PHELPS V LONDON BOROUGH OF HILLINGDON [1998] EWCA Civ 1686
FACTS:-
The Claimant was born on the 30th December 1973. In September 1978, she attended Hayes Park Infant School. Towards the end of 1980, she was referred to the School Psychological Service for lack of educational progress and was seen by an educational psychologist, who confirmed that she was underfunctioning and recommended “time, patience, interest and praise”. The Claimant was also referred to the Child Guidance Clinic and seen by a Mrs Jones, a psychiatric social worker and a Dr Urquart. On the 19th February 1981, Dr Urquart wrote to the Claimant’s GP, recommending psychotherapy. On the 21st May 1981, she was seen by a psychotherapist, Miss Kerbekian but due to illness, bereavement and holidays, Miss Kerbekian missed some 10 weekly sessions. The Claimant’s parents became frustrated and in November 1981, decided to discontinue psychotherapy. In September 1981, the Claimant transferred to Hayes Park Junior School and it was noted by her class teacher that she was doing badly. On the 9th December 1981, Dr Urquart wrote to the GP, blaming the Claimant’s parents for her difficulties. In May 1982, the Claimant’s educational progress was still described as very slow. The Defendant wanted to refer the Claimant back for more therapy, but the Claimant’s mother refused this. On the 6th September 1982, the Claimant’s parents again saw Dr Urquart however it was clear that they had lost confidence in the Child Guidance Clinic.
In May 1984, an Advisory Remedial Teacher tested the Claimant’s reading and spelling, which was about four years below her actual age. In September 1985, the Claimant moved to Mellow Lane School. This time her reading ability was again four years below her age. There were two special needs teacher, Mrs Taylor and Mrs Murphy. Another special needs teacher was available, but was not called to give evidence. Mellow Lane had procedures for reviewing the progress of those in difficulties and shortly after her arrival, the Claimant was given six hours a week of special needs training. The school also referred her to the educational psychology service and she was seen by a Miss Melling, who had a degree in Developmental Psychology and a Diploma in Education Psychology in addition to her Certificate in Education.
She produced a report but did not identify the Claimant as being dyslexic. The Claimant continued with the six hours a week special needs teaching. In March 1987 steps were taken toward obtaining a statement of special educational needs for the Claimant.
In July 1987, the Claimant had an operation on her knee and missed schooling during the Autumn and Winter Terms. She was given a home tutor who expressed concern about her lack of progress. When she returned to school there were a series of meetings about her future, and the possibility of transferring her to a special school was considered.
The Claimant left school in April 1990. In February 1990 she was diagnosed as being dyslexic by Mr Walker and she began tuition with a specialist. In 1994 she was referred by her solicitor to a Mr Rabinowitz. She was seen by a Dr Gardner in 1996, and he said that she had not made much progress in 6 years since leaving school.
HELD
Lord Justice Stuart-Smith addressed the issues in the case:-
The issue of educational negligence had been considered by the House of Lords in three educational negligence cases which were part of X (minors) v Bedfordshire CC [1995] 2 AC 633. The House of Lords did not consider the nature of the question of the damage, but the Court of Appeal did. Sir Thomas Bingham had said that if the Claimant could show that the adverse consequences of a congenital defect could have been mitigated by early diagnosis, and that there was resulting detriment to his level of educational attainment and employability and that this damage was not too remote, then the claim for damages was not necessarily bad.
However Stuart-Smith LJ noted that Sir Thomas Bingham had not referred to injury. Evans LJ in the same series of cases had broadly agreed with Sir Thomas Bingham. The failure to treat or the delayed treatment of dyslexia did arguably give rise to a form of injury, which could support a claim for damages for negligence in tort.
Stuart-Smith LJ said that these comments of the Court of the Appeal were obiter. In his view, dyslexia is not itself an injury and he did not see how failure to ameliorate or mitigate its effects could be an injury.
That had important consequences, in particular to limitation periods. It was possible to recover damages for economic loss provided there had been an assumption of responsibility to protect the Claimant from the type of loss sustained. (Henderson v Merrett Syndicates [1995] 2 AC 145 and Hedley Bryne & Co. Ltd v. Heller & Partners Limited 1964 AC 465). Stuart-Smith said that an Educational Psychologist who was consulted privately by parents could be liable in contract for failing to take reasonable care in diagnosis.
Duty of care
The Claimant’s counsel had founded the claim on the speech of X v Bedfordshire of Lord Browne-Wilkinson who said that the staff of the Defendant authority in the education cases could be vicariously liable for any breach of duties by their employees, and the position of the psychologists was quite different from that of the doctor or social worker in the child abuse cases. There was no potential conflict between the professional’s duties to the Claimant and his duty to the educational authority.
The critical question was whether Miss Melling had assumed or undertaken personal responsibility towards the Claimant.
It was important to note that according to Lord Browne-Wilkinson in X v Bedfordshire it was not arguable that the local education authority owed a direct duty of care in relation to their statutory functions under the Education Acts of 1944 and 1981. Stuart-Smith LJ referred to a number of cases from the United States and Canada where claims for educational malpractice had been struck out. Since Lord Browne-Wilkinson had said that educational authorities might be liable in negligence in X v Bedfordshire, there had been a proliferation of cases. In the judgement of Stuart-Smith LJ it would be a matter for very great concern if the policy considerations set out by the House of Lords could be so easily circumvented. He doubted whether their lordships had intended any such consequence.
Unlike X v Bedfordshire the Court of Appeal now had the evidence in the case. In X v Bedfordshire Lord Browne-Wilkinson said that, by setting up an educational psychology service, the LEA were offering a service to the public and he likened this to a health authority running a hospital. It was quite clear that this was not what the Defendant’s psychology service was. The service was set up to advise itself and other employees on the discharge of its statutory functions. There was also a multi disciplinary approach, of which Miss Melling’s report and advice was but a part.
Stuart-Smith LJ did not think it was correct to distinguish the position of the social worker/psychiatrist and educational psychologist/teacher on the basis of potential conflict in one case and not the other.
In his view, what happened here went nowhere near establishing such an assumption of responsibility to the Claimant. The touchstone of liability was not the state of mind of the Defendant. An objective test meant that the primary focus had to be on things said or done by the Defendant or on his behalf in dealings with the Claimant.
The House of Lords had found in X v Bedfordshire that there were strong policy reasons why a direct duty of care should not be imposed on the LEA. Those same policy reasons dictated that it would not be fair, just or reasonable to impose such a duty on an educational psychologist, unless it was quite clear that in addition to performing her duty to her employers, she assumed personal responsibility to the Claimant. It was most unsatisfactory that the LEA should be made liable by the back door of vicarious liability, unless this responsibility was clearly established.
It was open to the parents to appeal against the assessment of their child, or ask for a new statutory statement. The advantage of such procedures was that they took place at the time of the problem, not years later.
Therefore Stuart-Smith LJ would hold that the judge was wrong to hold that Miss Melling was under a duty of care to the Claimant, and he would allow the appeal accordingly. He then dealt with the issues of breach of duty and causation.
Breach of duty
Evidence had been given by Dr Gardner, one of the experts to the effect that he would have carried out additional tests to those carried out by Miss Melling. However he did not say that it was good practice to carry out further tests or that Miss Melling was wrong to conclude that the Claimant’s emotional problem were the explanation. There was a great temptation in these cases to conclude that because it was known now that the Claimant dyslexic, she would always have been assessed as dyslexic. It seemed to Stuart-Smith LJ that it was somewhat harsh to find that Miss Melling fell below the standard generally to be expected of an educational psychologist. It had been said that Miss Melling should have carried out further tests, but it was unfair to single her out for blame when other professionals were involved. Stuart-Smith LJ concluded that too high a standard of care was imposed on Miss Melling.
Causation
In relation to causation, there was substantial evidence that the Claimant had received a great deal of remedial teaching. There was difficulty in showing that if specific treatment for dyslexics had been adopted, it would have made a real difference to her. The judge had posed three questions:-
Stuart-Smith did not think that the judge had ever given an answer to the third question. It was far from clear how the judge reached his figures for future loss of earnings and general damages, or what factors he took into account.
Therefore Stuart-Smith LJ would allow the appeal and enter judgment for the Defendants.
Lord Justice Otton said that he adopted Stuart-Smith LJ’s analysis of fact and law. The fact that the House of Lords declined to strike out particular claims as not disclosing a reasonable cause of action did not involve a converse finding that those claims did disclose a cause of action.
The trial judge had not reviewed the evidence as to whether or not the Defendant would have received tuition of a different nature had she been correctly diagnosed. The weight of the evidence was that the tuition received by the Claimant was the same as that which she would have received even had a diagnosis of dyslexia been made.
On the other hand, Otton LJ said that in his view the evidence showed that had the Claimant been correctly diagnosed, she would have received an individualised programme centred on multi-sensory techniques with over- learning.
There was a second issue on causation. Otton LJ was unable to accept that the Claimant succeeded in proving that there was any deficit that was attributable to the failure to diagnose, or which would not have been present had appropriate education been given. The trial judge had said that he found it impossible to make any specific findings as to the Claimant as she might have been, had the appropriate input been given. This case was to be distinguished from that of Blamire v South Cumbria Health Authority [1993] PIQR Q1. In that case, there were some established historical facts upon which to base the award, as well as a probably future work pattern with a chosen profession. These factors were not present here.
Lord Justice Tuckey agreed that the appeal should be allowed.
FACTS:-
The Claimant was born on the 30th December 1973. In September 1978, she attended Hayes Park Infant School. Towards the end of 1980, she was referred to the School Psychological Service for lack of educational progress and was seen by an educational psychologist, who confirmed that she was underfunctioning and recommended “time, patience, interest and praise”. The Claimant was also referred to the Child Guidance Clinic and seen by a Mrs Jones, a psychiatric social worker and a Dr Urquart. On the 19th February 1981, Dr Urquart wrote to the Claimant’s GP, recommending psychotherapy. On the 21st May 1981, she was seen by a psychotherapist, Miss Kerbekian but due to illness, bereavement and holidays, Miss Kerbekian missed some 10 weekly sessions. The Claimant’s parents became frustrated and in November 1981, decided to discontinue psychotherapy. In September 1981, the Claimant transferred to Hayes Park Junior School and it was noted by her class teacher that she was doing badly. On the 9th December 1981, Dr Urquart wrote to the GP, blaming the Claimant’s parents for her difficulties. In May 1982, the Claimant’s educational progress was still described as very slow. The Defendant wanted to refer the Claimant back for more therapy, but the Claimant’s mother refused this. On the 6th September 1982, the Claimant’s parents again saw Dr Urquart however it was clear that they had lost confidence in the Child Guidance Clinic.
In May 1984, an Advisory Remedial Teacher tested the Claimant’s reading and spelling, which was about four years below her actual age. In September 1985, the Claimant moved to Mellow Lane School. This time her reading ability was again four years below her age. There were two special needs teacher, Mrs Taylor and Mrs Murphy. Another special needs teacher was available, but was not called to give evidence. Mellow Lane had procedures for reviewing the progress of those in difficulties and shortly after her arrival, the Claimant was given six hours a week of special needs training. The school also referred her to the educational psychology service and she was seen by a Miss Melling, who had a degree in Developmental Psychology and a Diploma in Education Psychology in addition to her Certificate in Education.
She produced a report but did not identify the Claimant as being dyslexic. The Claimant continued with the six hours a week special needs teaching. In March 1987 steps were taken toward obtaining a statement of special educational needs for the Claimant.
In July 1987, the Claimant had an operation on her knee and missed schooling during the Autumn and Winter Terms. She was given a home tutor who expressed concern about her lack of progress. When she returned to school there were a series of meetings about her future, and the possibility of transferring her to a special school was considered.
The Claimant left school in April 1990. In February 1990 she was diagnosed as being dyslexic by Mr Walker and she began tuition with a specialist. In 1994 she was referred by her solicitor to a Mr Rabinowitz. She was seen by a Dr Gardner in 1996, and he said that she had not made much progress in 6 years since leaving school.
HELD
Lord Justice Stuart-Smith addressed the issues in the case:-
- What was the nature of the damage claimed? Was it compensatable in a claim for damages in tort?
- Was Miss Melling, the teacher under a duty of care to the Claimant?
- Was the judge’s finding of breach of duty by Miss Melling correct?
- Was the judge’s finding that Miss Melling’s negligence caused Claimant’s damage?
- The quantum of damage
The issue of educational negligence had been considered by the House of Lords in three educational negligence cases which were part of X (minors) v Bedfordshire CC [1995] 2 AC 633. The House of Lords did not consider the nature of the question of the damage, but the Court of Appeal did. Sir Thomas Bingham had said that if the Claimant could show that the adverse consequences of a congenital defect could have been mitigated by early diagnosis, and that there was resulting detriment to his level of educational attainment and employability and that this damage was not too remote, then the claim for damages was not necessarily bad.
However Stuart-Smith LJ noted that Sir Thomas Bingham had not referred to injury. Evans LJ in the same series of cases had broadly agreed with Sir Thomas Bingham. The failure to treat or the delayed treatment of dyslexia did arguably give rise to a form of injury, which could support a claim for damages for negligence in tort.
Stuart-Smith LJ said that these comments of the Court of the Appeal were obiter. In his view, dyslexia is not itself an injury and he did not see how failure to ameliorate or mitigate its effects could be an injury.
That had important consequences, in particular to limitation periods. It was possible to recover damages for economic loss provided there had been an assumption of responsibility to protect the Claimant from the type of loss sustained. (Henderson v Merrett Syndicates [1995] 2 AC 145 and Hedley Bryne & Co. Ltd v. Heller & Partners Limited 1964 AC 465). Stuart-Smith said that an Educational Psychologist who was consulted privately by parents could be liable in contract for failing to take reasonable care in diagnosis.
Duty of care
The Claimant’s counsel had founded the claim on the speech of X v Bedfordshire of Lord Browne-Wilkinson who said that the staff of the Defendant authority in the education cases could be vicariously liable for any breach of duties by their employees, and the position of the psychologists was quite different from that of the doctor or social worker in the child abuse cases. There was no potential conflict between the professional’s duties to the Claimant and his duty to the educational authority.
The critical question was whether Miss Melling had assumed or undertaken personal responsibility towards the Claimant.
It was important to note that according to Lord Browne-Wilkinson in X v Bedfordshire it was not arguable that the local education authority owed a direct duty of care in relation to their statutory functions under the Education Acts of 1944 and 1981. Stuart-Smith LJ referred to a number of cases from the United States and Canada where claims for educational malpractice had been struck out. Since Lord Browne-Wilkinson had said that educational authorities might be liable in negligence in X v Bedfordshire, there had been a proliferation of cases. In the judgement of Stuart-Smith LJ it would be a matter for very great concern if the policy considerations set out by the House of Lords could be so easily circumvented. He doubted whether their lordships had intended any such consequence.
Unlike X v Bedfordshire the Court of Appeal now had the evidence in the case. In X v Bedfordshire Lord Browne-Wilkinson said that, by setting up an educational psychology service, the LEA were offering a service to the public and he likened this to a health authority running a hospital. It was quite clear that this was not what the Defendant’s psychology service was. The service was set up to advise itself and other employees on the discharge of its statutory functions. There was also a multi disciplinary approach, of which Miss Melling’s report and advice was but a part.
Stuart-Smith LJ did not think it was correct to distinguish the position of the social worker/psychiatrist and educational psychologist/teacher on the basis of potential conflict in one case and not the other.
In his view, what happened here went nowhere near establishing such an assumption of responsibility to the Claimant. The touchstone of liability was not the state of mind of the Defendant. An objective test meant that the primary focus had to be on things said or done by the Defendant or on his behalf in dealings with the Claimant.
The House of Lords had found in X v Bedfordshire that there were strong policy reasons why a direct duty of care should not be imposed on the LEA. Those same policy reasons dictated that it would not be fair, just or reasonable to impose such a duty on an educational psychologist, unless it was quite clear that in addition to performing her duty to her employers, she assumed personal responsibility to the Claimant. It was most unsatisfactory that the LEA should be made liable by the back door of vicarious liability, unless this responsibility was clearly established.
It was open to the parents to appeal against the assessment of their child, or ask for a new statutory statement. The advantage of such procedures was that they took place at the time of the problem, not years later.
Therefore Stuart-Smith LJ would hold that the judge was wrong to hold that Miss Melling was under a duty of care to the Claimant, and he would allow the appeal accordingly. He then dealt with the issues of breach of duty and causation.
Breach of duty
Evidence had been given by Dr Gardner, one of the experts to the effect that he would have carried out additional tests to those carried out by Miss Melling. However he did not say that it was good practice to carry out further tests or that Miss Melling was wrong to conclude that the Claimant’s emotional problem were the explanation. There was a great temptation in these cases to conclude that because it was known now that the Claimant dyslexic, she would always have been assessed as dyslexic. It seemed to Stuart-Smith LJ that it was somewhat harsh to find that Miss Melling fell below the standard generally to be expected of an educational psychologist. It had been said that Miss Melling should have carried out further tests, but it was unfair to single her out for blame when other professionals were involved. Stuart-Smith LJ concluded that too high a standard of care was imposed on Miss Melling.
Causation
In relation to causation, there was substantial evidence that the Claimant had received a great deal of remedial teaching. There was difficulty in showing that if specific treatment for dyslexics had been adopted, it would have made a real difference to her. The judge had posed three questions:-
- What was the Claimant’s situation now
- What would be the Claimant’s situation in two or three years time?
- What would have been the Claimant’s situation if she had been diagnosed with dyslexia in 1985
Stuart-Smith did not think that the judge had ever given an answer to the third question. It was far from clear how the judge reached his figures for future loss of earnings and general damages, or what factors he took into account.
Therefore Stuart-Smith LJ would allow the appeal and enter judgment for the Defendants.
Lord Justice Otton said that he adopted Stuart-Smith LJ’s analysis of fact and law. The fact that the House of Lords declined to strike out particular claims as not disclosing a reasonable cause of action did not involve a converse finding that those claims did disclose a cause of action.
The trial judge had not reviewed the evidence as to whether or not the Defendant would have received tuition of a different nature had she been correctly diagnosed. The weight of the evidence was that the tuition received by the Claimant was the same as that which she would have received even had a diagnosis of dyslexia been made.
On the other hand, Otton LJ said that in his view the evidence showed that had the Claimant been correctly diagnosed, she would have received an individualised programme centred on multi-sensory techniques with over- learning.
There was a second issue on causation. Otton LJ was unable to accept that the Claimant succeeded in proving that there was any deficit that was attributable to the failure to diagnose, or which would not have been present had appropriate education been given. The trial judge had said that he found it impossible to make any specific findings as to the Claimant as she might have been, had the appropriate input been given. This case was to be distinguished from that of Blamire v South Cumbria Health Authority [1993] PIQR Q1. In that case, there were some established historical facts upon which to base the award, as well as a probably future work pattern with a chosen profession. These factors were not present here.
Lord Justice Tuckey agreed that the appeal should be allowed.