Education Law Reports/2005/S V LONDON BOROUGH OF REDBRIDGE - [2005] ELR 320

[2005] ELR 320

S V LONDON BOROUGH OF REDBRIDGE

[2005] EWHC 150 (QB)

QUEEN'S BENCH DIVISION

BEAN J

16 FEBRUARY 2005

Negligence - Assault by male pupils including pulling open skirt worn by female pupil, aged 13, in 1995 - Claimant now
alleging that indecency occurred - Whether negligence in decision by school not to inform girl's parents or to refer her
for counselling or other professional help

The claimant, S, was born in September 1982. She brought the current action for negligence shortly before her twenty-
first birthday. The defendant was the local education authority (LEA) which maintained the high school that she
attended from September 1994 until June 1996. S had attended primary school until July 1994 and reports stated that
she was making good progress and, although shy, had settled down well. Her first report from the high school had also
been positive. On 13 October 1995 an incident occurred in which, following some rough behaviour towards a fellow
female pupil, S was bullied by five male pupils, one of whom pulled open her wrap-around, ankle length skirt. The
matter was reported by the claimant to Mr Thompson, her then head of year. The boys were suspended by being isolated
for 1-2 days and made to write lines, but no further action was taken. In evidence, Mr Thompson stated that when S and
the girl who was with her at the time of the incident came to see him they were calm. Mr Thompson had concluded that
there was not an element of sexual assault. S was not held down and the lifting of the skirt was not prolonged. Mr
Thompson also interviewed the boys and told them what he proposed to do. He then wrote to the boys' parents
individually, explaining why the boy in question was being isolated. He did not, however, write to S's parents. In March
1996 S's school reports were again very positive. However, S's father claimed that around May 1996 he and his wife
noticed that something was not right with S. She had become unwilling to attend school and was not concentrating on
her homework. Two of her friends had stopped calling to the house. S was away from school for possibly 3 weeks in
May/June 1996. When she returned to school she was 'off timetable', personally supervised by a member of staff. She
kept a diary in which she demonstrated unhappiness and hinted at a wish to take her own life. In June 1996, S started at
a different school. But by the summer of 1996 S was seriously ill and in October 1996 eventually admitted for 6 months
to a hospital, followed by a period at a young people's unit. About the time of her hospital admission, S told her parents
for the first time about the October 1995 incident. The psychiatrists who treated or examined her recorded S as reporting
being bullied and had accounts of the October 1995 incident. An order by Master Tennant in the proceedings brought by
the claimant, affirmed by Dobbs J, provided that the existence, nature and extent of any duty owed to the claimant, and
whether it was breached, should be tried as preliminary issues. The action before the court centred on the question
whether Mr Thompson had been negligent in failing to inform the parents of the incident and to consult them about how
the matter should be dealt with. Another complaint was that of failing to refer S for counselling or other professional
help or advice following her complaint of indecent assault. It was also argued that S had been contributorily negligent.
The expert evidence before the court from Mr Marsland, a recently retired head teacher, indicated that the incident in
October 1995 was a serious matter and that almost every text on pastoral care at the time would have recommended
informing the parents. Another expert, Mr Sutton, formerly a head teacher and general secretary of the Secondary Heads
Association, said that Mr Thompson's conduct had been reasonable and proportionate. Mr Thompson had advised S to
tell her parents about the incident. He had considered it to be a one-off incident and that his disciplinary action would be
sufficient to end the matter.
Held - dismissing the claim -

(1) The court accepted the evidence of Mr Thompson, who was given the same account of the incident by all seven
participants, rather than that of the victim, which was inconsistent. The court accepted Mr Thompson's assertion that he
would never leave the choice of the action to be taken to a 13-year-old. It also rejected the claimant's assertion that she
and her assailants were left together unsupervised outside Mr Thompson's office. The court found it probable that he
would have advised S to inform her parents of the incident: she had been brave enough to tell her head of year at the
school, on the day, and with the knowledge of the boys involved, and it was not foreseeable that having done so she
would keep the matter from her parents. The court rejected the suggestion that Mr Thompson refrained from advising S
to inform her parents in order to avoid accusation of racism (S was white and three of the boys were Asian) or to avoid
S's parents 'over-reacting' by withdrawing her from school (see paras [43]-[45], [48]-[52]).

(2) Mr Thompson had rightly considered that the question whether any of the boys had had an indecent intent or not
was important. After interviewing seven children on the day, he concluded that it was not a case of indecent assault but
of 'horseplay', meaning rough and unpleasant conduct without a sexual element. It was quite impossible for the court,
having heard but one of the seven children many years later, to say that he was wrong (see para [54]).

(3) The central issue, applying the law as laid down by the Court of Appeal in Bradford-Smart v West Sussex County
Council [2002] EWCA Civ 07, was whether a reasonable body of professional opinion would, in Mr Thompson's
position, have refrained from contacting S's parents directly. As regards this matter, Mr Sutton was a more dispassionate
witness than Mr Marsland. The latter was entitled to his personal view, but the court accepted Mr Sutton's evidence that
while some teachers in Mr Thompson's position would have written to S's parents, others quite reasonably would not;
and that it was an exercise of proper professional judgment to do either. The court also rejected counsel's suggestion that
there was no intermediate category of case that was serious enough to be worth advising a child to report to parents, but
not serious enough to be worth the trouble of the school reporting to parents. As regards Mr Tranter's failure to inform
the parents, he was entitled to take the view that the matter was being dealt with at a higher level, by Mr Thompson. As
to subsequent events, there was no evidence of further untoward incidents or anything in the claimant's behaviour at
school before the summer term of 1996 to put Mr Tranter or his colleagues on notice that something was wrong (see
paras [55]-[60]).

(4) Counsel for the claimant accepted that any referral for counselling or other professional help would have been to
another member of staff of the school, and not necessarily to outside agencies. But in any event, the incident as reported
did not seem to the court to be so serious as to warrant such a referral. If the claimant had exhibited continuing signs of
unhappiness in the weeks following the incident it would have been different; but there was no evidence of that, and the
evidence of the March 1996 school reports was to the contrary (see para [61]).

(5) The court rejected each of the allegations of negligence and breach of duty made against the staff of the school in the
particulars of claim. For the sake of completeness, the court would add that if it had found primary liability against the
defendants, it would have rejected the plea of contributory negligence; but that issue was academic (see paras [62]-
[63]).

Cases referred to

Barber v Somerset County Council [2004] UKHL 13, [2004] 1 WLR 1089, [2004] ELR 199, [2004] 2 All ER 385,
[2004] ICR 457, HL

Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07, [2002] ELR 139, [2002] LGR 489, CA

Hatton v Sutherland, Barber v Somerset County Council, Jones v Sandwell Metropolitan Borough Council, Bishop
 v Baker Refractories Ltd [2002] EWCA Civ 76, [2002] ICR 613, [2002] 2 All ER 1, [2002] IRLR 263, CA

Phelps v Hillingdon London Borough Council, Anderton v Clwyd County Council, G (A Minor) v Bromley
London Borough Council, Jarvis v Hampshire County Council [2001] 2 AC 619, [2000] 3 WLR 776, [2000] ELR
499, [2000] 4 All ER 504, HL

R v Court [1989] AC 28, [1988] 2 WLR 1071, [1988] 2 All ER 221, HL

Tim Kerr QC for the petitioner; William Norris QC and Paul Stagg for the respondent

Levenes for the claimant; Barlow Lyde & Gilbert for the respondent

Cur adv vult

16 February 2005

BEAN J

[1] S was born on 9 September 1982. From September 1994 to the end of June 1996 she was registered at Valentine's
High School, Ilford, a secondary school maintained by the defendant education authority. By this claim, issued on 4
September 2003, 5 days short of her twenty-first birthday, she claims damages for negligence consisting of alleged
breaches of the duty owed to her by the teachers at the school (for whom the education authority is vicariously liable in
law), to take proper care for her health and welfare. An order made by Master Tennant and affirmed on appeal by
Dobbs J provided that the existence, nature and extent of any duty of care owed to the claimant, and whether any such
duty was breached, should be tried as preliminary issues. It is those matters with which I have been concerned. If I find
in the claimant's favour, the complex issues of causation and damage which would arise are for another day.

[2] At primary school, which she attended until July 1994, the claimant had been a model pupil. On 26 March 1994 her
class teacher wrote '[S] is a very popular member of the class. Although shy at times she has developed a good
relationship with peers and adults alike. [S] works hard in class and has been involved in a number of extra-curricular
activities. I have enjoyed teaching [S] and wish her all the best for the future'. Her first year at Valentine's High School
ended with similarly glowing reports. It is not necessary to set out the individual subject reports, all of which have been
placed before me, but it is sufficient to note the following:

'(i) Tutor Comment. S is an excellent member of the form - always good-natured, co-operative, thoughtful. She has done
well over the past year and I am sure she will have every success in the future.

(ii) Student Comment: I have enjoyed my first year at VHS. I have enjoyed being in 7V and having Mr Marshall as a
form tutor. I have been involved in a road safety competition which we came second in. I have made lots of friends in
this form and have settled down now I am in High School.

(iii) Head of Year. I have read this Record of Progress with interest and pleasure, noting S's hard work and
achievements across the whole curriculum. The comments for each subject are well deserved, and she is to be
congratulated on her progress in year 7.

(iv) Parent Reply Form. We are very pleased with the progress S has achieved since joining Valentine's and would like
to congratulate her and the teachers on doing such a fine job.'
[3] On 13 October 1995 an incident occurred in the school playground involving the claimant, her friend H (another girl
in the same class) and five boys at the school. None of these, except the claimant, gave evidence before me. I suggested
to counsel, and it was agreed, that the other children involved should be referred to by initial letters. They were only 13
years old at the time and have had no opportunity before me to defend themselves. Their identity, in any event, is not a
significant matter in this case.

[4] The particulars of claim describe the incident as follows:

'(4) On Friday 13 October 1995 during the lunch break the claimant was indecently assaulted by five male pupils who
forcibly held her legs and arms, pinned against a set of railings behind the trees at the School playground and each in
turn opened her skirt and felt inside it on top of her undergarments over a period of several minutes ("the indecent
assault").

(5) Further details of the indecent assault and events before and after it are set out in two written statements signed by
the claimant on 13 October 1995 and in October 2001, copies of which are attached.

(6) The claimant immediately reported the indecent assault to Mr Thompson, her then head of year teacher. Mr
Thompson responded by telling her she had three choices:

(a) He could telephone the police.

(b) He could telephone the claimant's parents.

(c) He could punish the boys responsible.

(7) The claimant chose the third option and the boys were suspended for one to two days and made to write lines. No
further action was taken against them or at all. The claimant did not at that stage tell her parents about the indecent
assault.'

[5] That pleading is a summary of the incident as described 6 years after the event in the claimant's written statement of
October 2001, to which I shall come later. A statement which she wrote on the day was markedly different.

'Today I was with my friend [H]. We walked over to the box by Perth Road and sat on top eating our lunch. [J] came
over first and sat with us. [M] came over with [P]. [O] and [U] came over last, then [A] appeared. [A] sat behind me. [J]
was already sitting next to [H]. [M] remained standing with [P], [O], [U]. [A] began to poke me in the back with two
fingers. Then [A] took one of my legs and tried to pull me off the box, then [O] grabbed my other leg and tried to pull
me off the box as well. As they could not do so they pulled both of my trainers off and swung them over their heads,
then they gave them back after me pleading for them back. I wasn't looking and [U] grabbed the split by my skirt and
pulled my skirt open. I jumped off the box and went over to the first tree. They followed me and [A] trod on my
trainers, so did [U]. We then tried to walk forwards towards the gravel part of the playground. We managed to get there.
I was getting really upset by this time. They began to pick plastic bottles off the field and began to throw them at us. A
few of the bottles hit [H] on the head but most of them hit me on my arm which I have bruise from. [U] grabbed my
jacket and bag, he soon gave it back after me shouting that I was going to tell. [P] stood behind me with [U]. [P] hit me
on the back with his fist which really hurt. They then began to try and bribe me by saying that they would buy me new
trainers or pay me not to tell. But earlier on in my RE lesson - periods 5 and 6 - they began to tease me. [L] and [H] sat
with their legs out but I had my legs just normal. And they then started to say that they wanted me to put my legs out
like [H] and [L] but I didn't want to.'

[6] The claimant told me in evidence, and I accept, that the skirt referred to was a wrap-around ankle-length skirt with a
slit at the side.

[7] Each form had a form tutor: in the case of the claimant and the other children involved in the incident it was Mr
Robert Tranter. The head of year with overall responsibility for discipline and pastoral care for all the forms in Year 8
was Mr William Thompson. In his witness statement he said:

'In the afternoon after lunch each form attends its form tutor to register. The claimant and [H] and all five boys went to
Mr Tranter (I know because he brought them to me). He brought them to me after registration which took about 10
minutes.

I was in my office and Mr Tranter knocked on my door. He told me there had been an incident involving his form and
could I deal with it. I could deal with it because I was free.

The demeanour of both girls was similar, neither was crying, both were very coherent. They were angry that the
incident had happened but they were calm. They were not swearing or hysterical.

It was the three of them, Mr Tranter and the two girls, who came in. I do not remember if Mr Tranter stayed or left
whilst I interviewed the girls. I believe I interviewed them both separately. At this stage Mr Tranter did not have the
boys with him.

As soon as it became apparent that there was an issue to deal with I asked Mr Tranter to get the boys.

I was concerned that the boys would collude to make a plausible story between the five of them so when they arrived
with Mr Tranter I spread the boys along the corridors outside my office. My office was at the end of a corridor. I asked
Mr Tranter to stay outside my office to monitor the boys. So one of the girls was in my office, one was outside with Mr
Tranter and then the five boys were lined up along the corridor, separated away from the girls. (I can directly recall all
of this).

I am pretty sure I interviewed each girl separately - I would have done but I cannot hand on heart say I recollect this
now. The accounts they gave were completely in line with the written statements they made that day, as I have set out in
my previous statement.'

[8] The contemporaneous statement of girl H begins with an account of three of the boys (U, O and P) making a
telephone call to H's home the previous Saturday, then putting the phone down. It does not appear to have been a
particularly untoward incident and the claimant was not involved. H then turns to the events of 13 October, as follows:

'At lunchtime I was sitting on the box near Perth Road with my friend [S] eating our lunch and minding our own
business. [J] came over to us first. Then [M] came over with [P] and then [U] and [O] came over and last of all [A]
came over. First of all we were just eating and talking. Then they were doing things to [S]. Then they started to get
empty plastic bottles and kicking them at both of us. They also got empty crushed drink cans and throwing them at us
too. Then [O] picked up a bottle that wasn't crushed and threw it at me and it hit me in the eye and it hurt. Then [A]
started hitting me on the side of my arm near the shoulder and I told him to stop doing it because I already had a bruise
on my arm (which wasn't anything to do with the school) and he just laughed and hit me harder.'

[9] One other written statement was taken that day, but it was from girl L, who does not appear to have been involved in
the main incident. She complains of J and another (unidentified) boy pushing her over during morning break on the
Friday, of A throwing plastic bottles and bottle tops at her the previous day, and also of U and O swearing at her in their
own language. It appears that she was at choir practice during the main incident. The morning break incident is alleged
by the claimant to have been reported by her, H and L to Mr Tranter who in turn took them to see Mr Thompson, so that
they had two separate interviews with Mr Thompson that day, the first with Mr Tranter present and the second without
him. Mr Thompson has no recollection of being told about the morning break incident at all. Mr Tranter, who was first
asked to make a statement 2 years later, had even then a somewhat hazy recollection of the matter.

[10] Reverting to Mr Thompson's narrative of the investigation of the main incident, he continues:

'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 the claimant held
down. It was one flick of the skirt and [S] responded by jumping off the box.

As the incident became clearer in my mind the options were a formal exclusion or isolation with me. In my experience
it is far more effective to isolate since exclusion is often perceived as a day off. Isolation goes on a pupil's file in the
same way as exclusion does. I also checked the boys' files to see if they had any record of such incidents or whether it
was a one-off.

Once I had the verbal accounts from the two girls and the five boys, I did three things:

(i) I got the two girls to write down their accounts.

(ii) I got the boys together and told them their punishments.

(iii) I got the girls together and told them what I had done.

I am not exactly sure now in which order the above three actions took place. I either got the girls in and said this is what
I'm going to do, or I got the boys in and told them and then told the girls. My guess is that I would have got the boys in
told them, got them back to class and then told the girls. I also cannot remember now when I got the girls to write their
statements, I think it was while they were waiting outside when I was interviewing the boys. I always had a desk outside
my office. Both girls had plenty of time to write their statements. Indeed the claimant finished her description of that
day's incident and then went on to describe an earlier incident. Both girls handed their statements in to me that day.

I got the boys in and told them that what they had done was totally wrong. I gave them credit for being honest about it. I
told them what their punishment would be and the fact that I would be writing to their parents and that if it happened
again then it would become more serious (as my letter states). They were humbled, shocked and quiet. All their
playground bravado had gone.

With the two girls I told them what I was going to do with the boys and then I said two things:

(i) If anything like this recurred in the future then they should let me know.

(ii) I suggested they tell their parents and if their parents had any questions or wanted to discuss it then they should
contact me.'

[11] Mr Thompson decided to isolate U for 2 days and the other four boys for 1 day. He wrote letters the following
Tuesday to each boy's parents. The one to U's parents read:

'I regret to have to inform you that your son was involved in some very unpleasant behaviour at lunchtime on Friday.
[U] was in a group of five boys who harassed two girls.

As a gang, they have admitted that they took one of the girls' shoes and bag, pulled one of the girls' skirts up, threw and
kicked plastic bottles at them and hit them.

Obviously such behaviour is totally unacceptable. Consequently I am isolating [U] for 2 days. Any repetition of such
behaviour will be dealt with most severely.'

[12] The letters to the other four boys' parents were identical, except that in each case Mr Thompson wrote that he was
isolating the boy concerned for 1 day.

[13] Mr Thompson did not, however, write to (nor telephone) S's parents. The core of the claimant's case is that his
failure to do so was negligent and a breach of the school's duty of pastoral care. S's father says - although it is accepted
that this would be a matter for the trial of the issues of causation and damage - that if he had been told what had
happened, even in the terms of Mr Thompson's letters to the boys' parents, he and his wife would have withdrawn their
daughter from the school.

[14] Mr Thompson's evidence that he suggested to the claimant that she should tell her parents is disputed. On the
contrary, the claimant says, he gave her three options to choose from; he could: (1) inform the police; (2) inform her
parents; or (3) punish the boys. She says that he said nothing about her informing her parents, although it is not
suggested that he told her to keep the matter secret. In fact, since the claimant herself did not tell her parents, they did
not learn of the incident for several months.

[15] The claimant remained at the school. After the Christmas holidays Mr Thompson left the school to take up a new
post and Mr Gary Lefley became head of year 8.

[16] In March 1996 the claimant received another set of extremely positive school reports. Again it is unnecessary to set
out all the individual subject reports. It is sufficient to note the following:

'(i) Tutor Comment (Mr Tranter): S has a good record of attendance and she is punctual. She gets on well with other
members of the form. Her contribution to PSHE lessons is excellent, whether working alone or in a group. She is very
pleasant and reliable in form periods.

(ii) Student Comment: These few terms I have really enjoyed being in year 8 and meeting different people throughout
the school. I love all lessons and hope to do well in the near future. But I would like to be able to contribute more in
class discussions.

(iii) Head of Year Comment (Mr Lefley): This is a very encouraging set of reports. S works with industry and
enthusiasm across the curriculum. She writes to a high standard and is also articulate and confident orally. Her
behaviour and attitude are highly appreciated. If she maintains her present approach she will continue to make good
progress. I recommend that she reads a wide variety of texts at home.'

[17] In his witness statement the claimant's father stated that 'in or around March 1996 my wife and I noticed that
something was not right with S. She became unwilling to go into school and wanted to stay at home and was not
concentrating on her homework as she had always done'. In oral evidence S's father said he could not remember
whether this was before or after the March 1996 reports. I find that it was plainly after then, since on 22 April 1996
(presumably at the start of the summer term) S's father signed a 'parent reply form' acknowledging receipt of the reports
and writing 'I am happy with the results in all subjects'. S's father's witness statement continues:
'Normally I would drive S to school and drop her off at the top of the road near the school gates where two of her
friends, [H] and [L] would be waiting for her. The girls would then walk into school together. However this
arrangement stopped as whenever I dropped S off, there would be no one waiting for her. I remember asking S why the
girls did not wait for her any more and S would only say that they were already at the school gates. My wife and I
thought that the girls must have had an argument that resulted in this situation.'

[18] S's mother told me that at about this time she noticed that H and L, who had been regular visitors to the household,
stopped coming round.

[19] Mr Lefley, in a statement made on 23 February 1998, said:

'I recall that S was very good friends with [L] and [H]. At some point I recall S coming to me complaining that [L] and
[H] were being horrible to her. She said that they were picking on her and whispering about her.

I spoke to [L] and [H]. They told me that whilst S had been going out with [L] she had said unpleasant things about [H].
Whilst S was with [H] she was saying unpleasant things about [L]. As I recall, the issues involved things like family,
clothes and personal habits.

[L] and [H] realised what had been going on and had fallen out with S.

I got all three of them together to talk, confront each other and be honest. I recall that there were lots of tears. I left them
alone together as well.

I would describe [L] and [H] as honest, reliable, responsible and trustworthy. [L] responded to my efforts and was
inclined to be friendly towards S although not friends. [H] was prepared to let the issue rest, though did not really wish
to resume any friendship with S.

S found it difficult to accept that she had been horrible to her friends and that she bore some responsibility for the
situation.

She became isolated and felt that she was being talked about by her peers.'

[20] At some point in May 1996 the claimant stayed at home and did not go into school. There is no evidence as to the
dates but S's father thought that it was for up to 3 weeks. On 4 June 1996 the headmaster, Mr Baker, wrote to S's parents
as follows:

'I have discussed the situation regarding S with Mr Lefley, Head of Year 8, and have considered all the options. At
present there are no vacancies in any of the Year 8 Tutor Groups. Should any Year 8 pupil transfer to another school
and another vacancy becomes available we can re-examine S's situation.

In the meantime, it is clearly in S's best interests that she return to school and continues her education. I am confident
that if S can grasp the nettle and confront the problems in her relationship with other pupils in her form they can be dealt
with swiftly and effectively.

S's Form Tutor and Mr Lefley will endeavour to give her all the support necessary to accomplish this.'

[21] It appears that from 11-13 June the claimant returned to school but was under the personal supervision of Mr
Lefley out of class, a process described as being 'off time-table'. During the same period she was keeping a diary. This
indicates serious unhappiness and in places hints at a wish to end her own life. References to school include the
following:

'(i) (11 June) I know I have to go to school but I just can't take it anymore. I feel like my head is going to explode ...
People say I'm a worrier especially my parents but I can't help it. And they say I'm too serious but I'm not. They won't
listen. I'm not looking forward to the future ... My parents say, well, talk to other girls, but don't you think I've tried.
They just turn their noses up at me. I hate Valentine's ... This depression has been going on for months but I haven't
really let my parents see this until this month and with this letter.'

[22] There is no mention of the October incident but the boys who had harassed her then make an appearance in the
diary:

'(i) (12 June) I cried this morning and when I got into Form Class because of [O] and [U] because they started. [L] came
over and asked if I was all right. I said yes. I shouted at [O]. I started crying in English because Sir asked what was
wrong. [L] and [H] are acting funny ... most of the girls don't really want to talk to me but I don't care any more ... [L]
went to Mr Lefley and told him about [O] starting on me so Mr Lefley confronted me about it when he asked to see me.
(Further down the page there is handwriting that is accepted to be that of S's father.)

(ii) (13 June) Today I was feeling a bit worried because of knowing they would start. This all started in Science. [O] and
[U] again. They started laughing and whispering thing about me, so I was shouting at them but everybody was laughing.
I told Mr Lefley and he said he would have a word with them. I told Mr Lefley about how I was feeling and about the
situation of the class. He called [O] and [U] out of history and had a word. Then at form time they both said they were
sorry ... [later] I told him [Mr Lefley] I was having trouble so he called me to his office and I told him the problem and
how I was feeling and about (concentrate atmosphere) how I wanted to hit [O] and I told him that I couldn't because I
was afraid of getting told off. He replied "if it makes you feel tougher then do it but discuss the situation with your
parents". He said if I do then I will be suspended for 3-5 days.' (Again the page concludes with S's father's handwriting.)

[23] On 18 June 1996, S's parents and S had a meeting with Mr Lefley in his room at the school. Unfortunately it was
interrupted by a boy barging in unannounced at a point when S's mother and the claimant were in tears. S's father
realised that 'it would be round the school in no time' and decided that it was the last straw, and that the claimant would
have to be taken out of the school. Later that week he wrote accordingly to Mr Lefley. He said that since the meeting,
which Mr Lefley had arranged between the claimant, H and L, the situation had not improved. He went on:

'I cannot envisage how this situation arose as up to the previous events she was happy at school and her work was first
class. It has now gone on for over two months and apparently after our meeting, which I now realise was a great mistake
on my part in making it during school hours, the word has gone about and it is now not only her own class but others
ignoring and taunting her. Due to these circumstances it would obviously be futile to even try to replace her into another
class

... I appreciate your time and effort to resolve the problem and attach no blame on the school or its methods and your
judgment. I fully understand that this particular situation is beyond anyone's control ... I would thank you for the
standard of education you have given her so far and hope that the last few months will be erased by the earlier happier
part of her schooling.'

[24] In reading that letter I bear two points in mind: first, neither the claimant nor the school had told S's father about
the October incident; secondly, he was aware that the letter might be copied to the head teacher of another school where
he hoped his daughter might make a fresh start. Within 2 weeks of his letter of 18 June the claimant had been accepted
at the Sacred Heart Convent School and started attending there.

[25] Unhappily, by the summer holidays of 1996 the claimant was seriously ill. She was seen for the first time by a
consultant psychiatrist, Dr Navin Savla, on 16 August, and on 29 October was admitted to Grovelands Priory Hospital,
Southgate where she remained an in-patient for more than 6 months under the care of Dr Gillian Broster. Towards the
end of this period she was also referred to the defendant's Young People's Unit at Brookside. At about the time of her
admission to Grovelands she told her parents for the first time about the October 1995 incident. There is no evidence of
the terms in which she did so.

[26] It is necessary to record the claimant's accounts of her experiences at Valentine's High School as recounted to the
psychiatrists who examined or treated her, and subsequently. Dr Savla, in a report of 9 October 1996, wrote:

'S started to have difficulties at school between the age of 11 and 13. She felt her schoolmates were picking on her and
she was progressively getting socially isolated. She had a very traumatic experience at the age of 13 when she went to
secondary school. In January of this year 5 boys pinned her against the wall and touched her breast and put their hands
down her pants and as she shouted they ran away. The boys were suspended. She had been unable to talk of this
experience and it has left her with severe school phobia.'

[27] Dr Broster, in a discharge summary dated 23 May 1997, a week after the claimant left Grovelands, wrote:

'On admission S said she had been feeling unwell for approximately 1 year. Prior to that, she had felt fine and did not
think there were any problems. Her difficulties began when she had had an argument with two of her best friends and
after that in January 1996, she was severely bullied at school. There was much verbal bullying, which she found very
distressing. There was also one specific incident, which she had found extremely traumatic. Five boys pinned her
against a wall and touched her inside her clothing and up her skirt. She had been very shocked by this, but did manage
to tell her head of year about it. Her head of year did not seem to take the problem seriously and at one point S thought
that the teacher implied it was somehow her fault. At the time of the assault she was with a friend and there was also a
dinner lady who S thought could see what was happening. Neither her friend nor the dinner lady gave her any support or
help. The boys involved were suspended for just 3 days but on returning to school they were again verbally abusive to
her. When S told me about these incidents she became extremely upset and tearful. She said her parents kept going up to
the school, but the headmaster did not wish to discuss what had happened and the school were not helpful or
supportive.'

[28] Dr Lamb of the Brookside Young People's Unit, in a report of 25 June 1997, wrote:

'S reports that her problems began in December 1995 when she was assaulted by five boys in the playground at school.
S was attending Valentine's School in Gants Hill at that time. She said that the boys grabbed her legs and arms and
pinned her against some railings and then touched her in her "private parts" through her clothes. S says she was stunned
by the assault and by the lack of intervention by friends who witnessed the attack. She subsequently told her teacher and
the boys were suspended for two days. However, she did not report the assault to her parents at that time. From the
beginning of 1996 S began to be bullied in general at school. She says she was ignored by her previous friends and left
out of all activities.'

[29] In a 13-page written statement of October 2001 the claimant describes the events of 13 October 1995 in elaborate
detail. After describing two of the boys grabbing her new trainers she writes:

'I began pleading with them for them back and I remember calling out to two dinner ladies, who were about 50 feet in
front of me, asking them to tell the boys to give me back my trainers, and they just stood and laughed and carried on
talking. I managed to grab my trainers back, next thing I know I was being held by the boys by my legs and arms
against the railings behind the trees and one by one the boys opened my skirt and felt inside on top of my undergarment.
I tried to fight back to free myself and to try and shout for help, but the words would not come out, and my body felt
numb and my throat really dry. This all lasted for a few minutes and I looked around me for help and saw people feet in
front and just wished that someone would turn around and see what was happening. I managed to free myself, and the
boys kept trying to trap me ... I then remember [running] as fast as I could to the head of year's office on my own and
reporting the incident to Mr Thompson. I told him what had happened and he made notes. He then told me about three
options I could choose from to punish the boys, they were: (a) tell the police, (b) tell my parents or (c) punish the boys. I
remember telling him to punish the boys, because I was still in deep shock and very distressed and confused, I did not
know what to do. I did not choose the police option because I was frightened if the police did get involved I was scared
the situation would be made worse and the boys would try and do something even worse to me, the reason above also
concludes the reason I did not report the incident to my parents. Mr Tranter was not present at any time of the matter,
only me and Mr Thompson. During and after the assault took place [L] was not present, she was at choir practice which
took place on Friday lunchtimes every week.

I remember being asked by Mr Thompson if the third option was what I wanted and I said "Yes". I can remember more
or less that he was guiding towards the last option. He told me he would call the boys into the office and talk to them
and suspend them for 2 or 3 days and give them lines to do and write to their parents.

After I spoke to Mr Thompson he made notes all the way through the conversation and then he phoned someone and the
boys were called to come to his office. He asked me to wait outside his office and I remember all the boys arriving to
see Mr Thompson, as they approached I was sitting with my head down and they were all laughing while we all waited
together. I felt this was totally inappropriate because I should have never been made to sit outside with the boys who
had just attacked me because they were all saying comments to me and a teacher was not even with me to support me. I
should never have been made to sit and listen to all those cruel comments. I have never felt so alone as I did then.

Mr Thompson called the boys into the office one by one and [H], while still waited outside his office. The boys and Mr
Thompson emerged from his office after finally being interviewed together with just Mr Thompson present, Mr
Thompson told the boys to apologise to me, but none of them did. He did not comment on them not apologising to me.
He then said to them, could you all drop your statements to me first thing before school starts on the following Monday,
then they would have to leave the building as they were suspended.

The boys were then sent back to class to collect their bags. Mr Thompson called me back into his office and I was asked
to make a statement. I began writing about what had happened but I did not get to finish my statement because it was
the end of school and I was anxious to get home, and I was very intimidated by now. I did not write down in full about
the assault because I was very distressed and frightened of the police and everyone around me, and especially what I
had just been put through with the assault and being sent to sit outside with the assailants.'

[30] Finally, in her witness statement prepared for the trial, the claimant gives the following account:

'On the day in question I was in the playground during lunchtime when five male pupils from my class [A], [U], [O], [J]
and [M] pinned me against railings and touched me inside my clothing and up my skirt. The incident lasted as far as I
can remember for some minutes, and I was so frightened during the incident that I found I couldn't talk or scream out
for help. However, I thought that one of my friends, [H] and a dinner lady whose name I cannot remember, were nearby
but they did not come to my assistance.

I finally managed to free myself and ran to tell my head of year teacher, Mr Thompson. I explained to him what had
happened and he gave me three choices about what to do. These were (a) that he could telephone the police, (b) that he
could telephone my parents or (c) that he could punish the boys.'

Pleadings

[31] When I read the particulars of claim and the claimant's witness statement in preparation for the trial it appeared
clear to me that the claimant was alleging that on 30 October 1995:

(i) five boys had one by one put their hands up her skirt and touched her underwear; and
(ii) she had reported 'what had happened' to Mr Thompson.

However Mr Kerr QC's skeleton argument on behalf of the claimant for the trial submitted that 'C's subsequent accounts
of the assault are more consistent with progressive revelation than with exaggeration. Moreover the teachers' response
to the incident was negligent on the basis of what they accept was reported to them'. Mr Norris QC, for the defendant,
submitted at the start of the trial that this case was a fundamental departure from the case advanced in the particulars of
claim; that it was not, therefore, open to the claimant to advance it on the basis of the statements of case as they stood;
and that the claimant should not be permitted to amend the particulars of claim to rely on the new case or, alternatively,
that amendments should only be permitted on terms that the claimant should pay all the costs to date occasioned by her
failure to tell the truth.

[32] In his written response to Mr Norris' application, Mr Kerr characterised it as 'a bogus pleading point', 'an exercise
in word games' and 'a straw at which the defendant was clutching'. Even allowing for forensic exaggeration, these
descriptions seem to me very wide of the mark. The claimant's statements in 1995 and 2001 were fundamentally
different. If an incident had occurred of the kind described by the claimant to her psychiatrists and subsequently in her
2001 statement (leaving aside for the moment the factual discrepancies) and she had described it in full on the day to Mr
Thompson, he would have been in gross dereliction of duty if he had not reported it both to the claimant's parents and to
the headmaster or deputy head, who would no doubt have involved child protection agencies or the police or both. No
one on either side has suggested otherwise. But if the report was only on the lines of the contemporaneous written
statement, the position is far more finely balanced. Mr Kerr, supported by the claimant's expert Mr Marland, argues that
even on the 1995 version the incident constituted an indecent assault, which should have been reported to S's parents.
Mr Norris, on the other hand, supported by the defendant's expert Mr Sutton, argues that if the report to Mr Thompson
was as contained in the 1995 written statement it was a matter of professional judgment whether the incident should be
reported to the victim's parents.

[33] I considered that it would be a disproportionate response to prevent the claimant from advancing the case which Mr
Kerr sought to argue, particularly since Mr Norris candidly conceded that his client's witnesses were ready and able to
deal with the alternative case in evidence. But I did consider that the particulars of claim were not apt to cover a case
based on an under-reported incident. I therefore required the pleading to be amended in order to clarify the position by
the addition of a new para 6A in terms helpfully (if reluctantly) put forward by Mr Kerr:

'For the avoidance of doubt but without admitting the existence of any doubt, the claimant does not contend that she
reported the indecent assault in the same words as those set out in paragraph 4 above, nor that she reported it with the
same level of detail as is set out in paragraph 4 above. What the claimant reported was the sexual assault described in
her statement written on 13 October 1995 and recorded in letters dated 17 October 1995 from Mrs Thompson to the
parents of the perpetrators.'

I reserved all questions of costs to the conclusion of the trial.

Expert evidence

[34] Each party called an expert distinguished in the field of education in support of their respective cases. Mr Michael
Marland CBE, called on behalf of the claimant, recently retired as a head teacher after 30 years leading two large urban
schools. Mr John Sutton CBE, called by the defendant, spent part of his career as a head teacher of secondary schools
and part of it as General Secretary of the Secondary Heads Association. In the latter capacity he contributed to the
Association's 'hotline' service giving telephone advice to its members.

[35] Mr Marland's first report was written on 3 August 2001. He refers to the claimant's 'reporting of an indecent assault
by five male pupils in the school grounds', which he describes as an 'aggressive, sexually offensive incident'. He refers
to the psychiatric report of Dr Broster and to her belief that the claimant's psychological distress was triggered or
developed by the 1995/96 playground incident, and the school's response to it. He also refers to 'the high level of
continuous verbal and minor physical bullying over a long period of time, of which the major late 1995/early 1996
incident was the severely damaging peak but all occasions of which were distressing'.

[36] Mr Norris put it to Mr Marland in cross-examination that this report was based on an acceptance of the view that
the claimant had not only suffered the serious indecent assault described in her later statements, but had reported it in
those terms to Mr Thompson. Mr Marland was unwilling to accept this, but it seems quite plain to me that this was the
case. Mr Marland made no distinction between the contemporaneous written statement of the claimant and the far fuller
and more lurid statement written 6 years later. If he had set out the two alternative possibilities and explained why in
either case he came to the same conclusion, the report would be more helpful; but simply to gloss over the difference
substantially reduces the value of the report.

[37] Later in 2001, after further disclosure of documents by the defendant, Mr Marland was asked a series of written
questions which I was told were drafted by Mr Kerr. I set out the vital question and Mr Marland's answer.

'Question

On the basis of the facts of the incident as described by Mr Thompson in the letters to the parents of boys concerned,
including the penalty imposed, ie a 1-2-day suspension, was it reasonable according to the standards of normal teaching
practice in October 1995 to refrain from contacting S's parents directly and instead to ask S to tell her parents?

Reply

It is shocking that the school did not themselves contact S's parents. To leave a distressed victim to tell his or her
parents without the school's words of condolence, support and assurance of school action to both support the victims
and work on the aggressors would have been regarded as entirely wrong.'

[38] In his third report, dated 16 December 2004, Mr Marland notes that Mr Thompson's statement of 26 March 1998
confirms that one boy 'lifted S's skirt up'. Mr Marland comments 'this is undoubtedly "indecent" and together with the
hitting and pushing is definitely very disturbing for the victim. The actions may not have quite been an "assault" in the
sense of "violent" but they were definitely very wrong by all standards, and strongly offensive'. He expressed the view
that almost every text on pastoral care at that time would have strongly advised the school (through the year head
usually) to write to the parents or speak personally to them. However, the texts which he appended, while emphasising
the desirability of heads and teachers keeping parents well informed, did not deal with the specific situation which
occurred in this case.

[39] Mr Sutton, in his single report written in November 2004, does not criticise Mr Thompson. He writes:

'Both Mr Thompson and Mr Tranter state that they considered carefully the possibility of it having been a sexual
assault, before deciding that it was not. The fact that S's skirt had been flicked open momentarily during the course of
the incident did not, in their judgment, constitute a sexual assault and S herself did not claim that it was. On the record
of the incident, which was made at the time, I believe that this judgment was reasonable.

The conclusion Mr Thompson did reach was that the boys had behaved badly and unacceptably. Their teasing and
harassing of S and her friend had gone beyond the limits of high spirits or fun and he decided to impose sanctions which
would be proportionate to the misconduct and sufficient to impress upon them the unacceptability of their behaviour ...

The claimant states that she believed that Mr Thompson should have written to her parents about the incident. In fact he
advised her to tell her parents, which she said she would do. He also told her that he would be happy to see her parents
if they wished to discuss the matter. Mr Tranter's recollection was that the two girls had told him subsequently that they
had told their parents. I consider Mr Thompson's decision not to write to be 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 would be sufficient to close it.
On the facts before him it was not a matter which should have caused her parents deep concern and a formal letter might
have given it greater significance for them than it merited. It was reasonable to infer from the fact that no further
comment was received from S or from her parents that S regarded the incident as closed and wanted no further fuss
made about it.

I believe that the conduct of Mr Thompson was entirely consistent with what one would expect from a teacher in his
position, and that the actions which he took, including the sanctions imposed, were reasonable and proportionate in
relation to the facts which he states were available to him.'

The law

[40] There was little if any controversy as to the basic principles of law which are applicable. They were conveniently
summarised by Judge LJ in Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07, [2002] ELR 139, at
paras [30], [31] and [35] when he said:

'[30] The scope of a school's duty of care towards its pupils was summed up thus by Auld LJ in Gower v London
Borough of Bromley [1999] ELR 356, at 359:

"(1) A headteacher and teachers have a duty to take such care of pupils in their charge as a careful parent would have in
like circumstances, including a duty to take positive steps to protect their well-being ...

(2) A headteacher and teachers have a duty to exercise the reasonable skills of their calling in teaching and otherwise
responding to the educational needs of their pupils ...

(4) The duty is to exercise the skill and care of a reasonable headteacher and/or teachers, applying the Bolam test,
namely, whether the teaching and other provision for a pupil's educational needs accords with that which might have
been acceptable at the time by reasonable members of the teaching profession ..."

This approach was upheld when that case, along with others, reached the House of Lords in Phelps v Hillingdon
London Borough Council [2000] 3 WLR 776. But Lord Slynn gave this warning, at 792:

"The difficulties of the tasks involved and of the circumstances under which people have to work in this area must also
be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational
services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged
and the courts should not find negligence too readily, the fact that some claims may be without foundation or
exaggerated does not mean that valid claims should necessarily be excluded."

[31] Although these are all aspects of the duty of care, there are practical differences between what might be called the
"health and safety" duty and the "educational" duty, among them that the latter is more likely to lead to "pure" economic
loss. Bullying may be either a "health and safety" or an "educational" issue or both. It may lead to physical or
psychiatric injury to the victim. It may also lead to educational under-achievement and consequent psychiatric injury or
economic loss.

...
[35] The usual factors are all relevant in determining what a reasonable school might be expected to do: the extent to
which it was foreseeable that failure to do so would result in actual harm to the victim, the extent of the risk, the
magnitude of the harm, and the practicability and likely effectiveness of any steps which might be taken. We also accept
the point made by Mr Faulks QC, on behalf of the school, that the school's duties arise because of its educational duties
towards the child. Indeed those duties are also owed to all the other children in the school. Like any parent, the school
will often be faced, in this or in any other context, with the problem of balancing one child's interests with another's.
There will also be difficult questions of judgment as to how far the school should seek to step in where the parents or
other agencies such as the police and social services have not done so. Above all, an ineffective intervention may in fact
make matters much worse for the victim because she cannot be protected while she is out of school. It cannot be a
breach of duty to fail to take steps which are unlikely to do much good. All of these considerations are also subject to
the Bolam principle: if a reasonable body of professional opinion would not take such steps, then this school is not
liable for failing to do so.'

[41] The duty of care is only engaged in circumstances which give rise to a foreseeable risk of physical or psychiatric
injury. What is foreseeable will depend on the factual context, see Hatton v Sutherland, Barber v Somerset County
Council, Jones v Sandwell Metropolitan Borough Council, Bishop v Baker Refractories Ltd [2002] EWCA Civ 76,
[2002] ICR 613, at paras [22]-[31] (not affected for present purposes, by the appeal to the House of Lords in Barber v
Somerset County Council [2004] UKHL 13, [2004] 1 WLR 1089, [2004] ELR 199). Finally, in Bradford-Smart v West
Sussex County Council [2002] EWCA Civ 07, [2002] ELR 139, Judge LJ said:

'[37] We would add that in all these cases it is necessary to identify with some precision any breach of duty found. It is
also important to consider whether the steps proposed would have been effective in preventing the bullying. It is not
enough to find that there has been bullying, to find some breach of duty, and then to find that the bullying caused the
injury. There must be a causal connection between the breach of duty and the injury. That will often be difficult to
prove.

[38] There is no magic in the term bullying. Any school has to have sensible disciplinary policies and procedures if it is
to function properly as a school at all. It will no doubt take reasonable steps to prevent or deal with one-off acts of
aggression between pupils and also recognise that persistent targeting of one pupil by others can cause lasting damage
to the victim. In seeking to combat this it is always helpful to have working definitions such as those contained in the
documentation we have seen. The problem is now well enough recognised for it to be reasonable to expect all schools to
have policies and practices in place to meet it; indeed, this school developed just such a policy in Working Together.
We agree that such policies are of little value unless they are also put into practice. But in order to hold the school liable
towards a particular pupil, the question is always whether the school was in breach of its duty of care towards that pupil
and whether that breach caused the particular harm which was suffered.'

[42] Mr Norris argued, and Mr Kerr accepted, that there is a continuum or spectrum of seriousness of incidents at
school. In most schools on most days there are trivial incidents of pushing, shoving and teasing in the playground which
no one would think of reporting to the victim's parents. At the other end of the scale there are very serious incidents,
such as five boys committing an indecent assault such as that described in the claimant's 2001 statement, where it would
be plainly negligent not to report the matter. The present case obviously lies somewhere in between the two.

Issues of fact and witnesses

[43] I do not have to decide exactly what happened in the playground on 13 October 1995. The school cannot be blamed
for acting on the basis of what was reported to them. If it were relevant at this stage, I would hold that the claimant has
failed to prove that anything occurred beyond what was reported to Mr Thompson. This is not merely because of the
discrepancies between her various statements, substantial though they are, and the fact that some details (not merely of
the alleged sexual attack), such as the presence of one or two dinner ladies apparently indifferent to the victim's plight,
only emerged many years after the events themselves. It is also because Mr Thompson told me, and I accept, that he
was given essentially the same account of the incident in separate interviews with the seven participants, and that
account corresponded with the claimant's contemporaneous statement. Judges are only too well aware that the victims
of sexual attacks often keep them secret. But it would have been extraordinary for all seven children to have made up
the same story in the short time it took the claimant, on her own account, to run straight to Mr Thompson and tell him
what had happened.

[44] I regret to say that I found the claimant a wholly unreliable witness. That is not to say that she was a dishonest
witness. I accept that she believes that what happened on 13 October 1995 was a very serious assault of some kind. But,
perhaps as a result of all she has been through, it seems to me that she no longer has any accurate or reliable recollection
of an event (both the incident and the reporting of it) 10 years ago when she was 13 years old and before her prolonged
period of illness.

[45] By contrast I found Mr Thompson and Mr Lefley most impressive witnesses (as was Mr Haynes, although his
evidence was scarcely contentious). In the case of Mr Lefley it was accepted by Mr Kerr that he was impressive both as
a Head of Year and as a witness save in one respect, to which I shall come later. Mr Tranter was doing his best to assist
me, but I concluded that I could not rely upon his evidence: it was apparent that he had little enough recall of the events
of 13 October 1995 when he was first asked about them in December 1997, and none at all now.

[46] Mr Thompson, as a fact finder, had two invaluable advantages denied to me; he heard from all seven children who
were present (the claimant, H and the five boys), whereas I have only heard from the claimant; and he did so on the day
of the incident rather than nearly 10 years later.

[47] What was reported to Mr Thompson is no longer, as I understand it, in dispute. It is now accepted (and if it had not
been, I would have found) that what the claimant and H reported verbally did not go beyond what they wrote in their
contemporaneous statements. The major factual dispute which remains between the claimant and Mr Thompson is
whether he did or did not present her with three 'options', namely to choose whether he should tell the police, tell her
parents or simply punish the boys. The 'three options' were not mentioned in any contemporaneous document, nor in
any of the psychiatrists' reports of 1996-97; they first appear in a report by Dr Broster of an interview with the claimant
and her parents on 31 January 1999.

[48] I accept Mr Thompson's evidence that he never would, and did not in this case, leave such choices - least of all
whether the police should be involved - to a 13-year-old to decide. He interviewed the seven participants, considered the
written accounts of the claimant and H, and decided for himself. It is common ground between Mr Sutton and Mr
Marland that it would have been unprofessional for Mr Thompson to have presented the claimant with the three options;
but I find that he did not.

[49] The next issue of fact is whether the claimant and her assailants were left together unsupervised outside Mr
Thompson's office. Mr Thompson is firm in his recollection, which I accept, that the boys arrived with Mr Tranter and
were spread along the corridor with Mr Tranter supervising while one by one they were called in to be interviewed by
Mr Thompson.

[50] The final issue of fact is whether Mr Thompson advised the claimant to tell her parents what had happened. I find
that it is probable that he did, not simply because that was his evidence. A child comes to a teacher complaining of an
unpleasant and distressing incident. Whatever else the teacher does, to say 'tell your parents when you get home' is the
natural and obvious thing to do. The child is likely to feel better for having got the incident off her chest to a
sympathetic audience at home. Often, though of course not always, a problem aired is a problem solved.

[51] There was no dispute between the parties - indeed it can be said to be a matter of common knowledge - that many
victims of bullying and harassment at school tell no one for fear of being labelled as a 'grass'. But here the claimant had
been brave enough to tell her Head of Year at the school, on the day, and with the knowledge of the boys involved. It
was not foreseeable that having done so she would keep the matter from her parents.
[52] I do not accept Mr Kerr's suggestion that Mr Thompson refrained from suggesting that the claimant tell her parents
for fear that the police would be involved, or that there would be accusations of racism because he and the claimant are
white and three of the boys (including U) are Asian. There would be no logic in this approach. Most 13-year-old
children who had been harassed in the way described in the 1995 statement would tell their parents without delay. Mr
Thompson had no information to put him on notice that the claimant would do otherwise. As to the suggestion that he
would be concerned that the parents would 'over-react' and withdraw their daughter from the school, again there was no
previous history to warn him that they might wish to do so.

The issue of negligence

[53] The central allegation of negligence in the particulars of claim is that of 'failing to inform the claimant's parents that
the indecent assault had occurred and failing in consequence to consult with them about how it should be dealt with'.

[54] Mr Thompson was not a lawyer. He did not know of the decision of the House of Lords in R v Court [1989] AC
28, holding that the offence of indecent assault (until its replacement in 2003) required proof of indecent intent by the
perpetrator; and of course the situation needed handling without legal niceties. But as a sensible layman with substantial
experience of dealing with 13-year-old children he considered, rightly in my judgment, that whether boy U or the other
members of his group harassing the claimant had indecent intent or not was very important. After interviewing the
seven children on the day he concluded that this was not a case of indecent assault but of 'horseplay', by which I
understood to mean rough and unpleasant conduct without a sexual element. It is quite impossible for me, having heard
one out of seven children many years later, to say that he was wrong.

[55] Against that background the central issue in the case, applying the law as laid down by the Court of Appeal in
Bradford-Smart v West Sussex County Council [2002] EWCA Civ 07, [2002] ELR 139, is whether a reasonable body
of professional opinion would have refrained in Mr Thompson's position from contacting S's parents directly.

[56] Mr Kerr submitted that at least 90% of parents would be 'outraged' by Mr Thompson's failure to contact the parents
directly. But, as he rightly accepted, that figure was a submission not based on evidence. He naturally sets great store by
the fact that Mr Marland, with his long experience as a head teacher, found it 'shocking'. But I have to say that in oral
evidence Mr Marland repeatedly argued the claimant's case, rather than answering counsel's questions. The claimant,
who was most capably represented by Mr Kerr QC, did not need a second advocate. I found Mr Sutton a far more
dispassionate expert witness.

[57] Mr Marland is entitled to his personal view, but I accept Mr Sutton's evidence that while some teachers in Mr
Thompson's position would have written to the parents, others quite reasonably would not; and that it was an exercise of
proper professional judgment to do either.

[58] I also reject Mr Kerr's submission that 'there is no intermediate category of cases that are serious enough to be
worth advising a child to report to parents but not serious enough to be worth the trouble of the school reporting to
parents'. For the reasons I have already set out, the two processes seem to me quite different.

[59] Mr Tranter too is criticised on behalf of the claimant for not having told her parents about the assault. But he was
entitled on the day to take the view that the matter was being dealt with at a higher level, that is to say by the Head of
Year, and that it was for Mr Thompson to decide how the case should be handled.

[60] As to subsequent events, there is no evidence of further untoward incidents or anything in the claimant's behaviour
at school before the summer term of 1996 to put Mr Tranter or his colleagues on notice that something was wrong. It
was argued that Mr Lefley should have found out about the October incident when he took over from Mr Thompson,
but I see no reason why he should. The allegation in the particulars of claim of 'failing to protect the claimant against
the bullying she endured after the return of the assailants to the school' is no longer pursued.
[61] Another itemised allegation of negligence is 'failing to refer the claimant for counselling or other professional help
or advice following her complaint of indecent assault'; as to this Mr Kerr accepted that (on the facts as reported to Mr
Thompson) the referral might properly have been to staff at the school, and not necessarily to external agencies. But it
does not seem to me that the incident as reported was in itself so serious as to warrant such a referral. If the claimant had
exhibited continuing signs of unhappiness in the weeks after the incident it would have been different; but there is no
evidence of this, and the evidence of the March 1996 school reports is to the contrary.

[62] I have already found that Mr Thompson did not place the responsibility on the claimant to determine how the
incident should be dealt with; and that she was not left unsupervised outside his office. I therefore reject each of the
allegations of negligence and breach of duty made against the staff of the school in the particulars of claim.

[63] For the sake of completeness I should mention that the defence makes allegations of contributory negligence
against the claimant. These were not abandoned by Mr Norris but were maintained, if I may say so, somewhat half-
heartedly. Had I found primary liability against the defendants I would have rejected the plea of contributory
negligence. But in view of my main findings that issue becomes academic.

Conclusion

[64] I have no doubt that the deterioration in the claimant's psychological condition during 1996 was seriously
distressing to her and her parents; and it is entirely natural that they should look for an explanation attributable to human
failings. But on the evidence before me they have failed to establish their case against the defendant council. I must
therefore give judgment for the defendants and dismiss the claim. Any post-judgment applications, including for
permission to appeal, will be dealt with on a date to be arranged when leading counsel can attend. The time for filing
any appellant's notice at the Court of Appeal is extended until 14 days after that further hearing.

Judgment to the defendants; claim dismissed.