Josh Hedgman successfully defends employer after attack on employee by child in residential care

Published: 09/04/2024 | News

On 27 June 2018, Ms McAulay was attacked by a 12-year-old child in a leisure centre after a swimming trip. The Defendant had the child in its care and employed Ms McAulay as one of its support workers.

Ms McAulay was repeatedly struck to her head during the attack, which left permanent injuries. She brought a claim against the Defendant as her employer.

The trial on liability came before Recorder Adkinson over 15 to 18 January 2024. Judgment was handed down on 20 February 2024 and the claim was dismissed.

Josh Hedgman cross-examined the Claimant as well as two former employees that she called as witnesses. Following cross-examination, Josh marshalled numerous adverse credibility submissions against the Claimant and both of her witnesses. The Judge upheld those submissions by finding them to be unreliable witnesses and rejecting their evidence.

In the Claimant’s case, the Judge made six adverse credibility findings, which undermined the totality of her evidence:

She was reluctant to accept she had experience of working with children with autism spectrum disorder (“ASD”) – even though the documents show this to be case. Significantly to me, her position was inconsistent with her own application for the role and the job description she saw before she applied.

She was also insistent that [the defendant] told her she would not be working with children with challenging behaviour. I reject this because it is contrary to the job description, contrary to her application that emphasised her work with adults and children with challenging behaviour, contrary to the purpose of the residence and, moreover, it was mentioned only for the first time in cross-examination without explanation.

She told me every day there were problems with KL’s behaviour. The documents show this is simply not true. However even if it were true, this cannot have been a surprise to Ms McAulay given she applied a job supporting children with challenging behaviour.

She told me that the care plan said KL required 2 adults to 1 child, especially outside the home and that [the defendant] refused to adopt it. This is simply incorrect because the care plan says no such thing.

She told me in cross-examination that she had never taken KL alone to swimming. Her own evidence-in-chief contradicted this.

She also claimed to witness an event where KL threw a kettle at Ms Ahmad. Initially she was unsure but then became certain she saw it. However, as I will come to, it was not KL. Watching the process was a demonstration before the Court of Ms McAulay’s mind convincing itself as to the veracity of events that is wrong.

Of perhaps wider interest to practitioners, will be the Judge’s approach to causation.

Josh submitted, as a matter of trite law, that it was for Ms McAulay to prove that the attack would have been prevented even had various alleged precautions been taken. It was not enough to suggest that the mere risk of the attack would have been reduced by such precautions.

Against that submission, Ms McAulay relied on Vaile v Havering LBC [2011] EWCA Civ 246 to suggest that the Court was essentially entitled to infer causation from the happening of the attack.

The Judge accepted Josh’s submission that the Claimant’s case was based on a misunderstanding of Vaile, which did not establish any new or different approach to causation:

…the Court of Appeal were not simply saying the Court can skip over working out what precaution ought to be taken and whether that would have avoided the injury, but saying on the facts of that case (and with the benefit of the experts’ evidence) causation was made out.

 The correct approach to causation meant that the claim failed in any event:

…I can see nothing else that [the Defendant] should probably have done that probably would have prevented the attack. In essence I conclude that there is before me nought but a bare assertion not backed by evidence…

…I agree with [the defendant] that it is notable that even the Claimant does not suggest in her particulars of claim the precautions the risk assessment should probably have identified and how they would probably have prevented injury in her pleadings.

The Judgment is reported on Westlaw: McAulay v Aurora Care & Education Limited [2024] 3 WLUK 493.

Josh was instructed by Narrinder Taggar of DWF Law LLP Solicitors.

Josh is highly sought after by insurers to defend claims arising from attacks by third parties. Josh has appeared for the successful Defendant in several such cases in recent years, a number of which have been reported.