailey, the Deputy Head Teacher of a small school in Brixton, who was able to tell me of two schools of similar size to Brampton Manor School in which there was no such policy. Accordingly, I think Mr. McCormick was right not to put his case on such a general basis.
107. The first way in which Mr.MCormick put the case was that the school having established the policy, it should have been adhered to. I have already expressed my doubts as to whether there was anything which could truly be described as a "policy", but if there was, as I have set out above, it was a policy which admitted of exceptions at the discretion of the teacher.
108. Such a policy or practice was a sensible way of conducting the business of the school. If pupils had been granted unlimited access to classrooms the risk of theft or vandalism was obvious. On the other hand it would in my view be absurd to suggest that teachers should not have a discretion to ask a pupil to pop along the corridor to get something from another classroom. At one stage in cross-examination of Ms. Pitt it was suggested that if folders or textbooks had to be obtained from another classroom then Ms. Pitt should have asked all her class to step out of the classroom she was teaching in so that she could lock that classroom before going to the Claimant's classroom with Faye and Joanne. I found that suggestion unrealistic.
109. Accordingly the case came ultimately to a suggestion that whilst Ms. Pitt did not know Faye well enough to trust her, she had heard enough from Ms. Vulpiani (with whom Ms. Pitt was very friendly) to persuade her if acting reasonably not to entrust the keys to Faye.
110. I have found that with the possible exception of the Claimant herself, none of the teachers had any reason to suspect that Faye was likely to do what she did. I reject any suggestion that Ms. Vulpiani had given Ms. Pitt any reason to believe that Faye was particularly likely to cause mischief.
111. On the other hand, on Ms. Pitt's own evidence supported by other evidence including that from Faye herself, she did not really know Faye at all well. Can it be said in those circumstances that Ms. Pitt was negligent in handing the keys to a girl whose reliability she was unable to assess? In my judgment such a criticism is unwarranted. All Ms. Pitt did was to give the keys to two girls whose character she had no reason to doubt to go 50 yards or so down a corridor to pick up some folders and return. I reject any suggestion that in doing so Ms. Pitt was in breach of a duty of care owed to the Claimant. Furthermore, if she had known Faye as well as her colleague Ms. Vulpiani did, she would in my view have had no reason to believe that any particular risks were run by handing the keys over for that purpose.
112. It was also pleaded in paragraph 9 of the Particulars of Claim that "to the extent that [allowing pupils to have possession of the keys] was the result of Ms. Pitt's decision to move the class to the room she herself habitually occupied then the Claimant relies upon this as an act of negligence". Ms. Pitt explained the decision to teach in her classroom rather than in the Claimant's classroom on the basis that she was going to be taking this class on a regular basis whilst the Claimant was away on Wednesdays studying for her Masters degree. That was entirely rational and cannot be described as negligent. In any event, even without such an explanation, it cannot sensibly be said that it was a breach of a duty owed to the Claimant to teach in one classroom rather than another.
113. For these reasons, I hold that the Claimant has failed to establish any breach of a duty of care owed to her.
114. In case my conclusion is reversed on appeal, I turn now to consider the damages which would be payable if liability had been established.

General Damages

115. After drinking from the bottle and after, as I have found, speaking to Ms. Pitt, the Claimant went to hospital. She was not taken in but returned to school that day to collect a bag and then go home. She suffered diarrhoea for several days but the physical effects appear to have passed within a week or so – when she attended her G.P. on the 18^th February 2005 there is no mention of continuing physical effects. However she was then complaining of suffering anxiety attacks.
116. It was not until the 6^th July 2005 that the Claimant felt able to return to work at the school. She stayed until the school broke up for the summer holidays on the 22^nd July 2005, but I accept her evidence that during that period she suffered significant levels of anxiety. These were so great that she was terrified of leaving her classroom, she could not bring herself to go to the toilet or staffroom and therefore she urinated in the bin in the classroom.
117. During the summer holidays, on the 5^th August 2005, the Claimant wrote to the Prime Minister of Grenada offering to return to work during the holidays in her former PR capacity. The Defendant relies upon this as showing that the psychological consequences of the incident had by then diminished or ceased.
118. At the beginning of the Autumn term the Claimant returned to work at the school, but within a matter of days she went to her G.P. and was signed off work. Thereafter she was absent from work on an increasingly frequent basis until July 2006 when she was dismissed on the grounds of ill-health.
119. During the Autumn term a grievance procedure took place largely based upon allegations by the Claimant that she had been the victim of racism. It was this which led to the hearing I have referred to at paragraph 87 above. The Claimant accepts that the allegations of racism which she made were ill-founded.
120. Although still formally employed by the Defendant, in January 2006 the Claimant did some lecturing for a Mr. DeLawrence at an institution called the Dream Harvest College. The Defendant relies upon this as confirming that the psychological consequences of the incident had ceased, as well as confirming that the Claimant had a residual earning capacity. It appears that she fell out with Mr. DeLawrence fairly rapidly. She then conceived the idea of starting up her own educational establishment called Second Chances Career Development Limited. Her case is that whilst she did some preparatory work for this whilst still formally employed by the Defendant, she did not start teaching at Second Chances until after she had been dismissed by the Defendant. I return to this in the context of the Special Damages claim below.
121. I heard evidence from two psychiatrists, Dr. Turner and Professor Maden. Both were very helpful in giving evidence. Shortly before the trial they produced a Joint Statement. In this they said:

Pre-incident Psychiatric Condition

1. We agree that there have been long term problems with anxiety and panic attacks. We agree that it would be reasonable to describe this as a Generalised Anxiety Disorder (GAD). We also agree that in April 2003, she probably had a Major Depressive Episode (MDE). From the occupational health records, she did not have time off work, suggesting that this was MDE of mild severity. We agree that an MDE of mild severity is not inconsistent with continuing to work.

2. We agree that there were prior vulnerabilities therefore. In addition to the prior psychiatric disorders, Professor Maden has also commented on her personality referring to prominent traits of narcissism. Neither of us has made a diagnosis of personality disorder. We agree that her personality is relevant to our understanding of her problems. However there is a difference of emphasis between us with Professor Maden attaching more importance to this aspect than does Dr. Turner, as will be evident later in this statement.

3. We have both identified evidence suggesting prior tensions at the school with her line management.

Post-incident Psychiatric Conditions

4. We agree that she did not develop a PTSD. We agree that she experienced an exacerbation of her prior anxiety disorder (described above as a GAD). This began immediately after the index event and was focussed on her work at the school with challenging adolescents.

5. We agree that following the index events, she once again developed MDE. Bearing in mind that she may have been able to continue some part-time (adult) lecturing, we agree that this was probably of mild severity. We disagree about the duration of the MDE.

6. Professor Maden believes that the MDE was no longer such as to prevent her from working after the summer of 2005 and that her failure to continue at Brampton Manor after September 2005 was due to other factors. Prof Maden relies on correspondence showing the Claimant was seeking work in Grenada in the summer of 2005 and cannot reconcile this behaviour with significant depression. He believes the situation after September 2005 became so complicated that it was no longer possible to attribute symptoms in March 2006 following a dispute with another employer (Mr DeLawrence) of whom he was unaware when he assessed the Claimant.

7. Dr Turner believes she had a persistent MDE of mild severity at least until late 2006. As already noted, this is not inconsistent with some work. He has also recently seen the material relating to her lecturing for Mr DeLawrence. Dr Turner has interpreted this material as suggesting that her increased anxiety focused on challenging adolescents, and originating in the index event, probably had an impact on her work for Mr DeLawrence and may have led to this dispute. In his view, part-time lecturing of adults is entirely consistent with his diagnostic formulation. With regard to job-seeking, he notes that although Ms Alexis applied for a number of jobs, she does not seem to have attended any interviews, based on her statement, either because she was not short-listed or because she was unwell.

8. We do agree, however, that there is some uncertainty about our conclusions to the extent that there is uncertainty about what work she was doing after September 2005.

9. We agree that the exacerbation of her GAD and the development of a further MDE were consequences of the index event.

10. In addition, Dr Turner observed, at the time of his interview in April 2008, a transient deterioration associated with the preparation of a witness statement. In his opinion, she probably had a further brief MDE then, although only of mild severity.

122. The joint statement was subject to this important caveat in respect of the Claimant's credibility:

We note that she has denied previous psychiatric problems and we agree that records confirm that such problems were present. We also note records suggesting that she volunteered information about her previous emotional problems to doctors outside the medico-legal context whilst denying or minimising them to us. For example, at Accident and Emergency after the index incident she seems to have volunteered a past history of depression; if that is correct it conflicts with her claim in her statement to have been unaware she had ever suffered from depression. We agree that the Claimant's self-report to us did not reveal the full extent of the work she undertook in the period following the index incident. For example both experts learned only recently about the lecturing she undertook in January 2006. These are matters of relevance to an assessment of credibility and we have drawn attention to them in our reports. We agree that ability to work is an important measure of the severity of a mental health problem; if there is uncertainty about what she was doing, the severity of her mental health problems is also uncertain.

123. I share with the psychiatrists a difficulty in assessing this claim because of a lack of candour on the part of the Claimant. In addition to the matters referred to by the psychiatrists, I would refer to the fact that in three documents she gave different dates of birth in a manner intended to deceive; that in a letter written to a bank in Grenada (which she says was not sent) she gave totally misleading information as to her income and employment history; and that she gave evidence in respect of her earnings with Second Chances which was directly contradictory to documentary evidence contained in pay-slips which are in the trial bundles before me.
124. This makes it difficult to be sure how long the psychiatric consequences of the incident lasted. I have no doubt that they lasted at least until the end of the summer term and probably lasted throughout 2005. Thereafter I cannot be sure of precisely what continuing consequences there were, but agree with the psychiatrists that at a minimum she remained and remains psychologically incapable of facing teaching in a secondary school.
125. Mr. McCormick submits that within the JSB guidelines this case falls within category 3A (Psychiatric Damage: General) and is at the top end of sub-category (c) or bottom end of category (b). To that, he says, should be added a further sum to reflect the physical effects of the poisoning. I broadly accept his submissions: in my view, if I had to assess general damages I would award £15,000 in respect of pain, injury and suffering.

Special Damages

126. The Claimant's Schedule of Special Damages originally claimed a total of £216,378.66 of which the two largest items of claim were £42,178.66 for past loss of earnings and £138,600 for future loss of earnings. This claim was put forward upon the basis that the Claimant would have been promoted to Head of Department by 10^th February 2007.
127. Shortly before the trial the Claimant produced a completely new schedule now claiming £698,028. I believe this Schedule was provided to the Defendant on the 21^st April 2009 (the trial commenced on the 27^th April). I gave permission for this new Schedule to be substituted for the earlier. It was obviously impossible for the Defendant to deal with it in the course of the trial. With the agreement of both counsel, I decided that any issues as to the figures contained within the new schedule would be dealt with as necessary at a further hearing if appropriate.
128. The Claimant's case as now put forward is that she would have become Head of Department by the 1^st September 2006, Deputy Head Teacher by 27^th April 2010 and Head Teacher by 27^th April 2012.
129. The Defendant responds by saying, in essence, that the likelihood is that the Claimant would have left secondary school teaching by the beginning of 2006 (which is when she could have obtained an unlimited right to stay in the United Kingdom and would no longer by tied to having to work in the employment of the Defendant).
130. In the event, the Claimant remained in the employment of the Defendant until dismissed on grounds of ill-health in July 2006. Thus there is no claim for loss of earnings prior to that date.
131. I consider first the suggestion that if the Claimant had remained in secondary teaching she would have been promoted in the manner she suggests. I do not think she has made out that case. It is apparent that before the incident she was already experiencing difficulties in her relationships both with other members of staff and with some pupils. None of the other teachers suggested that she was likely to be promoted, and she has produced no expert evidence to show what percentage of teachers progress to becoming head of department. Mr. Clifford Bailey, to whose evidence I have referred in another context, was called to give evidence as to what could be achieved. However I find it difficult to extrapolate from his career progression what might have happened, still less what on a balance of probabilities would have happened, to the Claimant. It is to be noted that Mr. Bailey had a formal teaching diploma which he had achieved in Jamaica in 1996. This had been followed by three years at a secondary school in Jamaica at the end of which Mr. Bailey had been promoted to Head of Year 9. He had then gone to University in New York where he obtained a first class degree in mathematics. On any view, Mr. Bailey was and is a man of great ability and not representative of the average teacher. I did not form the impression that the Claimant was similarly distinguished as a teacher albeit that she is an able, articulate and ambitious person.
132. For these reasons I am not satisfied that the Claimant has made out her case as to her promotion prospects.
133. This still leaves the more fundamental question as to whether she would have remained in secondary teaching at all had the incident not happened.
134. As the psychiatrists have noted, the Claimant had a previous history of depression. In my view, this did not make her unsuited to teaching but did mean that she was liable to find teaching in a secondary school presenting the challenges which Brampton Manor School presented harder for her than it was for others of a different nature. She had experienced substantial difficulties with her line manager. There is a record of her being under stress before the incident. These factors meant that she was likely to be thinking about alternatives to her employment at Brampton Manor School even before the incident. But more than these matters, what weighs particularly with me is the inappropriateness of her treatment of Faye, as to which see paragraph 59 above. If this was how she reacted to Faye, it seems to me likely that similar incidents could well have happened again in which event her willingness to continue as a teacher in the state secondary system must be doubted.
135. It is also a significant factor that in January 2006 when she could first seek employment outside that of the Defendant, she did so (with Mr. DeLawrence).
136. In all these circumstances, the Claimant has not satisfied me that, absent the incident, she would have continued to work as a teacher in the state secondary system after July 2006.
137. Thus the past and future loss of earnings claims as presented fail. There is in addition another problem: I have already said that I consider the Claimant was untruthful to me about her earnings from Second Chance. I am far from satisfied that the Claimant has given credit for what she has earned since leaving the Defendant's employment.
138. This also makes it difficult to assess the Claimant's residual earning capacity.
139. The Defendant also suggests that the Claimant has failed to mitigate her loss. The argument is that by embarking upon her alternative teaching businesses she took an unnecessary and unreasonable risk. I find that a surprising suggestion and reject it. In my view it was perfectly reasonable for the Claimant to attempt to see what she could achieve in the way she did.

Loss of Congenial Employment

140. Given that I have found that the Claimant was experiencing considerable stress in her job and might well have left secondary education in any event, it would not have been appropriate to have made an award in respect of loss of congenial employment in this case.

Smith v Manchester

141. Whilst the Claimant might well have left her employment in secondary education in any event, but for the incident she could have returned to such employment had circumstances required it. I accept that that would not now be a realistic option and had I held that the Defendant was liable to the Claimant, I would have made an award of £25,000 as a Smith v Manchester award.

Conclusion

142. For the reasons given above, this claim fails and there will be judgment for the Defendant. Had I come to a different conclusion on liability I would have awarded £15,000 in respect of general damages and £25,000 under Smith v Manchester.