PHELPS V LONDON BOROUGH OF HILLINGDON, ANDERTON V CLWYD COUNTY COUNCIL, IN RE G (A MINOR) BY HIS NEXT FRIEND, JARVIS v HAMPSHIRE COUNTY COUNCIL [2000] UKHL 47
FACTS:-
These were four educational negligence cases. Three concerned children who were dyslexic and the fourth was a child suffering from Duchenne Muscular Dystrophy. In Phelps there had been a trial where the Claimant succeeded but was struck out by the Court of Appeal. In two others, “G” and “Jarvis” there was an application to strike out under Order 18 Rule 19 as being an abuse of the process of the court or as disclosing no cause of action. In “G”, the court struck out the claim, but it was reinstated by the Court of Appeal. In Jarvis the judge did not strike out the claim in negligence, but the Court of Appeal struck it out. In the fourth case, Anderton, the question was whether pre-action discovery should be ordered on the basis that the intended claim was for personal injuries to a person. The Master and Judge held that it was, but the Court of Appeal held that it was not and refused the order for discovery.
The facts in Phelps were that the Claimant was born on the 30th December 1973 and was dyslexic. She began school at 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”. She was then 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 but 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 teachers, 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.
Miss Melling 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 towards 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.
The Claimant issued proceedings against the Defendant on the 22nd December 1994 claiming damages for breach of statutory duty under the Education Acts 1944 and/or 1981 and the Education (Special Educational Needs) Regulations 1983 alternatively in negligence. The trial judge held that Miss Melling owed a duty of care to the Claimant, and that the Defendant was vicariously liable for breaches of that duty by Hillingdon. However that was qualified by the finding that the other teachers at the school relied upon Miss Melling’s findings and they kept the Claimant’s case under review. The trial judge held that they were not expected to take a fresh look at the Claimant. He awarded special damages for tuition fees incurred and likely to be incurred and for future loss of earnings together with general damages of £12,500, making a total award of £44,056.50 plus interest.
However the Court of Appeal allowed the appeal by Hillingdon. They decided that dyslexia was not a personal injury, although there could be damages for economic loss if it could be shown that there was an assumption of personal responsibility by the teacher, Miss Melling. In relation to the issue of whether a duty of care existed, Lord Browne-Wilkinson in X v Bedfordshire County Council [1999] 2 AC 633 had said that whilst there was no direct duty of care on a local education authority, an individual educational psychologist or teacher might be liable. Stuart-Smith LJ in the Court of Appeal in this case, had said that it was a matter of grave concern that absence of a direct duty of care could be circumvented in this way. He said that that Hillingdon Educational Psychology Service was not a service available to the public generally, but was set up and used by Hillingdon to obtain advice for the authority and its employees. Moreover the educational psychologist was part of a multi disciplinary team, and that gave rise to the potential for conflict. There were strong policy reasons why it was not fair, just and reasonable to impose a duty of care. The Court of Appeal also found that the evidence in this case went nowhere near establishing an assumption of responsibility.
In addition, on the facts Stuart-Smith LJ found that there was no breach of duty by Miss Melling.
In the case of “G” he was born in 1984 and suffered from Duchenne Muscular Dystrophy. He had begun at a junior school and it became immediately apparent that he had severe problems making progress. He was seen by an educational psychologist, who advised that he would benefit from attendance at another school with extra support. She made no diagnosis of dyslexia. The Claimant began at that school in 1990, and given a Statement of Special Educational Needs but his behaviour deteriorated and he continued to have specific learning difficulties. He left his school in summer 1991, and until September 1992 he had sporadic home tuition. His home tutor said that he should be placed in a unit specialising in dyslexia, but he was then placed at another school. He was temporarily excluded from that school and never returned. Until October 1995 when his Statement expired, he received home tuition and part time tuition at a pupil referral unit.
The Claimant claimed that the London Borough of Bromley failed to provide him with a proper education and in particular computer technology and suitable training to enable him to communicate and to cope educationally and socially. As a result he suffered damage in the form of a lack of educational progress, social deprivation and psychiatric injury. He issued proceedings on the 18th May 1998. Bromley applied to strike out the Statement of Claim. Master Miller dismissed the Summons and Gray J struck out the Statement of Claim. The Court of Appeal reversed the decision of Gray J and Bromley appealed against that decision.
In the case of Jarvis, the Claimant alleged that there had been negligence, misfeasance in public office and breach of duty, both by the educational psychologist, for whom the authority was vicariously liable and by the authority itself for failing to provide competent advice through its educational psychology service.
On the 19th February 1999, the trial judge struck out the claim for misfeasance but refused to strike out the claim in negligence. The Court of Appeal at the end of November 1999 upheld the trial judge on the misfeasance claim, but struck out the negligence claim.
In the case of Anderton the Claimant was born in 1979. She was educated from September 1983 at a primary school but suffered severe speech and language problems. No action was taken by the local educational authority. In 1988 she was diagnosed as being severely dyslexic. In 1990 she was sent to a main stream comprehensive school where she alleged that she was bullied and she developed psychological problems. Her solicitors issued a summons seeking pre-action disclosure pursuant to Section 33(2) of the Supreme Court Act 1981. Section 33(2) only applied to a claim in respect of “personal injuries”. That summons was granted by the Master, upheld by the judge but refused by the Court of Appeal.
HELD
Phelps
Lord Slynn referred to the case of X v Bedfordshire. In that case Lord Browne-Wilkinson had distinguished between three types of case:-
Those principles were then applied to the education cases in X v Bedfordshire, Dorset, Hampshire and Bromley. In Dorset Lord Browne Wilkinson had said that if an authority offered a “service” to the public, then it would assume a duty to exercise reasonable care in the conduct of the service to those using it.
In the case of Hampshire, the claim related to the authority’s vicarious liability for the negligence of the headmaster who had failed to refer the child for an assessment or to have an experienced educational psychologist consider her case. This was a pure common law claim in negligence. Lord Browne-Wilkinson said that he could see no legal or common sense principle that required one to deny a common law duty of care which would otherwise exist just because there was a statutory scheme.
In Bromley the claim was made out under section 8 of the 1944 Act and this was dismissed. There was no right in such a context for damages for breach of statutory duty, nor was there a claim for negligence in exercising statutory discretions in assessing or providing for such special needs. The claim for vicarious liability was not struck out although it was somewhat vague.
In the present case, the Claimant, Miss Phelps claimed that Hillingdon had responsibilities pursuant to the Education Act 1944. Lord Slynn considered the provision of section 8 of the 1944 Act, the Education Act 1981 and the Education (Special Educational Needs) Regulations 1983.
There was no express indication that a failure to carry out these statutory duties, should lead to an award of monetary compensation. It was clear that the loss suffered by a child who had not been treated in accordance with the statutory intent, could be said to be foreseeable, proximate and serious. However that did not necessarily lead to the conclusion that Parliament intended that there should be a right to damages.
In Cutler v Wandsworth Stadium Ltd [1949] AC 398 the court had said that if there was a statutory duty, but if no remedy by way of penalty was imposed, it could be assumed that a right of civil action would accrue. In Lonrho Ltd v Shell Petroleum Company Ltd. (No.2) [1982] AC 173 the court said that even where a remedy was provided to enforce the obligation, a further remedy might be available to a person belonging to a class of individuals for whose benefit or protection the obligations was imposed.
Therefore arguably these points might apply to some sections of the Education Acts. However neither was conclusive and a broader approach was required. The Education Acts were essentially providing a general structure for all local education authorities in respect of all children who fell within its provision. The general nature of the duties and the remedies available by way of appeal and judicial review, indicated that Parliament did not intend to create a statutory remedy by way of damages.
The common law
However it did not follow that the local authority could never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants or agents. The House of Lords had already decided in Barrett v Enfield London Borough Council [1999] 3 WLR 79 that the fact that acts which were claimed to be negligent were carried out within the ambit of a statutory discretion was not in itself a reason why it should be held that no claim for negligence could be brought in respect of them. It was only where what was done involved the weighing of competing public interests or where Parliament could not have intended the courts to substitute their views for those of the public authority, that the issue would be non-justiciable. In the Claimant’s case, there was no such ground for holding that the Claimant’s claim was non-justiciable. Therefore the question to be determined was whether the damaged relied upon was foreseeable and proximate and whether it was just and reasonable to recognise a duty of care. (Caparo Industries plc v Dickman [1990] 2 AC 605). This was particularly important where other remedies laid down by the statute (e.g. an appeals review procedure) did not in themselves provide sufficient redress for loss which had already been caused.
It was long and well-established that person exercising a particular skill or profession might owe a duty of care in the performance to people who it could be foreseen would be injured if due skill and care were not exercised.
However it should still be shown that the educational psychologist was acting in relation to a particular child in a situation where the law recognised a duty of care. There had to be sufficient nexus between two persons for that to happen, a casual remark would not suffice. Therefore the question was whether in the particular circumstances, the necessary nexus was shown.
The result of failure by an educational psychologist to take care might be that the child suffered emotional and psychological harm. There could be no doubt that if foreseeability and causation were established, psychological injury might constitute damage for the purposes of the common law. The same applied to a failure to diagnose a congenital condition.
In relation to vicarious liability, Lord Slynn said that the recognition of a duty of care did not of itself impose unreasonably high standards. The courts had long recognised that there was no negligence if a doctor exercised the ordinary skill or an ordinary competent man exercising that particular art. (Bolam v Friern Hospital Management Committee [1957] 2 All England Reports 118)
Lord Slynn did not think that cases cited from the United States where it was held that an education authority did not owe a duty of care, were helpful here.
Moreover he did not think that it was any answer to the claim that a duty of care existed that others had been involved in psychological advice at an earlier stage. Miss Melling was the professional person brought in to this case and her role was pivotal. The view of the experts was that there were shortcomings in what she had done. Lord Slynn said that the trial judge had adopted the correct approach and was entitled to find liability on Hillingdon.
In relation to assessment of damages, this was extremely difficult. Otton LJ in the Court of Appeal had said that the Claimant had not shown that the failure to diagnose or treat had caused the damage, particularly in relation to earning capacity, and that future employment prospects were largely speculative. However no better approach had been suggested than that adopted by the trial judge and Lord Slynn would not interfere with his assessment of damages.
Therefore the Claimant would succeed on the basis of vicarious liability of the local authority. The House of Lords had been asked to consider whether such a claim could exist.
Direct Liability
In X v Bedfordshire Lord Browne-Wilkinson had said that an educational authority owed no common law duty of care in the exercise of the powers and discretions relating to children with special educational needs specifically conferred on them by the Education Act 1981.
Lord Slynn did not rule out the possibility of a direct claim in all situations where the local authority was exercising its powers. If it exercised its discretion by deciding to set up a particular scheme pursuant to a policy, there was unlikely to be any duty of care. If however it appoints someone to carry out the duties with regards children with special educational needs, someone who was neither qualified nor competent to carry out the duties, then the position was different.
Over-use of the distinction between policy and operational matters so as respectively to limit or create liability had been criticised, but there was some validity in the distinction. Therefore just as the individual social worker in Barrett could be negligent in an operational manner, so it seemed that the local education authority could owe a duty of care and be negligent in its performance of its statutory duty. The fact that the parents had their own duties under the Education Act 1944 and that consultation and appeal procedures existed, did not lead to the conclusion that a duty of care did not exist.
Since the authority could only act through its employees or agents, and if they were negligent, vicarious liability would arise, it might rarely be necessary to invoke a claim for direct liability.
Therefore Lord Slynn would allow the appeal in the case of Phelps.
“G”
The first issue here was whether teachers owed a duty at common law to exercise reasonable skill and care and to exercise the reasonable skills of their calling in providing education for their pupils.
There was also an issue as to whether in the light of Article 6 of the European Convention on Human Right and the Human Rights Act 1998, it was right to strike out the action before trial.
The third issue was whether G could claim for psychiatric damage or economic loss if there was a negligent failure to provide him with teaching at an appropriate standard.
The Court of Appeal had decided that (i) teachers have a duty to take such care of pupils in their charge as a careful parent would have in like circumstances and (ii) teachers have a duty to exercise the reasonable skills of their calling in teaching. The duty was to exercise the reasonable skill and care of a reasonable teacher on the basis of what would have been acceptable to reasonable members and the teaching profession. Whether there was a duty depended on foreseeability, proximity and what was “fair, just and reasonable”. The Court of Appeal had said that although there might be no valid claim for direct duty in respect of the exercise of a statutory discretion, there could be vicarious liability for the acts of staff once the task was undertaken.
The local education authority had appealed against that decision, but their appeal would be dismissed.
Jarvis
The issues raised were as follows:-
Lord Flynn said that for the reasons already given in Phelps, he did not consider that it would be right to strike out the claim on the basis of vicarious liability. On the face of it, it was arguable. He would allow the appeal.
Anderton
The questions raised were:-
Lord Slynn said that the real issue here was the first one. It would be inappropriate to deal with the remaining issues when pleadings had not yet been served.
In relation to the issue of “personal injuries” the Court of Appeal had said in the education case of E (A minor) v Dorset [1995) 2 AC 703 (part of the linked cases in X v Bedfordshire) that failure to treat dyslexia could arguable give rise to a form of injury. Lord Slynn agreed and consequently the pre action disclosure proceedings came within section 33(2) of the Supreme Court Act 1981, and therefore they were valid.
Lords Jauncey and Lloyd agreed with Lord Slynn.
Lord Nicholls agreed also but said that he had reservations about any attempt to draw a sharp edged distinction between “policy” decisions and “operational” decisions for the reasons stated in Stovin v Wise [1996] AC 923.
Lord Nicholls took the situation of an educational psychologist called in by a local educational authority to assess a child, who makes a complete misdiagnosis. That seemed to him to be an example par excellence of a situation where the law would regard the professional as owing a duty of care to a third party as well as his own employer. However there might be a second situation where the educational authority had to seek educational, medical and psychological advice. Lord Nicholls said that the psychologist could not a duty to the child in the first case but not the second. The parents’ participation did not displace this duty neither did the existence of a statutory appeals process.
Did a teacher owe a common law duty of care to a pupil? A teacher would owe a duty of care in respect of matters falling within the cope of his professional expertise, and that would include informing the head teacher of the child’s difficulties. It could not be the case that a teacher only owed a duty to children with special educational needs.
Lord Nicholls was not persuaded by the argument that such a decision would encourage claims and divert resources away from education. Proof of underperformance by a child was not of itself evidence of negligent teaching - there could be any number of other factors.
The above situations related to the duties owed by individual educational psychologists and teachers and the resultant vicarious liability of local education authorities. There was then the question of whether there was a direct liability on local education authorities. It was common ground that the educational statutes could not by themselves give rise to an action for damages, but what about a common law duty of care? In X v Bedfordshire Lord Browne-Wilkinson had said that there was no common law duty of care in the exercise of powers and discretions relating to children with special educational needs. Lord Nicholls preferred to leave this question open for decision in a case where the facts made a decision necessary. Of the present appeals, Jarvis was the only case in which that issue might have practical consequences, and that case had not yet reached trial.
Lord Clyde considered the duties of local authorities to provide education for children. There was no question but that a teacher owed a duty of care for the physical safety of a child attending school under the charge of that teacher. It was also clear that where a professional person gave advice, knowing or being taken to know, that another would rely on that advice, the adviser might owe a duty of care to that other person.
If in the private arena an educational psychologist culpably erred in diagnosis, there would seem to be no reason why a liability in damages should not follow. It would seem surprising if the same was not also possible where the advice was given by one employed by the local authority.
The test for the existence of a duty of care which looks to what the court considers is fair, just and reasonable was of a different order from the test of proximity or neighbourhood with its further ingredient of foreseeability. The test of fairness was a test which might principally involve considerations of policy. This had the advantage of flexibility, enabling the court to define the boundaries of claims for negligence in the light of new situations and the recognition that incremental growth might require to be controlled, albeit at the risk of some uncertainty at least in the prediction of the directions in which the law might develop. However broader considerations might not alone be determinative. Thus in Osman v UK [1999] 1 FLR 193 the European Court of Human Rights required account to be taken of such matters as the gravity of the negligence, the assumption of responsibility by the police for the safety of the victim, and the seriousness of the harm sustained.
Lord Clyde was not persuaded that there were sufficient grounds to exclude these claims even on the grounds of public policy alone. Any fear of a flood of claim might be countered by the consideration that in order to get off the ground, the Claimant had to be able to demonstrate that the standard of care fell short of that set by the case of Bolam. There were also bound to be practical difficulties, obtaining the necessary records and establishing causation.
Lord Clyde turned to the issue of whether there existed a common law duty of care. There was no statutory provision in the case of Phelps which was inconsistent with the existence of a duty of care on the part of an educational psychologist.
A distinction might be suggested between matters of policy or discretion and on the other hand, matters of an operational or administrative character. However this kind of classification did not provide any absolute test for determining whether there was a duty of care although in certain situations it was helpful. Lord Browne-Wilkinson in X v Bedfordshire had recognised that even in matters of a discretionary character, the authority might be liable in damage if its decision fell outside the ambit of the discretion, as where the action taken was so totally unreasonable as to amount to an abuse of the discretion.
The issue of a multi-disciplinary unit could not constitute a legal bar on a claim. It should be possible to disentangle the relevant parts played by particular individuals and identify where the alleged negligence occurred.
Lord Clyde then considered issues of proximity and foreseeability. In the particular circumstances of Phelps, it appeared perfectly clear that the Claimant and her parents were going to rely on the advice given by Miss Melling. As far as that case was concerned, there was a duty on the educational psychologist to exercise due care to the Claimant.
There was no necessity to explore whether there was a direct liability on the authority as well as a vicarious liability. It was arguable that a prohibition upon a direct liability should not be a matter of absolute exclusion.
In relation to the case of Anderton, Lord Clyde said the condition here could qualify as a “personal injury” to a person. He would allow the appeals in Phelps, Anderton and Jarvis and dismiss the appeal in G.
Lord Hutton said that he agreed with the above.
Lord Millett said that he did not accept that Miss Melling had given advice to the Claimant or her parents on which they were entitled to rely. She was employed by the respondent authority to advise it on how best to discharge its duties. However he did accept that Miss Melling owed to the Claimant a duty to take care, and therefore the Defendant local authority was vicariously liable for the breach of duty of care. Lord Millett agreed with the order proposed.
FACTS:-
These were four educational negligence cases. Three concerned children who were dyslexic and the fourth was a child suffering from Duchenne Muscular Dystrophy. In Phelps there had been a trial where the Claimant succeeded but was struck out by the Court of Appeal. In two others, “G” and “Jarvis” there was an application to strike out under Order 18 Rule 19 as being an abuse of the process of the court or as disclosing no cause of action. In “G”, the court struck out the claim, but it was reinstated by the Court of Appeal. In Jarvis the judge did not strike out the claim in negligence, but the Court of Appeal struck it out. In the fourth case, Anderton, the question was whether pre-action discovery should be ordered on the basis that the intended claim was for personal injuries to a person. The Master and Judge held that it was, but the Court of Appeal held that it was not and refused the order for discovery.
The facts in Phelps were that the Claimant was born on the 30th December 1973 and was dyslexic. She began school at 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”. She was then 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 but 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 teachers, 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.
Miss Melling 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 towards 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.
The Claimant issued proceedings against the Defendant on the 22nd December 1994 claiming damages for breach of statutory duty under the Education Acts 1944 and/or 1981 and the Education (Special Educational Needs) Regulations 1983 alternatively in negligence. The trial judge held that Miss Melling owed a duty of care to the Claimant, and that the Defendant was vicariously liable for breaches of that duty by Hillingdon. However that was qualified by the finding that the other teachers at the school relied upon Miss Melling’s findings and they kept the Claimant’s case under review. The trial judge held that they were not expected to take a fresh look at the Claimant. He awarded special damages for tuition fees incurred and likely to be incurred and for future loss of earnings together with general damages of £12,500, making a total award of £44,056.50 plus interest.
However the Court of Appeal allowed the appeal by Hillingdon. They decided that dyslexia was not a personal injury, although there could be damages for economic loss if it could be shown that there was an assumption of personal responsibility by the teacher, Miss Melling. In relation to the issue of whether a duty of care existed, Lord Browne-Wilkinson in X v Bedfordshire County Council [1999] 2 AC 633 had said that whilst there was no direct duty of care on a local education authority, an individual educational psychologist or teacher might be liable. Stuart-Smith LJ in the Court of Appeal in this case, had said that it was a matter of grave concern that absence of a direct duty of care could be circumvented in this way. He said that that Hillingdon Educational Psychology Service was not a service available to the public generally, but was set up and used by Hillingdon to obtain advice for the authority and its employees. Moreover the educational psychologist was part of a multi disciplinary team, and that gave rise to the potential for conflict. There were strong policy reasons why it was not fair, just and reasonable to impose a duty of care. The Court of Appeal also found that the evidence in this case went nowhere near establishing an assumption of responsibility.
In addition, on the facts Stuart-Smith LJ found that there was no breach of duty by Miss Melling.
In the case of “G” he was born in 1984 and suffered from Duchenne Muscular Dystrophy. He had begun at a junior school and it became immediately apparent that he had severe problems making progress. He was seen by an educational psychologist, who advised that he would benefit from attendance at another school with extra support. She made no diagnosis of dyslexia. The Claimant began at that school in 1990, and given a Statement of Special Educational Needs but his behaviour deteriorated and he continued to have specific learning difficulties. He left his school in summer 1991, and until September 1992 he had sporadic home tuition. His home tutor said that he should be placed in a unit specialising in dyslexia, but he was then placed at another school. He was temporarily excluded from that school and never returned. Until October 1995 when his Statement expired, he received home tuition and part time tuition at a pupil referral unit.
The Claimant claimed that the London Borough of Bromley failed to provide him with a proper education and in particular computer technology and suitable training to enable him to communicate and to cope educationally and socially. As a result he suffered damage in the form of a lack of educational progress, social deprivation and psychiatric injury. He issued proceedings on the 18th May 1998. Bromley applied to strike out the Statement of Claim. Master Miller dismissed the Summons and Gray J struck out the Statement of Claim. The Court of Appeal reversed the decision of Gray J and Bromley appealed against that decision.
In the case of Jarvis, the Claimant alleged that there had been negligence, misfeasance in public office and breach of duty, both by the educational psychologist, for whom the authority was vicariously liable and by the authority itself for failing to provide competent advice through its educational psychology service.
On the 19th February 1999, the trial judge struck out the claim for misfeasance but refused to strike out the claim in negligence. The Court of Appeal at the end of November 1999 upheld the trial judge on the misfeasance claim, but struck out the negligence claim.
In the case of Anderton the Claimant was born in 1979. She was educated from September 1983 at a primary school but suffered severe speech and language problems. No action was taken by the local educational authority. In 1988 she was diagnosed as being severely dyslexic. In 1990 she was sent to a main stream comprehensive school where she alleged that she was bullied and she developed psychological problems. Her solicitors issued a summons seeking pre-action disclosure pursuant to Section 33(2) of the Supreme Court Act 1981. Section 33(2) only applied to a claim in respect of “personal injuries”. That summons was granted by the Master, upheld by the judge but refused by the Court of Appeal.
HELD
Phelps
Lord Slynn referred to the case of X v Bedfordshire. In that case Lord Browne-Wilkinson had distinguished between three types of case:-
- Where a breach only of statutory duty was alleged, a cause of action in damages would arise if it could be shown as a matter of construction of the statute that the statutory duty was imposed for the protection of a limited class of the public and that Paliament intended to confer on members of the class a private right of action for breach of the duty.
- Where it was alleged that a breach of care had been committed in performing a statutory duty, when there was no common law duty. In such a case no claim lay, although the statutory power or duty would not be a defence to a common law claim if the statutory duty was performed negligently.
- Where a common law duty of care arose from the performance of the statutory duty or arose from the relationship between the parties in performance of the statutory duty. A common law duty of care might co-exist with a statutory duty where the duty of care was alleged to arise from the manner in which the statutory duty had been implemented in practice, but it would not arise when an authority was acting within the limits of a discretion, and when policy matters, about which the courts were not concerned, might be an important factor.
Those principles were then applied to the education cases in X v Bedfordshire, Dorset, Hampshire and Bromley. In Dorset Lord Browne Wilkinson had said that if an authority offered a “service” to the public, then it would assume a duty to exercise reasonable care in the conduct of the service to those using it.
In the case of Hampshire, the claim related to the authority’s vicarious liability for the negligence of the headmaster who had failed to refer the child for an assessment or to have an experienced educational psychologist consider her case. This was a pure common law claim in negligence. Lord Browne-Wilkinson said that he could see no legal or common sense principle that required one to deny a common law duty of care which would otherwise exist just because there was a statutory scheme.
In Bromley the claim was made out under section 8 of the 1944 Act and this was dismissed. There was no right in such a context for damages for breach of statutory duty, nor was there a claim for negligence in exercising statutory discretions in assessing or providing for such special needs. The claim for vicarious liability was not struck out although it was somewhat vague.
In the present case, the Claimant, Miss Phelps claimed that Hillingdon had responsibilities pursuant to the Education Act 1944. Lord Slynn considered the provision of section 8 of the 1944 Act, the Education Act 1981 and the Education (Special Educational Needs) Regulations 1983.
There was no express indication that a failure to carry out these statutory duties, should lead to an award of monetary compensation. It was clear that the loss suffered by a child who had not been treated in accordance with the statutory intent, could be said to be foreseeable, proximate and serious. However that did not necessarily lead to the conclusion that Parliament intended that there should be a right to damages.
In Cutler v Wandsworth Stadium Ltd [1949] AC 398 the court had said that if there was a statutory duty, but if no remedy by way of penalty was imposed, it could be assumed that a right of civil action would accrue. In Lonrho Ltd v Shell Petroleum Company Ltd. (No.2) [1982] AC 173 the court said that even where a remedy was provided to enforce the obligation, a further remedy might be available to a person belonging to a class of individuals for whose benefit or protection the obligations was imposed.
Therefore arguably these points might apply to some sections of the Education Acts. However neither was conclusive and a broader approach was required. The Education Acts were essentially providing a general structure for all local education authorities in respect of all children who fell within its provision. The general nature of the duties and the remedies available by way of appeal and judicial review, indicated that Parliament did not intend to create a statutory remedy by way of damages.
The common law
However it did not follow that the local authority could never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants or agents. The House of Lords had already decided in Barrett v Enfield London Borough Council [1999] 3 WLR 79 that the fact that acts which were claimed to be negligent were carried out within the ambit of a statutory discretion was not in itself a reason why it should be held that no claim for negligence could be brought in respect of them. It was only where what was done involved the weighing of competing public interests or where Parliament could not have intended the courts to substitute their views for those of the public authority, that the issue would be non-justiciable. In the Claimant’s case, there was no such ground for holding that the Claimant’s claim was non-justiciable. Therefore the question to be determined was whether the damaged relied upon was foreseeable and proximate and whether it was just and reasonable to recognise a duty of care. (Caparo Industries plc v Dickman [1990] 2 AC 605). This was particularly important where other remedies laid down by the statute (e.g. an appeals review procedure) did not in themselves provide sufficient redress for loss which had already been caused.
It was long and well-established that person exercising a particular skill or profession might owe a duty of care in the performance to people who it could be foreseen would be injured if due skill and care were not exercised.
However it should still be shown that the educational psychologist was acting in relation to a particular child in a situation where the law recognised a duty of care. There had to be sufficient nexus between two persons for that to happen, a casual remark would not suffice. Therefore the question was whether in the particular circumstances, the necessary nexus was shown.
The result of failure by an educational psychologist to take care might be that the child suffered emotional and psychological harm. There could be no doubt that if foreseeability and causation were established, psychological injury might constitute damage for the purposes of the common law. The same applied to a failure to diagnose a congenital condition.
In relation to vicarious liability, Lord Slynn said that the recognition of a duty of care did not of itself impose unreasonably high standards. The courts had long recognised that there was no negligence if a doctor exercised the ordinary skill or an ordinary competent man exercising that particular art. (Bolam v Friern Hospital Management Committee [1957] 2 All England Reports 118)
Lord Slynn did not think that cases cited from the United States where it was held that an education authority did not owe a duty of care, were helpful here.
Moreover he did not think that it was any answer to the claim that a duty of care existed that others had been involved in psychological advice at an earlier stage. Miss Melling was the professional person brought in to this case and her role was pivotal. The view of the experts was that there were shortcomings in what she had done. Lord Slynn said that the trial judge had adopted the correct approach and was entitled to find liability on Hillingdon.
In relation to assessment of damages, this was extremely difficult. Otton LJ in the Court of Appeal had said that the Claimant had not shown that the failure to diagnose or treat had caused the damage, particularly in relation to earning capacity, and that future employment prospects were largely speculative. However no better approach had been suggested than that adopted by the trial judge and Lord Slynn would not interfere with his assessment of damages.
Therefore the Claimant would succeed on the basis of vicarious liability of the local authority. The House of Lords had been asked to consider whether such a claim could exist.
Direct Liability
In X v Bedfordshire Lord Browne-Wilkinson had said that an educational authority owed no common law duty of care in the exercise of the powers and discretions relating to children with special educational needs specifically conferred on them by the Education Act 1981.
Lord Slynn did not rule out the possibility of a direct claim in all situations where the local authority was exercising its powers. If it exercised its discretion by deciding to set up a particular scheme pursuant to a policy, there was unlikely to be any duty of care. If however it appoints someone to carry out the duties with regards children with special educational needs, someone who was neither qualified nor competent to carry out the duties, then the position was different.
Over-use of the distinction between policy and operational matters so as respectively to limit or create liability had been criticised, but there was some validity in the distinction. Therefore just as the individual social worker in Barrett could be negligent in an operational manner, so it seemed that the local education authority could owe a duty of care and be negligent in its performance of its statutory duty. The fact that the parents had their own duties under the Education Act 1944 and that consultation and appeal procedures existed, did not lead to the conclusion that a duty of care did not exist.
Since the authority could only act through its employees or agents, and if they were negligent, vicarious liability would arise, it might rarely be necessary to invoke a claim for direct liability.
Therefore Lord Slynn would allow the appeal in the case of Phelps.
“G”
The first issue here was whether teachers owed a duty at common law to exercise reasonable skill and care and to exercise the reasonable skills of their calling in providing education for their pupils.
There was also an issue as to whether in the light of Article 6 of the European Convention on Human Right and the Human Rights Act 1998, it was right to strike out the action before trial.
The third issue was whether G could claim for psychiatric damage or economic loss if there was a negligent failure to provide him with teaching at an appropriate standard.
The Court of Appeal had decided that (i) teachers have a duty to take such care of pupils in their charge as a careful parent would have in like circumstances and (ii) teachers have a duty to exercise the reasonable skills of their calling in teaching. The duty was to exercise the reasonable skill and care of a reasonable teacher on the basis of what would have been acceptable to reasonable members and the teaching profession. Whether there was a duty depended on foreseeability, proximity and what was “fair, just and reasonable”. The Court of Appeal had said that although there might be no valid claim for direct duty in respect of the exercise of a statutory discretion, there could be vicarious liability for the acts of staff once the task was undertaken.
The local education authority had appealed against that decision, but their appeal would be dismissed.
Jarvis
The issues raised were as follows:-
- Whether it was arguable that an educational psychologist employed by a local authority owed to a child referred under the Education Acts a duty to take reasonable care in carrying out the assessment.
- Whether the educational authority owed a duty to take reasonable care
- Whether the local authority was under a direct common law duty of care
- Whether it was arguable that the local authority offered an educational service to the public and thereby owed a direct duty to take reasonable care in doing so
- Whether a claim that there had been a failure to diagnose and ameliorate any specific learning difficulty was a personal injury claim or a claim for pure economic loss
- Whether there could be a claim in damages when there was no recognisable psychiatric condition as described in the nervous shock cases
- Whether the strike out procedure violated Article 6(1) of the European Convention on Human Rights
Lord Flynn said that for the reasons already given in Phelps, he did not consider that it would be right to strike out the claim on the basis of vicarious liability. On the face of it, it was arguable. He would allow the appeal.
Anderton
The questions raised were:-
- Whether failing to diagnose and deal with dyslexia constituted “personal injuries”
- Whether the effects of such failure sounded in damages where there was no reasonable psychiatric condition
- Whether the teaching staff owed a common law duty of care to take reasonable steps to investigate the reasons for, and to provide for, a child’s underperformance
- Whether the LEA was under a direct common law duty of care in performing its functions under the Education 1996
Lord Slynn said that the real issue here was the first one. It would be inappropriate to deal with the remaining issues when pleadings had not yet been served.
In relation to the issue of “personal injuries” the Court of Appeal had said in the education case of E (A minor) v Dorset [1995) 2 AC 703 (part of the linked cases in X v Bedfordshire) that failure to treat dyslexia could arguable give rise to a form of injury. Lord Slynn agreed and consequently the pre action disclosure proceedings came within section 33(2) of the Supreme Court Act 1981, and therefore they were valid.
Lords Jauncey and Lloyd agreed with Lord Slynn.
Lord Nicholls agreed also but said that he had reservations about any attempt to draw a sharp edged distinction between “policy” decisions and “operational” decisions for the reasons stated in Stovin v Wise [1996] AC 923.
Lord Nicholls took the situation of an educational psychologist called in by a local educational authority to assess a child, who makes a complete misdiagnosis. That seemed to him to be an example par excellence of a situation where the law would regard the professional as owing a duty of care to a third party as well as his own employer. However there might be a second situation where the educational authority had to seek educational, medical and psychological advice. Lord Nicholls said that the psychologist could not a duty to the child in the first case but not the second. The parents’ participation did not displace this duty neither did the existence of a statutory appeals process.
Did a teacher owe a common law duty of care to a pupil? A teacher would owe a duty of care in respect of matters falling within the cope of his professional expertise, and that would include informing the head teacher of the child’s difficulties. It could not be the case that a teacher only owed a duty to children with special educational needs.
Lord Nicholls was not persuaded by the argument that such a decision would encourage claims and divert resources away from education. Proof of underperformance by a child was not of itself evidence of negligent teaching - there could be any number of other factors.
The above situations related to the duties owed by individual educational psychologists and teachers and the resultant vicarious liability of local education authorities. There was then the question of whether there was a direct liability on local education authorities. It was common ground that the educational statutes could not by themselves give rise to an action for damages, but what about a common law duty of care? In X v Bedfordshire Lord Browne-Wilkinson had said that there was no common law duty of care in the exercise of powers and discretions relating to children with special educational needs. Lord Nicholls preferred to leave this question open for decision in a case where the facts made a decision necessary. Of the present appeals, Jarvis was the only case in which that issue might have practical consequences, and that case had not yet reached trial.
Lord Clyde considered the duties of local authorities to provide education for children. There was no question but that a teacher owed a duty of care for the physical safety of a child attending school under the charge of that teacher. It was also clear that where a professional person gave advice, knowing or being taken to know, that another would rely on that advice, the adviser might owe a duty of care to that other person.
If in the private arena an educational psychologist culpably erred in diagnosis, there would seem to be no reason why a liability in damages should not follow. It would seem surprising if the same was not also possible where the advice was given by one employed by the local authority.
The test for the existence of a duty of care which looks to what the court considers is fair, just and reasonable was of a different order from the test of proximity or neighbourhood with its further ingredient of foreseeability. The test of fairness was a test which might principally involve considerations of policy. This had the advantage of flexibility, enabling the court to define the boundaries of claims for negligence in the light of new situations and the recognition that incremental growth might require to be controlled, albeit at the risk of some uncertainty at least in the prediction of the directions in which the law might develop. However broader considerations might not alone be determinative. Thus in Osman v UK [1999] 1 FLR 193 the European Court of Human Rights required account to be taken of such matters as the gravity of the negligence, the assumption of responsibility by the police for the safety of the victim, and the seriousness of the harm sustained.
Lord Clyde was not persuaded that there were sufficient grounds to exclude these claims even on the grounds of public policy alone. Any fear of a flood of claim might be countered by the consideration that in order to get off the ground, the Claimant had to be able to demonstrate that the standard of care fell short of that set by the case of Bolam. There were also bound to be practical difficulties, obtaining the necessary records and establishing causation.
Lord Clyde turned to the issue of whether there existed a common law duty of care. There was no statutory provision in the case of Phelps which was inconsistent with the existence of a duty of care on the part of an educational psychologist.
A distinction might be suggested between matters of policy or discretion and on the other hand, matters of an operational or administrative character. However this kind of classification did not provide any absolute test for determining whether there was a duty of care although in certain situations it was helpful. Lord Browne-Wilkinson in X v Bedfordshire had recognised that even in matters of a discretionary character, the authority might be liable in damage if its decision fell outside the ambit of the discretion, as where the action taken was so totally unreasonable as to amount to an abuse of the discretion.
The issue of a multi-disciplinary unit could not constitute a legal bar on a claim. It should be possible to disentangle the relevant parts played by particular individuals and identify where the alleged negligence occurred.
Lord Clyde then considered issues of proximity and foreseeability. In the particular circumstances of Phelps, it appeared perfectly clear that the Claimant and her parents were going to rely on the advice given by Miss Melling. As far as that case was concerned, there was a duty on the educational psychologist to exercise due care to the Claimant.
There was no necessity to explore whether there was a direct liability on the authority as well as a vicarious liability. It was arguable that a prohibition upon a direct liability should not be a matter of absolute exclusion.
In relation to the case of Anderton, Lord Clyde said the condition here could qualify as a “personal injury” to a person. He would allow the appeals in Phelps, Anderton and Jarvis and dismiss the appeal in G.
Lord Hutton said that he agreed with the above.
Lord Millett said that he did not accept that Miss Melling had given advice to the Claimant or her parents on which they were entitled to rely. She was employed by the respondent authority to advise it on how best to discharge its duties. However he did accept that Miss Melling owed to the Claimant a duty to take care, and therefore the Defendant local authority was vicariously liable for the breach of duty of care. Lord Millett agreed with the order proposed.