|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
I am not persuaded by these fears. I do not think they provide sufficient reason for treating work in the classroom as territory which the courts must never enter. 'Never' is an unattractive absolute in this context. This would bar a claim, however obvious it was that something had gone badly wrong, and however serious the consequences for the particular child. If a teacher carelessly teaches the wrong syllabus for an external examination, and provable financial loss follows, why should there be no liability? Denial of the existence of a cause of action is seldom, if ever, the appropriate response to fear of its abuse. Rather, the courts, with their enhanced powers of case-management, must seek to evolve means of weeding out obviously hopeless claims as expeditiously as is consistent with the court having a sufficiently full factual picture of all the circumstances of the case.
This is not to open the door to claims based on poor quality of teaching. It is one thing for the law to provide a remedy in damages when there is manifest incompetence or negligence comprising specific, identifiable mistakes. It would be an altogether different matter to countenance claims of a more general nature, to the effect that the child did not receive an adequate education at the school, or that a particular teacher failed to teach properly. Proof of under-performance by a child is not by itself evidence of negligent teaching. There are many, many reasons for under-performance. A child's ability to learn from what he is taught is much affected by a host of factors which are personal to him and over which a school has no control. Emotional stress and the home environment are two examples. Even within a school, there are many reasons other than professional negligence. Some teachers are better at communicating and stimulating interest than others, but that is a far cry from negligence. Classroom teaching involves a personal relationship between teacher and pupil. One child may respond positively to the personality of a particular teacher, another may not. A style of teaching which suits one child, or most children in a class, may not be as effective with another child, and so on. The list of factors could continue. Suffice to say, the existence of a duty of care owed by teachers to their pupils should not be regarded as furnishing a basis on which generalised 'educational malpractice' claims can be mounted.
Direct liability of local education authorities
So far I have been considering the duties owed to a child by individual educational psychologists and teachers, and the resultant vicarious liability of local education authorities. This leaves unresolved the question whether the education authority itself owes a duty of care to the children in its schools. It was common ground, and rightly so, that the educational obligations imposed on local education authorities by statute cannot give rise to a (private law) action for damages for breach of statutory duty at the suit of pupils in their schools. But does an education authority owe to school pupils a duty at common law to take reasonable care in discharging its educational functions, either as regards children with special educational needs or generally?
This is an exceedingly difficult question. One of the difficulties lies in identifying satisfactorily what are the types of case which would be left without remedy if direct liability, as distinct from vicarious liability, were excluded. This, in turn, makes it difficult to evaluate the validity of drawing a distinction between direct liability and vicarious liability of local education authorities in this context.
In X (Minors) v. Bedfordshire County Council  2 A.C. 633, 762, Lord Browne-Wilkinson concluded that an education authority owes no common law duty of care in the exercise of powers and discretions relating to children with special educational needs specifically conferred on it by the Act of 1981. Your Lordships' House has been invited by counsel to depart from this view of the law. Of the present appeals Jarvis is the only case in which this issue may have practical consequences. That case has not yet reached trial. I prefer to leave this question open for decision in a case where the facts make a decision necessary. The existence of such facts will enable attention to be focused more effectively on the practical implications of the arguments for and against the existence of direct liability.
The importance of the provision of an education appropriate to the particular needs of children cannot be denied. It is not only in the interests of the child and his or her parents that such provision should be made but also in the interest of the country that its citizens should have the knowledge, skill and ability to play their respective parts in society with such degree of competence and qualification as they may be able to develop. The wide purpose of the provision of education has been recognised by Parliament. Section 13 of the Education Act 1996, echoing section 7 of the Education Act 1944, describes the obligation on local authorities to securing the availability of efficient education in their respective areas as a contribution "towards the spiritual, moral, mental and physical development of the community". It is then obviously desirable that those engaged in this important concern should possess and observe the high standards required of their calling. Their efforts require to be respected and admired as contributing in an essential way to the future health and well-being of the nation. At the same time the participation of parents in the educational process deserves increasing recognition. The responsibility for the education of their children lies on them as well as on others and it is right that their role in the process should be borne in mind. The propriety of the co-operation and involvement of parents in the education of their children can be seen in the Department of Education and Science Circulars 1/83 and 22/89.
The present group of four appeals raises questions as to the liability of those engaged in the education of young persons for negligent acts and omissions which have caused loss, injury or damage to their students. In only one of them has the matter been taken to trial. That is the case of Phelps. There the claimant sought damages for the negligence of an educational psychologist who had examined her and had failed to diagnose her dyslexia. The judge awarded her damages consisting of sums respectively for the cost of past and future tuition, a lump sum to represent the loss of the opportunity in the future to earn as much as she would now be able to earn, and a sum for general damages. In Anderton the claimant sought and was granted a pre-action discovery for the purposes of a proposed claim for damages for a failure to diagnose dyslexia, but that decision has been reversed on appeal. In Jarvis, another case of dyslexia, a claim for negligence against various persons employed by the local education authority has been struck out. In G, which concerns a child suffering from Duchenne Muscular Dystrophy who claims damages for negligence on the grounds that he was not provided with the equipment and training necessary to enable him to communicate and receive a proper education, a decision to strike out the claim has been reversed by the Court of Appeal. The basic point of principle which is common to all these cases is whether there is a duty of care owed by the employees of a local education authority to the students of whatever age they may be in the meeting of their educational needs. The question arises most sharply in relation to children with special educational needs, where erroneous decisions on the course of their education may have particularly damaging consequences and may involve some risk of irremediable harm. But the scope of the problem is a general one which may potentially relate to anyone undergoing a course of education.
There is no question that a teacher owes a duty of care for the physical safety of a child attending school under the charge of that teacher. The teacher has a duty to take reasonable care that the child does not come to harm through any danger which may arise during the course of the child's attendance at the school. But the present case is different in certain respects from that situation. The allegation of negligence is directed not at the risks of physical dangers which might occur through something dangerous in the premises, but at something done in the course of the educational activities of the school. Secondly, the criticism is directed essentially at a failure in the giving of advice upon the condition and educational needs of the child. Thirdly, while the injury which is alleged to have occurred is principally a loss or at least a retardation of their educational progress with such consequential financial loss and expense as that may entail, it may also involve some form of mental or psychological injury. The loss claimed may be purely of an economic character. But the mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damages, such as a post-traumatic stress disorder or a psychological illness. Dyslexia is a condition which may in itself become worse through the absence of an appropriate educational regime, and the frustration of an inappropriate regime may cause psychological stress and injury. The consequences of negligent advice regarding the future treatment of a child with some special educational need may take a variety of forms and may be extensive.
It is clear on principle that where a professional person gives advice, knowing, or being taken to know, that another will rely on that advice in deciding how to manage his affairs, the adviser may owe a duty of care to that other person. Opinion has differed on the question whether the language of an assumption of responsibility is useful or not. In Smith v. Bush  1 A.C. 831 Lord Griffiths observed (at pp. 862 and 864) that he did not think that voluntary assumption of responsibility was a helpful or realistic test for liability, at least in most cases. That opinion was followed by Lord Roskill in Caparo Industries plc v. Dickman  2 A.C. 605, 628. On the other hand the use of the expression received the support of Lord Goff of Chieveley in Henderson v. Merrett  2 A.C. 145, 180-181. The expression may be descriptive rather than definitive, but the point does not seem to me of significance in the present context.
In principle it is not immediately easy to see why the law should not admit the possibility of a duty of care upon professional employees of an education authority. Indeed the decision in E (A Minor) v. Dorset C.C., reported with X v. Bedfordshire C.C.  2 A.C. 633, directly supports the existence of such a duty of care upon an educational psychologist. As Lord Browne-Wilkinson observed (p. 763) "Psychologists hold themselves out as having special skills and they are, in my judgment, like any other professional bound both to possess such skills and to exercise them carefully". In principle the same view should apply to any professional member of the staff of an education authority. Where a child privately consults an educational psychologist there should be a duty on the latter to exercise due professional care in the giving of advice. While a basis for a claim might be found in contract in such a case, by way even of an implied term of an obligation to take reasonable care, it would be curious if it could not be found also in tort. If in the private arena an educational psychologist culpably erred in the diagnosis which he or she made of the cause of a child's disability and the child suffered some consequential loss or injury, there would seem to be no reason why a liability in damages should not follow. It would be surprising if the same was not also to be possible where the advice is given by one employed by an education authority. One consideration which influenced the Court of Appeal in their holding in Phelps that there was no duty of care was the fear that by admitting a vicarious claim the immunity which local education authorities may enjoy against direct claims could readily be circumvented. But it has to be noticed that one consideration which weighed with Lord Browne-Wilkinson in excluding a direct claim in the Dorset case was that a vicarious liability would be available. As he observed (at p. 762) "in almost every case which could give rise to a claim for the negligent exercise of the statutory discretions, it is probable that .there will be an alternative remedy by way of a claim against the authority on the grounds of its vicarious liability for the negligent advice on the basis of which it exercises its discretion".
But it is contended that such persons are under no such duty. Two issues then arise, one general and one particular. The question whether the defendant in any claim for damages on the ground of negligence owes a duty of care to the claimant can be answered in the negative on the basis that on grounds of fairness the law will not recognise a duty of care between such parties. There was no duty because there cannot be a duty. It is only if the law admits the possibility of such a duty that the next question can arise: whether in the circumstances of the particular case a duty did exist between the particular parties. Whether a duty can exist and whether a duty does exist are different kinds of questions and it seems to me that the law gives different kinds of answers to them. The former may be resolved by considerations of policy, and in particular whether it is fair, just and reasonable to admit such a duty. The latter requires a consideration of the facts of the case and may be susceptible to different answers in different circumstances. Of course common kinds of relationship, like that of employer and employee acting within the course of an employment, may so often satisfy the test of proximity that categories of cases can be identified where a duty will arise with little if any further investigation or analysis. But the requirements of proximity and foreseeability form the basis on which the existence of the duty may rest in any particular circumstances.
The test for the existence of a duty of care which looks to what the court considers is fair, just and reasonable is of a different order from the test of proximity or neighbourhood with its further ingredient of foreseeability. The test of fairness is a test which may principally involve considerations of policy. Thus, for example, it was considered in the cases reported as Capital & Counties plc v. Hampshire C.C.  Q.B. 1004, in the context of a public policy immunity. It has 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 may require to be controlled, albeit at the risk of some uncertainty at least in the prediction of the directions in which the law may develop. But this test may also have regard to the particular facts and circumstances of a particular case. Broader considerations may not alone be determinative. Thus in Osman v. UK  1 F.L.R. 193, (para. 151) the European Court of Human Rights required account to be taken of such matters as the gravity of the negligence in question, the assumption of responsibility by the police for the safety of the eventual victim, and the seriousness of the harm sustained. Even where sound policy reasons can be put forward for excluding a claim it is not thereby necessarily to be excluded.
In the present case I am not persuaded that there are sufficient grounds to exclude these claims even on grounds of public policy alone. It does not seem to me that there is any wider interest of the law which would require that no remedy in damages be available. I am not persuaded that the recognition of a liability upon employees of the education authority for damages for negligence in education would lead to a flood of claims, or even vexatious claims, which would overwhelm the school authorities, nor that it would add burdens and distractions to the already intensive life of teachers. Nor should it inspire some peculiarly defensive attitude in the performance of their professional responsibilities. On the contrary it may have the healthy effect of securing that high standards are sought and secured. If it is thought that there would only be a few claims and for that reason the duty should not be recognised, the answer must be that if there are only a few claims there is the less reason to refuse to allow them to be entertained. As regards the need for this remedy, even if there are alternative procedures by which some form of redress might be obtained, such as resort to judicial review, or to an ombudsman, or the adoption of such statutory procedures as are open to parents, which might achieve some correction of the situation for the future, it may only be through a claim for damages at common law that compensation for the damage done to the child may be secured for the past as well as the future.
Any fear of a flood of claims may be countered by the consideration that in order to get off the ground the claimant must be able to demonstrate that the standard of care fell short of that set by the Bolam v. Friern  1 W.L.R. 582 test. That is deliberately and properly a high standard in recognition of the difficult nature of some decisions which those to whom the test applies require to make and of the room for genuine differences of view on the propriety of one course of action as against another. In the field of educational matters there may well exist distinct but respectable opinions upon matters of method and practice, and it may be difficult to substantiate a case of fault against the background of a variety of professional practices. In cases of a failure to diagnose a particular disability from which a child may be suffering there may well be considerable difficulties in the making of the diagnosis which may render proof of negligence hazardous.
Not only may there be difficulties in establishing negligence in relation to the making of professional judgments in particular circumstances or the exercise of a professional choice in particular cases, but there may well be practical difficulties in the adequacy of records or of recollection about the details regarding the educational progress and achievements of a particular child which may be highly relevant to the claim which is brought. But that there may be such difficulty is no reason for excluding deserving cases. There may also be severe difficulty in establishing a causal connection between the alleged negligence and the alleged loss and in the assessment of any damages. But these possible difficulties should not be allowed to stand in the way of the presentation of a proper claim, nor should justice be altogether denied on the ground that a claim is of a complex nature. That any claims which are made may require a large number of witnesses, a consideration which weighed with the Court of Appeal, and involve considerable time and cost, are again practical considerations which should not be allowed to justify a total exclusion of an otherwise legitimate claim. While I recognise that the general view in the jurisprudence of the United States of America is adverse to the admission of a liability upon teachers for negligence upon general grounds of policy, I am not persuaded that a corresponding view should be taken in this country.
The present claims all arise in the public sector where there is a very obvious statutory context. The education authorities are creatures of statute and operate to a considerable extent under the provisions of the Education Acts. The question arises whether the common law duty can or cannot stand in the face of the statutory context. But while no common law can stand in contradiction of some statutory provision, and it may be hard to impose a duty of care in the exercise of a statutory power, Stovin v. Wise  A.C. 923, 954, the existence of a statutory background against which the professionals are exercising their particular skills should not inhibit the existence of a common law duty of care. The provisions of the Education Act 1981 sought to secure that appropriate education would be available for children with special educational needs. The procedures contained in the Act include various rights for the parents, for example the provisions for consultation in section 3, for notification under section 5(3), in relation to assessments under sections 6(1) and 9, and for discussion and for appeal in relation to the making of statements under sections 7 and 8. Such provisions plainly reflect the interest which the parents are recognised to have in the child's education. What is envisaged is not some adversarial relationship between the authority and the parents, but rather a partnership between them aimed at securing the interests of the child's education. Indeed in paragraph 6 of the Circular 1/83 by the Department of Education and Science the process of assessment was seen as a "partnership between teachers, other professionals, and parents, in a joint endeavour to discover and understand the nature of the difficulties and needs of individual children". However at least in the case of Phelps the procedures and systems contained in the statutory provisions were not directly in issue. In Phelps what was alleged to have gone wrong was a failure to diagnose the existence of a dyslexia. The psychologist was not carrying out any particular function under the statute. There is no statutory provision in the case which is inconsistent with the existence of a duty of care on the part of an educational psychiatrist.
A distinction may be suggested between on the one hand matters of policy or discretion and on the other hand matters of an operational or administrative character. But this kind of classification does not appear to provide any absolute test for determining whether the case is one which allows or excludes a duty of care. The classification may provide some guide towards identifying some kinds of case where a duty of care may be thought to be inappropriate. Where a statutory authority has to make a choice between various courses of action, all of which are within its powers, and the choice involves a weighing of resources and the establishment of priorities, it will in general be inappropriate that someone injured through the particular decision which the authority has made should have a remedy in damages. But it was recognised by Lord Browne-Wilkinson in X (at p. 738) that even in matters of a discretionary character the authority may be liable in damages if its decision falls without the ambit of the discretion, as where the action taken is so totally unreasonable as to amount to an abuse of the discretion. Beyond that, as Lord Keith of Kinkel observed in Rowling v. Takaro Properties Ltd  A.C. 473 at p. 501, "classification of the relevant decision as a policy or planning decision in this sense may exclude liability; but a conclusion that it does not fall within that category does not, in their Lordships' opinion, mean that a duty of care will necessarily exist".
Another circumstance which may give rise to difficulty in the present context is that there may be a multi-disciplinary unit concerned in the giving of the advice. But that is a practical problem which cannot constitute a legal bar on a claim. Even where such a situation exists it should be possible to disentangle the relevant parts played by particular individuals and identify where the alleged negligence occurred. The problem may not of course be significant for a plaintiff if a claim can lie directly against the authority, as in Barrett. Certainly the view of the Commission in Z v. United Kingdom, Application No. 29392/95 in paragraph 114 of their report took the view that the multi-disciplinary aspect of child protection work "may provide a factual complexity to cases but cannot by itself provide a justification for excluding liability from a body found to have acted negligently". At least in the present cases there is no difficulty in identifying the advice given by each of the professional persons involved, and in particular in identifying that it was particularly within the area of expertise of the educational psychologist to make the diagnosis.
I turn now from matters of policy to matters of proximity and foreseeability. One question which arises here is whether the advice was being given to the education authority for their guidance, and not to the child nor the parents. Circumstances may of course occur where it can be shown that although the parents had some involvement with the decision making process the advice given was not intended to be acted upon by them nor was reliance expected to be placed by them on it. The distinction noted by Lord Browne-Wilkinson in the Dorset case (at pp. 763-764) is drawn between education cases and child abuse cases. In the former case it may more readily be concluded that the involvement of the parents is both consistent with and supports the conclusion that a duty of care existed through them to the child. In the latter, despite the general intention that all the interested parties should work together, the opportunity for conflict between the parents and the professional advisers may be far greater than in the educational context. But that is not the situation in the present case where all shared the same intention to secure the proper education for the child concerned. Where a professional person is employed by one person to advise him, it is a question of circumstances whether there will also be a duty owed to other persons. Examples may be found in the cases of a doctor examining a patient for insurance purposes or a surveyor acting for a prospective mortgagee.
The view was taken by Stuart-Smith L.J. ( 1 W.L.R. 500 at p. 517) in the Court of Appeal in Phelps that the defendants' psychology service was not a service to the public. "It was set up and used by the defendants to advise them and their other employees on the discharge of their statutory functions in teaching the plaintiff. It is quite different from, for example, a health authority setting up a clinic where people can come to see doctors and nurses for treatment. In such a case there would be a direct relationship of doctor and patient, and an assumption of responsibility to treat him or her". But it seems to me that while that analysis may be strictly correct, it is not inconsistent with the conclusion that the psychologist was in the circumstances in Phelps also advising the plaintiff through her parents. I consider that the judge was right to observe that "it does not accord with reality or common sense to regard her as owing a duty only to the defendants". On the evidence he was certainly entitled to reach the conclusion that the psychologist also owed a duty to the plaintiff through her parents. In the particular circumstances of the case of Phelps it appears perfectly clear that the plaintiff and her parents were going to and did rely upon the advice. Miss Melling, who is blamed by the plaintiff, discussed the contents of her report with Mr. and Mrs. Phelps. While the educational psychiatrist was advising the teachers, the parents were also recipients of the substance of the advice. The judge found that the Special Needs Co-ordinators and the head teacher all expected information to be passed to the parents and the fundamental elements of that advice would derive from Miss Melling. Indeed the respondent's own consultation document 'Learning Together' of November - December 1990 stresses the support which the educational psychologist may give to a parent and the involvement educational psychologists will have with the family as well as the teachers. Nor can it be seriously doubted that the plaintiff was in a sufficient proximity to the defendant. The statutory context to which I have already referred shows very clearly that the parent is to be involved in the identification of the appropriate forms of education for the child and even if the statutory provisions are not immediately relevant that is at the least consistent with the child through her parents being in a close relationship with the education authority.