Court success: Residential school’s robust training counters injury claim

  • The claimant was injured in the knee during a one-on-one session with a student
  • Negligence on the part of the employer – a residential school – was claimed
  • The court decided that the school had provided robust and evidenced training, which should have enabled the claimant to deal with the situation

Background

The claimant was a support worker at a residential school for young people with autistic spectrum disorders, who was providing one-on-one support to one of the students.

The student took an iPod out of a desk drawer and when told to return it, kicked and injured the claimant in the knee.

Legal arguments

The claimant advanced a claim against their employer in negligence. They argued that if the desk containing the iPod had been locked, the incident would never have happened – amounting to a failure to suitably risk assess the role, breaching the Management of Health and Safety at Work Regulations 1999.

This case hinged on the extensive training that the claimant had recently received. A two-week induction process had been carried out when the claimant started work three months previously, and this was followed by training on positive behavioural support, behavioural support for people with developmental difficulties and Pathological Demand Avoidance.

The claimant had been trained to consider four key risk assessment questions for any situations not covered by students’ support plans or risk assessments, which should inform a response. They then had to choose one of eight potential interventions, which were ranked on the level of intrusion they produced.

The claimant had also shadowed other employees and worked with the student half a dozen times before the incident.

The employer denied liability and at trial, they produced detailed risk assessments and support plans in support of their position. These risk assessments were subject to continuous review.

The support plan for this student specifically listed depriving them of their iPod as a trigger for challenging behaviour – though while the student occasionally rummaged around in the desk drawers, this had never previously led to problems.

The support plan indicated that when considering potential interventions with this particular student, the eight available options could be used in any order.

The claimant failed to use the least intrusive intervention in the circumstances and in light of this, the employer argued that the claimant had failed to follow their training, and it was this failing that led to their injury.

Decision

Taking into account the extensive risk assessments and support plans, the court held that the employer had suitably assessed the role and provided the claimant with tools to perform dynamic risk assessments for new and unforeseen risks.

The court determined that requiring the school to lock the drawers would have been stretching the duty owed to the claimant too far.

The claimant had failed to follow the training provided to him and chosen an inappropriate intervention. In effect, the claimant’s own actions caused the outburst that led to their injury.

The claimant also struggled on causation – with medical records revealing attendance at A&E with a knee injury a month before the incident. The claimant said that they had only gone because their employer had taken them there.

The court was unconvinced and the claim was dismissed.

Commentary

This case demonstrates the value of employers implementing a robust training regime and retaining the documents to evidence it.

The court’s pragmatic approach also provides a useful steer on how the duty to risk assess under the 1999 Regulations informs considerations of common law negligence.

This is of particular interest to employers whose employees may have to deal with novel or rapidly developing risks in the course of their work.

The claim was handled by Mark Ford, a Claims Handler in our Leeds Office. David Williams, Partner at DAC Beachcroft, represented Zurich’s Policyholder throughout the litigation.

Summary prepared by Felix Boon.