Several years after the passage of the Act the House of Lords decided the four cases comprised in Phelps v London Borough of Hillingdon, Anderton v Clywd County Council
237
[2005] 2 AC 373; See also A v Essex County Council (National Autistic Society intervening) [2011] 1 AC 280.
238
See further discussion below at section 4.6.
239
[2003] 2 AC 633.
240
See Ibid [26] per Miss Booth of Counsel.
241
(‘Phelps’).242
The Phelps case, along with Anderton v Clywd County Council and Jarvis v Hampshire County Council 243 involved failures to diagnose dyslexia; while G (A Minor) v Bromley London Borough Council244 concerned a student with muscular dystrophy who was not provided with computer assistance as recommended in his statement of educational needs.
The plaintiff in Phelps was first referred to an infant school psychologist service when she was seven due to a lack of academic progress. The service confirmed that she was of normal intelligence but with poor reading and writing skills. Over the next ten years she was assessed by social workers and educational psychologists none of whom considered dyslexia. Her academic problems were attributed to unstable family relationships. Then in 1990 at seventeen she was privately assessed at the Dyslexia Institute and found to be dyslexic, having a reading age of 7.9 years. After leaving school, she was dismissed from her first job having had trouble with literacy. She had pursued private tuition since leaving school. The claim against Hillingdon local education authority alleged breach of statutory duty under the United Kingdom Education Acts, and a breach of duty to use reasonable professional skill and care in failing to assess her learning difficulties and dyslexia, and failing to provide reasonably appropriate tuition and treatment.
Justice Garland in the High Court in Phelps held that the local education authority was vicariously liable for the negligence of an educational psychologist employed by it for failure to identify in 1985 that the plaintiff had dyslexia. His Honour found that had the
psychologist used an appropriate test (the ‘Bangor’ test) she would in all probability have found the cause. He awarded the plaintiff special damages for tuition fees incurred and likely to be incurred and for future loss of earnings, together with general damages of £12,500, making a total award of £44,056.50 plus interest.245 The Court of Appeal decided against the plaintiffs with dyslexia and in favour of the plaintiff with muscular dystrophy.
In the House of Lords Lord Slynn denied the claim in breach of statutory duty, finding that under the United Kingdom Education Acts parliament had not intended to create a statutory remedy.246 His Lordship cited Barrett v Enfield London Borough Council 247 in deciding that 242 [2001] 2 AC 619. 243 [2000] ELR 36. 244 [2000] EWHC Admin 390. 245 [2001] 2 AC 619, 622. 246 [2001] 2 AC 619, 652.
actions carried out within the ambit of a statutory discretion may still be justiciable. In Phelps there was no ‘weighing of competing public interests’ or acts ‘dictated by
considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials.’248
Hence his Lordship found the case fell to be decided according to the Caparo test.249
Both Lord Slynn and Lord Clyde noted that other remedies did not provide sufficient redress for loss already caused. Lord Clyde listed judicial review, resort to an ombudsman, or statutory procedures open to parents as measures for future correction, but stated that only damages would compensate for the past.250
Lord Slynn observed that as doctors, accountants and engineers may owe a duty of care, so also do educational psychologists, psychiatrists, education officers and teachers concerned with children having special needs.251 He cited Lord Browne-Wilkinson’s statement concerning head teachers’ and special advisory teachers’ duty in X (Minors) v
Bedfordshire.252 Lord Slynn saw emotional, psychological and physical harm as possible damage resulting from the failure by an educational psychologist to take care. He went further and stated that failure to diagnose a congenital condition and take appropriate action leading to a reduced level of achievement and consequent loss of employment and wages could also constitute actionable damage.253 Lord Clyde also saw mental or psychological injury or pure economic loss as possible; he saw dyslexia as a condition which could become worse through the absence of an appropriate educational regime, and cause psychological stress and injury.254 Both Lord Slynn and Lord Clyde acknowledged that questions of causation and quantum would involve difficulties but that this was no reason to rule out such claims.255 Their Lordships agreed that the United States decisions rejecting an actionable duty of care did not assist their Lordships in deciding the present case.256
247 [2001] 2 AC 550. 248 [2001] 2 AC 619, 653. 249
Caparo Industries plc v Dickman [1990] 2 AC 605, 617-618.
250 [2001] 2 AC 619, 672. 251 Ibid 653. 252 [1995] 2 AC 633, 766. 253 [2001] 2 AC 619, 654. 254 Ibid 670. 255 Ibid 655, 673. 256 Ibid.
Lord Nicholls set out the policy objections raised against finding a duty of care and found them not persuasive:
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. …
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.
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.257 However, his Lordship narrowed the liability to ‘manifest incompetence or negligence comprising specific, identifiable mistakes’258
such as teaching the wrong syllabus for an external examination. He stated that the existence of a duty of care owed by teachers to their pupils was not to open the door to claims based on failure to provide an adequate education, poor quality of teaching or providing ‘a basis on which generalised "educational
malpractice" claims can be mounted.’259
His Lordship outlined the problems of causation:
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.260
257 [2001] 2 AC 619, 667. 258 [2001] 2 AC 619, 667. 259 Ibid 667-668. 260 Ibid 668.
Lord Clyde stated the policy reason in favour of permitting a cause of action in educational negligence - that it is in the interest of the country that its citizens should have the
knowledge, skill and ability to play their respective parts in society competently and with such qualifications as they may be able to develop. Hence teachers should observe high standards as an essential contribution to the future well-being of the nation.261 His Lordship observed that whereas the question of teachers’ duty of care applies most acutely to children with special needs nevertheless the scope of the problem potentially relates to anyone undergoing a course of education.262 Concurring with Lord Nicholls, Lord Clyde did not believe that recognition of a claim in educational negligence would lead to a flood of claims which would overwhelm school authorities,263 nor would it promote defensive performance of teachers’ duties. On the contrary, he felt the action would secure high standards. His Lordship saw the answer to a fear of a flood of claims in the Bolam standard264 which allowed for distinct but respectable opinions on matters of educational method and practice.