Agoreyo v London Borough of Lambeth, Court of Appeal - Queen's Bench Division, August 15, 2017, [2017] EWHC 2019 (QB)

Resolution Date:August 15, 2017
Issuing Organization:Queen's Bench Division
Actores:Agoreyo v London Borough of Lambeth
 
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Case No: QB/2017/0022

Neutral Citation Number: [2017] EWHC 2019 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15/08/2017

Before:

THE HON MR JUSTICE FOSKETT

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Between:

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STEPHEN BUTLER (who did not appear below, instructed by the Bar Pro Bono Unit) for the Claimant

CHRISTOPHER MILSOM (instructed by Browne Jacobson LLP) for the Defendant

Hearing date: 20 July 2017

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JudgmentMr Justice Foskett:

Introduction

  1. This is an appeal, brought with the permission of Morris J given on 17 May 2017, against the order of His Honour Judge Wulwik, made in the Central London County Court on 12 January 2017, whereby he dismissed the Claimant's claim against the Defendant for damages for breach of contract.

  2. As will emerge, the trial was confined to liability only and the question of the causation of the losses claimed, and the quantum of those alleged losses, did not arise for consideration.

  3. The Appellant (who was, of course, the Claimant below) was represented by experienced Counsel at the two-day trial on 19 and 20 December 2016. Counsel had pleaded the claim on her behalf and available to me have been the written closing submissions that he advanced before Judge Wulwik. The Appellant launched the application for permission to appeal in person and was, in part, critical of Counsel who had acted for her. This has not been pursued as such, but there is one feature of the appeal relating to the pleadings to which I will have to return later.

  4. The Appellant has had the good fortune of representation at the hearing of the appeal by Counsel instructed by the Bar Pro Bono Unit. Mr Stephen Butler was instructed only shortly before the hearing and did not receive the full papers in the case until the afternoon before the hearing. He produced a first-class Skeleton Argument with appropriate references to the evidence, the judgment and the relevant authorities in what must have been a very short period of time, all of which were properly focused on the true issues in the appeal. The quality of the Skeleton Argument was matched also by the quality of his oral submissions. Whatever the outcome of this appeal, the Appellant could not have been better represented and I am very grateful to Mr Butler for his assistance and to the Bar Pro Bono Unit for making him available. Mr Christopher Milsom, Counsel for the Respondent, was appropriately generous in his recognition of the quality of Mr Butler's work. I am grateful to him too for his assistance.

    Background

  5. The Appellant is a teacher and at the time of the material events in November/December 2012 was aged 43 and had about 15 years' experience of teaching both in the UK and abroad. She had worked previously with children with special educational needs, but had had no training as to how to deal with children with behavioural difficulties.

  6. On 8 November 2012, she entered into a contract with the Defendant to work as a teacher at Glenbrook Primary School, a community school in Clapham Park, South London, having been interviewed only the day before. The contract was for a fixed term from 9 November 2012 until 31 August 2013 at an annual salary of £36, 387.

  7. In circumstances to which I will refer in more detail below, the Appellant ceased working in this role on 14 December 2012, some 5 weeks later. She was suspended that day because of the force she used in three incidents involving two particular children (see paragraph 8 below) and she also ``resigned'' the same day. These proceedings arise out of those events.

  8. On commencement of her employment, the Appellant was to take over from Ms Nancy Wayman to teach children in one of the two year 2 classes. The evidence does not demonstrate why Ms Wayman ceased teaching this class in the middle of a term. That meant dealing with children of the age of 5/6 years. There were 26-29 children in the class, two of whom were (as they have been called in these proceedings) `Z' and `O', aged 5 and 6 respectively according to the Defence. The Appellant's case was that each of these children had ``behavioural, emotional and social difficulties'' (`BESD'), an assertion put in issue in the Defence. She also asserted that she was not told before she accepted the offer of employment that she ``would ... be teaching a class in which there were two pupils with severe BESD'' and ``was also not asked ... whether or not she had any experience of teaching a class with one or more children on the autistic spectrum within it.'' Those assertions were effectively admitted, the first on the basis that the children did not have BESD (and the issue thus did not arise for discussion) and the second on the basis that all teachers are required to be able to teach children with special needs.

  9. Mr Butler was justified in saying that Judge Wulwik does not appear to have reached a specific conclusion about how difficult these two children were. His conclusion (to which I will refer in paragraph 12 below) was to the effect that other teachers had been able to deal with them and that the Appellant had been given all the support to which she could reasonably have expected to be entitled.

  10. There were clear indications in the evidence that these two children were indeed difficult to control, leaving aside the incidents that lie behind what occurred in this case. The only witness called for the Defendant, Ms Tracey Fevrier, to whose evidence I will refer in more detail below, said that ``O and Z did ... present the most challenging behaviour of all of the pupils in the class'' and acknowledged that at one stage the Head teacher (Ms Funmi Alder) had considered separating them. In the ``Behaviour Book'', some part of which was available at the trial, there were three entries in late November 2012 which showed that Z had been swearing a lot, had broken an object that he threw, wiped his spit from a tissue onto another child and swore and screamed at other children, continuing to do so until his parents were called to stop him. The documents that record the ``targets'' for each of these two children show that ``hitting or grabbing'' represented issues that each had to deal with and in Z's case to use a ``talking voice'', not one that involved shouting. In another document, Z is said to have ``behaviour issues'' and possessed a ``lack of awareness of danger''. O is said to have found it hard ``to share and take turns'', his behaviour is said to be ``challenging'' and that he can easily become upset. Ms Fevrier also acknowledged in a document prepared at the time that there was a ``fraught/physical relationship'' between O and Z and that each had ``behavioural/learning difficulties''.

  11. All that evidence emanated from the Defendant's side and, however O and Z may have been characterised in a formal sense, it seems tolerably clear that they presented, both individually and in combination, as a challenge to any teacher when confronted with the task of teaching and controlling over twenty other pupils of a similar age. The Appellant's Counsel at the trial advanced the proposition, based upon the foregoing evidence and other matters, that the ``behavioural difficulties'' of O and Z were ``severe''.

  12. Judge Wulwik's conclusion is to be found in the following paragraph of his judgment:

    ``... while there is evidence from ... Ms Wayman's interview notes from 17 December 2012 ... and from the undated targets for the two children ... that there had been problems with the behaviour of the two children, Ms Wayman appears to have been able to deal with any behavioural problems of the two children. ... Ms Wayman's interview notes ... referred to a problem at the beginning of September 2012, the notes stating,

    `TF [that is Tracy Fevrier] and I discussed what to do as I don't think you can physically remove a child from class. We knew they were aggressive towards one another and so we would send for another adult who would ask them to leave the room which they happily did, as this was not the challenging adult. I suggested this to Miss Agoreyo but my advice was not taken'.

  13. As I have said, this appears to constitute a recognition of ``problems with the behaviour of the two children'', but behaviour which, on the evidence, other teachers coped with. That assessment of the position by Ms Wayman (who was not called to give evidence) was given after the Appellant and Ms Alder had been suspended. With respect, I am a little surprised that much evidential significance could be attached to that interview note so far as the issues before the court were concerned. However, the note itself indicates that even Ms Wayman was finding dealing with these two children difficult only a couple of months or so before the material events.

  14. At all events, the Defendant's case on this issue, as summarised by Judge Wulwik, was that ``the class had previously been taught by Ms ... Wayman who had just one year's post-qualification experience and that she managed to control the behaviour of the class, as did the claimant's successor, a newly qualified teacher.'' The inference sought to be drawn from the way this assertion was framed is that the behaviour was something that the Appellant should have been able to cope with.

  15. Mr Butler contends that a finding as to how badly behaved these two children were was of fundamental importance to the issue of whether the use of reasonable force was justified and/or whether suspension was the appropriate response of the Defendant when the three incidents referred to below were drawn to the attention of the Executive Head teacher, Mrs Janet Mulholland.

  16. I will return to this submission in due course.

  17. As I have indicated, there were three separate incidents involving the children referred to above in which the...

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