Sheriffdom of Grampian, Highlands and Islands at Inverness
Judgement of Sheriff Alan D Miller
in the case of
The Highland Council
Court ref. no. A679/04
For the Pursuer: Mr. McDonald, Stronachs Solicitors
For the Defenders: Mr. Milligan, Advocate, instructed by Ledingham Chalmers, Solicitors
The Sheriff, having resumed consideration of the case together with the productions,
Finds in fact:
1. The pursuer is Mrs Teresa McCarthy. She resides at 23 Drakies Avenue, Inverness, and was born in 1957.
2. The defenders are the Highland Council. Their principal office is at Glenurquhart Road, Inverness.
3. As an education authority, the defenders are under an obligation to provide children of School age who have special educational needs, including those suffering from autism, with an education, and to comply with the Disability Discrimination Act 1995.
4. The pursuer is qualified as a teacher. During the 1980s she gained at least eight years' experience of working with children with special educational needs.
5. In the autumn of 1999, the defenders employed the pursuer to work two days a week as a secondary teacher at Drummond School, Broom Drive, Inverness, to provide cover for another teacher Mrs Eileen MacPherson who undertook management duties for two days each week.
6. At some point during 2000, Mrs MacPherson was appointed Depute Head Teacher responsible for the secondary part of the School, and the pursuer agreed to work a further one day each week on a supply basis. By early 2001, Mrs MacPherson's management post had become full-time and another teacher was appointed to cover the remaining two days a week.
7. At all times relevant to this action, Drummond School was managed by the defenders as a public School for children with special educational needs, catering for children in both primary and secondary age groups.
8. The School had a roll of up to 120 children, of whom several had autistic spectrum disorders.
9. Special schools experience higher levels of violent incidents by pupils than mainstream schools, because of the difficulties experienced by the pupils. In particular, pupils with autism are liable to be unpredictable and to display aggressive behaviour towards themselves or others.
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.
11. In keeping with general practice in special schools in the UK in 2001, the systems of working in the School placed considerable emphasis on prevention of anxiety and of incidents of aggression or violence through: high staffing levels; individualisation of the curriculum; communication between staff and with parents; and use of diversion or de-escalation techniques to defuse situations. There was regular discussion between staff about individual pupils' needs and progress, including discussion about preventing and managing challenging behaviour. Every pupil in the School had a Record of Needs which would be formally reviewed at least once a year.
12. At the relevant time, the level of violent incidents in the School was fairly typical for a special School.
13. By 2000, most of the secondary classes at the School were located in three separate buildings in the grounds of the main School building. One of these buildings was known as Ness House.
14. The School day began at 9am for staff and 9:15am for pupils. The defenders provided transport for most of the pupils and they would arrive at the School at much the same time each day.
15. In 1999-2000, the then Head Teacher of the School, Mr Mike Butler, was suspended and later dismissed after being charged with assaulting pupils at the School. Mr Donald MacLeod, an experienced senior teacher, was appointed in May 2000 as Acting Head Teacher and subsequently as Head Teacher of the School.
Risk Assessment and Management
16. In 1999, the Health and Safety Executive (HSE) published a leaflet entitled "Five Steps to Risk Assessment" (number 6/3/2 of process). The purpose of the leaflet was to provide guidance to employers on how to assess and manage risks to health and safety in the workplace. As of 2001, this leaflet was a principal source of guidance to employers on risk assessment and management.
17. Her Majesty's Inspectorate of Education (HMIE) carried out an inspection of Drummond School in 1998. In their report (number 6/3/1 of process) they identified several strengths of the School but also several points for action, including points relating to physical health and safety.
18. Number 6/6/1 of process is the report of HMIE's follow-up inspection of the School conducted in 2001. In relation to health and safety, after referring to physical safety matters the report notes:
"The School had set up a health and safety committee and had drawn up an appropriate health and safety policy. The acting headteacher [sic] had carried out a risk assessment of aspects of the School and had addressed almost all of the issues raised".
19. Number 5/2/6 of process is the Health and Safety Manual introduced at Drummond School in February 2001. Under the heading "Dealing with Violent and Aggressive Behaviour", the Manual states:
"Pupils who are known to be likely to exhibit this type of behaviour have their own protocols for behaviour management. If such an occurrence arises, then staff must comply with the above agreed method of management of this behaviour. If the incident is severe, then an internal School incident form and a Violence and Aggression form must be filled in whether or not medical treatment is needed."
20. Following the introduction of the Health and Safety Manual, Mr MacLeod conducted a risk assessment of the School premises and grounds. Behaviour management protocols were introduced for some pupils.
21. School Staff were encouraged to approach the relevant depute head teacher to discuss concerns about pupils, and to record and report incidents involving violence or aggression by pupils. Various forms were in use, including a Drummond School: Incident Report Form, and an Incident Report Form: Violence and Aggression to Staff, both of which required to be submitted to the School office. The School had also developed other forms which were used to collate information on individual pupils. Although some staff members were confused at times as to which form to use when, forms were regularly completed and submitted to the School office. The Head Teacher and Depute Heads reviewed the submitted forms and would sign them off.
22. The systems of working (finding 11), the introduction of the Health and Safety Manual and the recording and reporting of incidents all contributed to the ongoing identification and management of risks to health and safety related to the behaviour of pupils at the School.
23. "CALM" (Crisis and Aggression Limitation and Management) is a training programme which is intended to assist staff in dealing with incidents of physical aggression. It includes training in various techniques for escape and for physical intervention.
24. From sometime late in 2000, the defenders planned the provision of CALM training for staff in all their special schools, including Drummond School.
25. The first group of the defenders' employees to undergo CALM training were all from Drummond School. The training in escape and physical intervention took place in June 2001. The pursuer took part in this training. The pursuer and the other members of the group were then assessed for their performance of the techniques at a verification session in November 2001. Trainees would have been discouraged from using physical intervention techniques until they had been assessed.
26. Mr MacLeod also arranged other in-service training sessions for all staff at the School, some on managing pupil behaviour.
The Senior TEACCH Class
27. Early in 2000, a separate class for older pupils with diagnoses of autism was set up within Drummond School. This class consisted of four or five male pupils at any one time, aged between 13 and 19. The pupils in the class had symptoms indicative of moderate to severe autism, such as high levels of anxiety, communication difficulties and unpredictable and challenging behaviour.
28. Each pupil in the class had an individual curriculum and the class was organised in accordance with a method of working with people with autism, known as "TEACCH", which was intended to reduce anxiety through providing clear structure and routine. The class was known in the School as the senior TEACCH class.
29. The senior TEACCH class had the use of half of Ness House, the other part of which was largely occupied by another senior class. These classes were located there to give them a more domestic environment.
30. The facilities in Ness House for the class included a classroom with individual work-stations, a separate computer room, a kitchen, a bathroom, and a smaller leisure room upstairs. A telephone was located in the foyer at the main entrance to the building.
31. A fire door connected the classroom to an area used by teaching staff for preparing materials and for photocopying.
32. If assistance was required urgently, it was expected that staff would either use the telephone, or leave the building and cross into the main building to find a member of the School management, whose offices were located at the far end of the main building.
33. Mrs MacPherson and the pursuer set up the senior TEACCH class. After Mrs Macpherson's management post became full-time, the pursuer took on the principal responsibility for organising the class. The pursuer had undertaken training in the TEACCH method and conscientiously applied it in organising and delivering the programme for the class as a whole and for each pupil within it.
34. After the establishment of the senior TEACCH class, Mrs MacPherson commented to the pursuer that the new approach was working as the pupils seemed less anxious and had not displayed violent behaviour since coming into the class.
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.
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.
37. Whenever M became agitated in the senior TEACCH class, the pursuer would speak to him in a calm voice. As appropriate, she would encourage him to come to a quieter place, remove other pupils, or briefly leave him isolated.
38. No written protocol for managing M's behaviour was in place prior to 7th June 2001. However, at some point prior to that date Mrs MacPherson advised the pursuer or Mrs Chisholm that if he became agitated, someone plus an auxiliary should stay with him while another auxiliary should get the other boys out of the way.
Incident of 7th June 2001
39. On 7th 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.
41. Number 6/3/36 of process is the Incident Report Form: Violence and Aggression to Staff which Mrs Chisholm completed on 7th June 2001 in respect of this incident. In the section of the form relating to any previous incidents, she wrote "Recent incident but was less severe. 24th May 2001 form in file". The entry in the section of the form relating to pre-existing preventive measures states:
"Very structured programme is in place. Lot of adult support in class, but autism causes unpredictable situations to arise."
The section of the form relating to action that could now be taken is blank. The form was signed off by Mr MacLeod on 14th June 2001.
42. As Depute Head Teacher in charge of the secondary part of the School, it was primarily Mrs MacPherson's responsibility to decide what action, if any, should be taken in response to this incident.
43. After this incident, the pursuer and Mrs Chisholm met both separately and together with Mrs MacPherson and Mr. MacLeod. 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.
Incidents of 30th August 2001
47. On 30th 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.
48. Number 5/2/2 of process is the Incident Report form which the pursuer completed after this incident. Mrs MacPherson signed the form off on 31st August 2001 with the comment
"Discussion with senior management on the day and the following day:- agreed on need for common approach to managing M and for all staff to know this".
49. The pursuer and other staff who worked with M were already following a common approach to managing his anxiety and behaviour.
50. At the mid-morning break on the same day, M again became extremely agitated about lights in the leisure room. He repeatedly hit the pursuer with a closed fist. The pursuer was able to extricate herself. She and Ms Morris calmed M down.
51. Number 5/2/3 of process is the Incident Report Form: Violence and Aggression to Staff the pursuer completed on this incident. In relation to measures taken, it states
"Friday 31/08/01 I met with Headteacher and Ass. Headteacher to discuss what could be done to prevent further incidents. Advice to be taken from other professionals who know pupil and behaviour management programme drawn up, and extra staff to be called in if the pupil is very anxious. This was agreed 31/8/01".
52. Following these incidents the pursuer had further meetings with Mr. MacLeod and Mrs MacPherson. They agreed that the School should seek advice on how to deal with M's behaviour. M was not suspended or excluded from the School. No behaviour management programme was drawn up at that stage.
Incident of 6th September 2001
53. On 6th 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.
55. During that week, Mr MacLeod and Mrs MacPherson met with M's mother and with Tad Baecker, a psychiatrist, each of whom recommended that they contact Mairi MacDonald, Learning Disabilities Community Nurse, for further advice. Dr Baecker stated that the steps the School were already taking were appropriate and sufficient. Mr MacLeod also contacted Ms Fiona MacDonald of the defenders' Social Work Services. He and Mrs MacPherson met with Mairi MacDonald and with a representative of the Social Work Services.
56. As agreed at that meeting, Mairi MacDonald came to see the pursuer on 14th September, and recommended methods of dealing with M's anxiety such as using photos and "social stories", which were simple stories about M in situations that might trigger his anxiety. She prepared some social stories on tapes for M to listen to, which he did repeatedly.
Incident of 19th September 2001
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 9am on 19th 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 toward 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.
60. Number 6/3/28 of process is the Incident Report form completed by the pursuer on this incident.
61. On the same date, Mr MacLeod excluded M from School until 27th September. He made arrangements for a multi-disciplinary meeting to discuss M on 26th September.
62. No. 6/3/20 of process is "Notes from Meeting on M" made by Mrs MacPherson at the meeting on 26th September. The note describes 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 [sic] 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".
65. Number 6/3/15 of process is a note dated 1st October 2001 of "Instructions for Class Staff and Pupils" on what to do if M became anxious with the likelihood of becoming violent, which Mrs MacPherson prepared and circulated.
66. On 27th 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 2nd 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. The pursuer put considerable effort into organising a residential trip for the class in May 2002, which M and the other pupils greatly enjoyed.
The Pursuer's Medical History up to 2002
70. After the birth of her first child in 1990, the pursuer sought to return to work but found she was unable both to work and to care for her child to the standard she wished. She consulted her GP and complained of feelings of depression and stress related to work. She gave up full-time work in 1991. She had two further children in 1992 and 1994.
71. Between 1991 and 1999, she cared for her children and, at various times: trained in reflexology and worked one session a week as a reflexologist; worked for a teacher with a visual impairment; worked full-time as a childminder; and worked one day a week as a teacher of children with special needs.
72. In April 2000, the pursuer was experiencing difficulty in working with her then job-share partner. She consulted her GP and complained of having had a severe depressive illness for several years, and of difficulty in asserting herself with colleagues. She was prescribed an anti-depressant and referred for assertiveness training.
73. The pursuer continued to use anti-depressant medication until she and her GP agreed to discontinue it in June 2001. She completed the assertiveness training in April 2002 and found it beneficial.
74. The pursuer did not make the School managers aware of her previous medical history, or that she was receiving anti-depressant treatment during 2000-2001.
The Pursuer's Medical Condition from 2002 Onwards
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. The pursuer asked Mr. MacLeod if she could drop her weekly supply day, which he agreed and which took effect from the start of the School term in August 2002. Her reason for doing so was that she hoped reverting to two days a week would help her mood, although she did not explain this to Mr MacLeod. She continued to work two days a week, but continued to experience low mood and tiredness outwith work. She did not wish to socialise, and became irritable. In December 2002 her family persuaded her to consult her GP again, who 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.
79. The pursuer's GP referred her to Dr Jim Deans, Consultant Psychiatrist at Raigmore Hospital. Dr Deans saw her on 14th April 2003. Pages 39-40 of the pursuer's hospital records (number 6/1/1 of process) comprise a letter of the same date by Dr Deans addressed to the GP.
80. The letter recorded that the pursuer told Dr Deans she had never really been free of depressive symptoms since the age of 24, and that she had struggled to cope with stresses at work after returning to work three years previously. Dr Deans noted
"She states that she had been working with a number of autistic children and had been assaulted on various occasions. She believes that this has contributed to her present exacerbation of depression".
Dr Deans concluded
"In summary, this woman has a lengthy history of depressive symptoms extending back many years. She is presently suffering from depression of moderate degree which has only partially responded to treatment so far".
81. Dr Deans increased the dosage of the pursuer's anti-depressant medication and referred her to Braeside Day Centre, Inverness for cognitive treatment.
82. Dr Peter Carr, staff grade psychiatrist and Brenda Haydock, Community Psychiatric Nurse, treated the pursuer at Braeside. Dr Carr or Brenda Haydock saw her several times between April 2003 and May 2004. Dr Carr found the pursuer very preoccupied about the assaults at Drummond School and took her through three sessions of a treatment called autogenic abreaction with eye-movement desensitisation, during which she talked through the incidents in detail. The pursuer's mental state then lifted, but only temporarily.
83. In May 2004, the pursuer broke off therapeutic engagement with Dr Carr, although she continued to be seen at the psychiatry out-patient clinic and to work with Kieran Moran, community psychiatric nurse, who treated her anxiety and depressive symptoms with cognitive behavioural therapy to good effect.
84. Post-traumatic stress disorder (PTSD) is defined in the International Classification of Diseases, 10th edition (ICD-10, relevant extract at number 6/7/2 of process) as
"a delayed and/or protracted response to a stressful event or situation (either short- or long-lasting) of an exceptionally threatening or catastrophic nature, which is likely to cause pervasive distress in almost anyone..."
Typical symptoms include: episodes of repeated reliving of the trauma in intrusive memories or dreams; emotional blunting or numbness and detachment or depersonalisation; avoidance of situations reminiscent of the trauma; a state of autonomic hyperarousal with hypervigilance; and enhanced startle reaction; and insomnia. The latency period may range from a few weeks to months, but rarely exceeds six months.
85. There is considerable overlap between the symptoms of PTSD and those of depression. However, symptoms such as loss of self-confidence, social withdrawal, irritability and feelings of worthlessness and guilt are more typical of depression. Adverse life events can trigger depressive episodes twelve to eighteen months later. The order of symptom onset is also significant in diagnosis.
86. Number 5/1/1 of process is a report by Dr Peter Carr, Staff Grade Psychiatrist, Braeside Day Centre, dated 23rd December 2003 and addressed to the defenders' occupation health medical adviser. The report states
"In summary, this lady has been liable to bouts of recurrent moderate depression for many years. This is the first occasion that she has suffered from prolonged depression requiring psychiatric intervention. In my opinion her rapid recovery in response to a treatment for PTSD indicates that the incidents of assault at Drummond School, and the alleged lack of adequate support from the authorities there, contributed significantly to the exacerbation of her depressive symptoms".
87. Number 5/3/1 of process is a report by Dr Carr dated 3rd March 2008 and addressed to the pursuer's solicitors. The report states that the pursuer's condition prior to 2001 was probably dysthymia, a disorder involving constant underlying mild depression, rather than recurrent depressive disorder. Subsequently it states
"In my opinion the assaults at Drummond School during 2001, and the perceived lack of support from line management, traumatised Mrs McCarthy to the extent that she developed a moderate depressive episode, without psychotic features, with additional features of post-traumatic stress disorder".
88. Dr Timothy Rogers, consultant psychiatrist at Herdmanflat Hospital, Haddington, examined the pursuer at the defender's request on 1st August 2008. Number 6/4/1 of process is his report dated 12th August 2008. Having examined the pursuer and her GP and hospital records, Dr Rogers concluded
"From a psychiatric point of view Mrs McCarthy has been suffering from a moderate depressive episode... In my opinion she has not suffered post traumatic stress disorder. She has had phobic anxiety symptoms about her workplace and about the School environment but these need to be seen as part and parcel of her depressive disorder, rather than a separate illness".
He further concluded
"In my opinion Mrs McCarthy's depressive disorder has been a relapsing and remitting disorder which has been present for many years... It is likely that the fluctuations in such a disorder are triggered by specific stresses and in my opinion the alleged violent incidents which occurred in 2001 are likely to be such stressors".
89. Having seen Dr Rogers' report, Dr Carr saw Mrs McCarthy again in September 2008 in order to administer a formal interview schedule known as the "Clinician-Administered Post-Traumatic Stress Disorder Scale for DSM-IV" (CAPS). Number 5/6/1 of process is Dr Carr's supplementary report dated 20th October 2008 in which he describes the CAPS test and the results of its administration to the pursuer.
90. The design of the CAPS test tends to elicit symptoms and to increase the probability of a diagnosis of PTSD. Its use is appropriate in a clinical context but not for forensic purposes.
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.
93. Any future depressive episode that the pursuer may suffer will not be attributable to the events of 2001.
The Pursuer's Employment History from 2003 Onwards
94. Had the pursuer wished to work full-time for the defenders as a special needs teacher, even if still in her part-time post at Drummond School she would have required to: await a post falling vacant and being advertised; submit an application; and declare her medical history. If selected for interview, her medical history would have been a factor to be considered in relation to her suitability for appointment.
95. The defenders offered the pursuer alternative work within their Education Department. She tried working in a library for one day a week, but felt unable to continue after a few weeks. She was offered office work in a School and work in community education. She felt too lacking in self-confidence to take the posts, and unable to work in education.
96. After the pursuer began to feel better in or about August 2005, she was advised to try voluntary work and initially undertook voluntary work at the Highland Hospice.
97. In January 2006 the pursuer commenced work as a nursing assistant at Raigmore Hospital.
98. In September 2006, the pursuer commenced a full-time nursing degree. She continued to work occasional shifts as a nursing assistant.
99. The pursuer anticipates becoming fully qualified as a nurse in September 2009. If full-time work is available, she will seriously consider taking it up.
100. Numbers 5/8/1 and 5/8/2 of process are true and accurate records of the pursuer's earnings from her employment with the defenders for the years 2002 and 2003.
101. The salary for the post held by the pursuer with the defenders was increased on 1st April 2005 by 2.9%.
Finds in fact and law:
1. The defenders owed the pursuer, as their employee, a duty of reasonable care for her safety, and a duty to devise, maintain and enforce a safe system of work.
2. In the exercise of these duties, the defenders further owed the pursuer the duties: to assess and manage risks to the pursuer and other staff members both generally and in relation to specific pupils; to ensure that violent incidents were reported and that measures to avoid or respond to recurrence were identified and implemented; 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 by involving them in and informing them of strategies for dealing with pupils, and providing relevant training; and 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.
3. It was foreseeable to the defenders that injury to the pursuer would be a reasonable and probable consequence of their breach of the duties they owed her.
4. With the exception of the duties to enable the pursuer and other staff members to prevent violent incidents, such as by involving them in and informing them of strategies for dealing with pupils, and providing relevant training, the defenders failed to comply with these duties following the incident on 7th June 2001, and continued to do so until after the incident on 19th September 2001.
5. As a result of the defenders' breach of their duties, M attacked the pursuer again on 30th August, 6th and 19th September 2001.
6. The incidents of 30th August, 6th and 19th September 2001 caused the pursuer to suffer loss, injury and damage. Specifically, they caused or materially contributed to the psychiatric illness experienced by the pursuer between 2002 and 2005.
7. A reasonable level of reparation in respect of the pursuer's injury, loss and damage is £10,000 plus £4,400 interest in respect of solatium, and £46,778 plus £9,980 interest in respect of loss of earnings.
Finds in law: the pursuer is entitled to reparation from the defender.
1. sustains the pursuer's first plea in law and her second plea in law to the extent of the sum decerned for;
2. repels the defenders' pleas in law;
3. finds the pursuer entitled to payment by the defender of the sum of Seventy one thousand, one hundred and fifty-eight pounds sterling (£71,158) plus interest at the rate of eight per centum per annum from the date of Decree to follow until payment;
4. fixes a hearing at Inverness Sheriff Court at 10am on Tuesday 13th October 2009 on the question of expenses.
AUTHORITIES REFERRED TO
Bolitho v City and Hackney Health Authority 1998 [AC] 232
Cavanagh v Ulster Weaving Co Ltd  AC 145
Dingley v Chief Constable of Strathclyde Police (no. 1) 1998 SC 548
Donoghue v Stevenson, 1932 SC(HL) 31
Fairchild v Glenhaven Funeral Services Ltd  1 AC 32
Gregg v Scott  2 AC 176
Hunter v Hanley 1955 SC 200
McCafferty v Secretary of State for Scotland 1990 SCLR 379
Mcginnes v Endeva Service Ltd 2006 SLT 638
McLatchie v Scottish Autism Society (Outer House, 4th February 2004, unreported)
McLeod v Aberdeen City Council (Outer House, 11th June 1999, unreported)
Morton v Wm Dixon Ltd 1909 SC 807
Muir v Glasgow Corporation 1943 SC(HL) 3
Porter v Strathclyde Regional Council 1991 SLT 446
Rigby v Wandsworth London Borough Council 2006 EWHC 224
Ruine v Roger 1996 SCLR 353
Watt v Hertfordshire County Council  2 All ER 368
Whippey v Jones  EWCA Civ 452
Whyte v Nestlé (UK) Ltd 1998 SLT 1071
Judicial Studies Board Guidelines (9th edition)
Thomson, Delictual Liability (4th edition, 2009)
Walker and Walker, Law of Evidence in Scotland (3rd edition, 2009)
(1) In this case, the pursuer seeks damages from the defenders in respect of injury arising from a series of assaults by a pupil at the special School (as they were called) where she then taught. She alleges that the injury and subsequent illness she suffered were foreseeable and that they arose from the defenders' failure to fulfil adequately the duties of care they owed her. The defenders argue that they took reasonable steps to fulfil such duties as they owed the pursuer and, in any event, that any breach of their duties could not be said to have caused the harm the pursuer suffered. Parties also differ on the extent of any loss the pursuer may have suffered.
(2) The action commenced in 2004, but was largely sisted up to June 2007. In August 2007, at the defenders' motion a proof before answer was allowed, with the defenders insisting on their preliminary pleas as to the relevancy of the pursuer's pleadings. A proof hearing was assigned for dates commencing on 15th April 2008, but was discharged on 2nd April 2008 when the Court allowed a minute of amendment for the defenders to be received and answered. A new proof hearing was then assigned for dates commencing on 30th September 2008. After further amendment, on joint motion a diet was ultimately assigned to commence on 27th October 2008.
(3) I heard evidence over 17 days between 27th October 2008 and 1st May 2009. Submissions were made on 18th and 19th June 2009, at which point I made avizandum.
(4) I repeat here the gratitude I expressed, when making avizandum, to Mr Macdonald and Mr Milligan for their fair-minded and reasonable conduct of the proof. Their approach was of enormous assistance both in taking evidence and in clarifying the issues in a complex case. I also wish to pay tribute to all witnesses who sought diligently to recall the details of events happening some seven or eight years ago.
(5) The pleadings in this action were lengthy and had clearly been subject to much amendment. Article two of Condescendence ran to ten pages and encompassed all the averments of fact as to events in 2001 and their background. Article three set out the pleadings as to fault and included nearly thirty alleged duties incumbent on the defenders, together with averments as to the impact of the incidents on the pursuer, the actions taken by the defenders, and causation. Article four made further averments as to the pursuer's injury, loss and damage.
(6) Notwithstanding the position in the pleadings, as the proof progressed there was little dispute about several aspects of the evidence: the pursuer's employment history; the nature of Drummond School and its pupils; the establishment and composition of the senior TEACCH class; the challenges presented by autistic pupils and in particular by M; the four attacks on the pursuer; the steps taken by School management in response; the effectiveness of the steps taken from October 2001; and the connection between these incidents and the pursuer's subsequent ill-health.
(7) There were significant differences between evidence given for the pursuer and for the defenders in respect of: aspects of the systems of work at Drummond School; the adequacy of steps taken by the School management both to prevent attacks such as those experienced by the pursuer, and to respond to them, prior to October 2001; the extent of any pre-existing psychiatric condition suffered by the pursuer; the diagnosis of her condition from 2002 onwards; and her career prospects.
(8) Several issues appeared contentious as evidence was being given, but subsequently were not insisted on. I make no further reference to these, except to note that they contributed both to the complex structure of the pleadings and presentation of the case, and the time required for the proof hearing. Similarly, several passages of evidence were heard under reservation in the face of objections to their relevancy. Ultimately, no attempt was made to rely on these passages. The following summary of the witnesses' evidence is concentrated on the outstanding contentious issues and on matters affecting credibility and reliability.
(9) There were additional complications as to the basis in law of the pursuer's case. The case was pled on a very wide front, encompassing both various aspects of the system of working in the School and of the steps taken by the School management. Until final submissions, it was far from clear at what point in time the defenders' duties were said to arise. The proof was heard before answer of attacks on the relevancy of several aspects of the pursuer's pleadings as set out in the defenders' Rule 22 Note (number 30 of process). Amongst these were fundamental challenges to the relevancy of all of the duties of care pled by the pursuer, in the absence of any averments of practice or circumstances from which the existence of the duties might be inferred, and to the relevancy of alleged breaches of duties of reasonable care in the absence of averments causally connecting them to injury to the pursuer.
(10) The pursuer spoke to her background and employment history before joining Drummond School in 1999, initially working two days a week. She gave an illuminating description of the professionalism and commitment required to work with the TEACCH class. She gave a detailed account of the four incidents and the response to each. Various forms were used to record incidents and it was not always clear which should be used when. After the second incident, she suggested taking expert advice but did not suggest other measures as she trusted management to act appropriately in relation to her interests and pupils' interests. She was sure the fourth incident happened before 9:15am, the normal time when pupils would arrive. She used the fire door only as a short cut into the classroom while showing her new learning support auxiliary the class facilities. But M had in fact arrived early, about 9:05-9:10am.
(11) She thought the plan agreed at the meeting on 26th September would mean that she had no direct involvement with M. But within a day or two, he arrived without warning in the leisure room at the start of the School day. She thought matters over during the subsequent weekend and then phoned Mrs MacPherson to say she could not return to work until a male support worker was in place. This was then organised within a few days. The CALM training and verification had both taken place after all the incidents. At the training, she immediately thought about M and what she could have done to defend herself.
(12) By the 2002 summer holiday, she felt a sense of dread at the thought of returning to School. She described the development of her symptoms. She had had periods in her life when she felt up and down, but had not previously had depression with the exception of post-natal depression after the birth of her first child. At other times she had felt lonely and down but had not sought treatment. The history she gave Dr Deans was influenced by how bad she felt about herself at the time. She saw herself as a normal mother and woman who had been affected by stress at some times in her life and who had dealt with it.
(13) The defenders had tried to find her an alternative job. She tried the library for one day a week but couldn't do it. She couldn't bear the thought of office work in a School, or in other education services, as she had lost trust in the Education Department. Through her part-time voluntary work in the hospice, she became interested in nursing work. But for these events, however, her intention had been to continue in teaching, which she enjoyed and was good at, and to become full-time around 2005 or 2006 as her family grew up.
(14) Under cross-examination, she accepted that pupils with severe autism can be unpredictable and violent and that the risk of triggers occurring could not be eliminated. By June 2001 the only support staff in the TEACCH class were Mrs Chisholm and a teaching assistant who came in two afternoons a week. M was always anxious and had several anxiety triggers, which it was not always possible to avoid. Information about newly identified triggers would be given to all staff working with him through ongoing discussion. The CALM training had taken place after the fourth incident with M, but in any event she had not been accredited to use the techniques until November 2001, and would not have used the restraint techniques without verification.
(15) It would be accepted procedure to handle an incident of aggression by isolating the pupil, as she did after both the first and second incidents. There was constant discussion with management about the incidents, and staff did already try to take a common approach. By 30th August she was desperate for help. Senior staff said she should call them if M became very anxious, but that was not practical as he would kick off so quickly and it was not practicable to get to the phone in time. On 19th September, her new learning support assistant had started at 9:00am that day and she had only a few minutes to familiarise her with the building before the pupils arrived. She normally welcomed pupils at the door. The buses bringing pupils to the School usually ran strictly to time. She phoned for help, as instructed, but was already being assaulted by then. Mr MacLeod was horrified by what he saw of the incident.
(16) The package of support agreed at the meeting on 26th September was put into action, but not immediately. Mrs MacPherson listened intently during the phone conversation on the subsequent Sunday evening, and said she would take the matter up straightaway with Mr MacLeod; she said nothing to suggest arrangements were already being made. In her experience, Shirley Chisholm had always managed M well. The problem of M's challenging behaviour was resolved by the arrival of the male support worker. The package of measures should have been put in place earlier, before June 2001.
(17) While she may have had depressive symptoms at other times, depression had been properly diagnosed only twice: following the birth of her first child, and in 2003. The level of depression she felt after 2001 was completely different to anything she had experienced before, when she had always been able to continue to function well, and it negatively coloured the history she gave. She had been feeling unwell, while making an effort to be professional at work, before consulting her GP in July 2002. Dr Carr's treatment taught her to relax and gave her great heart without curing her condition, but was cut short when she wrongly took umbrage at a comment about her drinking. She continued to see the Community Psychiatric Nurse and was gradually able to take baby steps forward.
(18) She had not been interested in full-time work at the time of her appointment to Drummond School. She accepted that the defenders had made considerable efforts to redeploy her. She had asked at some point if they could offer her a nursing post, but all such posts were in education services.
(19) On re-examination, she said the CALM training would have been referred to, particularly at the multi-disciplinary meeting or in incident reports, if it had been delivered by then. She would have been very wary of physically restraining a pupil without being accredited. She accepted she was no longer suitable for working with potentially violent children, whereas previously she had felt confident working closely as part of a team with such children.
(20) Shirley Chisholm (now Geddes) is aged 49 and now works as a nursing auxiliary, but previously worked at Drummond School as a classroom assistant. She was asked to work one to one with M while he was still in the primary section of the School, as he had been having a lot of problems in the classroom. M got very anxious, and would often come in anxious if he had been upset at home. When M moved to the senior TEACCH class, she then worked with the whole class. She described the June 2001 incident in detail. When she came back to work, she said she was not prepared to go back into that classroom until the safety of the staff was looked into, but nothing was done. She did go back into the class, but resigned at the end of June due to the lack of support from management or the education authority. In her resignation letter, she said that this would happen again unless something was done about it. She recalled going to some training courses, but had left by the time the CALM training started.
(21) Under cross-examination, she agreed she had moved with M from the primary to the secondary section. She had had a very good relationship with him. M went through phases of being anxious about different things. She felt let down as M was not excluded after the incident.
(22) Catherine Patience (aged 29) is now a student nurse. She worked at Drummond School as a learning support assistant between 1999 and April or May 2001, based in the other class in Ness House. One older boy in her class was violent nearly every day. One of the staff would run to get the Head Teacher. Sometimes there were so many episodes that there were not enough hours in the day to fill in incident reports.
(23) Under cross-examination, she became upset while describing being "in bits" in Mr MacLeod's office, telling him she just couldn't do the job anymore. He was sympathetic but nothing was done.
(24) Dr Peter Carr is a staff grade psychiatrist employed by Highland Health Board and now working full-time in community-based psychotherapy in Inverness. His practice now primarily relates to post-traumatic stress disorder (PTSD) and to eating disorders, having worked with PTSD patients as part of his caseload for about fifteen years. He holds an MA, an MBBS and a post-graduate diploma in acute mental health care. Having treated the pursuer as a psychotherapist, he regarded himself as a professional rather than as an independent expert witness. His evidence was based on his knowledge of the pursuer's case and on reference to her hospital records, but not her GP records.
(25) Speaking primarily to his 2008 report (no. 5/3/1 of process), Dr Carr said that, as often happens, on initial presentation the pursuer played down the trauma aspect, resulting in under-diagnosis of PTSD. The cathartic relief she experienced from off-loading distress, together with her positive response to three sessions of autogenic abreaction plus eye-movement desensitisation, pointed clearly to there being an element of trauma in the aetiology of her disorder. In hindsight, though, this was only a temporary improvement after three sessions, where eight to twelve sessions are now recommended for PTSD caused by single event trauma.
(26) The pursuer met all the criteria in the clinical definition of PTSD. In terms of intrusive thoughts, she suffered both depressive ruminations and re-experiencing, and violent nightmares which were clearly related to the trauma. She did not report vivid flashbacks, possibly as her thinking style is more verbal than pictorial. Her avoidance behaviours included social withdrawal, emotional detachment, and feeling panicky if she did see M. Hyper-arousal was evidenced by an exaggerated startle response, which (unlike many other symptoms of PTSD) was not also indicative of depression. There was also commonly a latency phase of six to twelve months between the traumatic experience and the onset of PTSD, during which the individual over-compensates and puts a brave face on things, but it might not be activated for years, as with flashbacks of childhood abuse.
(27) The pursuer's past medical and work history did not suggest severe recurrent depression. In contrast to his opinion as stated in the report, he now accepted that the pursuer's condition pre-2001 was recurrent depressive disorder rather than dysthymia. His impression was that a lack of support and protection from the School authorities had in itself contributed significantly to the development of the condition thereafter. In retrospect, his earlier report of December 2003 (number 5/1/1 of process) had been over-optimistic about the pursuer's progress.
(28) Dr Rogers had failed to consider a PTSD diagnosis in sufficient depth, relying on a simplistic flashbacks and nightmares definition. Most patients with PTSD would have a co-morbid disorder such as depression. It was not surprising that PTSD was frequently missed in diagnosis by a GP or consultant psychiatrist, as a fuller assessment would be required. Using the CAPS test, in which he had asked the pursuer to recollect how she had felt in 2003, the outcome was clear and fitted with his clinical impression. An equally formal assessment of her depressive symptoms might well have fulfilled diagnostic criteria for a severe, rather than moderate, depressive episode.
(29) Under cross-examination, he said he had taken from the pursuer a general impression of a series of assaults, with a more detailed picture of the incident when she and another female had huddled together. His principal point of difference with Dr Rogers was on the PTSD diagnosis. Dr Rogers' "phobic anxiety symptoms" did not account for the pursuer's exaggerated startle reaction or her repetitive nightmares. He also disputed Dr Rogers' dismissal of the relevance of the pursuer's positive initial response to trauma-related treatment. In relation to Dr Deans, there were various reasons why he might not have diagnosed PTSD in April 2003: as a diagnosis it was seen as a political hot potato; at that time it would have made little difference to treatment; the pursuer may have played it down; or he may simply have thought she didn't have PTSD. The pursuer was inclined to self-blame, which might explain her not coming up with the trauma history clearly on initial consultations.
(30) He had not previously known the pursuer had been on anti-depressants in 2000-2001. Seeing the GP notes might have helped him to see the pursuer as more vulnerable to relapse; but outwith forensic psychiatry it was normal practice to go on what the patient told you. His interest was more in PTSD and issues related to it than in trying to protect his patient. The CAPS test was administered more out of interest to see how the pursuer scored than to try to buttress his own conclusions, and now formed only part of the basis of his opinion.
(31) In career terms, he had started out on the route towards membership of the Royal College of Psychiatrists, but found himself at odds with the use of physical treatments such as ECT and thus trained in private practice in hypnotism and psychotherapy. He now had no wish to be a consultant psychiatrist, or to join the Royal College, and saw himself primarily as a psychotherapist. He strongly disagreed with the suggestion that he was not a qualified psychiatrist in the UK.
(32) Under re-examination, he said that the pursuer's recovery could be described only as being some time between May 2005 and July 2007.
(33) Karen Mulvey is now a social care worker at a respite centre for children with special needs. She previously worked at Drummond School as a learning support auxiliary, and spent about 6 months from October 2000 working in the pursuer's class. Her son was at that time a pupil in the class. Some time after that she recalled seeing the incident when M had the pursuer by the hair. While in the pursuer's class, she had seen M's challenging and highly strung behaviour. She was put straight into that class without any training or information about procedures for dealing with incidents. The pursuer lost confidence after the attacks. CALM training was provided, after the attacks.
(34) Under cross-examination, she confirmed that while in the class she had seen M become extremely agitated but not outright violent. It was possible the CALM training had been in June 2001. Following an incident, the system in the School then was to fill in a form and leave it for the Head teacher; she had done this many times.
(35) On re-examination, she said the CALM training was after the incident she witnessed.
(36) Walter Brennan has been a trainer and consultant in conflict management since 2000. He is qualified as a mental health nurse and has a degree in forensic studies. He has written several papers on matters related to conflict and to risk assessment, and has worked primarily with health services but also to a lesser extent with schools and social services.
(37) Mr Brennan's undated report (no. 5/2/1 of process) stated that he had examined only the initial writ, although he had in fact seen certain other documents. From the information provided to him, there was absolutely no evidence that the School addressed the hazard of violence in anything but a totally incompetent manner. Each student should have had a simple, individual risk assessment resulting in a clear set of instructions about violence. Steps taken were reactive rather than proactive or systematic. Even if the first incident had come out of the blue, any good employer would then have put systems in place to reduce the risk of recurrence. The pursuer's injuries could have been prevented or at least minimised if she had received the right training and support.
(38) His supplementary report of April 2008 (no. 5/5/1 of process) included several trenchant criticisms of Mr Allen's report. Mr Allen's emphasis on the value of concise individual assessments was ridiculous in the absence of any evidence of such assessments, in terms of which the need for a male support worker would have been indicated, at the very latest after the first assault. Incident reports would be vital in leading quickly to investigation, learning and feedback, but not when used reactively as Mr Allen suggested. He agreed with Mr Allen that "Five Steps to Risk Assessment" provided a simple risk assessment framework, but it was incredible to claim that Drummond School was following it. There was a particular need for such systems in special schools, in contrast to the traditional view espoused by Mr Allen that staff in special schools were well aware of the risks they faced. To wait until four incidents had occurred before putting reasonable measures in place was too late and absolutely unreasonable. He found it incredible that Mr Allen could suggest the occurrence of four incidents in four months was not unusual or extreme for pupils with autism. Had the School acted proactively, the pursuer would not have been attacked three more times - or at least, the likelihood of subsequent attacks would have been significantly reduced.
(39) Under cross-examination, Mr Brennan defined his expertise as being in training, conflict resolution, risk assessment and course design. He had given evidence about 15 times, twice in cases concerning special schools. He had seen no evidence of a simple risk assessment highlighting M's triggers and the interventions required. He accepted his first report had not listed the documents provided to him and could not recall what he had seen. He was not an expert on autism but had trained staff in some schools in dealing with challenging behaviour. He added to the conclusions of his first report that a training needs analysis should also have been carried out, after risk assessment. It would have been quite rare in 2001 for a School to provide CALM training for its staff, and it would be laudable evidence of proactivity if it had in fact been provided in the first half of 2001 - but unacceptable if the pursuer had not been in the first group. From the absence of any reference to CALM techniques in the incident reports and meeting notes of August to September 2001, he would infer that it was not then in place. He stood by the language he had used to describe Mr Allen's report, who was trying to defend the School's position, although he accepted his interpretation of Mr Allen's views might be wrong to some extent. He accepted that four incidents in four months might in fact occur, but four incidents against the same member of staff was not acceptable. A single incident could be a one-off, but the very unpredictability of people with autism was itself a risk factor.
(40) On re-examination, he described the School's Health and Safety Manual as another example of its inadequate approach to the hazard of violence: there was virtually nothing on violence. The CALM training was only one of several aspects that should have been looked at after the first incident.
(41) Donald MacLeod has been a teacher since 1981, and a head teacher since May 2000 when he became acting and then substantive Head Teacher at Drummond School, a post he held until 2003. The School had made good progress on all the action points identified by HMIE. Among these was action taken on health and safety. He was familiar with the concept of identifying and assessing risks. The School had also been assessed by Highland Council Education Department's quality assurance service, which provided positive feedback.
(42) Pupils who were likely to be violent or aggressive did have their own protocols for behaviour management as required by the School's Health and Safety Manual, although he could not recall if these were in place by June 2001. Prevention was part of the approach. Accident and incident forms were completed and used to build up a picture and identify triggers. He quickly became aware of the need for training in dealing with violent behaviour and approached the education authority, who recommended CALM. He would not be surprised if the pursuer had been in the first group to be trained, who were the members of staff who most required to use the techniques. He thought the first training was before the 2001 summer holiday.
(43) He had been aware of M, but not of any particular concerns, before the first incident in June 2001. Staff would try to prevent triggers, but if M did become agitated he thought there was an instruction to staff to remove other pupils. He could not remember Shirley Chisholm asking him to exclude M after the first incident, which would have raised M's anxiety levels further. It seemed that staff had acted appropriately after that and the second incident, after which he did recall a number of positive informal discussions involving the pursuer, to try to prevent recurrence. He would have expected Mrs MacPherson and the pursuer to discuss the question of a behaviour management programme. Safety of staff as well as pupils was always a concern and he would always hope to support the member of staff, not blame them. M was suspended after the third incident: a serious step, probably not taken previously for a combination of factors including that the pursuer was saying she had not been hurt. Thereafter he recalled arranging various meetings to get external advice.
(44) He recalled the pursuer phoning him for assistance during the final incident, which happened at the back of 9am. He was not aware whether staff had been using the fire door in Ness House outwith class times. He took the decision to exclude M and arranged the meeting for 26th September, after which he very quickly made the case for funding for a male support worker. Up to these incidents he thought the School had sufficient resources to deal with M, but that was reconsidered as it became clear his behaviour was "impacting". He refuted various assertions by Mr Brennan and aligned himself with Mr Allen's views about practical risk assessment procedures.
(45) Under cross-examination, Mr MacLeod agreed that the HMIE and quality assurance inspections had no particular focus on staff safety. Inevitably, there would be occasions when staff members were unable to control triggers for violence. He could not say whether behaviour management protocols were in place to manage the behaviour of M or any other potentially violent pupil as at February 2001. Although there were various forms for reporting incidents, the key thing was to get the data recorded so that it could be followed up.
(46) He expected he would have become aware of the 7th June incident very quickly. He was aware that two staff and a pupil had been hit and that the incident form referred to a previous incident. He could not recall if any steps were taken after this incident. The view was that it wasn't personal and it was part of M's condition. He would have expected Mrs MacPherson and the staff to look at ways to ensure it wouldn't happen again, but did not know if such discussions took place. The incident may have had at least a part in Shirley Chisholm's decision to leave. In respect of the 30th August incident, he recalled meeting with the pursuer and Mrs MacPherson, and that advice was to be taken and a behaviour management programme to be drawn up. Again, the facts that it wasn't personalised and that there wasn't hurt to the member of staff were considerations. He accepted the key focus would have been on prevention of further incidents rather than what to do if another incident did occur. He accepted that as of 6th September, he was still in the course of arranging discussions with external professionals. He accepted that M could have been suspended after the 30th August incident rather than after the subsequent one.
(47) In relation to the final incident, it would be acceptable to use the Ness House fire door if M and other pupils weren't there at the time. He was shocked by what he saw of the incident. He accepted, with some initial reluctance, that it was only after this incident that the focus switched to protecting staff in the expectation there might be further violence. Following the meeting of 26th September, he accepted that the pursuer would have expected the provision of pagers and a male support worker at the time of M's return to School. With hindsight, he accepted that it was likely the subsequent incidents would not have happened if such supports had been put in place after the first incident. He accepted that the incident reports should have alerted management to the risk to staff such as the pursuer and should have informed planning to control risks. The available documents didn't reflect the extent of discussions at the time. There was a concern and care for the pupil and staff. He thought the pursuer's class would have had two or three auxiliaries, both when he arrived at the School and at the time of these incidents. Incident report forms would be read and discussed to work out what action to take. Hair-pulling was a situation covered in the CALM training, and he was aware of that when he witnessed part of the 19th September incident.
(48) On re-examination, he said he would expect there were other relevant documents besides those available to the Court. Despite not having worked in a special School before, he believed he was able to fulfil the duties required of him at Drummond School. There were no significant concerns about M's behaviour as at February 2001, so he would not be surprised if there had been no behaviour management programme for him at that time. He could not recall when the suggestion was first made that a male worker should be deployed with M. Staff safety was an issue at all times. In the situation at the time his decisions and actions were reasonable. If he had known these incidents were going to occur, he would have acted differently.
(49) Eileen MacPherson, now retired, taught at various schools before becoming the Assistant Head Teacher of Drummond School in 1981, and subsequently Depute Head Teacher. Violent incidents did occur, particularly with children with autism; but the risk could not be eliminated as the children had a right to education. She was hands-on and would read monitoring forms to look for patterns of behaviour.
(50) The pursuer said several times that she felt two days a week was enough; but she did go up to three days a week in 2001. The pursuer was in the first cohort of CALM training, in either the summer term or early autumn term of 2001. The pursuer would have had to re-apply if seeking a full-time post, and her medical history would have been referred to personnel as an issue.
(51) She had made a case for extra support for M in 1999 and Shirley Chisholm was appointed. A person with autism would not get better, just better managed, and there was always the possibility of an unsettled period and of aggression. M was one of six or so pupils at the more severe end of the autistic spectrum, for whom the TEACCH class was set up. The incidence of violence was less after the class was set up. Staff were aware of M's triggers, especially Shirley Chisholm. Strategies were not written down, but she thought she had suggested that, if he became agitated, someone plus an auxiliary should stay with him while another auxiliary should get the other boys out of the way. There were two if not three auxiliaries in the class at June 2001. With reference to the June 2001 incident, she was "surprised Mrs Chisholm had got involved in this, she had known the boy for over two years". She was relieved when Mrs Chisholm left: she was becoming quite difficult, and her reaction was excessive. She thought the pursuer had not been distressed after the incident. During a later chapter of evidence, she said she thought Mrs Chisholm had managed M well though she could be a little strident with him at times.
(52) After the 30th August incident, the pursuer suggested bringing in other professionals, quite an obvious suggestion really. Staff safety would always be a concern in a general way, but the pursuer had not expressed concerns about her safety then. A behaviour management programme for M was discussed and she drew up a document which went into his file on 1st October. His behaviour didn't warrant exclusion at that point. Violence or aggression was a feature of the School culture.
(53) The School accepted all the advice they then received from outside professionals. In relation to the fourth incident, when asked if it would be unusual for M to be in the classroom before 9:15am, she initially said yes but then said no, it would not. It would be a standing order not to use the fire door unless the children were off the premises. The decision at the meeting of 26th September to seek out a male support worker reflected what the School had done for other boys, which had been successful. Although her note of the meeting referred to exploring the possibility of male support, she was fairly sure by the end of the meeting that they would get someone. She recalled the pursuer's concern about M turning up in Ness House the following day, but thought she must have sanctioned that as part of his return to School.
(54) The package of support worked fairly well. M improved very much. The pursuer seemed to have put it behind her. It was mischievous and professionally quite a slur to suggest she had not been supportive of the pursuer during these events. She agreed with Mr Allen's conclusions. She couldn't say for sure that these events would not have happened if the support available by October 2001 had been in place before June. She regarded the School's actions at the time as reasonable.
(55) Under cross-examination, Mrs MacPherson agreed that the HMIE and quality assurance inspections were not focused on the protection of staff from violence. She had day-to-day oversight of health and safety as described in the Manual. She would read incident forms, and follow up on acts of violence by speaking to the teacher, probably going to the classroom, and seeing how things were. Nobody would disagree that there was a duty to avoid undue risk of violence, but you had to be aware it was a possibility. The pursuer's comment about two days a week being enough for her was probably made in 2000. Had the pursuer applied for a full-time post, the medical form would have raised questions although she couldn't say if it would have been a barrier. The pursuer referred to being stressed about various things when they spoke in August 2002, but she did not link that with work as the pursuer generally presented as buoyant and happy. Nobody would deny that the job was stressful.
(56) M had had a series of incidents earlier, in March 1999. He was a very anxious and excitable boy. The teacher - who was very inclined to say things she wasn't happy with - and rightly so - flagged it up very quickly and it was dealt with. He had been kept at home for a while until Mrs Chisholm started, after which he calmed down. People would have known they could flag concerns up to her. There was an older boy in the class who had a male support worker, but she could not recall if he was still there by June 2001. She recalled a risk assessment being done for another boy in M's class as he was running away out of School, but not for any other pupil at that time. There was no written strategy for M at June 2001, but staff were aware of his triggers and, with very small classes, knew their pupils and communicated well with each other.
(57) On the 7th June incident, there was always a risk of M hitting people due to his condition. It was exceptional for him at that point, but she did not think it would be part of a major degeneration. "He didn't do it to me and not to many other teachers." She thought it was possibly due to bad management by Shirley Chisholm: she was not to blame, but she should have seen it coming. She could not say for sure that Shirley Chisholm had said M should be excluded. Shirley Chisholm said quite a lot of things. That incident was one of several things she referred to in her resignation letter. No additional measures to protect staff were brought in at that point as it might never have happened again.
(58) After the 30th August incident, she accepted it could no longer be said the June incident was a one-off, although these incidents could not have been foreseen. She couldn't imagine what more could have been done. The pursuer should have realised this was not a good time to respond to another teacher who required to talk to her, although she was not saying that the pursuer was responsible for the situation coming about. There was a protocol written about what to do, and that was followed. Theoretically, having more staff present might have helped, but there were already four people for 5 children. It was not the culture of the School to provide alarms or two-way radios.
(59) In relation to the fourth incident, she questioned why the pursuer was showing her new auxiliary round at a time when she was expecting pupils in her class, although she was not prepared to say it was a misjudgement. The measures agreed at the meeting on 26th September were both preventive and responsive to an incident actually happening. But the male support worker was provided to help M during puberty rather than for protection; there was no saying it would not happen again, even with a male in the class. In fact, there were no further incidents, "but there hadn't been after Shirley Chisholm had been put in place two years before: he went into another phase". She had no idea where the pursuer got the idea that M would not be coming to registration with her when he came back to School: she should have known. The pursuer may well have phoned her at home at the weekend following this.
(60) The form for the first incident did alert senior staff to the risk of M injuring staff. The culture of the School was that they were always alert to risks and triggers. She disagreed that it had not resulted in action to protect staff. It might have been a one-off. It was only when a pattern emerged that they were forced to do something forceful. Short of excluding M, she could not prevent him from hitting people. One unexceptional incident would not necessarily make him high-risk. The previous phase had been dealt with appropriately and he had settled. She accepted that, if the subsequent package of measures had been implemented in June, the later incidents would probably not have occurred.
(61) On re-examination, Mrs MacPherson thought the incident in May 2001 involved M running out of the School security gate, not violence or aggression. She felt the School was a model of good practice.
(62) Dr Timothy Rogers is a consultant psychiatrist based at Herdmanflat Hospital, Haddington. He has held that post since 1993. His qualifications are MB ChB and MPhil and he has been a member of the Royal College of Psychiatrists since 1988, and a Fellow since 2004. He works in general adult psychiatry, and has considerable medico-legal experience. He said the view of the Royal College was that it was the only UK body that could declare an individual to be a psychiatrist; membership of the College was the minimum requirement to be called a qualified psychiatrist. Otherwise, a doctor could work in psychiatry, but not as a psychiatrist. During twenty-three years in psychiatry, he had seen many patients with PTSD and believed it existed. But most psychiatrists believed it had been over-diagnosed and had become a catch-all for psychological reactions to trauma or loss.
(63) When he saw the pursuer, he used open questions to allow the narrative to unfold in the patient's own words. She struck him as very open and honest. The symptoms she described as having experienced seemed typical of depression; they could occur in PTSD but were not the core part of it. Significantly, intrusive recollections did not seem to be a feature. Her anxiety on occasionally catching sight of M could be consistent either with depressive illness with phobic anxiety symptoms, or with PTSD.
(64) His report included detailed references to GP records as they provided a contemporaneous and accurate history of someone's health. The symptoms mentioned in the GP referral letter of December 2002 to psychiatric services were core symptoms of depression, such as lack of motivation and diurnal variation of mood. Dr Deans was the first psychiatrist to see her, in April 2003. He took a good history and his diagnosis was entirely consistent with everything in his letter. In contrast, it was a non-sequitur for Dr Carr to rely for diagnosis on the pursuer's response to treatments as they were not diagnosis-specific; indeed, there was no treatment that would work only on PTSD. That link would be further weakened if there was only a limited recovery and the treatment itself was limited in scope. As for Dr Carr's reference to the pursuer's perception of lack of support, that might be symptomatic of a distorted view of reality rather than reflecting reality, so no conclusion could be reached on the patient's view alone.
(65) He had not previously seen the electronic records from the GP (no. 6/6/2 of process), which clarified the prescribing history of anti-depressants. The note from 10th July 2002 suggested the GP had made a diagnosis of recurrence of depressive symptoms. The waxing and waning of her condition evident from subsequent consultations was very typical of a depressive disorder, but not of PTSD which usually became fully formed within weeks and would then diminish and resolve.
(66) Whatever the impact of her condition on the history she gave at the time, diagnosis should not be retrospectively reviewed. The record in the GP notes from 1991 and then 2000 onwards was very clear. Even without a history of recurrent depression, a diagnosis of PTSD would still be problematic as the symptoms didn't exactly fit and due to the time delay between the incidents and the onset of major symptoms. The core syndrome for PTSD was intrusive recollections, hyper-vigilance, a state of autonomic arousal and, crucially, a state of depersonalisation as if not quite here in the present. Also, it was rare for it to emerge more than six months after trauma. The pursuer's nightmares were more typical of those that patients with depression would get.
(67) Dr Carr's description of his position as sympathetic to the pursuer was fair comment. But not having seen the GP records, his conclusions would be invalid. In psychiatry, in the absence of biological data, that record would be particularly important. In December 2003, Dr Carr had diagnosed recurrent moderate depression and only mentioned PTSD in passing. His first reference to PTSD, in 2003 case notes, was to "an element of PTSD to her presentation". But a single symptom could not found a diagnosis. He seemed to have concluded it was PTSD when the pursuer responded well to the three treatment sessions. Alcohol dependency should not be used as evidence of PTSD. He seemed to have made the diagnosis by looking back and trying to make the symptoms fit the pattern for PTSD.
(68) He was familiar with the CAPS test, which had to be used with great caution as it was designed to maximise identification of PTSD. The checklist approach could create the diagnosis rather than reflecting the reality. He would not use it at all in a medico-legal context. For example, in the CAPS test the pursuer had selected the maximum scores for intrusive recollections - something she had mentioned to Dr Carr but to no other doctor. Many other test items with high scores were consistent with alternative diagnoses. Dr Carr's conclusion thereafter was a departure from the diagnosis he made at the time. The pursuer's symptoms fitted with a moderate depressive episode: a severe episode would require hospitalisation or intensive treatment at home.
(69) Under cross-examination, Dr Rogers accepted he had no particular interest in PTSD. While a doctor could concentrate on a particular area of interest, it would be difficult to establish expertise because of the potential for syndrome overlap. Having seen the pursuer only once to prepare his report, it was possible something important could be missed. There was no question that the episode from 2002 was the most severe and disabling episode the pursuer ever encountered. He accepted there was nothing after 1991 in the GP records to support the GP's 2000 note "severe depressive illness for several years which T has ignored". That may have been an example of the pursuer blackening her history when depressed. That may also have happened to some extent when she saw Dr Deans. The symptoms described by the GP when referring to psychiatric services in December 2002 were at the severe end of moderate. He accepted that the question of support after suffering trauma at work was important.
(70) He accepted that the pursuer had been placed in a threatening and stressful situation, following which her mental health clearly deteriorated. The time course and order of symptom onset were crucial: the mood change came first, strongly implying development of the depressive disorder. Other things would then be secondary. A number of PTSD symptoms were present, but not detachment (in its clinical sense of depersonalisation), and the latency period of eight to nine months would have been unusually long. Nevertheless, he accepted that PTSD was a possible diagnosis, but in his view not the most likely one.
(71) He accepted that the incidents of violence at work in 2001 were likely to have triggered the pursuer's illness from 2002 onwards. He agreed that it would be inadvisable to return to the same type of work situation. He conceded that Dr Carr's opinion was questionable rather than completely invalidated by not having seen the GP notes. A small body of opinion existed that PTSD was under-diagnosed, but held exclusively by those who practise only in PTSD. Dr Carr had failed to take account of the chronology and sequence of symptoms. His earlier report, in which he noted that lowering of mood came first, was more consistent with the GP records and Dr Deans.
(72) In response to judicial questions, Dr Rogers said that recurrent episodes of depression were often triggered by stresses. The 2002 episode was the most serious and the assaults were the obvious trigger. The timescale was important as adverse life events could trigger depressive episodes up to twelve to eighteen months later. Depression with secondary phobic anxiety was a common diagnosis. But nothing here absolutely ruled out either PTSD or depression.
(73) On re-examination, he said that in the GP notes, it was the use of the word "severe" rather than the reference to depression that he disagreed with. He had received training in PTSD and had seen patients with it throughout the last twenty years. He was not aware of Dr Carr as a specialist in it, or of any publications by him.
(74) Elizabeth Taylor, now retired, formerly worked in education for the defenders. Specifically, during 1999-2001 she was seconded from a learning support teaching post to work as a development officer for special needs. She spoke to the defenders' decision in 2000 to plan the provision of CALM training throughout their schools and the training of teachers as instructors. Early in 2001, she attended an in-service training day to train all staff at Drummond School in the theory behind CALM. By reference to extracts from her diary (number 6/5/1 of process), she confirmed being present at the first training session in the physical intervention techniques, which was delivered in Drummond School during the week beginning 18th June 2001. After CALM training, but prior to verification, individuals were entitled to use the escape techniques but not the physical intervention techniques. She could not, however, say what an individual such as the pursuer could have done in a specific situation. The CALM verification report of November 2001, covering the pursuer and others from the group trained in June, tied in with her recollection.
(75) Under cross-examination, she could not disagree with the possibility that the pursuer had been trained later than June, although she thought it likely that she would have been verified in the group she had trained with.
(76) Bernard Allen is an educational consultant and trainer. He has sixteen years' previous experience as a head or deputy head teacher of special schools for children with challenging behaviour. He had a particular interest in autism. He had previously acted as an expert witness once, and had advised government and written national guidance. He was instructed on behalf of the defenders to offer a professional opinion on the systems in place at Drummond School in 2001, and was provided with various papers, including Mr Brennan's principal report. His report formed number 6/2/1 of process. In broad terms, he disagreed that the assaults were caused by the negligence of the defenders. The sequence only became such in hindsight. You could predict that one or other of the pupils might be violent, but not which one. No-one could have predicted which of hundreds of similar incidents occurring in special schools that day would be followed by a second or third incident: that was statistics. Having four incidents in four months was by no means unusual. What you did was look for patterns and identify what you could do to prevent recurrence.
(77) Given the history of the previous head teacher, he considered it inconceivable that HMIE would not have highlighted any lack of risk assessment systems. In his experience concise individual pupil assessments by classroom staff, based on "Five Steps to Risk Assessment", were more valuable than formal corporate documents. The systems at Drummond School reflected this basic process, if not its jargon. Research from 2001 showed that special schools were disproportionately affected by incidents of violence. Challenging behaviour was the most common reason for referring pupils to such schools. The level of reported incidents at the School seemed quite low.
(78) Risk of injury could be reduced, although not eliminated. Such guidance as was available in 2001 encouraged the use of primary strategies designed to prevent problems arising in the first place, and secondary strategies to prevent an unsettled youngster escalating further. Here, staff had identified triggers for M and agreed primary strategies. Secondary strategies included guiding the pupil to a safe place, clearing the room, or leaving the pupil alone until calm. The TEACCH approach was itself relevant and individualised. Staff training was ongoing at the School. The CALM training - which did deal with risk assessment - would have been planned well in advance. The School responded to M's behaviour by identifying new triggers and devising new strategies, with a significant package of support which was effective in resolving the issues.
(79) He considered Mr Brennan's second report (number 5/5/1 of process) contained many repeated assertions, but no evidence. No one incident would disclose anything about risk management (unless no risk management had been done), as health and safety was about risk populations. Any School like Drummond was bound to have serious incidents at times. He himself had been assaulted and injured many times. Training could reduce risk but not eliminate it. A lot of changes were in fact being implemented during 2000-2001 to improve risk management. Only someone unfamiliar with special School environments would think that the pursuer would not have been attacked four times if the right procedures had been in place. Autistic youngsters do exhibit extreme behaviour; in that context, M's behaviour was normal. No-one would dispute that the incidents were unacceptable, but it was a large jump to say that injury could be prevented, or that it was negligence if someone was injured.
(80) With reference to the pursuer's pleadings, he agreed with almost all the suggested duties of the defenders, apart from the duty to record systems in formal policy guidelines. The School had fulfilled these duties. Documentation was adequate, if not ideal (though he did not think any inadequacies in forms had played any part here). They were at the forefront in providing good, formalised training. It would have been unreasonable to exclude M after the first incident as that should be the last resort, not the default response.
(81) Under cross-examination, Mr Allen confirmed that he had seen no detailed information on M's previous behaviour. On the HMIE inspection, he accepted that the starting point would have been child protection rather than staff protection. He had not seen any assessments or programmes for M for a period prior to June 2001, but assumed there would have been comprehensive reports for annual reviews and other working documents, all of which would be available to staff such as the pursuer. The report form for the first incident showed it was serious, but could have been caused by a whole range of things. It was very hard to spot patterns from one incident unless there was something glaring. He presumed that a behaviour management programme for M would have been extant by 30th August. Strategies should include primary and secondary measures, then emergency measures in case a pupil or teacher was attacked. Then immediately afterwards, you would look to see how to prevent it happening again, with the exact measures depending on the circumstances of the case. He did not accept that the strategies put in place after the final incident should have been brought in much earlier. He accepted that repeated attacks by one pupil, or repeated attacks on one teacher, showed a higher risk.
(82) On health and safety documentation, he inferred from the HMIE inspection report that there would have been documents at the time which included risk assessments of M. He had seen only some of these documents. In terms of the "Five Steps" approach, there was no reason to suggest that the process of looking for hazards would have been missed in respect of M, although there was no documentary evidence of that before June 2001. It would have been clear who might be harmed. He would not be over-critical of the timescale here for evaluating risks and precautions. He disagreed with the contention that measures to protect staff were only introduced after the final incident: a comprehensive training programme in CALM was already in place, as a result of proactive and early action by the defenders. Installation of emergency alarms or pagers was a possible response to the hazards rather than a duty as such. Nor did he accept any duty to provide a male support worker: the duty was to provide appropriate support, which might not mean a male person.
(83) In response to judicial questions, Mr Allen said that he had not previously seen the School Health and Safety Manual. The fact that there had been a male support worker in the class until a few months before these incidents was a factor that he would have expected the School to think about, as any change could have caused the problem. The location of the classroom would be a factor to be taken into account in risk assessment. On reflection, it had not been appropriate to say that "health and safety is about statistics": he had meant it was about assessing the probability of risk at a population level.
(84) Mr Macdonald acknowledged that the pursuer had to establish: that she was owed duties of care by the defenders; that these duties of care were breached; that the breach caused the pursuer to suffer the injuries complained of; and that the losses claimed were a natural and direct consequence of the injuries caused by the breach of duty of care.
(85) The defenders, as the pursuer's employers, owed her duties of care as averred. While these primarily related to the duty to devise, maintain and enforce a safe system of work, the general principle that the defenders should take reasonable care to avoid acts or omissions that they could reasonably foresee would be likely to result in injury to the pursuer also applied (Donoghue v Stevenson, at p.44). All the specific duties pled thereafter flowed from these general duties; this included those relating to risk assessment and management, that simply being a means of fulfilling the general duties. In considering the nature of the defenders' duties, a high degree of care was required when dealing with potentially difficult and dangerous children, as noted in McLatchie v Scottish Autism Society. The judgement in Rigby v Wandsworth London Borough Council did not assist as it lacked any real legal analysis.
(86) The defenders were in breach of the duties of care they owed to the pursuer. The duty to assess the risk of pupils injuring staff was accepted, but was not properly carried out until after the fourth incident. They clearly knew that there was a foreseeable risk to staff from violence by M and other autistic pupils, but failed to carry out any significant evaluation of this risk, or of the adequacy of existing precautions, before the June 2001 incident. The defenders had produced no evidence of any such risk assessment. He criticised the defenders not for attending to prevention of incidents, but for accepting that incidents would still occur and failing to focus properly on who might be hurt, how, and whether existing precautions were adequate in relation to M until after the final incident. There were no written behaviour management protocols for M prior to these incidents, despite the terms of the School Health and Safety Manual. The pursuers had also failed properly to review their risk assessment following the first and subsequent assaults. Mr Allen accepted that the defenders owed all these duties to the pursuer; but his contention that they were fulfilled after June 2001 by the use of the incident report forms should be rejected, as they indicated no structured assessment.
(87) The defenders were also in breach of their duties - most of which, again, Mr Allen had accepted as applicable - in relation to maintaining a safe system of work. Several different reporting forms were in use and there was no proper system for monitoring or reviewing them, or for ensuring they were completed. Measures to prevent recurrence of incidents were neither recorded nor implemented. Proper and effective action to review M thoroughly, to discuss strategies with staff, to record and disseminate them and ensure staff followed them, should have been taken after the first incident but in fact was taken only after the final incident, by which time the pursuer had suffered injury and damage. The defenders had failed to provide timeous training or guidance on dealing with violence. The failure to provide even basic guidance was an obvious folly in the circumstances. He accepted, however, that a number of the duties averred - to provide an emergency pager or alarm, to provide emergency physical restraint, and to make a male one to one support worker available - were better treated as illustrations of the steps the defenders could and should have taken in fulfilment of other duties, rather than as forming distinct duties in themselves. The basic point that a reasonable employer should have noted was that the two members of staff present were not able to prevent one big boy from assaulting them. He conceded that the evidence did not support the averred breach of duties to seek expert advice on autism or to provide psychological first aid for the pursuer. The defenders were, however, in breach of their duties to monitor M and ascertain whether the School could safely deal with his behaviour, and to follow expert advice regarding temporary exclusion prior to the final incident.
(88) Put another way, it was reasonably foreseeable in June 2001 that M would go through another unsettled and violent phase. Yet no measures were in place to protect staff, and the defenders were at fault in treating the June 2001 incident as a one-off. Even if they were not considered to be negligent before then, they clearly failed in their duties from that point until a full range of measures to control M's behaviour and protect the pursuer was implemented after the 19th September incident.
(89) Causation:- his position was simple. The pursuer suffered injury because insufficient measures were taken by the defenders. There were no further violent incidents after the measures agreed on 26th September were implemented.
(90) However the pursuer's illness might be characterised, it was reasonably foreseeable that she would suffer injury of some kind if the defenders were in breach of their duties of care. In considering the evidence of the two medical witnesses, Dr Rogers' position in the medical hierarchy did not make his view right. Dr Carr had more contact with the pursuer and saw her while unwell. It could be inferred that Dr Rogers had a bias against diagnosis of PTSD. In any event, the issue really only affected quantum and not liability.
(91) Quantum:- the pursuer's psychiatric symptoms began about August 2002 and continued to at least mid 2005. Assuming the diagnosis of PTSD was accepted, she would fall into the "moderate" range (£5,250 to £14,825) in the Judicial Studies Board Guidelines: 9th edition, Appendix D Chapter 3, paragraph (B)(c). Within that range, he assessed solatium at £12,500 by reference to Whyte v Nestlé (UK) Ltd, Ruine v Roger, and McCafferty v Secretary of State for Scotland. Alternatively, if Dr Rogers' diagnosis was accepted then the appropriate figure would be £10,000. The whole award of solatium should be attributed to the past, with interest payable at 4% from 1st August 2002 to 1st August 2005, and from then to date at 8%.
(92) Loss of earnings would commence at August 2002 if it was established that the pursuer was prompted to drop her extra day per week on grounds of health. She would be entitled to future as well as past earnings loss, or at least a lump sum in compensation for disadvantage on the labour market, bearing in mind that she would if possible have been working full-time as a teacher by 2005 or 2006. Even if her decision not to return to teaching was not caused by the defenders' negligence, she would still be entitled to loss of earnings up to her return to paid employment in January 2006. Interest on earnings loss should be awarded at 4% for continuing loss, or 8% from the cut-off date if entitled only to past loss.
(93) Mr Milligan said the defenders should be assoilzied because their response to the period of change in M's behaviour, and that of their employees, was within the range of responses available to them as a reasonable education authority. By way of introductory observations, he noted the nature of the Drummond School, the effects of the passage of time on the evidence, the personal position of Mr MacLeod and Mrs MacPherson, and the complex and changing picture regarding what negligence by the defenders, and at what point, the pursuer was seeking to prove. The pursuer had not asked the court to look at four discrete, independent incidents; he accepted, however, that there were some averments about duties incumbent on the defenders between the first and second incidents and that the pursuer had averred that the duty to review the risk assessment arose after each of the incidents. Rigby v Wandsworth, in which Mr Allen had given evidence which was relied upon by the court, was pertinent in factual if not in legal terms.
(94) Formally, Mr Milligan maintained his fundamental objection to the relevancy of the averments as to duties of care on the basis that there were no averments rooting them in usual practice elsewhere. This was, however, no longer a live issue as the pursuer accepted that the absence of such averments meant the higher "obvious folly" test had to be met. He further accepted that some duties were in effect sub-sets of others, or even examples of practical measures that could have been taken, and that the duties could be grouped.
(95) He accepted that the defenders' duties fell vicariously on Mr MacLeod and Mrs MacPherson as the relevant members of the School's senior management team. The defenders were unaware of the pursuer's psychiatric history and thus owed no greater duty to her than to other employees. Of the factors required to establish a breach of a duty of care by the defenders, two were problematic here. Firstly, the question of whether the reasonable and probable consequence of the defenders' acts or omissions was harm to the pursuer was particularly pertinent before the first incident: Muir v Glasgow Corporation at p.8, and Whippey v Jones. On the evidence, the reasonable person would not at that point have foreseen a sufficient probability of injury to anticipate it. That argument weakened after each subsequent incident; but the next difficulty for the pursuer was demonstrating that the defenders' conduct had fallen below the standard of an ordinarily competent head or depute head teacher in special education. Blame would only attach if no reasonable person in their position would have acted as they did: Hunter v Hanley. Evidence of usual practice in the profession would normally be significant - Bolitho v City and Hackney Health Authority - but had not been led here, so that the pursuer had to meet the "obvious folly" test: Morton v Wm Dixon Ltd. The actual standard of care required should be determined through a process of balancing various factors as described by Professor Thomson in Delictual Liability (4th edition, 2009) at paragraph 5.9 on p.128. In relation to these factors, there were difficulties for the pursuer on the probability of injury to the pursuer: the foreseeable risk would have been limited to minor physical injury; and it was notable that both the pursuer and Mrs Chisholm stated they were shocked by the first incident. Other factors were also problematic for the pursuer, in particular: the utility of the activity being undertaken, that is the provision of education to children with special needs (Watt v Hertfordshire County Council); the practicality and cost of precautions; and the practice of other persons in the same profession. While the subsequent history of events could legitimately be considered (Mcginnes v Endeva Service Ltd), the pursuer's assumption that the incidents stopped as a result of the measures implemented after the fourth assault was not supported by other evidence.
(96) Causation:- legal causation was not in issue but factual causation was. The onus was on the pursuer to show that, but for the defenders' conduct or omissions, she would not have suffered the same harm: Dingley v Chief Constable of Strathclyde Police (no. 1), and Mcginnes. Liability would arise not for the consequences of incidents as such, but for the consequences of any breach of a duty of reasonable care. If it was considered that the defenders were at fault in relation to some but not all of the incidents, the court would still have to consider whether the pursuer's condition flowed naturally and directly from those incidents.
(97) In relation to particular duties as averred, risks were being assessed and reviewed regularly in various ways. Systems for recording incidents were in place, and there was little in the pleadings to justify an attack on this issue. Strategies and policies were in place and known to staff. There was no real evidence of any fault in relation to consistency of approach. Training was being provided but could only reduce, not prevent, injury. The alleged duties to fit alarms and to provide emergency physical restraint were wholly lacking in specification and would have been impractical. On all these matters, and on the alleged duty to provide a male support worker, it was hard to see how the pursuer could satisfy the "but for" test. The pleadings averred that the male support worker should have been in place prior to the first incident, although there was no evidence that anyone including the pursuer had thought that at that time. Even if provided, it was questionable where this would have prevented the third incident, which happened outwith the classroom, or the fourth which occurred before the School start time. The power to exclude M from the School was very limited in duration, unless he had been permanently excluded.
(98) Quantum:- solatium for physical injury alone should be assessed at £250 per incident in respect of which the defenders were liable, plus interest at 8%. If the defenders were found to be responsible for the pursuer's psychiatric injury, he accepted the pursuer's proposed figures as reasonable and as inclusive of physical injury. The options had come down to depression alone, or depression plus PTSD. Dr Rogers' evidence and opinion should be preferred: he was a skilled witness, with broad experience, and had considered all the medical records including those from the pursuer's GP. Dr Carr could not be considered to be a skilled witness (Walker and Walker on Evidence, paragraph 16.3), so that his evidence had to be treated with some caution.
(99) Quantification of the loss of earnings claim, and specifically the assertion that the pursuer intended to increase her hours to full-time at some point, had been provided only after the start of the proof. There were too many imponderables in the way of a clear finding to the effect that she would have been able to do so. She was fit to return to work from around 2005. She was offered various alternative posts with the defenders, but declined them as by that time she wished to re-train as a nurse. The averment that she was unable to work for the defenders had not been proved. Any losses incurred after refusal of a reasonable offer of alternative employment would not be the responsibility of the defenders.
Further Submissions in Reply
(100) On the issue of breach of duties in relation to the four incidents, Mr Macdonald affirmed that the pursuer's case was that the defenders should have taken measures to protect the pursuer prior to the first incident. But after that and each subsequent incident, the foreseeability of further harm increased, yet the defenders were always at least one step behind where they should have been. There were averments about the need for further risk assessment and consideration after the "incidents" (plural). Even if the defenders were not liable in respect of the first incident, its occurrence would have allowed them to take steps to identify hazards and implement required measures. At the fourth incident, while the pursuer opening the fire door was the immediate cause, the true cause was the lack of measures to deal with M, even though it was foreseeable there would be an incident involving M in the classroom. He conceded he would have no case if the defenders were not liable in respect of the fourth and most traumatic incident.
(101) In terms of causation, it was clear from the pursuer's evidence that she was becoming more affected by the incidents from one to the next: they had to be considered in combination. The "but for" test was met: only after the fourth incident was there a proper assessment of risk and of both primary and secondary measures required. M's behaviour required to be managed, and it could be inferred from the cessation of the attacks that the measures introduced after a proper risk assessment had resolved the situation. It would have been obvious to the reasonable person in the position of the School managers that further incidents would occur if no measures were taken.
(102) On loss of earnings, an important element of the pursuer's case was Dr Carr's evidence that she would have been unable to return to a similar post. While the pursuer had a duty to mitigate her loss, it was for the defenders to show whether loss of earnings would have been reduced or eliminated if the pursuer had accepted any of the alternative posts offered by them; but they had led no evidence to this effect. The court could also make an award for disadvantage in the labour market if Dr Carr's evidence on increased susceptibility was accepted.
(103) Briefly, in response to that last point Mr Milligan said that on Dr Rogers' evidence, any future recurrence of depression would not be attributable to these incidents. The only duty on the pursuer was to act reasonably rather than to mitigate her loss as such.
(104) I consider that the principal issues to be determined in this case are:
§ the incidents: what were the circumstances which gave rise to this action?
§ what injury did the pursuer suffer?
§ what duties of care did the defenders owe to the pursuer?
§ were the defenders in breach of their duties of care?
§ causation: did any breach of a duty of care cause or materially contribute to the pursuer's injury?
§ quantum: if so, for what losses is the pursuer entitled to reparation from the defenders?
(105) The pursuer's evidence was central to most chapters of her case. She gave her evidence in a dignified and conscientious manner, despite the evident emotional strain involved. She frequently expressed apologies for not being able to recall fine details of incidents from several years ago. She carefully considered all questions put to her and gave fair-minded responses. If anything, at times she was almost self-deprecatory. I found her to be credible and, with some specific exceptions noted below which did not reflect on the rest of her evidence, wholly reliable.
(106) The evidence given by Mrs Chisholm and Mrs Mulvey was also credible and straightforward, and was consistent with the pursuer's evidence on the incidents they observed. I did not, however, place any reliance on the evidence of Miss Patience, which was given in highly coloured terms and accompanied by a surprising degree of emotion. Miss Taylor's evidence was both credible and reliable within its brief compass.
(107) Mr MacLeod presented as a genuine and thoughtful witness, whose recall was significantly affected both by the passage of time and by the managerial nature of his role. His evidence was frequently expressed in terms of his expectations or assumptions as to what would have happened. He had some difficulty in giving a straightforward answer to closed questions. For these reasons, while he presented as credible I cannot place reliance on his evidence where it conflicted with that of other witnesses.
(108) Mrs MacPherson was a forthright witness. She apparently felt it incumbent on her to justify the actions taken at the time, often at the expense of logic or clarity. Her evidence was frequently defensive and, at times, tetchy. It was also self-contradictory at points. Despite her protestations to the contrary, several passages of her evidence clearly imputed blame for events to others, particularly the pursuer and Shirley Chisholm, and could only be described as catty. Her insistence that the male support worker was not introduced for safety reasons was wholly at odds with the note of the meeting that she herself had taken contemporaneously. I did not find her particularly credible and have relied on her evidence only where it is consonant with that given by other witnesses.
(109) I have to say that I found no real assistance in Mr Brennan's evidence, and only limited assistance in Mr Allen's. Mr Brennan's views were dogmatic and forcefully expressed, yet built on very shallow foundations in view of the limits both of his own expertise and of the material available to him. The shoddy presentation of his reports, the outspoken and ill-informed nature of his attacks on Mr Allen, and his cloyingly deferential manner in court all singularly failed to inspire confidence. While Mr Allen was undoubtedly a more credible, if rather long-winded, witness, his evidence was based entirely on a review of the pleadings and several of the productions. He did not have the opportunity of hearing the evidence given by the witnesses present at the time, and in particular the evidence demonstrating the divergence between the actual staffing level in the pursuer's class and the level as believed to exist by Mr MacLeod and Mrs MacPherson. That is of particular significance in this case. Thus, while I accept the force in his general comments that one incident was not a trend and that no-one could predict whether such an incident would be repeated, I also have to take into account his statement that incidents should be monitored by senior staff "to check there wasn't some glaring error that could be addressed immediately". I further have to bear in mind both his tendency to fill in the many gaps in documentary evidence with positive assumptions as to how M's risks were managed, and the caveats he offered with respect to the general thrust of his evidence. I find his evidence of value on the broad picture of systems at Drummond School (findings 11, 12, 16 and 22), and on the duties incumbent on the defenders, but of only limited value on the School's response to the incidents as he was unable to comment on what I consider to be a glaring error on the defenders' part.
(110) My assessment of the medical witnesses follows at paragraph (118) below.
(111) The School (Findings 7-15): these findings were largely common ground between parties. The latter part of finding 10 derives from Mr MacLeod's evidence. Finding 12 derives from the evidence of Mr MacLeod, Mr Allen and Mrs MacPherson. In relation to finding 13, witnesses gave widely varying estimates of the distance between Ness House and the main building of the School. I do not consider it either appropriate or necessary to make a detailed finding; the important point is simply that the pursuer's class was housed in a separate building which had been adapted for the purpose.
(112) Risk assessment and management (Findings 16-22): findings 16-20 are uncontentious. Finding 21 reflects the tenor of the evidence of several witnesses, including the pursuer: while she expressed some confusion about which form to fill in when, it is evident from the productions that incidents were regularly reported. Finding 22 reflects the evidence of Mr MacLeod and of Mrs MacPherson.
(113) Training (Findings 23-26): I found Miss Taylor's evidence persuasive on the planning and timing of the CALM training. The pursuer's belief, which I consider mistaken, that she had been trained only after the final incident is explicable as the first incident at least had occurred prior to her training. Further, I note that despite being described as "confident and accurate" in the verification report of November 2001 (number 6/4/2 of process), there was no suggestion that CALM techniques had either been used in any of the incidents or discussed in meetings thereafter. This appears to me to be consistent with the pursuer and other trainees being discouraged from using physical intervention techniques until after verification, which may well have confused recollection as to the sequence of events.
(114) The senior TEACCH class (Findings 27-38): while much of this chapter of evidence was uncontentious, two matters require specific comment. Firstly, I preferred the clear evidence of the pursuer, supported by Mrs Geddes, that only one learning support auxiliary was working in the class at the time of the incidents (finding 35). Both Mr MacLeod and Mrs MacPherson said there would have been two or three at all relevant times. While they were clear on that point, their evidence was based on assumption and, in my view, cannot outweigh the credible and reliable evidence of those present in the class. The fact that their understanding of the situation differed so markedly from what I hold to have been the case is a significant issue in itself, to which I return later. I also prefer the pursuer's evidence to that of Mrs MacPherson on the absence of violent incidents in the TEACCH class prior to 7th June (finding 34); Mrs MacPherson's evidence on this point was self-contradictory.
(115) Incident of 7th June 2001 (Findings 39-46): there was little dispute over the narrative of this or the subsequent incidents. My findings in respect of these incidents draw primarily on the pursuer's evidence. Apart from M himself, she was of course the only person present during all the incidents. Mrs MacPherson recalled seeing Mrs Chisholm's resignation letter. Finding 45 reflects Mrs MacPherson's views.
(116) Subsequent incidents (Findings 47-69): two matters require comment here. Firstly, although there were some suggestions from Mrs MacPherson in particular that the pursuer should not have used the Ness House fire door on 19th September, I accepted the evidence of both the pursuer and Mr MacLeod that the incident happened at a time when the pursuer had no reason to believe that M or any other pupil would be present (finding 58). Secondly, while Mrs MacPherson did not recall the pursuer phoning her at home, she did not dispute that she may have done so (finding 67), and I accepted the pursuer's evidence on that point.
(117) The pursuer's medical history (Findings 70-74): these findings are drawn from the pursuer's evidence, supplemented by the GP records.
(118) The pursuer's medical condition from 2002 onwards (Findings 75-93): findings 85, 90, 91 and 93 reflect the evidence of Dr Rogers, which for several reasons I preferred on all these points to that of Dr Carr. Firstly, Dr Rogers has far wider experience of psychiatric diagnosis and treatment than Dr Carr, who has increasingly focused on a narrow range of conditions including PTSD. Dr Carr's evident wish to promote PTSD is admirable in many ways, but inevitably invites careful scrutiny of his opinions in any particular case. While Dr Carr suspected that Dr Rogers might be unwilling to diagnose PTSD, in fact Dr Rogers' approach appeared very even-handed, and informed by experience of diagnosing and treating PTSD throughout his career. Secondly and rather remarkably, Dr Carr had at no time seen the pursuer's GP records. Dr Rogers' emphasis on the importance of the contemporary record, especially in psychiatry where there can be no biological data, seemed well vouched to me. That raises a further, and more pointed, question as to Dr Carr's diagnosis. Thirdly, although Dr Rogers saw the pursuer only once, he impressed me as having paid careful attention to the development and presentation of the pursuer's condition, including the chronological sequence of symptoms, and their classification. Dr Carr had of course had the advantage of seeing the pursuer while she was ill; interestingly, however, his diagnosis at that stage gave no real indication of PTSD as a diagnosis. His subsequent diagnosis of PTSD was informed by the pursuer's response to treatment, and later reinforced by the results of the CAPS test. I found Dr Rogers' evidence persuasive that diagnosis should not be retrospectively reviewed, that little diagnostic weight could be attached to the pursuer's response to treatment (particularly as both the treatment and the response were rather limited), and that the CAPS test was of no real value in a forensic context. Finally, Dr Rogers impressed as a fair-minded and independent witness whose evidence was cogent and well-argued. In contrast, Dr Carr created an impression of partiality: not so much to the pursuer's cause as to the cause of promoting PTSD, and his answers were inclined to be lengthy and complicated, and occasionally obscure.
(119) The pursuer disputed that she had previously suffered depression. I think that is explicable on the basis that nothing she had suffered previously could be compared in severity and impact to the 2002-2005 episode. But even after allowing for her mood at the time having influenced the description of her history and symptoms she would have given, it is undeniable that in 1991 she was described by her GP as feeling depressed and unable to cope, or that she was treated with anti-depressant medication from 2000 to 2001. There is no question that the history disclosed in the GP records is supportive of Dr Rogers' diagnosis of a relapsing and remitting depressive disorder.
(120) The pursuer's employment history from 2003 onwards (Findings 94-101): the only contentious matter here was the question of the pursuer's intended career path. I do not doubt that she held hopes of teaching full-time once her children were older. But I accept the evidence of Mr MacLeod and Mrs MacPherson that there could have been no guarantee of stepping into a full-time post (finding 94).
Duties of Care
(121) Mr Milligan confirmed in closing submissions that he no longer required to insist on any of the attacks on the relevancy or specification of the pursuer's pleadings set out in the defenders' Rule 22 note. Accordingly, I shall formally repel the defenders' first and second pleas-in-law. Nevertheless, two aspects of the pursuer's case as pled - both relating to the averments of duty - caused continuing difficulties throughout the proof, and require comment. The first concerns specification of the duties of care; the second, the point in time at which the defenders were said to be in breach of their duties.
(122) In Article 3 of Condescendence the pursuer sets forth some 29 separate duties of care. Mr Macdonald rightly accepted that there were difficulties in this bitty presentation of a central element of the case. On examination, however, it is clear that several of the detailed duties averred are particularisations of the general duties of the defenders to take reasonable care for the safety of their staff, to take reasonable care to avoid exposing teachers such as the pursuer to assault from pupils known to have a propensity for violence, and to devise, maintain and enforce a safe system of work. (There was, of course, no dispute that as the pursuer's employer, the defenders owed her these general duties.) Of the twenty-six specific duties, there are eight relating to the assessment and management of risks, including risks presented by individual pupils, all of which essentially elucidate and apply the approach in the HSE "Five Steps" document (Amended Record as at 2nd February 2009, Article 3 of Condescendence, from the fourth last line on page 15 to page 16, line 19); three relating to the system for reporting and responding to incidents of violence in the School (page 16, lines 19-28); and six (discounting one which Mr Macdonald accepted was not properly framed as a duty) relating to the need for increased preventive measures, including involving staff in devising strategies and procedures, disseminating them, and providing training to staff (page 16, last line to page 17, line 13). A further eight duties relate to measures required in the face of, or in response to, actual violent incidents (page 17, line 13 to page 18, line 2). Of these, some are expressed in such specific terms that - as Mr Macdonald acknowledged - they are better interpreted as examples of steps the defenders might have taken in fulfilment of their duties.
(123) There is undoubtedly scope for serious criticism of the organisation and focus of the pursuer's pleadings. With some effort, however, it is possible to discern the key duties set out in the pursuer's case. Ultimately, it could not be argued that the defenders were unaware of the thrust of the case they had to meet, and Mr Milligan wisely did not seek to do so. Further, his witness Mr Allen accepted that almost all the specific duties pled by the pursuer were owed to her by the defenders. I therefore proceed on the basis that, in order to fulfil the general duties incumbent on them, the defenders were under further duties: to assess and manage risks to the pursuer and other staff members both generally and in relation to specific pupils; to ensure that violent incidents were reported and that measures to avoid or respond to recurrence were identified and implemented; 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 by involving them in and informing them of strategies for dealing with pupils, and providing relevant training; and 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.
(124) Finally, Mr Macdonald accepted that the School management had no knowledge, at the time of these events, of the defender's psychiatric history. Accordingly, it was a matter of agreement that the standard of reasonable care applicable in respect of the pursuer was no greater than in respect of any other employee.
Breach of Duties of Care: The Question of Time
(125) Secondly, before considering alleged breaches of duty in detail it is necessary to consider the issue of the point or period in time when the defenders were said to be in breach. Parties appeared to agree that the pursuer's case on record focused the question of breach of duty firmly on the period prior to the first incident. Mr Milligan questioned how much scope the pursuer had left herself to prove breaches of duty thereafter, with the exception of the duty to carry out or review a risk assessment on M which was stated to arise "following the first and subsequent assaults".
(126) On proper scrutiny of the pleadings, however, this difficulty is more apparent than real. The general duties, and most of the specific duties, are averred without reference to any particular point in time. The exceptions are the duty to risk assess M, as stated above, and a supposed duty to install an emergency alarm or pager system "prior to the occurrence of the harmful events". The subsequent pleadings regarding breach of duty include averments that "The defenders failed to provide the pursuer with protection after the first and each of the subsequent violent incidents" and that "They failed to take any measures to ensure that the violent attack the pursuer had suffered was not repeated". But other than in these exceptional cases, the obvious inference is that the pursuer states the duties as having applied both before 7th June 2001 and after each of the harmful incidents.
(127) Further, a central reality of this case is that it concerns not one but a series of harmful events which occurred over a period. The situation is inevitably very complex, and it is perfectly conceivable that a defender in such circumstances could be in breach of different duties for part or all of that period (or even for different parts).
Breach of Duties of Care: The Test in Law
(128) The test for whether a party is in breach of a duty of care is considered to have four elements. Of these, two - whether the acts or omissions in question were voluntary, and the question of remoteness of injury - are not in contention here.
(129) Of more significance is the third element, the question of foreseeability. Before the court can find that a breach of a duty of care has occurred, it must be found that a hypothetical reasonable person (or body) in the position of the defenders would foresee that harm to the pursuer would be a reasonable and probable consequence of the defenders' acts or omissions:
my opinion, it has long been held in Scotland that all that a person can be
held bound to foresee are the reasonable and probable consequences of the
failure to take care, judged by the standard of the ordinary reasonable man."
(Muir v Glasgow Corporation, Lord Thankerton at p.8).
(130) Assuming that the foreseeability test is satisfied, it is then necessary to consider whether the defender has been negligent, in that their conduct has fallen below that of the reasonable person in the position of the defender. The classic (if rather dated in expression) statement of how that question should be assessed in relation to an exercise of professional judgement is that of Lord President Clyde in the medical negligence case of Hunter v Hanley at p.204-205:
"in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."
(131) But there is a further complication where, as here, the focus is on a fault of omission rather than of commission.
the negligence of the employer consists of what I may call a fault of omission,
I think it is absolutely necessary that the proof of that fault of omission
should be one of two kinds, either- to shew that the thing which he did not do
was a thing which was commonly done by other persons in like circumstances, or-
to shew that it was a thing which was so obviously wanted that it would be
folly in anyone to neglect to provide it."
(Morton v William Dixon, Lord President Dunedin at p.809)
It is a matter of concession in this case that the pursuer must meet the "obvious folly" test to succeed. Nevertheless, lest one become too fixated on defining and interpreting what is meant by "obvious folly", I consider it appropriate also to have regard to the comments of Lord Keith of Avonholm in a House of Lords case, arising from Northern Ireland, in which there was extensive discussion of Lord Dunedin's formula:
is no magic in the word 'folly'. It gives the formula the characteristic that
was described by Lord Normand in Paris v. Stepney Borough Council 
AC 367 at 382 as 'trenchant'. But the language could be
phrased otherwise without any loss of meaning. Lord Dunedin might equally have
said: 'It would be stupid not to provide it', or 'that no sensible man would
fail to provide it', or 'that common sense would dictate that it should be
provided'. Lord Cooper himself, who was particularly averse from watering down
Lord Dunedin's language, on three separate occasions in his judgment in Gallagher
v Balfour, Beatty and Co 1951 SC 712 at 716, 717, 718 used
'inexcusable' as the equivalent of 'folly'."
(Cavanagh v Ulster Weaving Co Ltd, Lord Keith of Avonholm at p.1)
In using the terms "folly" or "obvious folly", I do so to encapsulate the sense of this test as amplified by Lord Keith. I take Mr Allen to have been talking in analogous terms when he referred to "glaring error". Further, it seems to me in the circumstances of this case that there is considerable interplay between the obvious folly test and the Hunter v Hanley expression of the test for professional negligence. Put short, if it is held that the defenders' pursuit of a particular course of action involves obvious folly, then in my view it must inevitably be taken as read that no professional person or body of ordinary skill would have acted thus if exercising ordinary care.
(132) The actual assessment of whether the defender has acted negligently involves the examination and balancing of a number of factors:
relevant factors to be considered include the probability of injury, the
seriousness of the injury, the practicability of precautions, the cost of the
precautions and the utility of the defender's activities. The practice of other
persons in the same type of business or profession as the defender can also be
important. The court then balances the costs of preventing harm to the pursuer
against the risk of injury to the pursuer. By such a calculus of risk, there
emerges the standard of the reasonable person in the position of the defender."
(Thomson on Delictual Liability (4th edition, 2009) at paragraph 5.9 on p.128)
Breach of Duties of Care: Foreseeability
(133) I have no difficulty in holding that it would be foreseeable to reasonable defenders that injury to the pursuer would be a reasonable and probable consequence in the event that they were in breach of their duties of reasonable care and of the provision of a safe system of work. Indeed, a running thread through the defenders' case was that the unpredictable behaviour of many children at a School such as Drummond School meant the risk of injury to members of staff was ever present. M was the most anxious among a class of boys who were all particularly unpredictable by virtue of their condition. Failure in respect of any of the defenders' duties as I have summarised them above would inevitably create a real risk of assault to the pursuer or to others in her position. No issue was taken as to whether psychiatric, as distinct from physical, injury might be foreseeable.
Breach of Duties of Care: Negligence
(134) A much more difficult question is whether the pursuer has proved on the balance of probabilities that the defenders have, through an act or acts of omission that can be characterised as obvious folly or in equivalent terms, fallen short of the standard of reasonable care. Here it is necessary to examine each of the key strands of duties separately.
(135) Duties to assess and manage risks to the pursuer and other staff members, both generally and in relation to specific pupils: in considering these and all other duties, it is essential to judge the defenders' actions by the standards applicable in 2001. The HSE "Five Steps to Risk Assessment" document, as and Mr Allen (and Mr Brennan) pointed out, was intended to encourage a practical and common-sense approach to risk assessment. Both also accepted that risks could be assessed and managed effectively without producing formal documents entitled risk assessments.
(136) Prior to the incident of 7th June 2001, I am satisfied that the defenders were not in breach of this group of duties. Little relevant documentation was produced for this period, but it is unnecessary to leap to conclusions, as both Mr Brennan and Mr Allen did, about the significance of that. The evidence of Mr MacLeod and Mrs MacPherson as to the awareness of the risk of incidents occurring, the staffing levels at the School, the emphasis on prevention, the variety of means by which pupils' needs and behaviour were monitored and reviewed, the monitoring of reported incidents, and the response to the HMIE inspection (including the introduction of the School's Health and Safety Policy) all lead to the conclusion that risks were being identified and managed by a variety of means. None of that evidence was seriously contradicted. As against that, a significant factor in relation to the pursuer is that neither Mr MacLeod nor Mrs MacPherson appeared to be aware of the reduction in staffing level in the pursuer's class which, in the circumstances, was surely a factor to be considered in assessing risk of violence or aggression. But given the apparent success of the TEACCH approach and the absence of violent incidents prior to the 7th June, and in light of the other factors noted above, I do not consider that this alone could demonstrate obvious folly up to that point.
(137) I do, however, find on the balance of probabilities that the defenders' failure to take account of the true staffing levels in the pursuer's class, their failure (Mrs MacPherson in particular) to recognise the seriousness and implications of the incident, and their consequent failure properly to re-assess the risk of violence and its management in relation to M after the 7th June incident, amounts to an obvious folly and places them in breach of their duties to assess and manage risks - which, by definition, must be continuing duties in a situation where significant risk-related developments occurred over a period of time.
(138) At 7th June 2001, the defenders knew that M was a highly anxious boy who had previously gone through a very unsettled spell when he had repeatedly lashed out. That had been remedied largely through introducing Mrs Chisholm to work with him on a one to one basis. They knew that there had been no significant incidents of violence in the TEACCH class since its inception, and Mrs MacPherson considered that the approach had been successful in containing the pupils' anxiety. They also knew that the class had had very high staffing levels. Remarkably, both Mr MacLeod and Mrs MacPherson believed that there had been no reduction in staffing level, whereas by 7th June the number of learning support auxiliaries had reduced from three to one, and Mrs Chisholm had been re-assigned from M to the whole group. It is a manifest failing that they appeared unaware of these changes, the significance of which can be gauged by Mrs MacPherson's evidence that she had advised "someone plus an auxiliary" should stay with M if he became agitated, while another auxiliary should clear the other boys out of the way: sensible and practical advice no doubt, but of no value whatsoever when there was no other auxiliary.
(139) In the incident of 7th June, the two members of staff responsible for the class were together subjected to an uncontrolled attack, which ended only because another pupil attacked M. There was no means of escape and no back-up on hand and available to them. One of the two members of staff suffered physical injury. Further, this incident occurred notwithstanding the evidently beneficial impact of the TEACCH approach on the anxiety levels of M and other pupils. I paid close attention to Mrs MacPherson's evidence on this incident and her response to it. While she and Mr MacLeod did meet with the pursuer and Mrs Chisholm, she described Mrs Chisholm as "dramatic" and looking for an excuse to leave and, even though she had read the detailed account of the incident appended to the incident report form, strongly implied that Mrs Chisholm might have triggered the incident herself in some way. Further, she accepted at face value and emphasised that the pursuer had not appeared distressed after the incident. She did not note the mismatch between her assumption as to staffing levels and the reality of the situation. The clear inference from her evidence was that she had entirely failed to grasp the significance of the incident, and simplistically blamed it on some unspecified and assumed error by Mrs Chisholm. As Mr Allen said, "Individual incidents would have to be monitored by senior staff to check there wasn't some glaring error that could be addressed immediately". It appears to me there was such a glaring error here, and one of which Mr Allen was unaware.
(140) Assessing the situation in terms of the factors relevant to the standard of care, the risk of injury to the pursuer could not have been described as improbable even before the 7th June incident, and certainly not after it. In relation to seriousness of injury, although the pursuer escaped physical injury on this occasion, Mrs Chisholm did not. As was always the case with an outburst by an autistic child, the degree and direction of the violence was outwith the actor's control. It was undoubtedly foreseeable that, at the very least, further physical injury could occur, particularly as M was now quite tall for his age. The question of the utility of the activity is relevant only in the general sense that the defenders were bound to make provision for the education of M and children like him, but is of little assistance when it comes to considering the specifics of this situation. The first precaution that a reasonable defender should have considered would have been a thorough review of the risk of further such incidents occurring in the senior TEACCH class, and of measures that could be taken to reduce the risk of further injury. The starting point for such a review would have been the requirement in the School's Health and Safety Manual to put in place a protocol for the management of M's behaviour. In light of the advice that had already been given on managing M's behaviour even before this incident, and a proper appraisal of the staffing in the pursuer's class, I consider that precautions such as provision of walkie-talkies or a pager, and of either a male support worker or additional learning support staff, were clearly practical (given that they were introduced by October 2001) and should have been considered and implemented. The hypothetical reasonable defender would of course require to take into account the cost of such measures, and particularly of providing extra staffing, but would note that the School was able to obtain additional resources if a case was made, and that even the provision of one additional member of staff would still leave the class staffing level below that of a few months previously. Although it was additionally suggested that the defenders should have suspended or temporarily excluded M from School after this first incident, I take no issue on that point as it would at best have been a temporary measure for no more than a week or so.
(141) After the incidents of 30th August and 6th September, further discussions took place and some further steps were taken. On 31st August Mrs MacPherson recorded "Agreed on need for common approach to managing M and for all staff to know this". I accepted the pursuer's evidence that this added nothing to what was already happening in terms of risk assessment and management. The one new step at that stage was to seek external professional advice, in order to draw up a behaviour management programme. It is no criticism of the School managers to note that while contact was then initiated very quickly with external professionals, meetings only took place after the 6th September incident. At that point M was suspended. Mr Milligan sought to make something of the evidence that a Dr Ted Baecker, who was described either as a child psychologist or a child psychiatrist, advised Mr MacLeod at that point that the steps the School were already taking were sufficient. Neither party called Dr Baecker or provided any further evidence as to his views or the basis on which they were formed. I can therefore place little or no value on whatever comments he may have made. I also have to note that under the terms of the School's own Health and Safety Manual a protocol for managing M's behaviour should arguably have been in place before the 7th June incident, and certainly after it.
(142) I accept that all of the discussion and activity narrated above can be characterised as contributing to an ongoing process of risk assessment and management in a practical sense. But as the defenders' witnesses acknowledged, irrespective of any ethos of concern for staff, the focus in this instance remained firmly on prevention of further incidents rather than the safety of staff if such incidents did occur. Further, I infer from their evidence that throughout this period Mr MacLeod and Mrs MacPherson continued to labour under their mistaken view as to the staffing in the pursuer's class: a factor that would undoubtedly have significantly influenced their assessment of risk and of the steps required to manage it if, as they should, they had understood the true situation. In my view, the defenders' omission in this respect again fell very far short of the required standard of reasonable care. Given M's history and the circumstances in the class, if it was not already obvious after the first incident that there was a real risk to staff safety, it was unarguable after the second and third incidents. The failure to recognise such an evident risk and to plan appropriate action to manage it, together with the continuing over-estimation of the staffing in the pursuer's class, clearly amounts, in my view, to obvious folly.
(143) Duties to ensure that violent incidents were reported and that measures to avoid or respond to recurrence were identified and implemented: I consider that the defenders fulfilled their duties in this respect in the period prior to 7th June 2001. While the pursuer and other witnesses did express some confusion about which forms to use in reporting incidents, the fact is that incidents were reported regularly and systems were in place for senior managers to review them. Mr Allen fairly described the School's reporting forms as adequate, if not ideal. I accepted the evidence of both Mr MacLeod and Mrs MacPherson that they did monitor incident report forms and use them to identify concerns and trends in pupils' behaviour. Indeed, I am satisfied that throughout the relevant period the defenders fulfilled these duties to the extent that the systems whereby staff reported incidents and senior managers quickly reviewed the incident reports continued to operate.
(144) Again, however, I am satisfied that the defenders' omissions between 7th June and the end of September 2001 should be characterised as obvious folly and as falling well short of the standard of reasonable care in relation to this duty. While incident forms were completed, scrutinised and discussed, the measures to be recorded and implemented should have been informed by a proper re-assessment of risk. For the reasons outlined above, such measures as were recorded and taken in response to the incidents prior to 19th September 2001 were misinformed and quite inadequate.
(145) 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 by involving them in and informing them of strategies for dealing with pupils, and providing relevant training: Mr Macdonald sought to establish various failings in this regard. In my view, however, the defenders cannot properly be faulted prior to the 7th June incident. The evidence demonstrated that the School managers were aware of the heightened risk of violence from pupils; that staffing levels were much higher than in mainstream schools; that there was an emphasis on preventive measures, fostered by ongoing communication between staff; that appropriate training, including CALM, was planned and delivered; and that staff took consistent approaches to managing pupils. The deployment of the TEACCH approach is itself evidence of that.
(146) One of the few specific duties averred to which Mr Allen took exception was that narrating a duty to record strategies and policies for dealing with pupils such as M in formal policy guidelines. There was nothing in the evidence either to provide a basis for such a duty, or to suggest that any failure in this regard would have affected the risk of injury facing the pursuer. I take no account of that specific duty.
(147) After 7th June 2001, provision of staffing at or nearer to the level which Mr Macleod and Mrs MacPherson mistakenly believed already existed in the pursuer's class would very probably have assisted in preventing further incidents. But it is far from easy to correlate that failing with the terms of the duties to take preventive action as they are pled by the pursuer (Amended Record as at 2nd February 2009, page 16 last line to page 17, line 13). Accordingly I find that the defenders were not in breach of their duties as pled in this respect.
(148) 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: Mr Macdonald accepted that the specific duties gathered under this general rubric were better interpreted as examples of steps the defenders should have taken rather than as discrete duties. The common thread between them, however, was the duty to enable staff to respond and manage the situation safely once an incident occurred, that is once preventive measures were no longer sufficient. Mr Allen (and Mr Brennan) referred to primary, or preventive, and secondary strategies, the latter to be used as an incident developed. Mr Allen also referred to emergency strategies.
(149) I find no basis for holding that the defenders were in breach of these duties prior to 7th June 2001. Secondary strategies had previously been deployed as required, not least in the employment of Mrs Chisholm to work with M. The CALM training was intended to equip staff with both primary and secondary strategies. Mrs MacPherson should have been aware that her advice about managing M when he became anxious was unworkable due to reduced staffing levels. In the absence of any violent outburst by M, however, it is difficult to criticise the defenders unduly for continuing to rely on primary strategies which appeared to be working reasonably effectively.
(150) As set out above, however, a proper review of risks following the 7th June and each of the subsequent incidents should have resulted in the application of measures targeted at dealing safely with a violent situation once it occurred. The rationale set out there applies equally in respect of this group of duties. On that basis, I find it to have been an obvious folly that until after the 19th September attack the defenders failed to consider, let alone implement, measures designed to deal safely with an incident once it had arisen.
(151) General duties: all of the above particular duties are relevant to assessing whether the pursuers fell below the standard of reasonableness in relation to their duties to take reasonable care for the safety of their staff including the pursuer, to take reasonable care to avoid exposing teachers such as the pursuer to assault from students who were known to have a propensity for violence, and to devise, maintain and enforce a safe system of work. In my view, the situation can be summarised in this way: in respect of the period prior to 7th June, no breach of any duty owed to the pursuer has been established to the appropriate standard. But between then and 19th September 2001, the emphasis in the defenders' systems of working on preventive measures was clearly inadequate once a serious incident occurred in a context where staffing was below the level required to implement even existing guidance on managing M's anxiety. Systems of working did not flex to address the changing situation, and the defenders thus failed to continue to maintain and enforce a safe system of work, and failed in their duties of take reasonable care for the pursuer. My characterisation of the defenders as having fallen into obvious folly in respect of particular duties to assess and manage risk, to ensure that incidents were reported and measures implemented, and to enable staff to deal safely with incidents is equally applicable in respect of the general duties.
(152) Four further issues must be addressed before I leave the subject of breach of duties of care. The first is that, although the defenders do not allege any contributory negligence on the pursuer's part, there were suggestions on record and during proof that responsibility for the 19th September incident lay at the door of the pursuer, not the defenders, as she had used the fire door which was a known trigger. I consider there is nothing in this suggestion. Firstly, I accepted her evidence as to the timing of events (findings in fact 14 and 58 refer). Secondly, I also accept the pursuer's account that she was providing a quick orientation for a new learning support auxiliary: her third LSA in as many months. It is reasonable for me to hold that she would not have found herself in that position had the defenders taken proper cognisance of the staffing in the pursuer's class before then, or had they ensured that the class was staffed to the level which Mr MacLeod and Mrs MacPherson mistakenly thought it was.
(153) Secondly, the pursuer's case on record included averments to the effect that the defenders made her feel responsible for some of the attacks and that they failed to provide her with psychological first aid. As the evidence progressed, this aspect of the pursuer's case reduced to a more generalised assertion that she had felt unsupported emotionally during these incidents. I have made no findings on this matter as it seems to me to come down to a difference in subjective perception. The pursuer felt unsupported, while Mr MacLeod and Mrs MacPherson both considered themselves to be supportive and sympathetic managers. It is simply not possible for me to conclude from the evidence whether that difference in perception reflected a real issue of concern. In any event, it is of no real significance in comparison to the lack of practical support which I have found the pursuer experienced.
(154) Thirdly, while I have highlighted the issue of management misapprehension as to staffing levels in the pursuer's class it is fair to note that it was not always explored as fully in evidence as it might have been: it was not, for instance, put to either Mr Brennan or Mr Allen in this specific way for comment. Nevertheless, the issue is clearly raised in the pleadings. The defenders state in Answer 3 "Three of the pupils in the class, including [M], had their own dedicated Learning Support Auxiliary. This was a member of staff who would supervise the pupil on a one to one basis." The pursuer states in response in Condescendence 3 "At the time of these incidents there was often only the pursuer and the LSA Angela Morris to deal with the class." As a live issue on record, it is thus a matter I am bound to consider in determining my judgement.
(155) Fourthly, my attention was drawn to two cases concerning injuries to School staff caused by children: Rigby and McLatchie. A further such case is that of McLeod v Aberdeen City Council. I refer to these cases here only to say that I have found none of them of any real assistance to me. Rigby was a decision, at first instance, of Mrs Justice Dobbs in the High Court. While there are certain factual parallels with the circumstances of this case, the decision appears to have turned entirely on issues of fact and credibility, and the reported judgement contains no analysis of the applicable law. McLatchie and McLeod are both decisions on the relevancy of pleadings rather than the merits of the actions.
(156) The pursuer suffered four physical assaults. There was no dispute that the pursuer suffered a degree of distress in each of the incidents. She suffered a degree of physical injury during the incidents of 6th and 19th September. Where parties differed was on the nature of the consequent psychiatric injury which she later developed. Both medical witnesses characterised the episode of ill-health the pursuer suffered from 2002 onwards as the most severe and disabling that she had experienced. The difference between Dr Carr and Dr Rogers came down, as Mr Milligan put it, to whether the pursuer suffered PTSD in addition to depression.
(157) For the reasons I have already given, I prefer the evidence of Dr Rogers on this question. I therefore hold that the pursuer suffered a moderate depressive episode from about August 2002 to about August 2005. Both medical witnesses accepted that the episode was most likely to have been triggered by the assaults in 2001. But that is a different question from that of whether the defenders' breaches of duties of care caused the pursuer's psychiatric injury.
(158) The next question is thus that of causation. The issue here is not whether the attacks suffered by the pursuer were the direct cause of her psychiatric illness: it is whether the defenders' breach of their duties of care was the cause of the harm she sustained. In other words, the question at issue is whether so-called "factual causation" has been established.
(159) Parties were content to describe the test of factual causation as the "but for" test: but for the defenders' breach of duty, is it probable that the pursuer would have suffered the harm she did? Properly speaking, however, the test is whether the defenders' breach of duties "caused or materially contributed" to the harm suffered by the pursuer: see, for example, Kerr v Stiell Facilities. Another way of putting this is to ask whether the pursuer has established on the balance of probabilities that the harm could have been prevented if the defenders had fulfilled their duties:
"The normal and proper test of causation to apply in a case of this kind is whether the pursuer has established that the system desiderated by the Lord Ordinary would probably have prevented this accident."
(Porter v Strathclyde Regional Council, Lord Justice-Clerk Ross at p.448).
(160) Alongside the cases of Mcginnes and Dingley to which Mr Milligan referred, I also take account of Porter, Fairchild v Glenhaven Funeral Services Ltd and Gregg v Scott as leading authorities on the issue of causation. Unlike the position in cases such as Dingley, however, the question of causation here turns not on scientific evidence, but on questions of human behaviour and how it is influenced. Two aspects are significant here: firstly, would the earlier provision of pagers or walkie-talkies and additional staffing after the first attack have prevented M from attacking the pursuer on the second and subsequent occasions, or at least have provided her with adequate protection if he had sought to attack her? Secondly, to what extent can the second and subsequent attacks, as distinct from the first, be said to have caused or materially contributed to the pursuer's subsequent condition?
(161) The evidence was that no serious incidents of violence occurred in the senior TEACCH class between its inception and June 2001. For most of that time, the class had been staffed by three learning support auxiliaries in addition to a teacher. All the incidents at issue here, including the earlier incident in May 2001, occurred while staffing was reduced to one teacher and one learning support auxiliary. No further incidents occurred after staffing was again increased, by the addition of a male support worker, in October 2001.
(162) The first incident occurred on 7th June 2001: roughly three weeks before the end of the summer term. The second incident and its prequel both occurred on 30th August: perhaps two weeks into the autumn term. Accepting the evidence about the time required to review risks, identify further measures and implement them, in my view had the defenders acted promptly in response to the first incident there is no doubt that pagers and additional staffing could have been in place before 30th August.
(163) Mr Milligan suggested that the detail of the third and fourth incidents undermined the pursuer's argument on factual causation. The force, however, of the pursuer's argument is that 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. Thus, the precise detail of the manner in which M's anxiety manifested itself on any given occasion is less significant than the fact that he became uncontrollably anxious. Mr Milligan further argued that the pursuer had not shown it was the implementation of additional measures at the end of September 2001 that caused M's violent outbursts to cease. I do not consider that the lack of direct evidence on this point causes any insuperable difficulty in the circumstances of this case. M himself was clearly incapable, both then and now, of offering any insight into his own behaviour. There was no suggestion from either party (with the exception of Mrs MacPherson's insinuation about Shirley Chisholm not dealing well with M) that any external factor had caused M to be particularly prone to aggression between June and September 2001. Any view taken as to what would or would not have influenced his behaviour must be drawn by inference. The obvious inference from the evidence is that the package of measures introduced by October 2001 was causally connected with the subsequent reduction in M's level of anxiety and the cessation of his violent outbursts. With the exception of Mrs MacPherson, who was again self-contradictory on this point, all the contemporary witnesses considered that the package of measures had caused the reduction in M's anxiety. Mr Allen described the package as "effective". The only alternative conclusion would be one of simple coincidence, which I do not find credible.
(164) Nevertheless, even if the measures introduced after September 2001 did positively affect M's behaviour and prevent further violence, can it be said that the same result would have been achieved on the introduction of the same or equivalent measures before 30th August? As Mr Allen said, the risk of violence in a special School can be managed and reduced, but never eliminated. It cannot be said with absolute certainty that earlier performance of the defenders' duties would have prevented further violence. There was clear evidence, however, that M's anxiety and thus the likelihood of violent outbursts reduced significantly after October 2001. Nothing in the evidence suggested any reason why such measures might have been any less effective if introduced earlier. On the balance of probabilities, I thus find that earlier provision of additional staffing in particular would have reduced M's anxiety level and thus avoided the second and subsequent incidents. But even if there had been a violent incident, I find that the provision of an extra member of staff would have enabled the pursuer and her colleagues to deal more effectively with any such incident with lower risk of injury.
(165) Given that I find the defenders at fault in relation only to the second and subsequent attacks, the next question is whether these incidents caused or materially contributed to the pursuer's subsequent ill-health. Again, there is a degree of disconnection between the presentation of the case on record and the final position of parties. The case on record treated liability and causation as undivided issues in respect of a sequence of incidents, whereas both Mr Macdonald and Mr Milligan accepted in submissions it was entirely possible that I might find the defenders liable in respect of some but not all of the incidents.
(166) Neither medical witness was asked if they could differentiate between the individual incidents in terms of their impact on the pursuer. Dr Carr's view as expressed in his 2003 report is set out in finding in fact 86. He did suggest at one point that, during art therapy, the pursuer had particularly focused on (as he recalled it) huddling together on the ground with two other females. However, although he went on to say that in therapy one would focus on working with the most serious incident, he also recalled the pursuer talking about having her hair pulled and being hit and kicked. Ultimately, he did not make any significant distinction between any of the incidents in terms of their individual impact on the pursuer. Similarly, Dr Rogers in his report referred to fluctuations in a relapsing and remitting depressive disorder being likely to be triggered by specific stresses, and without further differentiation concluded "in my opinion the alleged violent incidents which occurred in 2001 are likely to be such stressors".
(167) The pursuer does not have to disprove any connection between the first attack and her subsequent illness; the question is whether she has proved on the balance of probabilities that the subsequent attacks, which I consider should have been prevented by the defenders, caused or materially contributed to her condition. The whole tenor of her evidence, and of the medical evidence, was that it was the experience of being attacked on several occasions and the consequent sense of being unsupported that particularly scarred her. On that basis I am clear that she has established on the balance of probabilities that the defenders' breach of their duties of care resulted in the second and subsequent attacks occurring, and that these attacks at the very least materially contributed to the development of her subsequent psychiatric episode.
(168) Solatium: parties were agreed that, if I found the pursuer had suffered a moderate depressive episode rather than PTSD, solatium should be assessed at £10,000 with the whole award attributable to the past, and interest at 4% per annum from 1st August 2002 to 1st August 2005 and thereafter at 8% per annum. Interest thus amounts to £1,200 for the three years to August 2005, and £3,200 for the four years since then.
(169) Loss of earnings: I am satisfied that the pursuer's psychiatric illness commenced at August 2002 and, on her own evidence, was sufficiently resolved to allow her to begin some voluntary work by August 2005, and to return to part-time paid work in January 2006. There was evidence that the defenders had offered her various alternative posts at some point during that time, although I was not told when. Throughout that period, however, the pursuer was clearly unable to undertake paid work at all and I therefore consider that she cannot be faulted for not taking up any such offer at that stage. Accordingly, the defenders are liable in respect of her loss of earnings between August 2002 and December 2005 inclusive.
(170) Mr Macdonald argued that as the pursuer had intended to increase to full-time work by about 2005 or so, any award for loss of earnings should be adjusted accordingly. I cannot accept this argument. This assumes, as Mrs MacPherson said, that: a suitable post would have become available at the right time; that the pursuer would have applied, been shortlisted and been successful at interview; and that the defenders would have been prepared to appoint the pursuer to the post, notwithstanding disclosure of her medical history. There are simply too many uncertainties here for me to be able to draw any reliable inferences as to changes in the pursuer's employment. A further and perhaps related difficulty here for the pursuer is that her detailed averments as to loss of earnings were only introduced by amendment after the proof had commenced.
(171) I consider that different considerations apply to the position from January 2006 onwards. By that time, the pursuer had decided to work in nursing rather than as a teacher, as a result of which she commenced full-time nursing studies in August 2006. While I accept Dr Carr's evidence that it would have been unwise for her to return to a post similar to that she held from 1999 to 2002, going by the efforts the defenders made to offer alternative employment I consider it is reasonable to infer that they would have remained willing to re-employ her. Again, this issue was not well focused in the pleadings and it appears to me that the pursuer has not demonstrated why the defenders should be held responsible for any loss of earnings after December 2005.
(172) A detailed calculation of the pursuer's loss of earnings for the period August 2002 to December 2005 is set out in the Appendix to this judgement. I calculate her total net loss for this period at £46,778. Interest on that sum runs at 8% per annum from 1st January 2006 to date (a period of two years, 8 months) and thus amounts to £9,980.
(173) I therefore grant decree for the total sum of £71,158 inclusive of interest to date of decree as follows:
Interest at 4% p.a. 08.2002 - 08.2005
Interest at 8% p.a. 08.2005 to date
Loss of Earnings 08.2002 - 12.2005
Interest at 8% p.a. from 01.2006 to date
(174) I have assigned a hearing on the question of expenses and any related issues.
Appendix 1 Loss of Earnings Calculation