Webster v The Ridgeway School - High Court of Justice
Queen's Bench Division, 5 February 2010
While the courts have thankfully been slow to find that the duty
of care upon local education authorities is as extensive as
claimants and their solicitors would like; this does little to
dampen their enthusiasm.
A recent example is the English case of Webster v The
Ridgeway Foundation School [2010] EWHC 157. The claimant,
Henry Webster, sought damages for injuries he sustained as a result
of a fight with a fellow pupil in the school grounds. Nothing out
of the ordinary for a 15 year old boy, you might think: however,
the circumstances of the fight and the results for poor Henry are
the stuff of every parent's nightmares.
Prior to the fight, Henry had been involved in an altercation
with a younger pupil. He agreed to have a fight with the boy on the
school's tennis courts after the school day finished at 3.50pm.
Henry had specified that the fight should be "one on one".
Unbeknown to him the younger boy had telephoned his older brother
who in turn had contacted other friends and relations. A number of
them came onto the school grounds.
The younger boy, together with two of his friends, pointed Henry
out to the adults. Three of them entered the tennis courts and
attacked Henry. One had a claw hammer which he used to beat Henry
about the head. Henry was then kicked by a number of pupils while
he lay on the ground. Henry suffered a compound depressed skull
fracture with an underlying frontal lobe contusion. He made a
generally good recovery, but unfortunately was left with severe
brain damage. Following a police investigation a number of those
involved in the assault were convicted of causing grievous bodily
harm.
This present claim arose because Henry and his parents sought to
impose civil liability upon the school for failing to prevent the
fight. The case was based primarily on negligence with an
additional claim founded on the school's duties under the Human
Rights Act 1998. They alleged that the school had failed in its
duty in a number of respects: first, the school had failed to take
proper care to keep the site secure; secondly, the school was
negligent not to fence the site so as to keep intruders out;
thirdly, the school ought to have ensured that a member of teaching
staff was on duty at the end of the day, either on the tennis
courts or at the gate between the tennis courts and the main road;
fourthly, the school was negligent in failing to do more to
establish better discipline in the school and deal more effectively
with racial tensions which were said to prevail in the school
(Henry was white, those who attacked him were Asian); and fifthly,
it was alleged that the school should have done more to protect
Henry on the date of the assault.
In his judgment Mr Justice Nicol confirmed that the school did
indeed owe Henry a duty to take reasonable care to keep him
reasonably safe while he was on school premises. However, that duty
had not been breached. Moreover, there was no causal link between
the things the school had not done and the injuries received by
Henry. Crucially, the injuries were not a foreseeable consequence
of the school's supposed "omissions".
Mr Justice Nicol cited the Court of Appeal decision in Gower
v The London Borough of Bromley [1999] EWCA Civ 2012 where
Lord Justice Auld said, when considering the scope of the duty
incumbent upon teaching staff:
"The Head Teacher 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 wellbeing."
While he noted that the attack on Henry had taken place after
the school day that was not determinative of the end of the
school's duty towards its pupils, particularly as Henry was still
on school premises. In considering whether there was a duty of
care, his Lordship applied the threefold test set out in Caparo
Industries v Dickman [1990] 2 AC 605. It was reasonably
foreseeable that on occasions outsiders might seek to harm pupils
in a school. There was a relationship of proximity in the
school/pupil relationship at least while pupils were on the
premises. However, would it be fair, just and reasonable to impose
a duty of care? It was recognised that Henry's injuries were caused
by outsiders and not by pupils under a degree of control from the
school.
His Lordship acknowledged that schools may be under a duty to
protect pupils from other outside influences, such as traffic
hazards. As such, it was fair, just and reasonable that the school
have a duty to take reasonable care to safeguard and protect Henry
from attack by outsiders. The judge did not agree that the school's
adoption of the policies to which the claimants referred meant that
it had assumed responsibility for seeing that they were carried out
or enforced. Henry did not base his claim on an action for breach
of statutory duty. However, importantly for defenders generally,
and in line with previous case authority on the issue, the school
had a duty to take reasonable care to see that Henry was reasonably
safe during school hours and for a reasonable period after the end
of the school day while he was still on the school's premises.
To succeed in his claim Henry would require to establish that
the school had been in breach of that duty and that the breach was
causative of his injuries.
In particular, was the school in breach of its duty of care by
not constructing a perimeter fence? A fence had been constructed
after the attack on Henry, costing in the region of £150,000.
However, Henry was unable to point to any particular regulation or
statutory provision which required a school to fence education
premises. There was no evidence that such fencing was universal
practice. In the absence of an unwavering requirement, and given
the evidence that the risks were not so grave that the school was
nonetheless obliged to overcome them, it was held that the school
had not breached its duty by failing to construct a perimeter
fence.
Was the school in breach of its duty of care because no staff
were on duty on the tennis courts or at the tennis court gate at
the end of the school day? Henry placed particular emphasis on the
school's own security policy which provided that at the start of
the school day there should be members of staff on the front drive
of the school and at a further entrance to ensure that pupils moved
into the school when they arrived. At the end of the school day
staff were to be located by all of the exits. Mr Justice Nicol did
not agree that the gate to the tennis court was one of the exits.
The tennis court gate was not an exit from a building; it was just
one of the ways of leaving the site. The security policy could not
have meant that there would be staff at every point where a pupil
could leave the site. Moreover, the school site was enormous. The
evidence was that if there had been staff at the tennis courts, the
fight would have taken place elsewhere.
So had the school been in breach of its duty because of its
disciplinary approach? Henry argued the standards of discipline in
the school were poor. The number of Asian students had increased
and racial tensions had exacerbated the poor behaviour. Asian boys,
it was alleged, were treated more leniently and this allowed a
culture of impunity to develop. In response the school argued that
behaviour was not as bad as was portrayed and was not out of the
ordinary for a large comprehensive school. Extensive evidence was
led from members of staff about the measures taken to prevent
racial tensions and ease behavioural difficulties. This evidence
was accepted, but even if Henry had been able to establish
negligence, he could not show that it was reasonably foreseeable
this would cause him harm. The injuries were the result of blows
from a hammer wielded by an outsider. The school's disciplinary
policy did not impinge on the principal assailant.
The judgment is obviously peculiar to the facts of the assault.
Nevertheless, it is a useful rehearsal of the authorities and
issues relevant to consideration of an education authority or
school's duty of care towards its pupils both during and outwith
school hours. It confirms that a school does indeed owe its pupils
a duty of care to keep them reasonably safe while on school
premises. Whether that duty is breached is a question of fact to be
determined following an evidential hearing and in this case, such
evidence took almost 24 days.
Contributed by Lynne Macfarlane