Could the school be held liable for negligence if it doesn’t tell parents after an incident?

If a school does not tell parents about a school fight, it will not necessarily be held liable for negligence.

In S v London Borough of Redbridge [2005] ELR 320 the claimant, S, sued the local authority for negligence after an incident in 1995, when she was 13, causing psychological damage. She did not begin proceedings until 2003, which made it difficult for the court to establish what had happened.

Two versions of events
S said that five male pupils had indecently assaulted her. In a statement (her second) made six years after the event, she described an indecent assault, saying that the boys had pinned her against a set of railings and that each in turn had opened her skirt and put his hand under it.

But in a statement (her first) made immediately after the incident, she that she was sitting on a box and that, whilst trying to pull her off it, one of the boys grabbed the split of her split skirt and pulled it open, and then she jumped off the box and ran away. Some female pupils witnessed the incident.

What Mr Thompson did
S immediately reported the incident to her head of year, Mr Thompson, who said to the head at the time: ‘As I was going through the incident with the pupils, and the accounts were matching up, I was getting a pretty clear picture of the incident. Because the split in S’s skirt was pulled open, I assessed whether or not there was an element of sexual assault.

‘I did not consider there was. I was very careful to explore with the girls and boys exactly what had happened. For example, whether the skirt was held open. It was not prolonged, and at no stage was S held down. It was one flick of the skirt, and she responded by jumping off the box’.

  • Mr Thompson told the boys that what they had done was wrong, that their punishment would be formal isolation, and that if it happened again it would be more serious. 
  • He told S that if anything like that recurred in the future, she should tell him and her parents, and that they should contact him if they wanted to.

S did not tell her parents what had happened, and they did not find out until some months later. S alleged that Mr Thompson’s failure to tell her parents was negligent and in breach of the school’s duty of pastoral care.

The question
The judge said that S’s two statements were fundamentally different. The question was not whether S had been indecently assaulted, but what she had said to Mr Thompson immediately after the incident.

If she had described the incident in terms of her second statement, then Mr Thompson would have been in breach of duty if he had not reported it to S’s parents and to the head, who would have contacted child protection agencies and the police.

But if — as the judge found had happened — S had described the incident in terms of her first statement, then the question was, what should Mr Thompson have done?

Was Mr Thompson reasonable?
S said that even on the basis of her first statement, Mr Thompson should have told her parents and the head. Two experts were called. S’s expert failed to distinguish between S’s first and second statements, and said that it was ‘shocking’ that the school did not contact S’s parents.

The local authority’s expert, whose evidence the judge preferred distinguished between the two statements, and said that on the basis of the first statement Mr Thompson’s judgment was reasonable: 

  • He was entitled to think that this was a ‘one off’ incident in which no one had been hurt, and that his disciplinary action was sufficient. 
  • It was not a matter that should have caused S’s parents deep concern: a formal letter might have given it greater significance than it merited. 
  • Mr Thompson’s conduct was reasonable and proportionate to the facts available to him.

The question of negligence
The judge considered the allegation of negligence — failing to inform S’s parents of indecent assault, and failing to discuss with them how to deal with it. He said: ‘After interviewing the children … Mr Thompson concluded that this was not a case of indecent assault, but of “horseplay”, by which I mean rough and unpleasant conduct without a sexual element. It is quite impossible for me to say that he was wrong. 

‘While some teachers … would have written to the parents, others quite reasonably would not.’

Mr Thompson, therefore, had not been negligent.

Michael Segal is a district judge in the family division of the high court.

Category:
depl678-20