The circumstances:
The claimant was a 10 year old girl who attended a primary school that came within the jurisdiction of the defendant. She had mild learning difficulties.
One day during a dinner break (not sure if schools have yet adopted the “lunchtime” moniker-it was always dinnertime when I was a lad) she was in the playground and was with 3 other pupils one of which was regarded as her “best friend”. In the course of what appeared to be some kind of “dare game” her knickers were removed and at least one of the other children sexually assaulted LH by placing a finger up her anus. The details were sketchy but there was no real doubt that a sexual assault had taken place.
Eventually, as a result of one of the children reporting it, the event came to the attention of a teacher who for whatever reason did not appear to take it seriously and worse, appeared to blame LH, and told her off which made her cry.
It was however, reported to LH’s mother who was obviously upset, not just at the incident itself, but at how it had been handled by the school. The matter eventually ended up before the governors who readily agreed that the incident had been dealt with badly and issued a fulsome apology.
Mother then sought legal advice and a damages claim ensued on behalf of LH.
The chief allegation against the school was that it was negligent in failing to notice the assault and intervene to prevent it. It was pleaded either that the playground supervision was insufficient or that the supervisors failed to do their job properly and the school/council was therefore vicariously liable.
The Council instructed an enquiry agency to visit the school, take photographs and examine by means of the school records, and interviews with staff, the supervisory system and risk assessments appertaining to school breaktimes, especially “dinnertime”.
These records rather than showing that there was a shortfall in supervisory staff, demonstrated rather that the staffing was above the nationally recommended number, per pupil. It still left open the claim that those on duty were at fault by not doing their job properly. However, the evidence suggested that the incident had lasted no more than a minute and common sense would dictate that what would have looked to all intents and purposes as playful activity amongst a group of friends would not necessarily attract the attention of a supervisor to the extent of requiring an intervention.
The Council denied liability. A medical report from a psychologist was commissioned by the Claimant’s solicitors. Court proceedings followed.
Having considered the particulars of claim and the investigation documents, I concluded that it was reasonable to draft a defence denying liability and this was indeed filed and served.
However, looking at the wider picture and despite the fact that I believed the prospects of success for defeating the claim were high, I had major concerns about allowing the claim to run to a contested trial.
Any reporting of the circumstances of the incident whatever the outcome at trial would not have reflected well on the school, especially if it came out how the child had been treated initially. The reputation of the school would undoubtedly suffer. Of course, I also had to advise the council that even if the claim were defeated, the costs of “winning” which would run to many thousands of pounds would still have to be borne by the council.
The medical evidence suggested that the assault, whilst initially traumatic for LH had not caused any long lasting trauma and that the victim had made a more or less full recovery within one month. (one got the distinct impression that it was mum who had suffered the greater trauma). Additionally, some damages would result from the assault itself but I advised, particularly in the light of the denial of liability, that a part 36 offer of £5000 would probably be acceptable to both the claimant and to the court who would have to approve any settlement.
I discussed this personally with the head of the school who fully appreciated the advice regarding the school’s reputation and was no doubt also relieved that he would not be losing a number of staff to appear as witnesses at a subsequent trial.
A part 36 offer of £5000 was accepted by the litigation friend and approved at court to bring the matter to what I believe represented a satisfactory conclusion for both parties
The Takeaways
Litigation is not always about winning a case at any cost. Let us imagine this matter had gone to trial and the claimant as I would expect, had lost. However, there happens to be a local reporter in court who reports the unfortunate circumstances and whilst acknowledging the outcome picks up on the governors’ comments about how badly the child was treated and makes the story all about the council wielding its power and money to defeat a vulnerable child’s claim. It might then be picked up by a National, maybe even the northern news. Is the school going to be happy at the outcome? I don’t think so. Good reputation for a school and for a Council is priceless, (and by the way, “winning” at trial might have cost the council about 20k more than settling for 5k plus reasonable costs at an earlier stage).
For more information contact John Myles in our Education department via email or phone on 01254 222432. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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