Tue, 24 May 2022
The decision of HHJ Ralton in Abrahart v University of Bristol has been widely reported in the press. Helpfully the judgment can be found on the judiciary.uk website. It starts with a statement that none can argue with:
“1. This is a tragic case.”.
Unfortunately it is not as rare a case as we may hope. Whilst the taboo on the topic of mental health is becoming less and less prevalent, the pressures of modern life, not helped by the COVID-19 disruption to education and life in general, continue to drive a mental health crisis amongst the young. University is for many, maybe even most, a formative experience. A time to make mistakes and come out the other side a, hopefully, wiser person. But for some it can be the opposite, a struggle barely endured or perhaps even a destructive experience to their confidence, self-esteem and, at its very worst, their life.
From a legal perspective, therefore, the issues raised in this case are only likely to become a more common battleground between universities and their students, reflected perhaps in the comment from the University that they are considering an appeal “given the significant impact this decision could have on how all higher education providers support their students”. The case helpfully illustrates the relationship between personal injury and discrimination law, an interface that is less explored than more traditional legal challenges to standards of teaching, which give rise to different questions.
The case was brought by Dr Abrahart, father of Natasha Abrahart who took her own life on 30 April 2018. Claims were made in Negligence and under the Equality Act 2010 for a Failure to make Reasonable Adjustments (s.20/21), Indirect Discrimination (s.19) and Discrimination arising from Disability (s.15). These claims are only applicable if an individual is disabled within the meaning of s.6 of the 2010 Act, that is that they have a physical or mental impairment that has a long term substantial adverse impact on normal day to day activities.
Long term broadly means lasting 12 months or more, or one which ‘may well’ re-occur.
Substantial means ‘more than trivial’.
Normal day to day activities requires consideration of what an individual cannot do, setting aside the benefits accrued from treatment such as medicines.
The judge found that Natasha was disabled. Any claimant in future claims relying on the 2010 Act would have to similarly meet this definition in order to succeed.
Next, the relevant defendant must have either known or ought to have known about the disability. Again that was fulfilled in this claim. Even if the exact diagnosis or issue is not known by individuals, if they are on sufficient notice that something is not right and they should have explored it further, then they are fixed with constructive knowledge.
When it comes to higher education, the real crux of many cases will be the exception in the 2010 Act at s.94(2), that the relevant part of the 2010 Act does not apply “to anything done in connection with the content of the curriculum”. In this case the oral assessments to elicit the understanding of Natasha by answering questions arising from physics experiments did not need to be oral at all; they could be adjusted to some alternative written format. The format of the assessments was therefore nothing to do with the content of the curriculum at all. This is a crucial matter for both potential claimants and higher educational establishments to carefully consider; what exactly is being assessed and must it be in that way.
Another feature that arises in the case is the actions of Natasha herself. This is already entirely addressed in the existing law under the 2010 Act. Whilst a higher educational establishment will only be liable under the Act if they knew or ought to have known of a disability, once aware then the duty is squarely on the institution. It is the institution that must consider the problematic feature and why it requires adjustment. It is the institution that must consider the adjustments. It is the institution that assess whether they are avoiding the particular disadvantage caused to those with the disability. It was this passive approach that could be said to have ultimately lost the University the case under the Equality Act 2010.
Whilst the claims under the 2010 Act succeeded, the claims in negligence did not. The judge found no duty was owed, either when Natasha initially became a student, or by an assumption of a duty by the University whilst she was there. Whether the duty arises, is largely fact specific; something more is likely to be required before a duty of care for the general wellbeing of the student arises from the student/university relationship. That duty must extend to protecting the student from some form of personal injury. Whilst the conduct of experiments may well engage a duty on the occasions they occur and if negligently performed causing some injury, the general approach to a university course will not attract a duty to avoid personal injury without something more. The judge alternatively held that if there was a duty, then there would have been a breach for the same reasons as the claim succeeded under the 2010 Act. The judge did not engage in a great deal of analysis as to why he did not find a duty applied; or in the alternative if he was wrong on that, why it would have been breached. No doubt there will be a cross-appeal if the University does appeal.
However, whether it is a question of duty or breach, the case does typify a general difference in parts of the Equality Act 2010 and the law of negligence. The 2010 Act has a greater emphasis on proactive action by those the Act applies to, be it employer or education provider. The requirement to make Reasonable Adjustments is the most obvious example. To succeed under the Act in that type of claim does not involve the same assessment of foreseeability as is required in a claim in negligence, although it may play a greater part in the assessment of damages.
I suspect that the reason the judge did not consider it in great detail is that the damages would in this case have largely overlapped, being ones for injury to feelings and general damages, which the Court of Appeal have confirmed can be considered by way of sense checking the level of awards. There was a very specific issue that Natasha had in the form of the oral assessments, which the medical evidence had shown either caused the depression which led to her death or made a material contribution to it. That issue of causation will no doubt be a controversial point in any future claims, both as to any liability and the level of damages.
This case does not therefore, at least not yet, represent a drastic change in the duties owed by higher educational institutions. The all-too-common reports of student suicides is unlikely to now lead to an explosion of claims. However, what must be remembered is why the Equality Act 2010 and any duty of care exists. It is not to enable claims to be brought, but because Parliament and the common law recognise them as standards that, in this context, higher educational institutions should offer. Having in place effective measures, policies and procedures, that staff can either apply themselves or use to direct struggling students onwards to those who can help, is what will help to avoid, as far as possible, such deteriorations from arising, or managing them when they do. Mental health is an ever-present fact, as old as civilisation and one which higher educational establishments will always have to deal with.
The legal and factual issues that this case raises will likely start to feature more in litigation by those who do come within the protection of the Equality Act 2010. Sadly, they may also be something that features more in inquests and claims by bereaved parents and families. And regardless of the legal and factual issues, the same phrase will be true of each of them; this is a tragic case.