The duties of a teacher, college or local authority towards pupils are often taken as written, yet the recent classroom attack on a pupil by school teacher Peter Harvey has raised questions over who is held responsible for pupils’ welfare in such situations, and whether a school or local authority can be held vicariously liable for such an attack.
A teacher is expected to show the same care towards a child as a reasonably careful parent would exercise in the same circumstances. If a teacher’s actions exceed that duty to detrimental effect, is the school or local authority liable? The general rule in assault cases where liability is called into question, is that only when assault is identified as a risk inherent in the employee’s duties, or if it can be seen as a consequence of anything that the employee was employed to do e.g. if the employee was employed to keep order, can a sufficiently close connection between the assault and the employment be established.
When the courts have referred to ‘keeping order’ they have usually referred to roles such as police officers, security guards and doormen at clubs. Yet as any teacher will agree, keeping order is a definite requirement and may therefore equally apply.
The starting point in identifying liability is that an employer can only be held liable for an employee's wrongdoing if the employee acted within the ‘course of his employment’. The case of LISTER & ORS V HESLEY HALL LTD (Court of Appeal) remains the main authority on the issue of employers’ liability in schools. In this case, a school warden sexually assaulted two boys. The boys later sued the school, arguing that the school owed them a duty of care to protect them from the warden. The court in the first instance followed guidance from earlier case law and held that the school could not be liable for the actions of one warden as they were too remote, yet the Court of Appeal overturned this decision. The Court found that his acts were committed on the school premises and during periods when the warden was employed to be caring for the children, and so found the school liable.
The Court stated that the fact the act was done within the hours of employment did not necessarily mean that it was done within the scope of the employment, and the fact that his employment gave the employee the opportunity to commit the wrongdoing is not enough to make the employer liable. The employer should be considered liable only if the risk is one which experience shows is inherent in the nature of the business. For example, when working in an industry where an assault (either authorised or not) is more common, such as in industries like the police force or security, it is more likely to be seen as permitted by the employer when such an event occurs.
Whilst the court in this case stated that acts of passion and resentment or of personal spite may fall outside the scope of the employment, the courts have only so far said ‘may’. It remains to be seen whether an employer will be held responsible in these situations, and rests on a case-by-case basis in the meantime. It is likely that this will be a signification consideration in Mr Harvey’s case when determining liability.
In essence, the liability of an employer does not depend on the employee's authority to do the particular act which constitutes the wrong, it is sufficient if the employee is authorised to do acts of the kind in question.
Teachers and lecturers therefore fall into a difficult territory, as the case of R v MARJORIE EVANS (2000) demonstrates. Evans was a headmistress who was convicted of assault after adopting the approved restraint hold when a difficult pupil went to attack her, though the claim was quashed when it went to appeal. When giving its judgement, the Court stressed that no general pronouncements were being made on how the teaching profession should deal with difficult pupils.
The question arising out of Mr Harvey’s case is whether a teacher is likely to be in a position to use force from time to time, or if the outcome was graver than expected.
The outcome will depend on individual schools and colleges, and the circumstances of each situation, yet in most cases, as long as the institution has taken steps to ensure that they employ staff who are not a threat to their learners, they are unlikely to be found negligent.
Written by David Bywater, a solicitor at Weightmans LLP's insurance department
(Pictured: Teacher Peter Harvey, who attacked one of his pupils)