In FXS v The Mulberry Bush Organisation Limited [2026] EWCA Civ 415, the claimant was a child with behavioural problems who was placed in the defendant’s school. He sued for negligence in relation to his care, alleging inappropriate and excessive restraint and failure to manage his behaviour appropriately. He also made a claim for battery in relation to three incidents in which he had been restrained face down, and for false imprisonment after several incidents where a towel had been wrapped around the inside handle of his bedroom door, and the door had been pulled closed from the outside.
The trial judge dismissed the negligence claim but allowed the claims for battery and false imprisonment. She awarded compensatory damages of £2,000 for each of the three battery incidents, totalling £6,000; and aggravated damages of a further £4,000 for those incidents. In respect of the towel incidents, she awarded £5,900 in damages and £3,000 in aggravated damages. The defendant appealed against the liability findings and the awards of aggravated damages.
Lord Justice Popplewell, with whom the other members of the Court of Appeal agreed, gave judgment. In relation to battery, everybody was protected not only against physical injury but against any form of physical molestation. The essential ingredients of battery were:
1) the application of force, however slight;
2) which was intentional and not accidental – hostility was not required;
3) without the express or implied consent of the other person;
4) which was not physical contact that was generally acceptable in the ordinary conduct of everyday life; and
5) for which there was no lawful excuse.
As for false imprisonment, the issue here was whether the imprisonment in this case was unlawful.
In relation to the restraining incidents, Popplewell LJ said that the trial judge appeared to have treated it as sufficient to establish a battery that these incidents involved conduct on the part of staff, which was contrary to the defendant’s own school policy. However, this view was mistaken because the real issue was whether there was a lawful excuse for the restraint. Section 87 of the Children Act 1989 and section 93(1) of the Education and Inspections Act 2006 indicated that the conduct complained of was in fact lawful. This was because the conduct was reasonable for one or more of the purposes identified in the statutes, namely, to prevent harm to others and to property. So, the question was simply whether that restraint was reasonable. This was an intensely fact-sensitive question.
The trial judge had found that the female staff member who had applied the face-down restraints had no training in applying this kind of restraint, and that the absence of that training would increase the risk of harm. If the claimant had done something unexpected, then an ‘emergency’ or ‘dynamic’ response involving this kind of restraint might have been justified. However, the claimant’s challenging behaviour was typical of his profile. Moreover, the staff member who applied the restraints was approximately the same size as the claimant, which increased the risk that she would need to use an emergency response. Therefore, she should not have been permitted to work with the claimant alone if she was unable to restrain him.
Popplewell LJ said there was an important difference between a staff member using a technique in which they had not been trained, which carried with it increased risks to health, and on the other hand, doing so only as a dynamic response in the course of grappling with a child, with the unapproved technique being the only reasonable available option to prevent harm to staff and others. The trial judge was entitled to find as she did and therefore the appeal in relation to the findings that the face-down incidents involved the tort of battery would be dismissed.
The next issue related to the towel incidents and whether they constituted false imprisonment. Here, Popplewell LJ took a different view. The trial judge had based her conclusions on the terms of government guidance. That guidance did not determine whether the conduct was lawful. It might be a matter of good practice to consult in advance with parents and/or the local authority over the use of such a technique, but a failure to do so did not render the use of the technique in any given situation unreasonable.
The records in relation to each of the incidents made it clear that on all occasions the towel method was being used to avoid the risk of further injury. It was also often being applied so as to promote the claimant’s welfare by allowing him to calm down while communication with a member of staff remained available through the door. Popplewell LJ would therefore allow the appeal in respect of the findings of false imprisonment.
The third and final issue was that of aggravated damages. In cases of assault or battery, these could be awarded in certain circumstances for injury to feelings. They were intended to compensate for indignity, humiliation, disgrace or mental suffering. McGregor on Damages (22nd Edition) (2024) said that aggravated damages ‘come into the picture where injury to the claimant’s feelings is increased by the flagrancy, malevolence and particularly unacceptable nature of the assaulting defendant’s behaviour.’
The trial judge had awarded aggravated damages on two key features. First, there was a failure on the part of the defendant to appreciate the significance and seriousness of a member of staff using a face-down restraint. Second, the defendant had been reluctant to acknowledge the prohibition on face-down restraints in the school’s policy and some witnesses had refused to accept the plain wording of the incident reports.
Popplewell LJ said that there was nothing malicious or malevolent about these features, nor were they insulting or oppressive. Therefore, the award of aggravated damages would be quashed.
Malcolm Johnson is head of abuse claims at Lime Solicitors, London
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