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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McLeod v Aberdeen City Council [1999] ScotCS 142 (11 June 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/142.html Cite as: [1999] ScotCS 142

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This case came before me for Procedure Roll debate on the defenders' first plea-in-law. The pursuer was employed by the defenders' predecessors as a school auxiliary at Carden School, an establishment for children with social, emotional and learning difficulties. She avers that her duties included the supervision of such children. She further avers that from time to time such children would be violent towards other pupils and members of staff. On 9 November 1995 the pursuer was on duty at the school. One of the pupils, Brian Thomson, went to a room where he was not supposed to be. He refused to leave the room and was threatening and abusive to staff who asked him to leave. The acting head teacher, assisted by the pursuer, went to the room and attempted to remove him. They took hold of his arms. The boy repeatedly kicked the pursuer and butted her with his head, causing her loss, injury and damage.

The pursuer's first case is based on an alleged duty on the part of the defenders to have excluded Thomson from the school prior to this incident on the basis that his previous behaviour merited such a step. Miss Shand, for the defenders submitted that the averments in support of such a case were irrelevant and that the action in so far as based on such a proposition should be dismissed. She further submitted that there were no sufficient averments from which it could be said that there was any foreseeable risk of injury to staff such as the pursuer arising out of Thomson's presence in the school. The averments relating to Thomson's behaviour in the school were contained in Article 4. In particular, it is averred that "he had a history of assaulting staff and other children". (p.20A). Miss Shand submitted that the pursuer required to specify the incidents in his behaviour which constituted such a history and to specify what is meant by assault. The pursuer ought at least to give examples. She accepted that the pursuer did specify one such incident, an assault on a Mrs Williams, but claimed that there was no specification of the nature of the assault. Apart from these averments, the other allegations about Thomson's behaviour amounted to disruption on his part and are not such as to give rise to a foreseeable risk of his causing injury to persons such as the pursuer. Miss Shand submitted that there were no specific averments of violent incidents to enable the defenders to investigate and prepare for proof (Boulting v Elias 1990 S.L.T.596). In the whole matter, the case based on duty to exclude is irrelevant.

Mr McLean for the pursuer submitted that the averments in Article 4, read as a whole, were sufficient to give rise to a foreseeable risk of injury to persons such as the pursuer from Thomson's continued presence in the school. His behavioural history must be known to the defenders who had responsibility for his education both while he was at Carden School and before that. His aggressive and sometimes physically violent behaviour was adequately described in Article 4 and was enough to show that he was a danger to those members of staff, such as the pursuer, whose job it was to supervise him. It was averred that other less dangerous pupils had in the past been excluded. In all the circumstances, there were such strong indications that Thomson constituted a danger to others in the school that it was the defenders' duty to remove the source of such danger (Hudson v Ridge Manufacturing Co Ltd 1957 2 Q.B.348). The averments, Mr McLean submitted were relevant for inquiry.

In my opinion, circumstances can exist where a pupil is of such a character as to justify his exclusion from school. Indeed a policy document alleged to have been in force in Carden School at the material time expressly envisaged such a course of action where a physical assault on a member of staff or persistent non co-operation with school rules took place. Further, it is averred that two other children were so excluded from the school. The question therefore comes to be whether the averments about Thomson's behaviour in Article 4, if proved, could give rise to such a duty. In my opinion Miss Shand's approach to this question is too particular. The averments have to be read as a whole. In my view, so read, they can be said to paint a picture of Thomson's character such that it was foreseeable that he would assault a member of staff who attempted to restrain him. Furthermore, the pursuer's averments in this regard are, in my opinion, sufficiently specific to enable the defenders properly to investigate and prepare for proof. After all they are the relevant education authority and must be taken to have some knowledge of Thomson's character and his behaviour at school in the past. I therefore hold that the pursuer's case based on a duty to exclude to be relevant and remit the same to probation.

The pursuer's second case is founded on an alleged duty on the part of the defenders to have provided her with training in restraint techniques to have enabled her to cope with the situation she faced. Miss Shand submitted that this case gave rise to two issues; firstly, whether there was a duty to provide training and if so what kind of training, and, secondly, whether there was any causal connection between any such failure and the injury to the pursuer. In relation to the first issue, she submitted that there was a lack of notice of the particular techniques which were not provided and which would have avoided the injuries. Article 3 referred to a number of available training courses and certain general techniques of restraint and as such constituted a vague and general overview. Specifically, a training course offered by a Mr Healey was referred to and the benefits of such training in the situation faced by the pursuer are averred in Article 4 (p23C-D). Miss Shand submitted that the averments relating to training by Mr Healey were irrelevant. The case was not based on a failure to instruct Mr Healey to provide training and therefore what he would have done was neither here nor there. All that the pursuer offered to prove is that Mr Healey's techniques would have had some effect on the incident. Unless the pursuer's case is based on the defenders' negligence in failing to identify Mr Healey and have him train their staff, the pursuer has no case to the effect that techniques taught by anyone else would have had any effect. The pursuer must prove why the defenders should have been aware that such training was required. She does not offer to establish that there was a generally recognised body of training which anyone in the position of the defenders would have been aware of. She does not offer to prove that the techniques referred to were recognised techniques which any reasonable employer would have taught. It is clear from the averments that such training was in a development stage and no averment is made of any educational authority providing such training. There was therefore no basis for the assertion that the defenders were negligent in this regard. The pursuer must show either that it was common to provide such training or that it was obvious folly not to (Morton v Dickson 1909 S.C.807).

In relation to the second issue raised Miss Shand submitted that the pursuer fails to offer to prove that had the particular techniques been taught her injuries would have been avoided (Porter v Strathclyde Regional Council 1991 S.L.T.446). The pursuer does not say that had she done all the things which she avers she would have done had she been trained the incident would not have happened at all. Nor does she say that in those circumstances she would have been able to avoid the blows. She accordingly does not aver that it was a failure to provide these techniques which caused her injury. What she does say (p24E) is that she would have "substantially avoided all risk of injury". Further at p32D-E the pursuer avers that "such techniques would ..... at the least have substantially reduced the immediate and longer term effects of Thomson's behaviour on the pursuer". That averment was irrelevant as there was no offer to establish what physical injury or psychological symptom she would not have suffered.

Mr McLean in reply submitted that looking at Articles 3 and 4 together the pursuer had made sufficient averments of fact as to give rise to a duty to provide training to the pursuer as to how to cope with the situation she faced. He referred in particular to the averments concerning the policy document issued by an employee of the defenders (p6B) which advised that employees "should be trained in restraint techniques". At p7C it was averred that the teachers in the school did receive such training. She had in the past been subjected to evidence from a pupil (p9). The pursuer had as a result requested such training. Mr McLean submitted that an employer can be required to train employees to protect themselves against violence from third parties (Munkman - Employers; Liability 12th Ed.118; Keys v Shoefayre Ltd 1978 IRLR 476; Marvier v Dorset County Council C.L. Yearbook 1997 Vol.2 3847). As to the type of training, the pursuer avers in Articles 3 and 4 both the systems available and the particular techniques that would have been given to her. Mr Healey is given as an example both of the techniques and the availability of training courses. There were ample averments of other public service bodies using training to protect their staff. Attitudes had moved on since Morton v Dixon (Munkman op cit pp.44-45) and a duty of care can exist even in the absence of generally established practice.

On the question of causation, Mr McLean submitted that the pursuer's case was not that but for the lack of training the incident would not have happened. The pursuer would still have had to face Thomson. She could not prove that Thomson would not have hit her even if she had been trained and done all the right things. What she did seek to prove was that such training might have worked so as to prevent injury and would have worked so as to reduce injury (McGregor on Damages 16th Ed. para.379). He submitted that in these circumstances the law can and does provide a remedy. It is for the Court to assess the degree of injury attributable to the lack of training. It cannot be said that there can be no recovery of damages because there would or might have been injury anyway. The matter was eminently suitable for proof.

In my opinion an employer such as the defenders can have a duty to train employees to protect themselves from violence from third parties, provided that such violence is reasonably foreseeable in the course of the employee's duties (Munkman; Keys v Shoefayre Ltd; Marvier v Dorset County Council op cit.. Such a duty is part of the general duty to take care for the safety of employees and relates to the provisions of a safe system of work. Looking at the pleadings as a whole there are, in my view, ample averments to show that violence from pupils in this school and Thomson in particular towards persons such as the pursuer was reasonably foreseeable. There are also ample averments that techniques to prevent or minimise the effects of such violence do exist and that training in such techniques was available. It can be said that in these circumstances the defenders could and should have provided such training to the pursuer. They clearly saw the need for such training since it was provided for the teachers in the school and indeed had been requested by the pursuer herself. I do not consider that that duty is in any way limited by the decision in Morton v Dixon as there are averments of a developing practice of providing such training and in the particular circumstances of this case it can be said to be folly not to provide it. Furthermore, I accept Mr McLean's argument that there can be circumstances where a pursuer can recover even if she might have been injured anyway. Mr McLean gave a number of analogies such as training a mountaineer how to slide with an ice axe. His fall might cause him injury but the training might prevent him from going over a precipice and sustaining greater injury. In these circumstances, it is for the Court to decide after proof what degree of injury is to be attributed to the failure to train. In the course of her argument Miss Shand made certain criticisms of the lack of specification in certain of the averments made by the pursuer. However she indicated that she did not take these points in isolation but as support for her general arguments on relevancy. I have already dealt with these. As for the specific points I therefore need say nothing more save that in my opinion sufficient fair notice is given to the defenders.

I therefore repel the defenders' first plea-in-law and allow the parties a proof of their respective averments.