QB-2022-002971 - [2025] EWHC 2445 (KB)

It is alleged that the school was in breach of duty in that failing to discharge its duty of care to exercise adequate supervision of the Claimant with the result that, on the weekend of 27 September 2019, the Claimant was able to obtain “magic” from another student and smoke it in a vape “for an entire weekend” (at paragraph 28.2). It is further contended that “…the fact that the Claimant was able to consume illicit substances for an entire weekend, and also days later, is self-evidently demonstrative of a breach of duty to supervise a (known vulnerable) young person”. It is submitted that a reasonable level of supervision and inspection would have prevented or at least minimised the risk of this incident…” (paragraph 30). Further, it is also pleaded that “no school environment and no child should be allowed to have access to illicit substances …” (paragraph 31).

The reference in paragraph 30 of the Particulars of Claim ([120] above) to the use of drugs “days later”, relates back to an allegation that the Claimant smoked illicit substances, this time THC, “two days later”, i.e. on or about 2 October 2019. Irune Pedrayes’s witness statement did not contain any evidence that she continued to use drug after the weekend of 27/28 September, but she did give some oral evidence about continued drug use (THC) a few days after that weekend and, again, on 24 October ([54] above). The substantial focus of the allegations, however, was on the Claimant’s use of “magic” over the weekend of 27/28 September 2019.

On behalf of the Claimant, Ms McTague put the case under Issue 3 on the basis of (a) an alleged systemic failure on the part of the school to take reasonable care to prevent access and use of drugs by students at the school, including the Claimant, between September and November 2019, in the context of a known history of substance misuse at the school and a culture of tolerance towards illicit drugs and that the school failed properly to implement the control measures which its written policies required to be in place; and (b) that there was inadequate supervision and care of the Claimant herself, in particular over the weekend of 27-29 September 2019.

Ms McTague relied on the Ofsted report of January 2019, quoted at [66] above, which noted “recent concerns about students using drugs”. However, the report went on to state that this had “led to changes in risk assessments and supervision arrangements for ‘town leave’ and to enhancements in the PSHE curriculum” and that “Leaders are challenging and changing a culture of relaxed expectations, especially with older students. Appropriate use of exclusion for serious events is giving a clear message and keeping other pupils safe. Leaders are now establishing higher expectations of behaviour across the school”. The evidence of the Claimant herself was that the student who supplied her with the “magic” was expelled by the school (see [74] above). This does not support the contention that students acted with “impunity” when it came to drug use as was suggested in submissions and, to the contrary, appears to be consistent with the Ofsted assessment that the school was using expulsion as a means of enforcing its efforts to deter drug use.

Ms McTague did not criticise the content of the school’s written drug policy per se, but rather took issue with the extent to which the school enforced its policies. It was suggested that the fact that the Claimant was not disciplined or sanctioned for her admitted use of drugs evidenced an overly relaxed approach where students acted with impunity. That submission does not sit comfortably with the Claimant’s contention that the school failed to follow Dr Oteo Seijas’s guidance that punishment of the Claimant was likely to be counterproductive. In any event, as noted above, the evidence of the Claimant herself was that the student who supplied her with the “magic” was expelled by the school (see [74] above).

It was also suggested that the school was not making proper use of drug testing and, in support of this submission, it was submitted that the Claimant was not drug tested despite admitting to taking drugs on Monday 30 September 2019. I have not seen any evidence to support the unpleaded allegation that the school should have been carry out drug testing of students, nor that such testing would have accurately and reliably identified the range of substances, including mephedrone, which students might have been able to procure. In any event, Ms Callis’s evidence, on behalf of the Claimant, was that the school did undertake drug testing of students who were suspected of taking drugs (see [64] above).

As to the culture at the school more generally, the contemporaneous documents reveal that Mr Samson went to considerable lengths following the weekend of 28/29 September to liaise with the police in an effort to stop the supply of drugs to the school, as set out at [74] to [76] above, including providing the police with information he had obtained in respect of possible local sources of drugs. He also arranged for a private company to carry out a search of the school on two occasions in October 2019 with trained dogs in an attempt to detect drugs, as set out at [75] above.

It is correct to note that Ms Fernandez’s witness statement, summarised at [65] above, described the students as having “easy access” to various drugs, described the supervision of teachers as being “not very strict” and noted that increased checks were carried out after “Irune’s incident”, but her statement provides little detail. Conversely, Ms Callis’s witness statement provides rather more detailed evidence as to the measures which she observed the school taking to try to control access to drugs and drug use by students at the school. As set out at [64] above, she details searches, drug testing and inspections carried out by the school. If, as suggested on behalf of the Claimant, Ms Callis had been intending to describe steps taken by the school after 27-29 September 2019 and not before this date then I would have expected that to have been made clear in her statement. In fact, her summary is largely consistent with Mr Samson’s description of the range of efforts being made by the school to control drug access and use. Further, Ms Callis’s statement gives an insight into the particular problems posed to a school in trying to control the use of a drug like “magic” which, she described as requiring only “a few drops” to have an effect, as being easy to consume in a vape and as being odourless and so difficult for teachers to detect.

Ms McTague was critical of the absence of any witness evidence from teachers other than Mr Samson. She sought to draw parallels with the position in Dawkins v Carnival Plc (t/a P&O Cruises) [2011] EWCA Civ 1237 [2012] Lloyd’s Rep 1 (“Dawkins”) where the Court of Appeal emphasised, at [28], that the mere existence of a policy or a system is not evidence that the policy or system was implemented and described the absence of evidence in that case from staff members of the defendant that the relevant system was in fact implemented as “remarkable”. As noted further below, this was a case in which the court considered that a prima facie case of negligence had been established, such as to reverse the burden of proof.

In the present case, Mr Samson, as principal, took responsibility for the overall policies in place and was able to explain those policies and the procedures whilst the contemporaneous documentary evidence disclosed by the school was of assistance in enabling me to assess whether particular aspects of his evidence were or were not consistent with the contemporaneous documentary evidence. This is not a case in which I consider that I would have been greatly assisted by witness evidence, several years after the events in question, from different teachers at the school.

The Defendant was also criticised for the absence of documentary evidence in relation to various issues including school patrols, checks on packages entering the school and details of disciplinary records relating to other children evidencing the approach taken by the school in other instances of suspected drug use. I have not seen any correspondence in which such disclosure issues were raised with the Defendant in advance of trial. In general terms, I have been assisted by the contemporaneous written documentary evidence provided by the Defendant, extracts of which are set out in sections C and D above.

Another factor to which it is appropriate to have regard when considering the Claimant’s criticisms of the extent of the Defendant’s witness and documentary evidence, is the extent of the disconnect between the clear allegations of systemic failures on the part of the school advanced by Ms McTague in her submissions and the markedly less clear articulation of any such allegations of negligence in paragraphs 28 – 31 of the Claimant’s Particulars of Claim which set out the alleged breaches of duty. The Defendant’s evidence necessarily responded to the narrower scope of the allegations advanced against it in the Particulars of Claim.

In summary, the contemporaneous documentary evidence, together with the witness evidence I have seen and heard, is not indicative of a culture of tolerance or complacency on the part of the school in relation to illicit drugs, and nor does the evidence support the conclusion of systemic failings on the part of the school as now alleged. To the contrary, the documentary evidence demonstrates the significant and persistent efforts being taken by Mr Samson, personally, to tackle the issue of older students obtaining drugs and bringing them onto the school grounds. The documentary evidence, in general, supports Mr Samson’s evidence that he took these issues very seriously and made sustained efforts to attempt to deal with the issues of access to, and use of, illicit drugs by students at the school.

There is no doubt that in response to the incident of 27-29 September 2019 Mr Samson took additional measures, including specialist dog patrols, and engaged in extensive communications with the local police in a further attempt to address issues concerning access to, and use of, drugs by students. However, the fact that this incident elicited such a sustained response from Mr Samson supports his evidence that these issues concerned him deeply and that the school was attempting to tackle these issues by taking action on different fronts. It is unlikely that the incidents of 27-29 September 2019 would have elicited such a strong and sustained response from Mr Samson had the school had a culture of tolerance towards illicit drugs as now alleged.

In my judgment, the totality of the evidence does not support the conclusion that there was any systemic failure on the part of the school to take reasonable care to prevent access to drugs and/or use of drugs by students at the school, including the Claimant, between September and November 2019. I do not accept that the evidence indicates that the school had a culture of tolerance towards illicit drugs, nor that there was any systemic failure to take appropriate steps to implement the control measures which its written policies required to be in place in relation to such matters.

As is evident from [120] above, the pleaded allegations of breach focus on an alleged inadequacy of supervision of the Claimant by members of staff over the weekend of 28/29 September 2019.

As Mr Samson explained, Irune Pedrayes was “gated” the weekend, meaning that she was deprived of the privilege of a trip to town on the Saturday and so was confined to the school premises. As noted at [35] above, the school’s “weekend gating form” dated 28 September 2019 has the Claimant’s name at the top and provides for it “to be signed by a member of staff according to the schedule below”. There is then a box setting out times on Saturday 28 September from 1:30pm every hour until 9:30pm with initials in each box, except for 7.30pm. The “house tutor signature” box has been completed and someone has written beneath it “Irune took this very seriously”. The column for “Sunday” has been crossed through – which is consistent with Mr Samson’s evidence that trips to the town (at least for the relevant age group) took place on Saturday. I have not heard evidence from the housemistress, or whichever member of staff completed that form, but this record indicates that the school had a system in place for checking on “gated” students and a written record of those checks, as explained by Mr Samson.

As noted at [36] above, the email timed at half past midnight on 30 September from Ms Jenny O’Shea, the Claimant’s housemistress, to the school nurse records that Irune came to see her on the Saturday morning and she was offered paracetamol but did not take any. Ms O’Shea then personally walked the Claimant to the local medical centre around lunchtime and then to a pharmacy. A further email from Ms O’Shea records that she called Irune Pedrayes’s father on Saturday afternoon to explain the position and that Irune had told her that she had also spoken to him.

Whilst it is, of course, possible that there was also time that day, or in the evening, for Irune Pedrayes to spend some time vaping, the evidence does not suggest that she was left to her own devices to take drugs for “an entire weekend” as alleged (paragraph 28.2 of the Particulars of Claim). Indeed, the contemporaneous documentary evidence suggests that Ms O’Shea spent a considerable period of time with, or checking on, Irune Pedrayes throughout the day.

There is less information available as to the level of supervision and contact on Sunday 29. Mr Samson explained that there was a “patrol rota” in place at the school for staff to patrol the school to keep an eye on students at the weekend, but he noted that the school site is 40 acre site and so there is a limit as to what is achievable in practice.

Ms McTague submitted that the fact that a group of students were able to use a “class B” drug in plain sight on a rugby pitch on a Sunday morning gives rise to an inference of negligence or prima facie case of negligence, such as to reverse the burden of proof (i.e. res ipsa loquitur); Ms McTague relied on the Court of Appeal’s judgment in Dawkins at [24] in this regard (see [128] above).

Although the Claimant now alleges that she smoked “magic” on a rugby pitch on Sunday, I note that the report of the nurse the following day refers to her as vaping “in the boarding house” ([42] above). The Claimant was not expressly challenged in cross-examination on this inconsistency, but, as noted at [37] above, her own evidence indicates that her recollection of the events of that weekend, perhaps unsurprisingly, are vague and unreliable at least in part. Mr Samson expressed doubt as to whether the vaping occurred on the rugby pitch given that, he said, the rugby pitch was in full sight of the road and so any group of students could have been seen by any passing members of the public.

In any event, even assuming that the Claimant is correct in her recollection that the vaping took place on the rugby pitch, the fact that a group of students were able to smoke a vape containing a drug, unnoticed by members of staff, on a Sunday morning on a rugby pitch of a boarding school comprising 40 acres does not, in my judgment, give rise to an inference of negligence, or a prima facie case of negligence, such as to reverse the burden of proof. This is a long way from the situation, considered in Dawkins,at [24],where a hazard is present on the floor of premises under the management of the defendant. A school may deploy a range of measures to try to prevent drugs from entering the school premises and/or to prevent students from using drugs on the school’s premises; unfortunately, those measures may not be successful, even in the absence of any negligence. In the present case, even if a member of staff were to notice that a group of students had gathered on a rugby pitch, that member of staff might not be able to ascertain that the students were using a vape (let alone that the vape contained drugs) without walking over to the group with the express purpose of ascertaining what they were doing. I do not accept that a school is under a duty to investigate all potentially suspicious gatherings of students in this way and nor do I accept the submission on behalf of the Claimant that the mere fact that a group of students manage to use a vape in the middle of a rugby pitch is “clear evidence of a breach of duty” on the part of the school.

It is apparent from the contemporaneous documents that Ms O’Shea did have some contact with the Claimant on Sunday 29 September. In her email to the school nurse on Sunday night/early Monday morning Ms O’Shea records: “I have asked her over the remainder of the weekend how she is and each time she says fine and refuses medication. However, she did have 1 paracetamol at 19:00 this evening (Sunday). She seems well within herself but she will need to see the doctor if the symptoms persist”.

It will never be possible, and may well be inappropriate, for a boarding school to monitor and supervise every waking hour of a student at the weekend. As Mr Samson emphasised “we are a school and not a prison”. As noted by Lord Eassie in Hunter v Perth & Kinross Council [2001] SCLR 856, Court of Session, Outer House, ([81] above) the duty of care on a school does not extend to a duty to provide “all-pervasive supervision” of all students within its care at all times; the duty is to take reasonable care and to provide reasonable supervision in all the circumstances. The contemporaneous documents suggest that staff at the school had regular contact with Irune Pedrayes over the course of the weekend of Saturday 28 and, albeit to a lesser extent, on Sunday 29 September.

The school had knowledge of the Claimant’s additional needs and that her psychological profile meant that she may have particular vulnerabilities, as set out in the report from the Claimant’s former treating psychologist, Dr Rafael Oteo Seijas. That information is relevant to the standard of care generally, and I have taken it into account under Issue 1 above (at [96]). However, I am not satisfied, on the evidence I have seen, that the information held by the school meant that the school should have carried out a specific risk assessment in respect of the Claimant’s propensity to take illicit drugs, nor that the school should have identified her as a student with particular safeguarding concerns in respect of illicit drugs. These were not steps suggested in the report of Dr Rafael Oteo Seijas. Further, and in any event, no such allegations were squarely pleaded in the Particulars of Claim and so were not addressed directly in the Defence or the Defendant’s evidence. Had such a case been properly pleaded then it is reasonable to anticipate that the Defendant might well have set out a number of objections to any suggestion that a risk assessment or additional safeguarding measures should have resulted in enhanced supervision and/or restricted freedoms being imposed on the Claimant at the weekends, not least the potential adverse effects that any such restrictive measures might have had on the Claimant’s attitude and behaviour more generally.

On the evidence before me, the Defendant school, in my judgment, did not breach its duty to take reasonable care in relation to either the alleged systemic failure on the part of the school to prevent access to, and use of, illicit drugs by students at the school, including the Claimant, between September and November 2019 and/or the alleged failure to supervise and take care of the Claimant over the weekend of 27-29 September 2019 in particular.