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Assault by Service User does not lead to liability finding

DB v Wigan Council

Judgment 18/11/2020

Before his Honour Judge Bird @ Manchester County Court following a 2-day trial.

The Claimant worked for the Council as a carer in a home which looked after young people with a range of disabilities on a respite basis. During a shift when the claimant was providing 1 to 1 care to a young man (X) with severe autism, he kicked out and struck the claimant on two separate occasions separated by a couple of hours. The claimant sustained some injury although the extent of it was in dispute given in particular that she had a number of underlying health issues which had caused her to have considerable time off work in the months preceding the incidents.

The claimant claimed that the Council was in breach of its duty of care in that the home had been short staffed; the risk assessment and personal assessment plan for the service user X was inadequate and that the home's policy had been breached in that she had not been rotated in accordance with the policy in place. It was also claimed that the manager had received a warning that X had been "playing up" at school earlier in the day and that information had not been passed on to the claimant.

The defence pointed to what appeared to be a perfectly adequate risk assessment and behavior plan for X albeit accepting that there remained some risk which could not be completely eradicated, and to a general policy of always checking on staff every 15-20 minutes which meant that if the claimant had asked to be relieved or had felt targeted another member of staff would have taken over. There was no record of a prior warning having been received.

Forbes' robust investigations meant that at trial 3 staff members were called on behalf of the Council and gave excellent evidence confirming the points that had been raised in the defence. Much of the claimant's account dissolved under cross examination and Judge Bird in dismissing the claim made it clear that where there had been a divergence of evidence, he preferred the evidence of the defence witnesses. The judge accepted that there was also a duty of care on the part of the claimant herself. Even on her own evidence she had never in fact actually requested to be relieved from caring for X either before or after the "assaults".

Forbes Comment

This case underlines that whilst assaults on care staff are unfortunately not uncommon and often lead to litigation they will not automatically be as a result of a breach of the duty of care on the part of the care provider. Some inevitable risk will always be present when providing care to vulnerable service users. It is important to have robust risk assessments and policies in place and to ensure these are regularly monitored and updated. It is also necessary however for individuals to be aware of their own duty of care to minimize risk as much as possible and to rely on their own knowledge and experience to minimize the risks inherent in their difficult but essential work.

Another point worthy of note in this case is that Thompsons, who were the claimant's solicitors, had removed it from the portal despite the claim being valued at no more than £10 000 on the basis that the injury had been caused by "a child or a vulnerable adult" (rather than the victim being a child or a vulnerable adult). We disputed this based upon the case of Scott v The Home office (see our article on that case from earlier this year - Court considers whether Claimant's costs should be restricted to fixed costs and the 'vulnerable adult' exception ) ) where it was found that the intention of the portal rule was not to allow removal from the portal in such cases but only where the victim was a child or vulnerable adult. Had the claimant won her claim against the council we would have argued that she was limited to portal costs.

For more information contact John Myles in our Insurance department via email or phone on 07976277777. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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