Cheshire East Council

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Court of Appeal rejects claim for negligence, breach of statutory brought by teacher over assault

An assistant head teacher whose career was ended after an assault by a pupil cannot claim for negligence and breach of statutory duty, the Court of Appeal has ruled.

In Cunningham v Rochdale Metropolitan Borough Council [2021] EWCA Civ 1719 Lord Justice Dingemans said that former teacher Colin Cunningham had proven breaches of the duty of care owed by Rochdale Metropolitan Borough Council to him, in that its school failed to carry out risk assessments, failed to arrange a return to school interview for the pupil and failed to arrange a restorative justice meeting.

“In my judgement, however, Mr Cunningham is unable to show that if the risk assessments had been carried out, or if the return to school interview and restorative justice meeting had taken place, the attack would not have taken place,” Dingemans LJ said dismissing the appeal.

Mr Cunningham was assistant head teacher at Brownhill Learning Community when he was punched in the face by the pupil and suffered a fractured cheekbone and consequential psychiatric injuries. He did not recover and retired from teaching.

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The school provided education and support to children aged 4-16 years who exhibited behavioural difficulties and were not in mainstream schooling.

After two bereavements the pupil’s behaviour had deteriorated and he had earlier attacked Mr Cunningham and been excluded for three and a half days. Incidents with other pupils led to the further assault.

Mr Cunningham claimed against Rochdale for negligence and breach of statutory duty but the High Court had earlier dismissed those.

Dingemans LJ said: “The prospect that the pupil would, in the final event, have not assaulted Mr Cunningham because he had had a return to school interview and a restorative justice interview with Mr Cunningham is possible, but it is not probable and more likely than not to have prevented the attack.

“This is because the pupil had had the benefit of extensive interventions over the course of the year.”

He added: “The appellant is unable to show on the balance of probabilities that a return to school interview or a restorative justice interview would have prevented the pupil's serious assault on Mr Cunningham.

“This means that Mr Cunningham is unable to show that if there had not been any breaches of duty on the part of the school, the attack and Mr Cunningham's loss would have been avoided, and therefore causation is not established.”

Mark Smulian

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