Judgments - Phelps (A.P.) v. Mayor Etc. of The London Borough of Hillingdon Anderton (A.P.) (By Her Mother and Next Friend) v. Clwyd County Council In Re G (A.P.) (A Minor) (By His Next Friend) Jarvis (A.P.) v. Hampshire County Council

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    These statutory duties laid on local education authorities are of the greatest importance; the authorities must provide the facilities which Parliament intended should be available for children with learning difficulties. A failure to fulfil the duties by an authority either generally or in a particular case can have a serious effect on a child's education, his well-being and his future life.

    It is clear from the legislative provisions to which I have referred that Parliament intended that various stages of the process were to be monitored by an appeals procedure. Moreover, there can be no doubt that some of the acts of the authority may be examined by way of judicial review, even if in other areas the extent of the discretion conferred on the authority with its particular expertise is likely to lead to a Court refusing to interfere even by way of judicial review (see e.g. A. v. Liverpool City Council [1982] A.C. 363 at page 373 per Lord Wilberforce).

    There is, however, no express indication that a failure to carry out these duties, even in respect of a particular individual, should lead to an award of monetary compensation if damage can be shown. That still leaves the question whether, having regard to the purpose of the legislation, Parliament is to be taken to have intended that there should be a right to damages.

    It is clear that the loss suffered by a child who has not been treated in accordance with the statutory intent can often be said to be foreseeable, proximate and serious. The damage may be physical or psychological, emotional or economic. This does not, however, in itself lead necessarily to the conclusion that Parliament intended there to be a remedy in damages for breach of statutory duty.

    In Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398, Lord Simonds said:

    ". . . if a statutory duty is prescribed, but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach. For, if it were not so, the statute would be but a pious aspiration" (p 407).

    In Lonrho Ltd. v. Shell Petroleum Company Ltd. (No. 2) [1982] A.C. 173, Lord Diplock said that even where a remedy was provided to enforce the obligation, a further remedy (sc. in damages) might be available to a person belonging to a class of individuals for whose benefit or protection the obligation was imposed.

    Arguably, both of these can be said to apply to some sections of the Education Acts. But again neither is conclusive; a broader approach is required. As Lord Jauncey of Tullichettle put it in Reg. v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 A.C. 58 at page 170H:

    "it must always be a matter for consideration whether the legislature intended that private law rights of action should be conferred upon individuals in respect of breaches of the relevant statutory provision".

(See also Calveley v. Chief Constable of the Merseyside Police [1989] A.C. 1228 per Lord Bridge of Harwich at page 1237.

    In the present case, although the duties were intended to benefit a particular group, mainly children with special educational needs, the Act is essentially providing a general structure for all local education authorities in respect of all children who fall within its provision. The general nature of the duties imposed on local authorities in the context of a national system of education and the remedies available by way of appeal and judicial review indicate that Parliament did not intend to create a statutory remedy by way of damages. Much of the Act is concerned with conferring discretionary powers or administrative duties in an area of social welfare where normally damages have not been awarded when there has been a failure to perform a statutory duty. The situation is quite different from that concerning the maintenance of factory premises as in Groves v. Wimborne (Lord) [1898] 2 Q.B. 402.

    Taking all these factors into account, it does not seem to me that it can be said that Parliament intended that there should be a remedy by way of damages for breach of statutory duty in respect of the matters complained of here.

The common law

    It does not follow that the local authority can 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 ot agents. This House decided in Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79 that the fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them. It is only where what is done has involved the weighing of competing public interests or has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion. In Pamela's case there is no such ground for holding that her claim is non-justiciable and therefore the question to be determined is whether the damage relied on is foreseeable and proximate and whether it is just and reasonable to recognise a duty of care (Caparo Industries plc v. Dickman [1990] 2 A.C. 605, at 617-8). If a duty of care would exist where advice was given other than pursuant to the exercise of statutory powers, such duty of care is not excluded because the advice is given pursuant to the exercise of statutory powers. This is particularly important where other remedies laid down by the statute (e.g. an appeals review procedure) do not in themselves provide sufficient redress for loss which has already been caused.

    Where, as in Pamela's case, a person is employed by a local education authority to carry out professional services as part of the fulfilment of the authority's statutory duty, it has to be asked whether there is any overriding reason in principle why (a) that person should not owe a duty of care (the first question) and (b) why, if the duty of care is broken by that person, the authority as employer or principal should not be vicariously liable (the second question).

    I accept that, as was said in X Minors, there may be cases where to recognise such a vicarious liability on the part of the authority may so interfere with the performance of the local education authority's duties that it would be wrong to recognise any liability on the part of the authority. It must, however, be for the local authority to establish that: it is not to be presumed and I anticipate that the circumstances where it could be established would be exceptional.

    As to the first question, it is long and well-established, now elementary, that persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused by the lack of care. Such duty does not depend on the existence of any contractual relationship between the person causing and the person suffering the damage. A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist a teacher including a teacher in a specialised area, such as a teacher concerned with children having special educational needs. So maybe an education officer performing the functions of a local education authority in regard to children with special educational needs. There is no more justification for a blanket immunity in their cases than there was in Capital & Counties Plc. v. Hampshire County Council [1997] Q.B. 1004.

    I full agree with what was said by Lord Browne-Wilkinson in X Minors (supra) at page 766B-E that a head teacher owes "a duty of care to exercise the reasonable skills of a headmaster in relation to such [sc. a child's] educational needs" and a special advisory teacher brought in to advise on the educational needs of a specific pupil, particularly if he knows that his advice will be communicated to the pupil's parents, "owes a duty to the child to exercise the skill and care of a reasonable advisory teacher". A similar duty on specific facts may arise for others engaged in the educational process, e.g. an educational psychologist being part of the local authority's team to provide the necessary services. The fact that the educational psychologist owes a duty to the authority to exercise skill and care in the performance of his contract of employment does not mean that no duty of care can be or is owed to the child. Nor does the fact that the educational psychologist is called in in pursuance of the performance of the local authority's statutory duties mean that no duty of care is owed by him, if in exercising his profession he would otherwise have a duty of care.

    That, however, is only the beginning of the enquiry. It must still be shown that the educational psychologist is acting in relation to a particular child in a situation where the law recognises a duty of care. A casual remark, an isolated act may occur in a situation where there is no sufficient nexus between the two persons for a duty of care to exist. But where an educational psychologist is specifically called in to advise in relation to the assessment and future provision for a specific child, and it is clear that the parents acting for the child and the teachers will follow that advice, prima facie a duty of care arises. It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. It is, however, clear that the test is an objective one (Henderson v. Merrett Syndicates Ltd. [1995] 2 A.C. 145, 181). The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law.

    The question is thus whether in the particular circumstances the necessary nexus has been shown.

    The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can be no doubt that if foreseeability and causation are established, psychological injury may constitute damage for the purpose of the common law. But so in my view can a failure to diagnose a congenital condition and to take appropriate action as a result of which failure a child's level of achievement is reduced, which leads to loss of employment and wages. Questions as to causation and as to the quantum of damage, particularly if actions are brought long after the event, may be very difficult, but there is no reason in principle to rule out such claims.

    As to the second question, if a breach of the duty of care to the child by such an employee is established, prima facie a local or education authority is vicariously liable for the negligence of its employee. If the educational psychologist does have a duty of care on the facts is it to be held that it is not just and reasonable that the local education authority should be vicariously liable if there is a breach of that duty? Are there reasons of public policy why the courts should not recognise such a liability? I am very conscious of the need to be cautious in recognising such a duty of care where so much is discretionary in these as in other areas of social policy. As has been said, it is obviously important that those engaged in the provision of educational services under the statutes should not be hampered by the imposition of such a vicarious liability. I do not, however, see that to recognise the existence of the duties necessarily leads or is likely to lead to that result. The recognition of the duty of care does not of itself impose unreasonably high standards. The courts have long recognised that there is no negligence if a doctor "exercises the ordinary skill of an ordinary competent man exercising that particular art."

    "A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. … Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view." (Bolam v. Friern Hospital Management Committee [1957] 2 All England Reports 118 at page 122 per McNair, J.).

    The difficulties of the tasks involved and of the circumstances under which people have to work in this area must also be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. Claims should not be encouraged and the Courts should not find negligence too readily: but the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded.

    The House has been referred to a number of decisions of the United States Courts in some of which it has been held that a local education authority did not owe an actionable duty of care. But the legislative and administrative provisions and the approach of the courts in those cases are different and there is not complete unanimity. I do not consider that these cases assist in the determination of the present problem.

    The duty in this case on the basis, therefore, that an educational psychologist may owe a duty of care in performing duties on behalf of the local education authority, was the Judge justified in finding that there was a duty here and that there was a breach?

    As to the duty, Miss Melling had a degree in Developmental Psychology and a Diploma in Education Psychology in addition to her Certificate in Education. She had over four years' teaching experience and six months' or so experience as an educational psychologist. It has not been suggested that the authority was negligent in appointing her in the first place or that she was not competent to hold the post.

    She was specifically asked on a number of occasions to assess and advise as to Pamela, whose learning difficulties were very plain, whatever their cause. Finding the cause was a major task. She was called in to and did advise not only Hillingdon, but the staff. She had a number of interviews with the parents, who were clearly anxious about their daughter and Mrs. Phelps certainly had her own views about sending Pamela to a special school. She knew, or ought to have known, of the fact that her advice would be followed and of the importance of her assessment and advice to Pamela's future.

    I do not think that in this case it is any answer to the claim that a duty of care existed that others had been involved in psychological advice at an earlier stage, or that she was said to be part of the multi-disciplinary team, including the teaching staff. At Mellow Lane, she was the professional person brought in to this case and her role, difficult though it was, was pivotal. I see no reason why in this situation she did not have a duty of care to Pamela. Her relationship with the child and what she was doing created the necessary nexus and duty. The learned Judge was both entitled and right to find that she owed a duty of care. He was equally entitled and might hold that, if she was in breach of her duty, Hillingdon was vicariously liable.

    As to whether there was a breach, the learned Judge found that she should have diagnosed dyslexia in October 1985 or shortly thereafterwards. The experts who were called found it surprising that the WISC test had not shown an ACID profile. It seems that their view was that she should have found an ACID profile there but that if the test which she used did not give very clear results the Bangor Test would have done so. She too readily assumed that the lack of progress was due to emotional difficulties and failed to make adequate or further enquiries as to the cause of Pamela's difficulty. As the Judge put it

    "This was more than an error of judgment: it was a failure to exercise the degree of care and skill to be expected of an ordinary competent member of her profession".

    The second finding of negligence was that she should have "thought again when the plaintiff made so little progress despite Special Needs teaching", not least when the parents were expressing such anxiety and when her reading difficulties were so obvious. There was evidence from Dr. Conn, an educational psychologist, that a more thorough and detailed examination of Pamela's cognitive, linguistic and attainment profile should have been undertaken in 1985. Dr. Conn and Dr. Gardner, another educational psychologist, both considered that she should have gone further than she did in the early investigation. The possibility of dyslexia should have been explored at the beginning.

    Mr. Rabinowitz, another educational psychologist, thought that the difficulties the child had in reading and writing (not least that at age 11 years she could not write her own address) were such that her exceptionally high degree of specific learning difficulty was unlikely to have been caused by emotional difficulties alone, a view which the Judge accepted.

    The Court of Appeal and the Judge disagreed as to whether the failure to diagnose dyslexia would have made any real difference, though they both accepted that she would have been taught differently if the diagnosis of dyslexia had been made.

    Garland, J. found that if the dyslexia had been diagnosed, and she had been taught appropriately at school, then she would have been "somewhat, perhaps substantially, more literate that she is now". Consequently, he held that she would have been in a position to take on work including work requiring an element of literacy. The Judge's finding was based very much on the evidence of the expert witnesses. Mr. Rabinowitz said (section 6 of his Report) that if she had been diagnosed and treated "it is likely she would have been literate by the time she left school" and that she would have been able to gain some formal qualification and would have been employable. Dr. Conn substantially agreed with Mr. Rabinowitz's diagnosis. Dr. Gardner thought that Pamela could have made progress with special tuition. The learned Judge said:

    "the adverse consequences of the plaintiff's dyslexia could have been mitigated by early diagnosis and appropriate treatment or educational provision. I bear very much in mind that the responses of dyslexics to appropriate support are variable, and that some do not respond. However, the evidence of Mrs. Laluvein [who gave Pamela teaching subsequently] and of Dr. Gardner indicates that the plaintiff has responded and is likely to continue to respond" (p 47C-E).

    This again is a very difficult issue, but it seems to me that there was evidence upon which the Judge was entitled to find that the negligence had caused the damage in respect of which the claim was made.

    I am very conscious of the great experience of the members of the Court of Appeal in this area, but on my conclusions as to the issues of principle it follows that the Court of Appeal was not justified in holding that the educational psychologist did not assume responsibility and therefore that Hillingdon could not be liable. On my conclusions, Garland, J. adopted the correct approach and was entitled on the evidence to find liability and on that approach he was entitled, in my view, to accept that "the adverse consequences of the plaintiff's dyslexia could have been mitigated by early diagnosis and appropriate treatment or educational provision" (p 47D). He was right to have regard to the judgments of Sir Thomas Bingham, M.R. and Evans, L.J. in the Dorset case at pages 703 and 705-706 respectively.

    The assessment of damages in this case was extremely difficult. Stuart-Smith, L.J. did not find it necessary to deal with quantum on the view to which he had come. Otton, L.J. thought that the plaintiff 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. Although I agree that there is room for much debate as to quantum in this type of case, no better approach in this case has been suggested than that adopted by the learned Judge. I would not interfere with his assessment of the damages.

    Pamela thus succeeds on the basis of vicarious liability of the local authority. I do not consider that the case of direct liability on the part of Hillingdon is made out, nor indeed was necessary. Your Lordships have, however, been asked to consider whether such a claim can exist and such a question is relevant in the case of Jarvis.

Direct liability

    In X (Minors) at page 762H, Lord Browne-Wilkinson said:

    "For these reasons I reach the conclusion that an educational authority owes 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 Act of 1981".

    It seems to me that if he had not thought that the service of psychological advice was offered to the public (which in fact in the present case it was not), but was "merely part and parcel of the system established by the defendant authority for the discharge of its statutory duties under the Act of 1981" (page 763C), he would have accepted that there was no duty of care in respect of an educational psychologist in the present case.

    I do not, rule out the possibility of a direct claim in all situations where the local authority is exercising its powers. If it exercises its discretion by deciding to set up a particular scheme pursuant to a policy which it has lawfully adopted, there is no, or at least there is unlikely to be any, common law duty of care. If, however, it then, for example, appoints to carry out the duties in regard to children with special educational needs a psychologist or other professionals who at the outset transparently are neither qualified nor competent to carry out the duties, the position is different. That may be an unlikely scenario, but if it happens, I do not see why as a matter of principle a claim at common law in negligence should never be possible. Over-use of the distinction between policy and operational matters so as respectively to limit or create liability has been criticised, but there is some validity in the distinction. Just as the individual social worker in Barrett v. Enfield London Borough Council (supra) could be "negligent in an operational manner" (Lord Woolf, M.R. [1998] Q.B. 367 at page 378, my speech [1999] 3 W.L.R. 79, 97E), so it seems to me that the local education authority could in some circumstances owe a duty of care and be negligent in the performance of it. The fact that the parents have their own duties under Section 36 of the Act of 1944 and that consultation and appeal procedures exist (of which the parents may or may not be informed) does not seem to me to lead to the conclusion that a duty of care does not or should not exist.

    Since the authority can only act through its employees or agents, and if they are negligent vicarious liability will arise, it may rarely be necessary to invoke a claim for direct liability. After the argument in these cases, I do not, however, accept the absolute statement that an education authority "owes no common law duty of care … in the exercise of the powers … relating to children with special educational needs" under the Act of 1981. That issue, however, as I have said does not fall for decision in Pamela's case.

    I would accordingly allow the appeal and restore the order of Garland, J.

"G"

    David, who was born on 27 June 1984, suffers from Duchenne Muscular Dystrophy which involves progressive muscle wasting. He was provided with a Statement of Special Needs which emphasised the need for him to have access to a computer and to be trained in its use. As Auld, L.J. said in the Court of Appeal: "The all-important thing as the disease takes hold is to preserve, so far as possible, his means of communication". After being at a main-stream school, he was transferred to the Marjorie McClure School, which had facilities for children with special disabilities and which was maintained by Bromley. He claims that negligently and in breach of duty to him, Bromley failed to provide 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 consisting of clinical depression.

    He issued a Writ on 18 May 1998. Bromley applied to strike out the Statement of Claim under Order 18, Rule 19 after serving a defence. Master Miller dismissed Bromley's Summons; Gray, J. struck out the Statement of Claim; the Court of Appeal reversed Gray, J.

    The issues broadly are whether teachers owe 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 in relation to their needs, and to take reasonable care for their health and safety, including the monitoring of their needs and performance. If there is such a duty, what is its nature? Is the existence of such a duty at any rate arguable? The second issue is whether in the light of Article 6 of the European Convention on Human Rights and the Human Rights Act 1998 it is right to strike out the action before trial. The third issue is whether G can claim for psychiatric damage or economic loss if there was a negligent failure to provide him with teaching at an appropriate standard.

    Gray, J. rejected the claim that Bromley was in breach of a duty in loco parentis as being unarguable. He considered that what was said in X Minors about the duty of school teachers was to be read in the context of "the potential liability of professionals, such as psychologists, brought in to advise local education authorities, rather than (as here) with the liability of the providers of education". He further relied on the decision in X Minors that it would be wrong to impose on the statutory machinery for the investigation and treatment of the Plaintiff's special educational needs a direct duty of care on the part of the local education authority to exercise the statutory discretion carefully. He held:

    "it does appear to me to be clear law that a local education authority is not under a duty of care at common law in relation to the quality of the educational provision made for children at its school".

 
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