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

Relevant law

The Defendant admits in its Defence that it was “at all material times responsible for the care and good discipline of pupils”, under a duty to take “reasonable care to ensure the good health and safety of pupils”, and under a duty to provide “a reasonable level of supervision and inspection” in relation to students in its care.

It was common ground between the parties that the duty owed by a school to a child attending the school to take care of and to protect that child from harm may go beyond the duty expected of a parent at home with responsibility for the care of their child. The rationale behind this was explained by Lord Sumption JSC in Woodland v Swimming Teachers Association and others [2014] AC 537, albeit in the context of a consideration of the nature of non-delegable duties which might be owed by a school, at [23] and [25(6)] as follows:

Reliance was placed by both parties on the following summary of legal principles set out by Spencer J in Pook v Rossall School [2018] EWHC 522 (QB), a case concerning a child who was injured whilst running to a hockey pitch:

“[25]…Although the Woodland case was concerned with, among other things, the issue of non-delegable duties, in that context the Supreme Court took the opportunity to observe that, whilst schools are employed to educate children, they can only do so if they are allowed authority over them and that authority confers on them a significant degree of control. Thus the recognition of a non-delegable duty of care owed by schools involves imputing to them a greater responsibility than any which the law presently recognises as being owed by parents.

[26] Mr Knifton further directed my attention to the decision of the Northern Ireland High Court in Murray v McCullough [2016] NIQB52 . In that case, Stephens J also found unhelpful any analogy between the duty owed by a school and the duty owed by a parent. He said:

“However for my own part I would prefer that the standard of the duty of a school teacher should not be expressed as taking such care of his pupils as would a reasonably careful parent of the children of the family but rather taking reasonable care in all the circumstances. The yardstick is reasonable care; it is not some notional standard as to what a reasonably careful and prudent parent of the family would or would not do in relation to his own children. The relevant circumstances which are to be taken into account in an individual case in determining whether reasonable care has been taken by a school teacher will depend on the evidence in that case. Highly significant circumstances will be the age and maturity of the child or young person. … in addition to those circumstances which are particularly relevant in claims by children or young persons are other circumstances of general application such as the magnitude of the risk, the likelihood of injury, the gravity of the consequences and the cost and practicability of reducing or avoiding the risk."

In that case, Spencer J also recognised the limits of the duty as follows:

“However, I reject the notion that the duty of a school is to reduce the risk to the lowest level reasonably practicable. I agree with Mr Lemmy that whilst there are some risks which no reasonable school or teacher would allow a pupil to run (running in corridors between classes for example), and other risks which it will almost always be reasonable to allow a pupil to run (for example the risk arising from contact and other sports), there will be situations in between which allow for a measure of discretion and judgment on the part of the teachers. In those circumstances, the court should be slow to condemn a teacher as negligent and to substitute its own judgment for that of the teacher where the teacher can be expected to have knowledge of the school, the environment, the particular children in her charge and her experience …”

Mr Edwards also relied upon Lord Eassie’s analysis in Hunter v Perth & Kinross Council [2001] SCLR 856, Court of Session, Outer House, in which a pupil was injured as a result of being pushed by another pupil whilst waiting to board a bus home from school. The court emphasised, at [40], that the duty of care did not require the school to provide “all-pervasive supervision” of the students of the type that would have been required to prevent an incident of this nature, rejecting the contention of the counsel for the pursuer that there ought to have been an adult present at all times and visible to the children in the relevant area. Further, in that case it was held that even the presence of additional supervision in the relevant area would not have prevented the incident.

In Liennard v Slough Borough Council [2002] EWHC 398 (QB), also relied upon by Mr Edwards, the claimant claimed damages for an alleged negligent failure of his former teachers to assess his learning difficulties properly and to refer him to an educational psychologist whilst he was at secondary school. Expert evidence from educational psychologists was adduced. The claim was dismissed. Applying the Bolam test, the court found, at [166] that the relevant teachers acted in a way in which reasonably competent teachers would have acted at the relevant time. It was recognised, at [14], that there was a duty on teachers to exercise reasonable skill and care in responding to educational needs. The standard of care was identified as that of a reasonable teacher at the relevant time and reliance was placed, at [15-16], on the following observations of Lord Slynn and Lord Clyde in Phelps v Hillingdon L.B.C. HL [2001] 2 A.C.619:

“…the claimant must be able to demonstrate that the standard of care fell short of that set by the Bolam test: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.  That is deliberately and properly a high standard in recognition of the difficult nature of some decisions which those to whom the test applies require to make and of the room for genuine differences of view on the propriety of one course of action as against another. In the field of educational matters there may well exist distinct but respectable opinions upon matters of method and practice, and it may be difficult to substantiate a case of fault against the background of a variety of professional practices…” per Lord Clyde at p672F.

The Bolam test, originating in a clinical negligence context, recognises that a range of different views may legitimately be held about an issue of clinical judgement by different medical professionals; accordingly, a claimant will not succeed in establishing negligence merely by demonstrating that there is a body of competent professional expert opinion which disagrees with the judgement taken by the relevant clinician, provided that there is a body of competent professional expert opinion which supports that judgement as reasonable in the circumstances.

Ms McTague emphasised that the issues in this case are primarily concerned with what might be described as the “health and safety” duties owed by the school, as opposed to “educational” duties – a distinction drawn by Judge LJ in Bradford-Smart v West Sussex CC [2002] EWCA Civ 07 [2002] ELR 139 at [31]. The effect of Ms McTague’s submission, which was not disputed by Mr Edwards, was that the Bolam test (and therefore evidence concerning a body of competent professional expert opinion) was not a necessary or appropriate test to apply to the predominantly “health and safety” duties with which the present case is primarily concerned. I would also note that this submission reflects, to some extent, the type of distinction draw by the Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] A.C.1430, at [82], between on the one hand, the doctor's role when considering possible investigatory or treatment options, where the Bolam test applies, and, on the other, the doctor’s role in the consenting process, where the Bolam test is generally not applicable. I agree that the Bolam test is unlikely to be relevant to “health and safety” issues of the type raised in this case (particularly in relation to Issue 1 and Issue 3 identified at paragraph [6] above), although it may have greater relevance to the management of special educational needs and, potentially, therefore to certain aspects of Issue 2 in this case.

It was common ground that the nature and extent of the risk in question, as well as the particular vulnerabilities of the Claimant, are relevant factors to take into account when considering the appropriate standard of care.

Discussion