|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
He would not have struck out the claim for "educational disbenefit" on the ground of lack of causation, but held that since the claim for economic loss did not allege the assumption of responsibility to David it must be struck out.
In the Court of Appeal, Auld, L.J., with whom Aldous, L.J. and Gage, J. agreed, held that it was the law 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 and otherwise responding to the educational needs of their pupils. Those responsible for teachers may be vicariously liable for their negligence. The duty is to exercise the skill and care of a reasonable teacher on the basis of what would have been acceptable to reasonable members of the teaching profession. Whether there is a duty depends on foreseeability, proximity and what was "fair, just and reasonable". On the facts pleaded, the Court of Appeal held that it would be wrong to strike out the Statement of Claim. Although there might be no valid claim for direct duty in respect of the exercise of a statutory discretion there could be vicarious responsibility for the acts of the staff once the task was undertaken. It would, in any event, be wrong to strike out at that stage.
On the basis of my conclusions as to the right approach and of what was said in X Minors, Barrett and W. v. Essex County Council as to striking out claims, it seems to me that Auld, L.J. was plainly right to refuse to strike out this statement of claim. For the reasons he gives, which do not need elaboration or repetition, I would dismiss this appeal.
Marcus was born on 21 February 1979. He began at Vigo Junior School, Andover, Hampshire on 4 October 1989, having previously lived in Alderney. The Head Teacher reported at once to Hampshire that he was "well behind even the poorest" and that this was an "'emergency' situation". He was seen by Mrs. Hickmore, an educational psychologist employed by Hampshire, and it was decided to assess his special educational needs under the Education Act 1981. Mrs. Hickmore advised an education officer that Marcus would benefit from attendance at Winton School, the local main-stream secondary school with extra support which she specified. Her report was sent to his parents on 17 September 1990, but that did not refer to dyslexia and although saying that he would benefit from going to a main-stream school with extra support, the report did not specify what the support should be. Marcus started at Winton in September 1990. A Statement for the purpose of the Act was finalised on 4 October 1990, but by November 1990 concern was being expressed about the likelihood of his behaviour deteriorating owing to difficulties with learning. The Deputy Head at Winton on 9 May 1991 suggested a review of Marcus' suitability for a main-stream school and on 14 May 1991 Mrs. Hickmore replied referring to difficulties of placing children with Marcus' strengths and weaknesses and hence the need to investigate thoroughly ways of supporting him in a main-stream school. On 19 June 1991, Hampshire informed his parents that they had decided to reassess him since efforts to support Marcus were failing. On 5 July 1991, the Head of Winton said that Marcus' needs were "very specialised" and that they were not being met at the school. Mrs. Hickmore wrote on 18th July 1991 that Marcus continued to have specific learning difficulties and that he would benefit from:
On the same day, Mrs. Hickmore sent a memorandum to Mr. Rose, an education officer, which stated:
Although leaving Winton in the summer of 1991, Marcus did not attend Mark Way as the Headmaster felt it was inappropriate, but from then until September 1992 he had sporadic home tuition. His home tutor recorded that Mrs. Jarvis felt that he should be placed in a unit specialising in dyslexia, but on 29 July 1992 Mr. Eric Smith, the chairman of the divisional placement panel, told the local education officer that he had reassured Mrs. Jarvis of the suitability of a placement at Lankhills School.
On 18 December 1992, Marcus was temporarily excluded from Lankhills School, but he never returned. Until October 1995 when his Statement of Special Educational Needs came to an end, he received home tuition and part-time tuition at a tutorial centre/pupil referral unit.
A Writ was issued on 4 March 1997. In the statement of claim it was alleged that there had been negligence, misfeasance in a 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 19 February 1999, Popplewell, J. struck out the claim for misfeasance, but, though with obvious reluctance, refused to strike out the claim in negligence. On 11 November 1999, the Court of Appeal upheld Popplewell, J. on the misfeasance claim, but struck out the negligence claim.
The Court of Appeal accepted, on the basis of X Minors, that (i) a local education authority does not owe a direct common law duty of care in the exercise of its powers and discretions in relation to children with special educational needs, which it specifically conferred on them by the Education Act 1981; (ii) the local education authority does not owe a direct duty of care in respect of the performance of an educational psychological service it sets up unless the authority also provides psychological services to the public in a medical advisor/patient relationship; (iii) if a duty of care at common law does arise in respect of the exercise of professional skills by an employee acting in the course of his authority, the local authority will be vicariously liable if the existence of such a duty does not conflict with the proper exercise by the local authority of its statutory powers and discretions; (iv) where an assumption of responsibility is necessary to give rise to a duty of care, the mere advising of a local authority as to how to exercise its statutory powers does not of itself constitute the assumption of responsibility; (v) a claim for compensation for failure to diagnose or ameliorate the consequences of dyslexia is a claim for economic loss for which an assumption of responsibility must be shown before a duty of care can arise.
In this case, held the Court of Appeal, no direct duty of care arose in respect of Mrs. Hickman's advising and Hampshire was not providing psychological advice and help for the public. In discussing with Marcus' mother the proposed placement of Marcus at Lankhills, the Chairman of the Divisional Placement Panel, Mr. Smith, did not assume responsibility so as to create a duty of care. Nor did Mrs. Hickmore assume responsibility to Marcus when she gave psychological advice after discussing the problem with Marcus' mother. The same was true as to the advice as to the placing of Marcus in a tutorial centre. It followed that there could be no vicarious liability on the part of Hampshire.
The issues raised on the strike-out are thus, it is agreed, whether it is arguable that an educational psychologist employed by a local authority owes to a child referred under the Education Acts a duty to take reasonable care in carrying out the assessment and advising of the child; whether a local education authority taking decisions in relation to a child's special needs owes a duty to take reasonable care; whether the local education authority itself is under a direct common law duty of care in performing its functions under the Education Acts; whether it is arguable that the local authority offers an educational service to the public and thereby owes a direct duty to take reasonable care in doing so; whether a claim that there has been a failure to diagnose and ameliorate any specific learning difficulty is a "personal injury" claim or is a claim for pure economic loss; whether there can be a claim in damages when there is no recognisable psychiatric condition as described in the nervous shock cases; and whether the strike-out procedure violates Article 6(1) of the European Convention on Human Rights.
The essence of the claim is that Marcus should have been put in a Special Unit expert in teaching dyslexic children and that to put him in schools for children with moderate learning difficulties was wrong; such a decision led to a deterioration of his behaviour which resulted in his being in prison for robbery. The question is whether Hampshire is directly liable or vicariously liable for the acts of the education psychologist or the education officers for the advice and decisions which were given and made.
For the reasons already given in Phelps, I do not consider that it would be right to strike out the claim on the basis of vicarious liability. The direct claim is so closely linked that, whatever the eventual outcome, I do not think that it would be right to strike it out at this stage. On the face of it, it is arguable.
I would accordingly allow the appeal.
Rhiannon was born on 7 July 1979. She was educated from September 1983 at Bryn Koch Primary School maintained by Clwyd as a local education authority. She suffered severe speech and language problems. She contends that because her problem was not appreciated and she was not referred to Clwyd's educational psychology service, she was not given appropriate education. In August 1988 under private arrangements made by her parents, she was diagnosed as being severely dyslexic. After discussion between her parents and Clwyd as to whether she should go to a main-stream comprehensive school or to a specialist residential school, she was transferred in July 1990 to the local state secondary school. She alleges that here she was bullied and she developed psychological problems due to the failure to make suitable educational provision for her. As a result of the treatment at both schools, she suffers from psychological problems.
Her solicitors issued a summons seeking pre-action discovery pursuant to Section 33(2) of the Supreme Court Act 1981 and Order 24, Rule 2 of the Rules of the Supreme Court. That was granted by Master Prebble and upheld by Mr. Justice Steel, but refused by the Court of Appeal.
The questions raised are in summary (i) whether the effect of failing to diagnose and deal with dyslexia is "personal injury"; (ii) whether the effects of such failure sound in damages where there is no recognisable psychiatric condition; (iii) whether the teaching staff owes a common law duty of care to take reasonable steps to investigate the reasons for, and to provide for, a child's under-performance, including reference to a psychological service, and whether the educational psychologist owes a duty of reasonable care in carrying out an assessment and giving advice; and (iv) whether an LEA is under a direct common law duty of care in performing its functions under the Education Act 1996 and in particular whether the House should depart from its decision in X (Minors) v. Bedfordshire County Council and Others  2 AC 633 at pp.760H-770B-D.
In reaching his conclusion that what was alleged here was "personal injuries to a person", Mr. Justice Steel was guided by what was said by Sir Thomas Bingham, M.R., and Evans, L.J. in E (A Minor) v. Dorset  2 A.C. at pp. 703, 705 and 715, and by Garland, J. in Phelps v. London Borough of Hillingdon (1997) 96 L.G.R. 1. The Court of Appeal held that the evidence fell far short of establishing that the applicant suffered any psychiatric injury and that:
The Court of Appeal therefore held that failure to mitigate or ameliorate the consequences of the condition could not be an injury.
The issues that it was said would arise in this case are very similar to those in Phelps and the answer to those must be the same as in Phelps. There are, however, other issues. It seems to be quite inappropriate to deal with the latter at this stage, when not even pleadings have been served, let alone a trial taken place. The sole question to be dealt with at this stage is whether pre-action discovery should be ordered.
Section 33(2) of the Supreme Court Act 1981 provides as follows:
Further, section 35(5) of the Act provides:
In the Court of Appeal, Stuart Smith, L.J. said at page 4 of the transcript:
In E (A Minor) v. Dorset (supra), Sir Thomas Bingham, M.R. said at page 703:
Lord Justice Evans said:
In Phelps, Garland, J. said:
The broad definition of injury in section 35(5) makes it clear that the power under section 33(2) is not limited to physical injury, the sense in which as a matter of ordinary speech the word might be understood. Having regard to the purpose of the provision it would in any event, in my view, be wrong to adopt an over-legalistic view of what are "personal injuries to a person". For the reasons given in my opinion in Phelps, psychological damage and a failure to diagnose a congenital condition and to take appropriate action as a result of which a child's level of achievement is reduced (which leads to loss of employment and wages) may constitute damage for the purpose of a claim. Accordingly, I consider that Garland, J. in Phelps was right in the passage which I have just quoted and that a failure to mitigate the adverse consequences of a congenital defect are capable of being "personal injuries to a person" within the meaning of the rules. On the evidence before him, Master Prebble and Steel, J. were entitled to find that Rhiannon was likely to be a party to subsequent proceedings in the High Court and that in those proceedings a claim "in respect of personal injuries to a person is likely to be made".
I accordingly consider that the appeal be allowed and that the order of Master Prebble be restored.
I should add lest it be thought that the case had been overlooked that I have not found it necessary in any of these cases to consider the judgment of the European Court of Human Rights in Osman v. United Kingdom. The issue in that case does not arise.
LORD JAUNCEY OF TULLICHETTLE
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley, Lord Nicholls of Birkenhead and Lord Clyde. For the reasons they give, I would make the orders proposed by Lord Slynn. I would only add my particular agreement with the observation of Lord Nicholls that the existence of a duty of care owed by teachers to their pupils should not be regarded as a basis for the mounting of generalised "educational malpractice" claims.
LORD LLOYD OF BERWICK
I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Slynn of Hadley and Lord Clyde. For the reasons which they have given, I, too, would allow the appeals in Phelps, Anderson and Jarvis and dismiss the appeal in G.
LORD NICHOLLS OF BIRKENHEAD
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley and Lord Clyde. For the reasons they give, with which I broadly agree, I too would make the orders proposed by Lord Slynn. I have reservations about any attempt to draw a sharp-edged distinction between 'policy' decisions and 'operational' decisions, for the reasons I stated in Stovin v. Wise  A.C. 923, 938D-939B. I add some observations only on the general question whether local education authorities may be liable in damages when serious mistakes are made in the education of a child.
Vicarious liability of local education authorities: educational psychologists
Let me consider three instances. Take a case where an educational psychologist is employed by an education authority. In the course of his work he assesses a pupil whose lack of progress at school has been causing concern all round: to teachers and parents alike. The child has a learning difficulty. The psychologist sees the child and carries out an assessment. He makes a diagnosis and advises the education authority. The diagnosis is hopelessly wrong. No reasonably competent educational psychologist, exercising reasonable skill and care, would have given such advice. In consequence, the pupil fails to receive the appropriate educational treatment and, as a result, his educational progress is retarded, perhaps irreparably. When carrying out the assessment and advising the education authority, did the psychologist owe a duty of care to the child?
I confess I entertain no doubt on how that question should be answered. The educational psychologist was professionally qualified. He was brought in by the education authority to assist it in carrying out its educational functions. The purpose of his assessment was to enable him to give expert advice to the education authority about the child. The authority was to act on that advice in deciding what course to adopt in the best interests of the pupil with a learning difficulty. Throughout, the child was very dependent upon on the expert's assessment. The child was in a singularly vulnerable position. The child's parents will seldom be in a position to know whether the psychologist's advice was sound or not.
This seems to me to be, on its face, an example par excellence of a situation where the law will regard the professional as owing a duty of care to a third party as well as his own employer. The duty to the pupil would march hand in hand with the professional's responsibilities to his own employer. He should exercise reasonable skill and care when assessing the child and then advising the education authority. If he fails to do so, the education authority as his employer will be vicariously liable to the child for the negligent acts or omissions of the psychologist committed in the course of his employment.
Education authorities have statutory obligations regarding children with special educational needs, under the Education Act 1981. Every local education authority is under a duty, in short, to make an assessment of the educational needs of a child who has or probably has special educational needs. When making an assessment the education authority must seek educational, medical and psychological advice (regulation 4 of the Education (Special Educational Needs) Regulations 1983). The educational advice is to come from a qualified teacher, usually the head-teacher of the child's school. The psychological advice comes from an educational psychologist.
The educational psychologist in my example may be called in by the education authority to give advice as part of this statutory procedure, along with the head-teacher and a doctor. If so, he will be asked to give his professional advice on the child's needs and how these should be met. Or, as often happens, he may be brought in by the education authority at an earlier stage. He may be involved in assessing the child and reviewing the provision the child needs long before any decision is made by the education authority on whether a statutory assessment is necessary.
For present purposes, this is a distinction without a difference. The psychologist cannot owe a duty to the child in the first case but not the second, or vice versa. The factors which found the existence of a duty of care to the child are present in both cases. The two cases are to be treated the same. Further, participation by the parents in the assessment does not seem to me to displace the need for the psychologist to exercise skill and care and, should he fail to do so, for the child to have a remedy at law if in consequence the child suffers loss. This is so, whether the parents' participation is under the formal statutory scheme or not. Nor does the existence of a statutory appeals process displace this need.
Vicarious liability: teachers
My second illustration concerns a teacher. Does a teacher owe a common law duty of care to a pupil who is obviously having difficulty and not making the progress he should? Teachers are not educational psychologists, and they are not to be treated as though they were. But they, too, are professionals. It would make no sense to say that educational psychologists owe a duty of care to under-performing pupils they are asked to assess, but teachers owe no duty of care to under-performing pupils in their charge or about whom they give educational advice under the statutory scheme. In the same way as an educational psychologist owes a duty of care in respect of matters falling within the scope of his professional expertise, by parity of reasoning so must a teacher owe a duty of care to a child with learning difficulties in respect of matters which fall within his field of competence. A teacher must exercise due skill and care to respond appropriately to the manifest problems of such a child, including informing the head-teacher or others about the child's problems and carrying out any instructions he is given. If he does not do so, he will be in breach of the duty he owes the child, as well as being in breach of the duties he owes his employer, and his employer will be vicariously liable accordingly.
My third illustration raises a particularly controversial issue. It cannot be that a teacher owes a duty of care only to children with special educational needs. The law would be in an extraordinary state if, in carrying out their teaching responsibilities, teachers owed duties to some of their pupils but not others. So the question which arises, and cannot be shirked, is whether teachers owe duties of care to all their pupils in respect of the way they discharge their teaching responsibilities. This question has far-reaching implications. Different legal systems have given different answers to this question.
I can see no escape from the conclusion that teachers do, indeed, owe such duties. The principal objection raised to this conclusion is the spectre of a rash of 'gold digging' actions brought on behalf of under-achieving children by discontented parents, perhaps years after the events complained of. If teachers are liable, education authorities will be vicariously liable, since the negligent acts or omissions were committed in the course of the teachers' employment. So, it is said, the limited resources of education authorities and the time of teaching staff will be diverted away from teaching and into defending unmeritorious legal claims. Further, schools will have to prepare and keep full records, lest they be unable to rebut negligence allegations, brought out of the blue years later. For one or more of these reasons, the overall standard of education given to children is likely to suffer if a legal duty of care were held to exist.