Educational Negligence
31/07/2000
I would like to thank you and your colleagues for the kindness shown to myself and my wife. I class myself as very fortunate to have met such kind and caring people.
Raymond, HertfordshirePhelps V Hillingdon London Borough Council
Pamela Phelps was severely dyslexic. She attended a mainstream senior school. She was assessed by an educational psychologist who noted Pamela's difficulties with reading and writing but failed to diagnose dyslexia. When Pamela left school 5 years later her reading age was that of an eight-year-old. She was employed for a short period but lost her job because of her literacy problems and was unable to find a new job.
Pamela sued her Local Educational Authority (LEA) claiming they were responsible for the educational psychologist. She claimed the educational psychologist was negligent for failing to diagnose her dyslexia. The judge who heard the case agreed with Pamela and awarded her £45,000 as compensation for her past and future loss of earnings.
The LEA appealed to the Court of Appeal who reversed the decision. They stated that the educational psychologist did not owe a duty of care to pupils, as this was too onerous a burden. Even if Pamela's dyslexia had been diagnosed it was too difficult to say that a different teaching approach would have made a measurable difference and improved Pamela's literacy.
That decision effectively barred the majority of educational negligence claims in this country. However, on 27th July 2000, the House of Lords overturned that decision and similar decisions in 3 other cases.
The House of Lords stated that teachers and educational psychologists are professionals and therefore as professionals they have a duty to the pupils they teach to act with reasonable skill and care. This is similar to the duty owed by a doctor to his patients. If that professional acts are negligent then the LEA, as their employer, is responsible for their acts.
It is now possible to claim compensation if a teacher or other education professional acts negligently. This duty of care does not just apply to children with special needs such as dyslexia but to all pupils. If a teacher carelessly teaches the wrong syllabus he may be negligent and his pupils may be able to claim compensation.
Educational negligence will still be difficult to prove. Negligence claims can only succeed if the teacher acted in a way no other reasonable teacher would have done. It is not sufficient to show a poor standard of teaching, for example. In addition, a pupil must show that the negligence caused some measurable harm to the pupil before he can be awarded compensation.
The door is now open to investigate and pursue educational negligence claims. If you want any more information about this decision and how it may affect you then please contact Alexander Harris on our free phone helpline 08080 774477
Below is a copy of the case published by 'The Times' newspaper on 28th July 2000.
COUNCIL LIABLE FOR SPECIAL NEEDS FAILURE
Phelps v Hillingdon London Borough Council; Anderton v Clwyd County Council; Gower v Bromley London Borough Council; Jarvis v Hampshire County Council
Before Lord Slynn of Hadley, Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Clyde, Lord Hutton and Lord Millett
Speeches July 27, 2000
A local education authority could be vicariously liable for breaches by those whom it employed, including educational psychologists and teachers, of their duties of care towards pupils.
Breaches could include failure to diagnose dyslexic pupils and to provide appropriate education for pupils with special educational needs.
Failure to mitigate the adverse consequences of a congenital defect such as dyslexia could constitute "personal injuries to a person" within section 33(2) of the Supreme Court Act 1981.
Phelps
The House of Lords allowed an appeal by the plaintiff, Pamela Helen Phelps, from the Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Otton and Lord Justice Tuckey) (The Times November 9, 1998; [1999] 1 WLR 500), who had allowed an appeal by the defendants, Hillingdon London Borough Council, from Mr Justice Garland.
The judge, on September 23, 1998, had given the plaintiff, in her action against the defendants for, inter alia, negligence, judgment for damages and interest totalling £45,651.50.
Anderton
The House allowed an appeal by the applicant, Rhiannon Anderton, from the Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Otton and Lord Justice Tuckey), who on November 4, 1998 had allowed an appeal by the respondents, Clwyd County Council, from Mr Justice Steel.
The judge, on December 9, 1997, had upheld an order for pre-action discovery pursuant to section 33(2) of the 1981 Act made by Master Prebble on the applicant's summons under Order 24, rule 2 of the Rules of the Supreme Court.
Gower
Their Lordships dismissed an appeal by the defendants, Bromley London Borough Council, from the Court of Appeal (Lord Justice Auld, Lord Justice Aldous and Mr Justice Gage) (The Times October 28, 1999) who had allowed an appeal by the plaintiff, David Gower,, a minor, by Susan Gower, his mother and next friend, from Mr Justice Gray.
The judge, on March 4, 1999, had ordered, reversing Master Miller, that the plaintiff's statement of claim against the defendants, Bromley London Borough Council, be struck out.
Jarvis
The House allowed an appeal by the plaintiff, Marcus Jarvis, from the Court of Appeal (Lord Justice Morritt, Lord Justice Thorpe and Lord Justice Chadwick) (The Times November 23, 1999; [2000] ELR 36), who had allowed an appeal by the defendants, Hampshire County Council, from Mr Justice Popplewell.
The judge on February 19, 1999 had dismissed the council's summons for the particulars in the plaintiff's statement of claim relating to his claim in negligence against them to be struck out.
Mr Roger ter Haar, QC and Mr John Greenbourne for Miss Phelps; Mr Edward Faulks, QC and Mr Andrew Warnock for Hillingdon;
Mr Roger ter Haar, QC and Mr Nicholas Bowen for Miss Anderton; Mr Edward Faulks, QC and Mr Andrew Warnock for Clwyd;
Mr Edward Faulks, QC and Miss Susan Rodway for Bromley; Mr John Friel and Miss Deborah Hay for David Gower;
Mr Roger ter Haar, QC and Mr Nicholas Bowen for Mr Jarvis; Mr Tim Kerr and Miss Karen Steyn for Hampshire.
LORD SLYNN said the four appeals were heard together. They all raised questions as to the liability of a local education authority for what was said to be a failure in the provision of appropriate educational services.
Phelps
It was now known that Miss Phelps had been dyslexic since her birth in 1973. Dyslexia was normally a congenital condition defined by the World Federation of Neurology (1968) as:
"a disorder manifested by difficulty in learning to read despite conventional instruction, adequate intelligence and socio-cultural opportunities. It is dependent upon fundamental cognitive disabilities which are frequently of constitutional origin."
Methods of psychological assessment had been in use at all material times that provided guidance as to whether a person might be dyslexic, and the techniques for mitigating the effects of dyslexia by a multi-sensory and structured approach had been known.
In 1985 Miss Phelps had been referred by her head teacher to Hillingdon's school psychological service because of poor progress in reading and writing and she had been seen by an educational psychologist, who had reported that testing had revealed no specific weaknesses but that Miss Phelps' reading age was seven years three months.
Dyslexia was not diagnosed. Miss Phelps had been given special needs teaching in English and maths, but that had not been specifically designed for a dyslexic pupil.
Her subsequent illnesses and truancy were alleged to be of psychological origin because of her educational failure. She had difficulties with anything requiring literacy and had not been employed since 1991.
She had claimed damages against Hillingdon for breach of statutory duty under the Education Acts 1944 and/or 1981, now repealed and replaced by the Education Act 1996, alternatively in negligence.
The judge had held that the educational psychologist had owed her a duty of care on the basis that her findings, recommendations and advice would be acted on by Miss Phelps through her parents, none the less so because her advice was also relied on by Hillingdon and the school. Hillingdon was vicariously liable for breaches of that duty.
Miss Phelps' claim in negligence had to be seen in the context of Hillingdon's powers and duties under the Education Acts. The 1981 Act had required a local education authority to identify and assess a child who it considered had or probably had special educational needs. It had had to make a statement of her needs and the provisions to be made for her.
The duties laid on authorities were of the greatest importance: a failure to fulfil them either generally or in a particular case could have a serious effect on a child's education, her well being and her future life.
There was, however, no express indication in the Acts that a failure to carry out the duties, even in respect of a particular individual, should lead to an award of monetary compensation if damage could be shown.
The question remained whether, having regard to the purpose of the legislation, Parliament was to be taken to have intended that there should be a right to damages.
It did not seem to his Lordship that it could be said that Parliament had intended that there should be a remedy in damages for breach of statutory duty in respect of the matters complained of by Miss Phelps.
It did not, however, follow that the local education authority could 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 its servants or agents: see Barrett v Enfield London Borough Council (The Times June 18, 1999; [1999] 3 WLR 79).
Where a person was employed by an authority to carry out professional services as part of the fulfilment of the authority's statutory duty, it had to be asked whether there was any overriding reason in principle why that person should not owe a duty of care and why if that duty was broken the authority should not be vicariously liable.
His Lordship accepted, as had been said in X (Minors) v Bedfordshire County Council ([1995] 2 AC 633), that there might be cases where to recognise such a vicarious liability might so interfere with the performance of the authority's duties that it would be wrong to do so. It had, however, to be for the authority to establish that, and the circumstances would be exceptional.
It was well established that persons exercising a particular skill or profession might owe a duty of care in the performance to people who it could be foreseen would be injured if due skill and care were not exercised and if injury or damage could be shown to have been caused by the lack of care.
Such duty did not depend on the existence of any contractual relationship. An educational psychologist or psychiatrist or a teacher, including a teacher concerned with children having special educational needs, was such a person.
So might be an education officer performing the authority's functions with regard to children with special educational needs. There was no justification for a blanket immunity in their cases.
The fact that the psychologist owed duties to the authority to exercise skill and care in the performance of his contract of employment did not mean that no duty of care could be or was owed to the child.
Nor did the fact that the psychologist was called in in pursuance of the performance of the authority's statutory duties mean that no duty of care was owed by him if in exercising his profession he would otherwise have such a duty.
It still had to be shown, however, that the psychologist was acting in relation to a particular child in a situation where the law recognised a duty of care.
A casual remark, an isolated act, might occur in a situation where there was no sufficient nexus between the two persons for a duty of care to exist.
But when an educational psychologist was specifically called in to advise in relation to the assessment of, and future provision for a specific child and it was clear that the parents acting for the child and the teachers would follow that advice, prima facie a duty of care arose.
The result of a failure by the psychologist to take care might be that the child suffered emotional or psychological harm, perhaps even physical harm.
Psychological damage could constitute actionable damage and so could a failure to diagnose a congenital condition and take appropriate action as a result of which a child's level of achievement was reduced leading to loss of employment and wages.
Questions of causation and quantum of damages, particularly long after the event, might be very difficult, but there was no reason in principle to rule such claims out.
If a breach of duty by an authority's employee was established, prima facie the authority was vicariously liable. Were there reasons of public policy why the courts should not recognise such a liability?
His Lordship was very conscious of the need to be cautious in recognising such a duty of care where so much was discretionary. It was obviously important that those engaged in the provision of educational services under the Acts should not be hampered by the imposition of such a vicarious liability.
He did not, however, see that to recognise the existence of the duties necessarily led or was likely to lead to that result. The recognition of the duty of care did not of itself impose unreasonably high standards.
Although the courts should not find negligence too readily, the fact that some claims might be without foundation or exaggerated did not mean that valid claims should necessarily be excluded.
Since an education authority could only act through its employees or agents and if they were negligent vicarious liability would arise it might rarely be necessary to invoke direct liability.
His Lordship did not accept the absolute statement of Lord Browne-Wilkinson in X (Minors) (at p762) that an authority "owes no common law duty of care ... in the exercise of the powers ... relating to children with special educational needs" under the 1981 Act. That issue did not, however, arise in Miss Phelps' case.
His Lordship would restore the judge's order.
Gower
David Gower, born in 1984, suffered from Duchenne muscular dystrophy involving progressive muscle wasting. He claimed that negligently and in breach of duty to him Bromley had failed to provide him with a proper education, in particular computer technology and suitable training to enable him to communicate and to cope educationally and socially.
As a result he had suffered damage in the form of a lack of educational progress, social deprivation and psychiatric injury consisting of clinical depression.
The issues broadly were whether teachers owed a duty of care at common law to exercise reasonable skill and care and 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 was such a duty, what was its nature? Was the existence of such a duty at any rate arguable?
On the basis of his Lordship's conclusions as to the right approach, the Court of Appeal had rightly refused to strike out David Gower's statement of claim.
Jarvis
The essence of Mr Jarvis's claim was that he should have been put in a special unit expert in teaching dyslexic children and that Hampshire's failure to do so had led to deterioration in his behaviour.
The question was whether Hampshire was directly liable or vicariously liable for the acts of an educational psychologist, whose report had not referred to dyslexia, or or of its education officers for the advice and decisions given and made.
For the reasons given in Miss Phelps' case, his Lordship did not consider that it would be right to strike out Mr Jarvis's claim on the basis of vicarious liability.
The direct claim was so closely linked that it would not be right to strike it out at this stage. On the face of it, it was arguable.
Anderton
Miss Anderton, born in 1979, had been diagnosed in 1988 under private arrangements made by her parents as being severely dyslexic. She alleged that she had developed, and suffered from, psychological problems due to Clwyd's failure to make suitable educational provision for her.
Section 33(2) of the Supreme Court Act 1981 provided for pre-action discovery where a claim in respect of "personal injuries to a person" was likely to be made. By section 35: "(5) ... 'personal injuries' includes any disease and any impairment of a person's physical or mental condition."
Lord Justice Stuart-Smith had said in the Court of Appeal: "Even if dyslexia can be regarded as an impairment of the applicant's mental condition, it is not caused by the potential defendant. It is a congenital and constitutional condition. Failure to diagnose it does not exacerbate the condition ... I do not consider that the failure to mitigate or ameliorate the consequences of that condition can be an injury."
It would be wrong to adopt an over-legalistic view of what were "personal injuries to a person". 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 was reduced, leading to loss of employment and wages, might constitute damage for the purpose of a claim.
Mr Justice Garland had been right in saying, in Miss Phelps' case, that a failure to mitigate the adverse consequences of a congenital defect was capable of being "personal injuries to a person". Master Prebble's order should be restored.
Lord Nicholls delivered an opinion agreeing with Lord Slynn. Lord Clyde delivered an opinion agreeing in allowing the first, second and fourth appeals and dismissing the third.
Lord Jauncey agreed with Lord Slynn, Lord Nicholls and Lord Clyde. Lord Lloyd, Lord Hutton and Lord Millett agreed with Lord Slynn and Lord Clyde.
A copy of the judgment is available at;
www.parliament.the-stationery-office.co.uk
This can be found via 'Index' then clicking on the letter 'J'.
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