RICHARD SMITH VERSUS HAMPSHIRE COUNTY COUNCIL [2007] EWCA Civ 246
FACTS:-
The Claimant was born on the 21st October 1978 and was educated in Hampshire between September 1986 and February 1993, being placed in a special school in 1987.
In around September 1986, the Claimant’s teacher suspected that his failure to progress was due to some form of learning difficulty and the Claimant was referred to an educational psychologist, who told the Claimant’s mother that he was “right handed but left sided”. There was no report made available but the Claimant was transferred to a special school in September 1987. However this school also taught a number of severely disabled children and it was alleged that this school was inappropriate for him. He stayed there until 1993 when his mother moved out of the area. He then attended another school until aged, 15 he left school entirely. He then attended a college to improve his English and Mathematics.
From around 1987, the Claimant appreciated that he had difficulties in reading and writing. When he attended the college later to improve his English and Mathematics, he found that he was not making the progress which he would have wished.
The Claimant turned 18 on the 21st October 1996. In June 1998 he had a meeting with a personal tutor, who completed a record to the effect that the Claimant needed help with English and Maths. It was suggested to him that he might be suffering from dyslexia. At that point it appeared that there was no inhibition on his part, in discussing his inability to read and write with his doctor.
Around the beginning of October 1998, the Claimant’s mother read an article in a magazine about dyslexia. She telephoned the Dyslexia Institute and they suggested a referral via the Claimant’s GP.
Between the 20th and the 28th October 1998, the Claimant had an appointment with his GP who referred him to a chartered clinical psychologist at the Dyslexia Institute. He received the report of the psychologist (dated 17th January 1999) in January 1999. That report diagnosed him as dyslexic.
The Claimant began his proceedings on the 4th January 2002 initially against Liverpool City Council, Knowsley Metropolitan Council and Hampshire County Council. A High Court Master ordered a trial of a number of preliminary issues which were tried by His Honour Judge Seymour in March 2006. By that time, the Claimant had discontinued against the first two Defendants.
The trial judge found that he had “knowledge” for the purposes of section 14 of the Limitation Act 1980 by the time he consulted his GP on the 20th October 1998. Therefore on that basis he had issued proceedings more than three years after his “date of knowledge”. The Claimant argued that he had knowledge later in January 1999 after he received the report of the psychologist.
The Claimant appealed.
HELD:-
Lord Justice Longmore gave the lead judgment.
He considered the history of cases involving failure on the part of education authorities to diagnose dyslexia as well as the particular limitation problems that arise in these cases. He referred to the cases of X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and Phelps v London Borough of Hillingdon [1999] 1 WLR 500 which decided that educational authorities and educational psychologists retained by them would not normally assume responsibility to children or their parents in relation to the diagnosis of dyslexia. That decision was unanimously reversed by the House of Lords in Phelps v Hilingdon London Borough Council [2001] 2 AC 619.
Lord Justice Longmore then considered the cases on limitation, “date of knowledge” and section 33 of the Limitation Act 1980. In particular he referred to the decision of the House of Lords in Adams v Bracknell Forest Borough Council [2004] UKHL 29 in which the majority of the House held that the question under section 14 of the 1980 Act was whether a Claimant had knowledge which he might reasonably have been expected to acquire. In answering that question, the court had to consider how a reasonable person in the position of the Claimant would have acted and that in doing so aspects of character or intelligence peculiar to the Claimant should be disregarded. The House had held that the normal expectation was that persons experiencing serious problems as a result of difficulties with reading and writing would seek professional advice.
Lord Justice Longmore referred also to the case of Robinson v. St Helens Metropolitan Borough Council [2002] EWCA Civ 1099 which dealt with the discretion allowed to the court to disapply section 33 of the Limitation Act 1980. In that case, the court had held that the courts should be slow to find that the balance of prejudice was in favour of the Claimant. In the instant case, the trial judge had found that section 33 discretion would not be exercised in the Claimant’s favour.
Section 14 Limitation Act 1980
Lord Justice Longmore considered section 14 of the Limitation Act 1980.
“14(1)……in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts-
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
The Claimant’s counsel had made submissions relying on the four principles set out in Spargo v North Essex District Health Authority [1997] PIQR 235. On that basis, the Claimant did not have “knowledge” for the purposes of section 14 until he received the educational psychologist’s report in January 1999. The personal tutor who had suggested to the Claimant that he might have dyslexia, was not a qualified educational psychologist. Lord Justice Longmore said that the court had to take into account section 14(3), i.e. knowledge that he might reasonably have been expected to acquire. The Claimant had not been able to read and write properly for a long time, and this continuing state of affairs was attributable to his schooling, which had failed to remedy the situation.
The trial judge had made it clear that he was considering the question from the point of view of a reasonable person in the Claimant’s position, in other words a reasonable person who had dyslexia. He concluded therefore that such a reasonable person, on hearing from the personal tutor in June 1998 that he might have dyslexia, and should seek assistance in dealing with it, would have done so.
In the case of Adams Lord Hoffman had said that there was no evidence that a reasonable dyslexic would feel inhibited from discussing his difficulties with a professional such as his GP, and in that case, the Claimant had in fact consulted his GP for mental health problems. In the absence of some special inhibiting factor, the Claimant in Adams could reasonably have been expected to seek expert advice years ago. His symptoms had been making his life miserable for years, and he knew that the root cause was his inability to read and write. It was therefore almost irrational not to disclose that root cause, because if he had done so, he would no doubt have been referred to someone with expertise in dyslexia.
The Claimant’s counsel had tried to argue that the instant case was different from that of Adams insofar as the Claimant never went to see his doctor because of depression but rather because of physical problems. Lord Justice Longmore said that this was no reason to consult a professional, particularly as the Claimant had been told to consult such a professional by his tutor in June 1998.
There was evidence from the Claimant’s educational psychologist to the effect that in general, dyslexics do feel inhibited from asking for professional help even when invited to do so. This was the special inhibiting factor that was missing in the Adams case. Lord Justice Longmore considered in detail what the educational psychologist had said in his report. On his reading, the psychologist was saying that, in general, if dyslexics are told at school that they are of low intelligence, they are inhibited from challenging that conclusion unless and until someone of comparable or higher authority informs them that they are suffering from a condition, which it is possible to treat.
However the Claimant did not suffer from a general inhibition once it had been made clear to him in October 1998 (1) that if he were dyslexic, his dyslexia should have been picked up at school, and (2) that he could discover that he had dyslexia.
Therefore the Claimant had relevant knowledge for the purpose of section 14 of the 1980 Act by about the 20th October 1998. There was no need to address further the question of “actual knowledge”.
Section 33 of the Limitation Act 1980
Lord Justice Longmore said that the issue of knowledge was not the end of the appeal because section 33 of the 1980 Act was also relied upon. The Claimant had permission to appeal the decision of the judge not to exercise his discretion under section 33.
The provisions of section 33 were as follows:-
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates….
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
The Defendant, Hampshire County Council had argued that they were strongly prejudiced by the delay in bringing proceedings. Lord Justice Longmore said that this part of their case was not to be underestimated. A diligent exercise had been carried out by their solicitor in searching for documents and teachers who could remember the Claimant.
In relation to witnesses, unsurprisingly few of those teachers could remember the Claimant specifically, and those that did were unlikely to be helpful in the absence of any documents. It was no answer to say that the Claimant’s mother could remember what one teacher had said to her, and that the Defendant could not challenge her evidence.
In relation to documents, the Defendant was unable to find any relevant documents and therefore the question remained – how was it possible to have a fair trial in the absence of any relevant documentation? The practice of the local authority that retained the Claimant’s records (Knowsley Metropolitan Council) was not to keep documents for more than 5 years after the pupil leaves school, so that documentation would have been destroyed in 1999. It was not suggested that this policy was in any way wrong.
The Claimant’s counsel had tried to argue that the strength of the Claimant’s case was self evident. He had a medium to high IQ but was left in an inappropriate educational placement. The Claimant’s educational psychologist had said in his first report that the lack of documents made no difference to his opinion. On any view it had been negligent to send him to a special school. The trial judge had said that Claimant did have some prospects of success at trial.
Lord Justice Longmore said that it was unlikely that there had been no paperwork produced on the decision to refer the Claimant to this special school. If it was possible but unprovable that such paperwork did exist, it would be wrong to assume that any decision based on such paperwork must inevitably have been negligent.
There was some criticism of the Claimant’s educational psychologist, whose reports (in part) had an inappropriately adversarial tone. Lord Justice Longmore said that the court had to resist the natural temptation on any section 33 application to try the action which would take place if one disapplied the limitation period.
Therefore the judge’s decision not to disapply the limitation period under section 33 would not be overturned. The Claimant’s appeal would be dismissed.
FACTS:-
The Claimant was born on the 21st October 1978 and was educated in Hampshire between September 1986 and February 1993, being placed in a special school in 1987.
In around September 1986, the Claimant’s teacher suspected that his failure to progress was due to some form of learning difficulty and the Claimant was referred to an educational psychologist, who told the Claimant’s mother that he was “right handed but left sided”. There was no report made available but the Claimant was transferred to a special school in September 1987. However this school also taught a number of severely disabled children and it was alleged that this school was inappropriate for him. He stayed there until 1993 when his mother moved out of the area. He then attended another school until aged, 15 he left school entirely. He then attended a college to improve his English and Mathematics.
From around 1987, the Claimant appreciated that he had difficulties in reading and writing. When he attended the college later to improve his English and Mathematics, he found that he was not making the progress which he would have wished.
The Claimant turned 18 on the 21st October 1996. In June 1998 he had a meeting with a personal tutor, who completed a record to the effect that the Claimant needed help with English and Maths. It was suggested to him that he might be suffering from dyslexia. At that point it appeared that there was no inhibition on his part, in discussing his inability to read and write with his doctor.
Around the beginning of October 1998, the Claimant’s mother read an article in a magazine about dyslexia. She telephoned the Dyslexia Institute and they suggested a referral via the Claimant’s GP.
Between the 20th and the 28th October 1998, the Claimant had an appointment with his GP who referred him to a chartered clinical psychologist at the Dyslexia Institute. He received the report of the psychologist (dated 17th January 1999) in January 1999. That report diagnosed him as dyslexic.
The Claimant began his proceedings on the 4th January 2002 initially against Liverpool City Council, Knowsley Metropolitan Council and Hampshire County Council. A High Court Master ordered a trial of a number of preliminary issues which were tried by His Honour Judge Seymour in March 2006. By that time, the Claimant had discontinued against the first two Defendants.
The trial judge found that he had “knowledge” for the purposes of section 14 of the Limitation Act 1980 by the time he consulted his GP on the 20th October 1998. Therefore on that basis he had issued proceedings more than three years after his “date of knowledge”. The Claimant argued that he had knowledge later in January 1999 after he received the report of the psychologist.
The Claimant appealed.
HELD:-
Lord Justice Longmore gave the lead judgment.
He considered the history of cases involving failure on the part of education authorities to diagnose dyslexia as well as the particular limitation problems that arise in these cases. He referred to the cases of X (Minors) v Bedfordshire County Council [1995] 2 AC 633 and Phelps v London Borough of Hillingdon [1999] 1 WLR 500 which decided that educational authorities and educational psychologists retained by them would not normally assume responsibility to children or their parents in relation to the diagnosis of dyslexia. That decision was unanimously reversed by the House of Lords in Phelps v Hilingdon London Borough Council [2001] 2 AC 619.
Lord Justice Longmore then considered the cases on limitation, “date of knowledge” and section 33 of the Limitation Act 1980. In particular he referred to the decision of the House of Lords in Adams v Bracknell Forest Borough Council [2004] UKHL 29 in which the majority of the House held that the question under section 14 of the 1980 Act was whether a Claimant had knowledge which he might reasonably have been expected to acquire. In answering that question, the court had to consider how a reasonable person in the position of the Claimant would have acted and that in doing so aspects of character or intelligence peculiar to the Claimant should be disregarded. The House had held that the normal expectation was that persons experiencing serious problems as a result of difficulties with reading and writing would seek professional advice.
Lord Justice Longmore referred also to the case of Robinson v. St Helens Metropolitan Borough Council [2002] EWCA Civ 1099 which dealt with the discretion allowed to the court to disapply section 33 of the Limitation Act 1980. In that case, the court had held that the courts should be slow to find that the balance of prejudice was in favour of the Claimant. In the instant case, the trial judge had found that section 33 discretion would not be exercised in the Claimant’s favour.
Section 14 Limitation Act 1980
Lord Justice Longmore considered section 14 of the Limitation Act 1980.
“14(1)……in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts-
- that the injury in question was significant; and
- that the injury was attributable in whole or part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
- the identity of the defendant;
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
The Claimant’s counsel had made submissions relying on the four principles set out in Spargo v North Essex District Health Authority [1997] PIQR 235. On that basis, the Claimant did not have “knowledge” for the purposes of section 14 until he received the educational psychologist’s report in January 1999. The personal tutor who had suggested to the Claimant that he might have dyslexia, was not a qualified educational psychologist. Lord Justice Longmore said that the court had to take into account section 14(3), i.e. knowledge that he might reasonably have been expected to acquire. The Claimant had not been able to read and write properly for a long time, and this continuing state of affairs was attributable to his schooling, which had failed to remedy the situation.
The trial judge had made it clear that he was considering the question from the point of view of a reasonable person in the Claimant’s position, in other words a reasonable person who had dyslexia. He concluded therefore that such a reasonable person, on hearing from the personal tutor in June 1998 that he might have dyslexia, and should seek assistance in dealing with it, would have done so.
In the case of Adams Lord Hoffman had said that there was no evidence that a reasonable dyslexic would feel inhibited from discussing his difficulties with a professional such as his GP, and in that case, the Claimant had in fact consulted his GP for mental health problems. In the absence of some special inhibiting factor, the Claimant in Adams could reasonably have been expected to seek expert advice years ago. His symptoms had been making his life miserable for years, and he knew that the root cause was his inability to read and write. It was therefore almost irrational not to disclose that root cause, because if he had done so, he would no doubt have been referred to someone with expertise in dyslexia.
The Claimant’s counsel had tried to argue that the instant case was different from that of Adams insofar as the Claimant never went to see his doctor because of depression but rather because of physical problems. Lord Justice Longmore said that this was no reason to consult a professional, particularly as the Claimant had been told to consult such a professional by his tutor in June 1998.
There was evidence from the Claimant’s educational psychologist to the effect that in general, dyslexics do feel inhibited from asking for professional help even when invited to do so. This was the special inhibiting factor that was missing in the Adams case. Lord Justice Longmore considered in detail what the educational psychologist had said in his report. On his reading, the psychologist was saying that, in general, if dyslexics are told at school that they are of low intelligence, they are inhibited from challenging that conclusion unless and until someone of comparable or higher authority informs them that they are suffering from a condition, which it is possible to treat.
However the Claimant did not suffer from a general inhibition once it had been made clear to him in October 1998 (1) that if he were dyslexic, his dyslexia should have been picked up at school, and (2) that he could discover that he had dyslexia.
Therefore the Claimant had relevant knowledge for the purpose of section 14 of the 1980 Act by about the 20th October 1998. There was no need to address further the question of “actual knowledge”.
Section 33 of the Limitation Act 1980
Lord Justice Longmore said that the issue of knowledge was not the end of the appeal because section 33 of the 1980 Act was also relied upon. The Claimant had permission to appeal the decision of the judge not to exercise his discretion under section 33.
The provisions of section 33 were as follows:-
“(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
- the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and
- any decision of the court under this subsection would prejudice the Defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates….
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
- the length of, and the reasons for, the delay on the part of the plaintiff;
- the extent to which, having regard to the delay, the evidence adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12.
- the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
- the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
- the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
- the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
The Defendant, Hampshire County Council had argued that they were strongly prejudiced by the delay in bringing proceedings. Lord Justice Longmore said that this part of their case was not to be underestimated. A diligent exercise had been carried out by their solicitor in searching for documents and teachers who could remember the Claimant.
In relation to witnesses, unsurprisingly few of those teachers could remember the Claimant specifically, and those that did were unlikely to be helpful in the absence of any documents. It was no answer to say that the Claimant’s mother could remember what one teacher had said to her, and that the Defendant could not challenge her evidence.
In relation to documents, the Defendant was unable to find any relevant documents and therefore the question remained – how was it possible to have a fair trial in the absence of any relevant documentation? The practice of the local authority that retained the Claimant’s records (Knowsley Metropolitan Council) was not to keep documents for more than 5 years after the pupil leaves school, so that documentation would have been destroyed in 1999. It was not suggested that this policy was in any way wrong.
The Claimant’s counsel had tried to argue that the strength of the Claimant’s case was self evident. He had a medium to high IQ but was left in an inappropriate educational placement. The Claimant’s educational psychologist had said in his first report that the lack of documents made no difference to his opinion. On any view it had been negligent to send him to a special school. The trial judge had said that Claimant did have some prospects of success at trial.
Lord Justice Longmore said that it was unlikely that there had been no paperwork produced on the decision to refer the Claimant to this special school. If it was possible but unprovable that such paperwork did exist, it would be wrong to assume that any decision based on such paperwork must inevitably have been negligent.
There was some criticism of the Claimant’s educational psychologist, whose reports (in part) had an inappropriately adversarial tone. Lord Justice Longmore said that the court had to resist the natural temptation on any section 33 application to try the action which would take place if one disapplied the limitation period.
Therefore the judge’s decision not to disapply the limitation period under section 33 would not be overturned. The Claimant’s appeal would be dismissed.