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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    So far as the case of Phelps is concerned I have reached the view that there was a duty on the educational psychologist to exercise due care to the appellant. Two areas of the case have caused me some hesitation, namely, whether the plaintiff had in fact established professional negligence on the part of the psychologist and whether the causal link had been proved between the alleged negligence and the loss which was claimed. I have however been persuaded that both of these hurdles have been surmounted on the facts and that the judge was entitled to reach the conclusion which he did.

    The appellant claims a direct liability on the authority as well as a vicarious liability. But there is no necessity to explore that aspect of the matter in the case of Phelps which can succeed upon the basis of a vicarious liability. With regard to the other cases where the issue is still open, careful consideration would require to be given to the view expressed by Lord Browne-Wilkinson in Dorset at pp. 761-2, along with the further qualification which he added in Barrett v. Enfield London B.C. [1999] 3 All E.R. 193 at p. 197. But it may be open to argument that a prohibition upon a direct liability should not be a matter of absolute exclusion. Where the parents of a child have participated in the decision under attack it may well be difficult to allow a claim that the decision was negligently taken. But the case might be different if the parents did not take a hand in the making of the decision. It may be that few cases would arise of direct claims, but it might not seem that justice is being served if on that account the door of the court should be closed. The point may be open to further argument but it would be inappropriate to embark upon that chapter without any inquiry into the facts. I am certainly not prepared to deny the possibility that such a duty may exist. A comparable point was raised in Cassidy v. Ministry of Health [1951] 2 K.B. 343 and some academic support for the proposition can be found in Montgomery "Suing Hospitals Direct" (1987) 137 New L.J. 573, referred to in Clerk and Lindsell on Torts 17th ed. Para 8-63. Given the room for argument on the point in the present context it seems to me that this is pre-eminently a point to be resolved after trial when the facts have been explored.

    As regards the case of Anderton the procedural point under reference to section 33(2) of the Supreme Court Act 1981 is not of critical importance but on the basis that what the claimant suffered was not simply a failure to have her condition ameliorated but an actual impairment to her mental condition when she was already burdened with considerable learning difficulties, I would be inclined to hold that the condition here could qualify as a "personal injury" to her person. That is sufficient for the disposal of that case. I would regard it as premature to advance a view about the substance of the claim. The case of Jarvis should follow the result in Phelps. Indeed the facts in that case seem to me more compelling than those in Phelps. The case of G is to my mind also one which cannot be excluded at this stage. I would accordingly allow the appeals in Phelps, Anderton and Jarvis and dismiss the appeal in G.

LORD HUTTON

My Lords,

    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. I agree with them and 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 MILLETT

My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Slynn of Hadley and Lord Clyde, with which I am in large measure of agreement.

    At the conclusion of the argument I was inclined to agree with Stuart-Smith L.J. in the Court of Appeal that the appellant's claim in Phelps could not hope to succeed on the basis of vicarious liability. Her claim was argued on the Hedley Byrne principle, that is to say, on an allegation that the educational psychiatrist Miss Melling gave negligent advice to the appellant (or more probably her parents) in the knowledge or expectation that she (or they) would rely upon it. Miss Melling was, however, employed by the respondent authority to advise it how best to discharge its statutory duties to the appellant and achieve its aim to provide her with an education appropriate to her needs, not to give advice to the appellant or her parents on which they could rely. If this is the correct analysis, then either she was merely communicating to the appellant and her parents the gist of the advice she had given or was proposing to give to the respondent, without assuming a separate responsibility to them for that advice; or (less probably) she was giving separate though similar advice to the appellant and her parents on which they were entitled to rely, in which case she was acting outside the scope of her employment. The fact that everyone had the same end in view, so that there was no conflict between them, does not in my opinion affect this.

    I have, however, been persuaded that, even though Miss Melling did not give advice to the appellant or her parents on which they were entitled to rely, she did owe the appellant a duty to take care that the advice which she gave to the respondent was properly given. If this is the correct analysis, as I believe it is, then the respondent is vicariously liable for the breach of the duty of care which Miss Melling owed the appellant when, in the course of her employment, she gave negligent advice to the respondent on which the respondent acted. Thus the appellant's claim does not depend (nor should it) on what Miss Melling told the appellant's parents, but on what she told the respondent.

    For these reasons, as well as those given by my noble and learned friends Lord Slynn of Hadley and Lord Clyde, I agree with the order proposed.

 
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