FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lady Paton Lord Hardie	[2011] CSIH 51 XA176/09 OPINION OF THE COURT delivered by LADY PATON in APPEAL From the Sheriffdom of Grampian Highland and Islands at Inverness by TERESA McCARTHY Pursuer and Respondent; against HIGHLAND COUNCIL Defenders and Appellants: _______

Act: Milligan, Q.C., McDonald, Solicitor Advocate; Balfour + Manson LLP (for Stronachs, Solicitors)

Alt: Shand, Q.C., Milligan; Ledingham Chalmers LLP

12 August 2011

Introduction

[1] The pursuer is a teacher who suffered a depressive episode after being attacked on several occasions by an autistic pupil. The sheriff at Inverness concluded that the local education authority (the defenders) had failed in their duty of care, and that their failure caused the pursuer's loss and injury. The defenders now appeal, contending that there was no breach of duty, and further that any precaution would not have prevented injury to the pursuer.

[2] In 2001 the pursuer was working three days a week as a teacher at Drummond School, Inverness. She taught the senior TEACCH class, "TEACCH" being a method of working with autistic people with the aim of reducing anxiety by providing clear structure and routine. The class had been set up in 2000. It comprised five pupils with learning and behavioural difficulties. One of the pupils was an autistic 13-year-old boy "M". As at June 2001, the support staff assisting the pursuer comprised one learning support auxiliary Shirley Chisholm. Mrs Chisholm had originally been allocated to assist only with M, but by June 2001 she was assisting the pursuer with all the pupils in the class.

[3] In June, August and September 2001, several incidents occurred during which M was physically violent towards staff. What follows is a brief synopsis of the relevant findings-in-fact set out more fully in paragraph [33] below.

[4] On 7 June 2001 M became uncontrollably agitated about a light switch. He began screaming. He pushed Mrs Chisholm across the room. He repeatedly punched her with his clenched fist. The pursuer tried to protect Mrs Chisholm. M continued to scream and repeatedly punched both the pursuer and Mrs Chisholm on the head and shoulders. The pursuer and Mrs Chisholm were ultimately able to escape only because another pupil began hitting M. Both the pursuer and Mrs Chisholm were shocked by the incident. Mrs Chisholm suffered bruising to her shoulders and eye.

[5] On 30 August 2001 M became agitated when another pupil switched on the lights. He started shouting and hitting the wall with his fist. On that occasion, the pursuer managed to calm him down.

[6] On 6 September 2001 M became uncontrollable, and ran through and round Ness House. The pursuer tried to calm him, but he banged a door, pulled her down by the hair, and repeatedly punched her. The pursuer suffered several scratches to her face and neck. She required treatment from the school nurse.

[7] On 19 September 2001 the use of a fire door caused M to lose control. He ran about screaming. When the pursuer tried to calm him, he began to hit her. He punched her repeatedly and pulled her hair. As she retreated towards the main school building for help, M pulled her head down by the hair and held on for some time. When he let go, the pursuer took refuge in the staff room. M continued to run around the corridor, kicking and screaming. He then lay down in front of the staff room door. The pursuer was most distressed by the whole incident, and went home for the rest of the day. M was excluded from school until 27 September 2001.

[8] Later in September, a package of measures was introduced for M, including the provision of social stories, some relaxation in the teaching curriculum, and the provision of a dedicated ("one to one") male support worker. The episodes of violence ceased. However in August 2002, the pursuer suffered a depressive episode, with secondary symptoms of phobic anxiety about her workplace.

The pursuer's action for damages

[9] The pursuer subsequently raised the present action for damages for personal injury. The pursuer's pleadings set out at least 25 particular duties of care said to have been owed to her by the defenders. In his judgment, the sheriff grouped those duties into four main categories as follows (pages 62, 96, and 99 et seq of the Appeal Print):

(1) Duties to assess and manage risks to the pursuer and other staff members both generally and in relation to specific pupils. This category covered 8 specific duties pled on record (as explained in paragraph (122) of the sheriff's Note).

(2) Duties to ensure that violent incidents were reported and that measures to avoid or respond to recurrence were identified and implemented. This category covered 3 specific duties pled on record (paragraph (122) of the Note).

(3) Duties, knowing that there was an increased risk of injury or harm to the pursuer and other staff members, to enable them to prevent such incidents, such as involving staff in and informing them of strategies for dealing with pupils, and providing relevant training. This category covered 6 specific duties pled on record (paragraph (122) of the Note).

(4) Duties to enable the pursuer and other staff members safely to deal with such incidents if they arose, such as by providing training, emergency alarms and additional support and by taking expert advice. This category covered 8 specific duties pled on record (paragraph (122) of the sheriff's Note) including the following: "It was [the defenders'] duty to make a male 1:1 support worker available prior to the harmful events, in order to protect the pursuer from suffering injury and in order to prevent the pupil from becoming violent" (page 19 of the Appeal Print). No specific duty was pled in relation to the general staff/pupil ratio.

[10] Having heard evidence and submissions, the sheriff issued his judgment on 28 August 2009. He based his decision upon the four re-categorised duties of care noted above. He held in fact and law inter alia that:

"4. With the exception of [the duties set out in group (3)], the defenders failed to comply with these duties [i.e. the duties set out in groups (1), (2), and (4)] following the incident on 7 June 2001, and continued to do so until after the incident on 19 September 2001.

5. As a result of the defenders' breach of their duties, M attacked the pursuer again on 30 August, 6 and 19 September 2001."

[11] Amongst his findings-in-fact were the following:

"10. In order to address the special needs of its pupils, the School had high staffing levels and small classes. The defenders' Education Department was sympathetic to any case made out by the School managers for additional staffing or resources ...

35. Initially three of the pupils in the class each had a full-time support worker assigned to them. An older boy who had a record of violence or aggression had a male worker assigned to him, and a boy who ran away regularly had a female learning support auxiliary. These two pupils subsequently left the class and their support workers also left. One other pupil, M, who was aged about 13 in 2001, continued to have a dedicated learning support auxiliary, Mrs Shirley Chisholm. However, by June 2001 she was the sole learning support auxiliary in the class and was working with the whole class rather than solely with M. The only other regular member of staff in the class was a teaching assistant who worked two afternoons a week. The level of staffing for the class remained unchanged between June and September 2001 ...

45. Mrs MacPherson [the deputy head] ... mistakenly believed the class still had two or three support workers, whereas it only had one. For [inter alia that reason,] she did not consider any further action was required in respect of the incident [on 7 June 2001]. ..."

[12] The sheriff awarded the pursuer damages totalling £71,158. The defenders now appeal to the Court of Session. They seek inter alia to have findings-in-fact 10, 35, and 45 altered.

Submissions for the defenders and appellants

[13] Senior counsel for the defenders invited the court to recall the sheriff's interlocutor dated 28 August 2009; repel the first and second pleas-in-law for the pursuer; sustain the third and fourth pleas-in-law for the defenders; and assoilzie the defenders. The sheriff had found the defenders liable not on the basis of any case of negligence pled by the pursuer, but on the basis of the wide re-categorised duties of care above referred to. The result was that the sheriff had found for the pursuer on the basis of vague duties which had not been pled on record. He had found in favour of the pursuer on a basis which could not be discerned from the pleadings. Moreover, there were no findings-in-fact showing a causative link between the alleged breach of the wide duties of care and any injury suffered by the pursuer.

[14] There were no findings-in-fact to support the sheriff's findings-in-fact-and-law 4 and 5 (set out in paragraph [10] above). The sheriff's Note contradicted the latter finding-in-fact-and-law, in that he did not hold the defenders in breach of any duty which would have avoided an incident, but only in respect of a duty to make arrangements to enable an incident to be dealt with safely, once it had arisen. Although the pursuer argued that the sheriff had found that a male support worker should have been made available, the defenders' position was (i) that the sheriff had not so found; (ii) that there were no findings-in-fact to justify such a conclusion; and (iii) that there were no findings-in-fact suggesting that the pursuer's injuries would thereby have been avoided or lessened. Nor was any case pled relating to staffing levels generally.

[15] While the defenders sought alterations to findings-in-fact 10, 35, and 45 (as set out in paragraph [18] below), the appeal did not depend on those proposed alterations. The sheriff had not identified which of the specific duties pled on record were incumbent upon (and breached by) the defenders, and whether he considered the breach to be causative of the pursuer's injury. For example, his own findings-in-fact made clear that after each incident the management staff were made aware of it: so there was no identifiable breach of any reporting or monitoring duties. Although the pursuer pled a duty relating to the provision of a dedicated male support worker, the sheriff had not focused clearly upon that alleged duty. There was no discussion about the purpose to be served by such a worker (for example, physical restraint, or some other purpose). The class had been established in 2000, and there had been no violent incident until 7 June 2001. Once that incident occurred, the defenders took certain steps by, for example, consulting an expert. There had been no expert evidence about what effect the provision of a male support worker for M would have had.

[16] Where a pursuer had pled specific duties, those duties must form the basis of the pursuer's case: Morrison's Associated Companies Limited v James Rome & Sons Limited 1964 SC 160, at page 182. But the sheriff had based his finding of negligence on vague, general duties not pled by the pursuer. Had those general duties appeared on record, the defenders would have challenged them at a debate. The sheriff had made no findings-in-fact-and-law that the defenders should have appointed a dedicated male support worker to M in the classroom. The evidence would not have supported a duty in those terms. Even the pursuer's lawyer was not able to make a clear submission on this point, as was demonstrated by paragraph 48 of his written submissions. There was no cross-appeal, seeking the insertion of additional findings-in-fact or law on this matter, and accordingly the court could not examine the evidence given by, for example, the parties' experts Mr Brennan and Mr Allen. The pursuer herself had admitted that a dedicated support worker could not be allocated to every pupil: indeed the tendency was to encourage pupils towards independence (pursuer's cross-examination, page 66 of the transcript). The sheriff in his Note at paragraph (140) stated that "precautions such as provision ... of either a male support worker or additional learning support staff ... should have been considered and implemented": but he did not say which option he favoured, or why, and therefore precisely where the defenders' failure in duty lay. Some of the sheriff's findings-in-fact contradicted his findings-in-fact-and-law (for example, findings-in-fact 11, 24-26, and 49 contradicted finding-in-fact-and-law 4 so far as the first group of duties was concerned).

[17] In relation to causation, the sheriff had not explained why any particular precaution (such as recording incidents, staff training, alarms, or the provision of a dedicated male support worker) would in fact have prevented injury to the pursuer. It was questionable whether the latter precaution would have prevented the third incident, which happened outside the classroom, or the fourth, which occurred before the school start time. Reference was made to McGinnes v Endeva Service Ltd 2006 SLT 638, at pages 638H-I and page 645. There were simply insufficient findings-in-fact and findings-in-fact-and law to justify the conclusion that a failure to provide such a support worker amounted to negligence which caused the pursuer's injury.

[18] Finally, certain findings-in-fact should be altered to reflect the evidence. At the end of finding-in-fact 10 should be added the words "Funding for the costs of additional staff and resources was not however automatically available on request and required to be justified." At the end of finding-in-fact 35 should be added the words "The incident on 7 June 2001 hereafter referred to was the first time M had been violent in the pursuer's class." In finding-in-fact 45, the last sentence should be deleted, and in the penultimate sentence the words "at the time of giving her evidence" should be inserted between the words "mistakenly believed" and "the class still had two or three support workers".

Submissions for the pursuer and respondent

[19] Senior counsel for the pursuer invited the court to refuse the appeal and to adhere to the sheriff's interlocutor.

Liability

Overview

[20] The sheriff's judgment was to be looked at as a whole, without too detailed a forensic analysis. The sheriff had heard 17 days of evidence, and had concluded that if the package of measures had been introduced earlier, the injury could have been avoided.

The pleadings and the appropriate approach to be taken

[21] There was fair notice in the pleadings. As the court emphasised in Burns v Dixon's Iron Works 1961 SC 102, at pages 107-108, and Gibson v British Rail Maintenance Ltd 1995 SC 7, at pages 10-11, the aim was to do substantive justice where fair notice had been given. The complaint in the present case was perhaps not that there had been a lack of fair notice in the pleadings, but rather that the judgment did not make clear in what respect the defenders were said to have failed in their duty of care: cf Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] 1 AC 729 at page 734. The duty to provide a dedicated male support worker after the incident in June 2001 was clearly set out in the pursuer's pleadings.

Liability considered of new on the basis of the findings-in-fact

[22] This court had to consider whether the sheriff had made an error. The sheriff had seen and heard all the evidence, and the appeal court should be slow to interfere: cf Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1, at paragraphs [16]-[18]; Barber v Somerset County Council [2004] 1 WLR 1089, at paragraphs 16, 67, and 70. If the sheriff had not made an error, the appeal should be refused. However even if the sheriff had made an error, this court could consider matters afresh on the basis of the sheriff's findings-in-fact.

The proposed alterations to the findings-in-fact

[23] The findings-in-fact should be altered only if the sheriff was shown to be plainly wrong. There was no evidence to support the alteration proposed in finding-in-fact 10, other than that of Mrs MacPherson, whose credibility and reliability had been criticised by the sheriff. Accordingly no alteration should be made. The alteration proposed in finding-in-fact 35 was uncontroversial, and was a matter for the court. As for finding-in-fact 45, had there been advance notice of the alterations sought, the pursuer would have produced the evidence of Mr MacLeod (the headmaster) and Mrs Chisholm (the support worker). No alteration should be made on the evidence of Mrs MacPherson alone, a fortiori as the sheriff had criticised her credibility and reliability.

Causation

[24] The sheriff had heard all the evidence, and found causation established. He had drawn the obvious inference from his primary finding-in-fact that there had been no further problems after the male support worker started work (finding-in-fact 69 and paragraph (141) of his Note). Reference was also made to findings-in-fact 47, 61, 91 to 93 and 141. McGinnes v Endeva 2006 SLT 638 referred to cases in which it was held that an additional member of staff would have made a difference.

Reply on behalf of the defenders and appellants

[25] Senior counsel pointed out that if the pursuer periled her case upon a duty to make a dedicated male support worker available, she had not proved that case. There was no finding-in-fact-and-law to the effect that there was a duty of care upon the defenders to provide such a worker. Paragraph (141) of the sheriff's Note referred to the provision of a male support worker or additional support staff. After the incident in June 2001, the defenders had been pro-active in seeking advice and meeting with professionals (paragraph (142) of the sheriff's Note). The pleadings did not support the suggestion that some action should have been taken earlier. Once four incidents had occurred, the defenders had been in a position to make a case for funding. Furthermore the pursuer had failed to prove that the absence of a dedicated male support worker was the cause of her injury. It was pure speculation to attribute the cessation of further assaults to the male support worker being in place. As the sheriff noted in paragraph (163) of his Note:

"... although M was always an anxious child, for whatever reason his anxiety simply did not spill over into violence when the class was better staffed [emphasis added]."

The cessation of violent incidents could equally well be attributable to other elements in the package of measures introduced in October 2001, such as the provision of social stories, and some relaxation in the teaching curriculum (paragraph (163) of the sheriff's Note and finding-in-fact 64). The appeal should be allowed, and the defenders assoilzied.

Discussion

Proposed alterations to findings-in-fact

[26] Finding-in-fact 10: In support of the alteration proposed, we were referred to a passage in Mrs MacPherson's evidence where she denied making a comment that it was "cheaper for the school to employ a male support worker than to have [the pursuer] off sick", although she conceded that it was possible that in discussions with the Education Department it was acknowledged that it was cheaper to employ a teacher and a male support worker than to have a teacher off sick (on full pay) and a supply teacher paid to cover that teacher's post. We were unable to find in that passage evidence sufficient to support the alteration proposed. In any event, bearing in mind the sheriff's reservations about Mrs MacPherson's credibility and reliability, we would have been reluctant to proceed on the basis of her evidence alone. In the result we are not persuaded that this finding should be altered to any extent.

[27] Finding-in-fact 35: Senior counsel for the pursuer did not dispute that the proposed alteration accurately reflected the evidence. Accordingly we are prepared to alter finding-in-fact 35 by adding at the end the words:

"The incident on 7 June 2001 hereafter referred to was the first time M had been violent in the pursuer's class."

[28] Finding-in-fact 45: Given the sheriff's reservations about the credibility and reliability of Mrs MacPherson, we are reluctant to place reliance upon her evidence about when or why she thought the TEACCH class had two or three support workers. We are not therefore prepared to alter finding-in-fact 45.

Liability

[29] The pursuer's pleadings contain at least 25 specific duties of care said to be owed by the defenders to the pursuer. Such an undue plethora of pleaded duties made the sheriff's task the more difficult. It is perhaps understandable that he felt it necessary to attempt to rationalise those duties into four main groupings, noted in paragraph [9] above. The sheriff thereafter based his decision on the four re-categorised duties of care. Two of his findings-in-fact-and-law are set out in paragraph [10] above.

[30] However this approach causes difficulties. In particular:

(i) The re-categorised duties are unspecific, and do not define what the defenders should or should not have done to avoid negligence. It is doubtful whether the re-categorised duties would have survived challenge at a debate on relevancy and specification.

(ii) A general finding that the defenders were in breach of their duties in groups (1), (2), and (4) does not explain in what way or ways the defenders were in breach of any duty. For example, a failure to provide "additional support" - group (4) - could mean inter alia a failure to provide sufficient support workers (male or female) in the pursuer's class; or alternatively, a failure to provide M with a dedicated male support worker. The sheriff's Note, paragraphs (140), (147), and (150), leaves that question unanswered.

(iii) Esto the sheriff intended to make a finding-in-fact-and-law that the defenders failed in their duty to provide a dedicated male support worker, that could not be with the purpose of preventing an incident, as the sheriff recorded at paragraph (150) of his Note that his focus in the context of group (4) was upon measures designed to deal safely with an incident once it had arisen. He had also found no breach of the duties in group (3), commenting at paragraph (147) of his Note that he did not find the defenders in breach of their duties to enable members of staff to prevent such incidents.

[31] In the result, we have been unable to ascertain from the findings-in-fact, findings-in-fact-and-law, and Note, whether the sheriff found the defenders in breach of a duty to improve the staff-pupil ratio by providing additional support workers (male or female) - a case not in fact pled on record - or whether the sheriff found the defenders in breach of a duty to provide M with a dedicated male support worker, in order to protect members of staff such as the pursuer from injury, and to prevent M from becoming violent, a case pled on record (Appeal Print, page 19 foot; and Amended Record dated 2 February 2009, page 17).

[32] We agree with senior counsel for the defenders that a finding of negligence should indicate clearly in what respect(s) the defenders failed in their duty or duties. Such clarity has not been achieved in this case. However the evidence is out. Findings-in-fact have been made, and are available to the appeal court. Specific duties are pled on record. This court has therefore the option of assessing afresh the pleadings and the findings-in-fact. We shall adopt that course.

[33] In our opinion, the following findings-in-fact are particularly relevant:

"10. In order to address the special needs of its pupils, the School had high staffing levels and small classes. The defenders' Education Department was sympathetic to any case made out by the School managers for additional staffing or resources ...

35. Initially three of the pupils in the [senior TEACCH] class each had a full-time support worker assigned to them. An older boy who had a record of violence or aggression had a male worker assigned to him, and a boy who ran away regularly had a female learning support auxiliary. These two pupils subsequently left the class and their support workers also left. One other pupil, M, who was aged about 13 in 2001, continued to have a dedicated learning support auxiliary, Mrs Shirley Chisholm. However by June 2001 she was the sole learning support auxiliary in the class and was working with the whole class rather than solely with M. The only other regular member of staff in the class was a teaching assistant who worked two afternoons a week. The level of staffing for the class remained unchanged between June and September 2001. [The incident on 7 June 2001 hereafter referred to was the first time M had been violent in the pursuer's class.]

36. M was aged 13 in 2001 and was the youngest pupil in the senior TEACCH class. He was constantly anxious and had limited communication skills. He was tall for his age and was about the same height as the pursuer. In 1999, he went through a period of being extremely anxious during which he hit other pupils or staff members on several occasions. As a result, for a period he had been withdrawn from the classroom because of his disruptive behaviour, and Mrs Chisholm was employed to work one to one with him ...

39. On 7 June 2001, while all the pupils in the senior TEACCH class were together with Mrs Chisholm in the leisure room at the start of the School day, without warning M became uncontrollably agitated about a light switch. He began screaming, pushed Mrs Chisholm across the room and repeatedly punched her with a clenched fist. The pursuer heard the commotion and immediately entered the room. As she tried to protect Mrs Chisholm, M continued to scream and repeatedly punched both her and Mrs Chisholm on the head and shoulders. The pursuer tried to talk to M but he was out of control. The pursuer and Mrs Chisholm were able to escape only when another boy started to hit M. They left M isolated in the leisure room and went for assistance.

40. The pursuer took Mrs Chisholm to the staffroom and then went to check on the other pupils in the class. Both were shocked by the incident, and Mrs Chisholm was bruised on the shoulders and eye. The pursuer had no significant physical injuries. She tried to keep calm so that she could assist Mrs Chisholm. The pursuer remained at work and returned to the class a little later that day. Mrs Chisholm was absent for the rest of that day and the next day ...

43. After this incident, the pursuer and Mrs Chisholm met both separately and together with Mrs MacPherson and Mr MacLeod [the deputy head and the head]. Mrs Chisholm said that a better system for getting help was needed. Mrs MacPherson asked her to resume working one to one with M outwith the class, which she refused to do. Neither Mr MacLeod nor Mrs MacPherson indicated that any additional support would be offered to the pursuer in teaching the class. The staffing for the class thus remained one teacher and one learning support auxiliary.

44. Following this incident, Mrs Chisholm resigned her post and left the School at the end of the 2001 summer term. She wrote a letter to both Mrs MacPherson and to the defenders' Education Department in which she stated that someone would be seriously hurt or injured unless something was done about staff safety. A new learning support auxiliary, Ms Angela Morris, was appointed to work with the class as a whole with effect from the resumption of School in August 2001.

45. Mrs MacPherson considered Mrs Chisholm to be quite dramatic and to be wanting to leave the School. She found Mrs Chisholm quite difficult. She considered that Mrs Chisholm might have triggered the incident, and that her reaction to it was excessive. She considered that the pursuer had not been distressed after the incident. She mistakenly believed the class still had two or three support workers, whereas it only had one. For these reasons, she did not consider any further action was required in respect of the incident.

46. As with other children with autism, M's anxiety could be triggered by various apparently innocuous things, and his triggers changed from time to time. Following this incident, it was recognised that the lights and light switch in the leisure room were a trigger for M.

47. On 30 August 2001, while the class was gathering in the morning in the leisure room with the pursuer and Ms Morris, the pursuer was called out of the room by another member of staff who wanted to discuss a matter with her. While she was out of the room, another pupil switched on the lights. M immediately became extremely agitated. He started shouting and hitting the wall with his fist. Ms Morris took the other pupils out of the room. The pursuer managed to calm M down so that he could go to his next activity ...

53. On 6 September, M became uncontrollable when the class returned to Ness House from a social activity. He ran repeatedly through and round Ness House. The pursuer tried to calm him. He banged a door and then pulled the pursuer down by the hair and repeatedly punched her. The pursuer received several scratches to her face and neck and sought treatment from the School nurse.

54. Following this incident, M was suspended from the School for three days. Mr MacLeod contacted M's parents, who agreed to keep him off school for a further two days ...

57. In August or early September 2001, it was recognised that the fire door in the senior TEACCH classroom was now a trigger for M. All staff members were asked to avoid using it when pupils were present, and a no entry sign was attached to the door.

58. Shortly after 9 am on 19 September, the pursuer was showing her new learning support auxiliary where the photocopier was. Not knowing that M had arrived early and was already in the classroom, they re-entered the classroom by the fire door. M immediately lost control and ran about the room screaming. He then began to hit the pursuer while she tried to calm him. He continued to punch her repeatedly and to pull her hair while she phoned Mr MacLeod for assistance and while she walked towards the main School building for help. While in Mr MacLeod's sight, he pulled her head down by the hair and held on for some time. When he let go, the pursuer took refuge in the staff room while M ran around the corridor of the main building, kicking and screaming. He then lay in front of the staff room door for some time before being coaxed away.

59. The pursuer was most distressed by this incident and went home for the rest of the day ...

62. [At a multi-disciplinary meeting to discuss M on 26 September 2001, a note made by Mrs MacPherson described] the purpose of the meeting as

'To put in place strategies to have M return to School by 1. finding ways of reducing his high anxiety states; 2. identifying an agreed plan to support staff in the event of M becoming violent.'

63. This was the first occasion on which the pursuer's safety in relation to M had explicitly been addressed.

64. After summarising various topics discussed, the note records

'After much discussion, it was felt that the way forward might be to have a phased re-entry into School, under the following added arrangements.'

The added arrangements listed include:

·       'M would attend School for periods of each School day for those parts of the curriculum where he is most comfortable

·       School will provide staff with a pager to signal help if necessary

·       Fiona MacDonald will explore possibility of identifying a male support worker for M'...

66. On 27 September, M turned up in the Ness House leisure room, with the rest of the class, at the start of the School day. The pursuer contacted Mrs MacPherson to say she was alarmed that no protections were yet in place.

67. On the following Sunday evening the pursuer telephoned Mrs MacPherson to say that she felt unable to return to the School until a male support worker was in place for M.

68. Two days later, a male support worker started work and the pursuer returned to School. She was also supplied with a walkie-talkie radio. Number 6/3/19 of process is a letter dated 2 October 2001 from Mr MacLeod to a manager in the defenders' Education Department, detailing the arrangements he had made with the defenders' Social Work Services to provide a male worker and the costs to the Education Department of these arrangements.

69. Thereafter M did not become uncontrollably agitated again. He appeared much less anxious and liable to outbursts, and more accepting of changes of routine. The pursuer continued to teach the class and considered that the challenging behaviour she had experienced from M had resolved ...

75. From the summer of 2002 onwards, the pursuer's mood and behaviour changed gradually but significantly. Her self-confidence and self-esteem reduced. She experienced a sense of dread about returning to School after the summer holiday. The pursuer consulted her GP Dr Kate Convery in July 2002, complaining of low mood and recurrence of depressive symptoms. Dr Convery re-started her on anti-depressant medication and referred her to the Practice counsellor.

76. ... In December 2002 ... [the pursuer's GP] signed her off work and referred her to a psychiatrist.

77. By early 2003 the pursuer was spending long periods of time in her room, often sleeping. She was not socialising and was avoiding people, particularly anyone associated with Drummond School. She had nightmares about violent incidents involving M, School staff and her family. She ruminated frequently over the incidents with M and what she and the School should have done differently. She became irritable with her family and was easily startled. She felt ashamed of her condition and regularly drank to excess.

78. The pursuer did not return to work at Drummond School. She continued on sick leave until December 2003 when her employment was terminated by mutual agreement ...

91. From about August 2002, the pursuer suffered a moderate depressive episode with secondary symptoms of phobic anxiety about her workplace. Although formally classified as moderate, the episode was far more serious than any she had previously experienced. The episode continued until about August 2005.

92. The episode was triggered by the assaults between June and September 2001 ...".

[34] In our view the findings-in-fact support the duty averred to provide a dedicated male support worker for M once the violent attack on 7 June 2001 occurred. We have reached that view on the basis of the following facts:

·       M, although only 13 years old, was tall for his age: finding-in-fact 36.

·       He had already demonstrated a tendency to violence in 1999: finding-in-fact 36.

·       The triggers for M's violence could be quite innocuous, and they changed from time to time: finding-in-fact 46. Thus he not only had a tendency to violence, but his outbreaks of violence were unpredictable.

·       A male support worker had been dedicated to another boy in the pursuer's class who had demonstrated violent behaviour: finding-in-fact 35.

·       The defenders' Education Department was sympathetic to any case made out by the School managers for additional staffing or resources: finding-in-fact 10.

·       The incident involving the pursuer on 7 June 2001 was significant and serious: findings-in-fact 39 and 40. Two adult female members of staff had been quite unable to control M. They escaped from his physical attack only because another pupil began hitting M. One member of staff (Mrs Chisholm) suffered bruising to her shoulder and eye as a result of the attack. Both the pursuer and Mrs Chisholm were considerably upset by the incident.

·       Mrs Chisholm resigned after that incident in June 2001. She left the school at the end of the summer term. She wrote a letter to Mrs MacPherson and to the defenders' Education Department warning them that someone was going to be seriously hurt: finding-in-fact 44.

[35] Against that factual background we consider that, following upon the attack on 7 June 2001, the defenders knew or ought to have known that M was liable to unpredictable and serious physical violence, directed towards members of staff; the level of physical violence was such that two adult female members of staff had been unable to withstand or control it; the violent incident on 7 June 2001 resulted in injury to Mrs Chisholm, her resignation, and her letter warning the defenders that someone would be seriously hurt or injured unless something was done about staff safety; the triggers for M's violence could be quite innocuous, and could change from time to time: thus he was unpredictable; two female members of staff (whether the pursuer and Mrs Chisholm, or the pursuer and Ms Morris) would be unlikely to be able to withstand or control any further outbreak of physical violence directed towards them by M; attacks such as that on 7 June 2001 would reasonably foreseeably cause their staff injury, whether physical or psychological; one practicable safety measure was the provision of a male support worker dedicated to M, as in the case of the boy mentioned in finding-in-fact 35; an important part of the male support worker's function was to intervene should an outbreak of violence occur, and physically to restrain M if necessary (using approved restraint techniques) thus protecting members of staff such as the pursuer from injury; other precautions such as training, reporting, monitoring, provision of pagers or walkie-talkies would not provide the same immediate intervention and protection as a dedicated male support worker; had such a support worker been provided after the attack on 7 June 2001, the pursuer would not, on a balance of probabilities, have suffered the further physical attacks which she did.

[36] In the result therefore, we consider that following upon the incident on 7 June 2001, the defenders had a duty to provide M with a dedicated male support worker. Their failure to do so constituted a breach of the duty of care owed to the pursuer, all as averred at page 19 of the Appeal print and page 17 of the Amended Record of 2 February 2009. Liability has therefore in our view been established.

Causation

[37] As we have considered matters afresh in the context of liability, it is appropriate that we adopt the same approach in relation to causation. In our opinion, the findings-in-fact give rise to the inference that the provision of a dedicated male support worker following upon the attack on 7 June 2001 would, on a balance of probabilities, have protected the pursuer either wholly or to a significant extent from the distress and physical injury suffered by her during the subsequent attacks. Either that worker's presence would have assisted in preventing outbreaks of violence from occurring, or the worker would have been able to intervene to protect the pursuer in the event of an outbreak of violence occurring. The location of the third incident, and the timing of the fourth, were not such as to persuade us that the male support worker would not have been available and able to intervene. In the result, we are satisfied that the findings-in-fact justify the conclusion that the failure to provide a dedicated male support worker caused or materially contributed to the pursuer's injury.

Decision

[38] We shall alter finding-in-fact 35 by adding at the end the words:

"The incident on 7 June 2001 hereafter referred to was the first time M had been violent in the pursuer's class."

[39] We shall alter the findings-in-fact-and-law as follows:

·       By adding at the end of finding-in-fact-and-law 2 the following: "The fourth group of duties included the following specific duty: It was the defenders' duty to make a male 1:1 support worker available prior to the harmful events, in order to protect the pursuer from suffering injury and in order to prevent the pupil from becoming violent."

·       By adding at the end of finding-in-fact-and-law 4 the following: "In particular, following upon the incident on 7 June 2001, the defenders failed to provide M with a 1:1 male support worker in order to protect the pursuer from suffering injury and in order to prevent the pupil from becoming violent."

·       By deleting finding-in-fact-and law-5, and substituting the following: "As a result, the defenders failed to take such steps as were practicable and reasonably foreseeably necessary to prevent further outbreaks of violence on the part of M, and to provide protection for the pursuer and other members of staff in the event of further outbreaks of violence nevertheless occurring."

[40] We accordingly allow the appeal only to the extent that the sheriff's finding-in-fact 35 and findings-in-fact-and-law 2, 4 and 5 are altered as noted above. Quoad ultra the appeal is refused, and the pursuer remains entitled to the award of damages referred to in finding-in-fact-and-law 7 and in the sheriff's interlocutor.