Education Law - Educational negligence

* Educational psychologists and education officers could be liable at common law for giving negligent advice.

'[P]sychologists hold themselves out as having special skills and they are, in my judgment, like any other professional bound to possess such skills and exercise them carefully' (at 448F).

* A head teacher and advisory teacher owe a common law duty of care to pupils to take reasonable steps in response to the under-performance of the pupil, for example by referring him/her for assessment by a specialist, and in the giving of advice to parents.

Lord Browne Wilkinson:

'In my judgment a school which accepts a pupil assumes responsibility not only for his physical well-being but also for his educational needs. The head teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of the headmaster that a pupil is under-performing, he does owe a duty of care to take such steps as a reasonable teacher would consider appropriate to deal with such under-performance. To hold that, in such circumstances, the head teacher could properly ignore the matter and make no attempt to deal with it would fly in the face, not only of society's expectations of what a school will provide, but also in the fine traditions of the teaching profession itself. If such head teacher gives advice to the parents, then in my judgment he must exercise the skills and care of a reasonable teacher in giving such advice'.

Similarly, in the case of an advisory teacher brought in to advise on the educational needs of a specific pupil, if he knows his advice will be communicated to the pupil's parents he must foresee that they will rely on such advice. Therefore, in giving that advice he owes a duty to the child to exercise the skill and care of a reasonable advisory teacher.' (p.451)

But 'The head teacher and the advisory teacher were only bound to exercise the skill and care of a reasonable head teacher and advisory teacher' (at 451E). They 'were not under any duty to exercise a higher degree of skill such as that of an educational psychologist' and would have a defence if they could show that they held and/or communicated 'a reasonable view of dyslexia shared at that date by a responsible body of educational thinking' and had acted in accordance with views which might have been entertained by 'reasonable members of the teaching profession' (451F-G).

* While an authority might be liable at common law for the actions of its employees or agents, a private law-based claim for damages for breach of the Education Acts (at least those relevant to provision of education, especially special education) will not be entertained.

2. Impact of X (Minors)

Non-justiciability of statutory discretions

Holtom v London Borough of Barnet and Another [1999] ELR 255, CA.

*Barrett v Enfield LBC [1999] 3 WLR 79, [1999] 3 All ER 193, [1999] 2 FLR 426 (HL holds that X (Minors) does not necessarily prevent a claim of negligence being brought by a local authority by a child formerly in its care)

Z and Others v United Kingdom [1999] 2 FLR 612 ECHR.

'The tort of negligence was held [in X (Minors)] not to impose a duty of care on the local authority in the exercise of its statutory powers. [The applicants'] experiences were described a "horrific"... and the Court has found that they were victims of a violation of [ECHR] Art 3... Yet the outcome of the domestic proceedings brought is that they, and any children with complaints such as theirs, cannot sue the local authority for compensation, however foreseeable - and severe - the harm suffered and however unreasonable the conduct of the local authority in failing to take steps to prevent that harm' (at para [102])

Held: the lack of an effective remedy under UK law to failures by local authorities to protect victims of child abuse from Art 3 breaches amounts to violation of Art 13 (right to an effective remedy).

Breach of duty of care

*Christmas v Hampshire County Council [1998] ELR 1, QBD

Applicant (one of those whose case reached the HL in X (Minors)) fails, on the facts, to establish a breach of the duty of care when the case returns to the High Court for trial.

3. Phelps

*Phelps v London Borough of Hillingdon; Anderton v Clwyd County Council; G v London Borough of Bromely; Jarvis v Hampshire County Council [2000] ELR 499; [2000] 3 WLR 776; [2000] 4 All ER 504, HL.

Phelps in the High Court [1998] ELR 38, QBD (Garland J)

*Phelps in the Court of Appeal [1998] ELR 587, CA

In coming to its conclusion the Court of Appeal was influenced by policy considerations, including:

(1) There was a serious risk that there would be many 'vexatious claims... against many teachers or educational psychologists many years after the relevant decisions were taken' (at 609E, per Stuart-Smith LJ). When a claim was brought, not only might the evidence be incomplete, because some documents might not be able to be traced so long after the event, but also 'scarce resources, both financial and human, will have to be directed from the proper function of the [local education authority], which is providing a free education for all those who wish to avail themselves of it, to fighting such cases' (ibid 609E-F).

(2) There were other, more suitable, ways to challenge action or inaction by local education authorities - for example by bringing an appeal or via judicial review. These procedures would be utilised more or less at the time of the problem situation, compared with an action for damages many years later.

(3) It was very difficult to quantify the causal link between the allegedly negligent act and the pupil's under-achievement and other problems. US courts have acknowledged that a range of factors can affect under-achievement, including emotional, cultural and environmental factors:

Peter W v San Francisco Unified School District (1976) 60 Cal App 3d 867

Donoghue v Copiague Union (1978) 407 NYS 2d 874

(4) There was a risk that the field of education would experience an equivalent practice to that of defensive medicine which had emerged in the field of health care: 'the possibility of excessive and time-consuming testing to guard against the possible charge of negligence in not doing enough. This can be wasteful of resources' (ibid at 610F).

*Anderton v Clwyd County Council [1999] ELR 1, CA .

It was held that dyslexia was a congenital and constitutional condition and that a failure to diagnose it did not exacerbate it. The failure to mitigate or ameliorate its consequences could not amount to an injury. Overturned High Court's decision ([1998] ELR 533).

*Gower v London Borough of Bromley [1999] ELR 356, CA

'A headteacher and teachers have a duty to take such care of pupils in their charge as a careful parent would have in like circumstances, including a duty to take positive steps to protect their well-being. . . A headteacher and teachers have a duty to exercise the reasonable skills of their calling in teaching and otherwise responding to the educational needs of their pupils. . . . The duty is to exercise the skill and care of a reasonable headteacher and/or teachers, applying the Bolam test (Bolam v Frien Hospital Management Committee [1957] 1 WLR 582), namely, whether the teaching and other provision for a pupil's educational needs accords with that which might have been acceptable at the time by reasonable members of the teaching profession...' (per Auld LJ, at 359).

*Jarvis v Hampshire County Council [2000] ELR 36.

Court did not accept that the educational psychology service owed a duty of care in respect of advice given. There was no assumption of responsibility to the public by the service. Applied the Phelps CA decision.

Main conclusions of Phelps etc in House of Lords

* There can be no liability for action taken under statutory powers - in other words, for acts (including discretionary acts) taken in furtherance of a statutory scheme of provision.

* Educational professionals carry out professional duties that are not specifically prescribed by statute. Thus, where a teacher owes a duty of care at common law towards a child and his or her parents, a failure to perform his or her duty to the standard of an ordinarily competent and skilled member of that profession acting in accordance with practice accepted by a responsible body of professionals in that field, may give rise to liability, including vicarious liability on the part of the LEA.

But note: Lord Nicholls distinguished cases where there is 'manifest incompetence or negligence comprising specific, identifiable mistakes', such as where a teacher 'carelessly teaches the wrong syllabus for an external examination', from a more general claim that a child did not receive an adequate education at the school or was not properly taught (at 532A-C). He emphasised that 'proof of under-performance by a child is not by itself evidence of negligent teaching', given the range of external factors that can affect it (532C-D).

* The question of whether local education authorities could be directly liable (rather than vicariously liable for the act of a teacher, psychologist and so on), was left fairly open.

* For there to be liability arising from the performance of professional duties by an educational psychologist in relation to a particular child, it had to be a situation where the law recognised a duty of care. The question was whether in the particular circumstances the necessary nexus had been shown.

* If foreseeability and causation were established, psychological injury could constitute damage for the purpose of the common law. But so could a failure to diagnose a congenital condition and to take appropriate action as a result of which failure a child's level of achievement was reduced, which led to a loss of employment and wages.

* '[A] failure to mitigate the adverse consequences of a congenital defect are capable of being "personal injuries to a person"' (at at 529B-C).

4. Developments post-Phelps

C v Trafford Borough Council, 25 October 2000 (unreported). County court in Manchester applies Phelps to a case involving bullying.

*Bradford-Smart v West Sussex County Council [2001] ELR 138, QBD

Bullying case.

H v Isle of Wight Council, 23 February 2001, QBD (Wright J) (available on LexisNexis).

The case was based on teachers' failure to respond adequately to both bullying and the claimant's dyslexia (rejected by the court). Wright J's concluding remarks could perhaps be viewed as a warning against excessive litigiousness post-Phelps:

'This is a most unhappy action which... should never have been brought. Its pursuit can have done nothing to ameliorate [the girl's] emotional and personality problems over the time taken to bring it to trial' (transcript, p.52).

In the court's view the evidence did not show that teachers should have been aware that there was a serious bullying problem or that the girl's special educational needs required referral to the LEA for further action. The case also reveals how difficult it may be for litigants to establish causation when a person's psychological state has already been affected by factors external to the school.

*Liennard v Slough Borough Council [2002] ELR 527, QBD

The claimant, X, born in 1972, suffered from a mental condition but was highly intelligent. He had social and emotional difficulties. He was massively disorganised at school, was frequently late and almost never did any set homework or coursework. In 1985 he joined Woodside school. In his first year he had many excellent reports but was guilty of unacceptable behaviour leading to detentions and was recorded as late 29 times. In his second year at Woodside, 1996- 97 there was underachievement and lack of work, but many of his reports were essentially problem free. Between February and July 1987 there was a marked deterioration. In 1987-88 Woodside was amalgamated with Orchard School to form Wexham School. Mr R was the new head teacher. In June 1988 X gained 4 D grades and 1 C in his GCSEs, a long way short of his potential but it put him in the top 13% in the school. After he left school in 1998 X worked in a warehouse for a short period but left due to problems. In late 1990 he had similar problems when working in a darts factory and had to leave. He later took drugs over a two year period before, in 1993, starting an Access course. He did quite well but by late 1995 and Jan. 1996 his performance and attendance started to slip thereafter. He was referred by his tutors to a chartered psychologist and from 1997-2000 he spent a good deal of time seeing psychologists. He started a degree course at University but had difficulty and deferred the course. X now sought damages for the negligent failure by his teachers to assess properly or at all his learning difficulties and, in consequence, the negligent failure to refer him for specialist advice and for assessment by a remedial teacher or an educational psychologist.

It was held - dismissing the claim -

* While teachers and head teachers owe a duty to exercise reasonable skills in responding to educational needs, with the standard of skill and care required that of a reasonable teacher (X (Minors) v Bedfordshire CC and Phelps v Hillingdon LBC), it could not be conceived that any reasonable and competent teacher present at a February 1987 staff meeting would have contended for outside intervention in X's case. The teachers obviously cared and could have said to one another 'X is trying to turn the corner'. The teachers had no reason to refer X to an educational psychologist. The head teacher before Mr R (Mr M) acted professionally and competently in his duties towards X.

* The staff's conclusion that there was a disciplinary problem for their own resolution with parental assistance was a reasonable decision.

* The suggestion that (prior to his GCSEs in 1998) X should have been offered a further year was well wide of the mark.

* Reference to a special needs teacher, remedial teacher or educational psychologist would have been singularly inappropriate at the time.

* As regards the failure to involve an education welfare officer (EWO), the real problem with X was laziness and a failure to produce set work. The school were not negligent in failing to engage the EWO. Nor was there any fault in prescribing detention for lateness.

* Applying the Bolam test, the court found that the teachers acted in a way in which reasonably competent teachers between 1985 and 1989 would have acted.

* (Obiter) The court said it would not have awarded a substantial amount in damages. The questions were not unlike those facing Garland J at first instance in Phelps v London Borough of Hillingdon [1998] ELR 38: the claimant as he was now; the claimant as he may be in 4 years time; the claimant as he might have ben diagnosed in 1988. As to general damage, pain, suffering and loss of amenity, including genial employment, X remained depressed at his inability to function as he might. The court would have awarded £15,000 under that head. As to loss of earnings, the court would necessarily have followed Garland J's reasoning, applying Blamire v South Cumbria Health Authority [1993] PIQR Q1 in arriving at a lump sum representing the loss of opportunity to gain employment at the end of a successful period of education. The chances of such event were limited and so should be the award, to £20,000.

Robinson v St Helen's MBC [2002] EWCA Civ 1099, CA

R, now aged 35, was educated at various schools in St Helen's between 1972-1983. He always struggled with reading and writing and his parents had on several occasions complained about that. In 1985 he turned 18. In 1992 he was diagnosed by the Dyslexia Institute as having dyslexia. He went on to get a HND and in 1995 a degree in art and deisgn from Nottm Trent University. In 1997, after the first instance judgment in Pehlps, his mother saw a solicitor. In Nov. 2000 a claim for negligence was brought based on teachers' failure to refer him for psychological assessment and both his head teachers' failure to cause his problems to be investigated. He claimed special damage - tuition costs and loss of earnings. The limitation period for a tort action was 6 years from date of cause of action or running from the date of majority in the case of injury to a child. In the case of a personal injury (PI) the limitation period (Limitation Act 1980) was 3 years from the date of cause of action or, inter alia, when claimant had knowledge of the injury and that it was attributable in whole or in part to the act of omission alleged to constitute negligence.

The judge held that the action was not for PI, so the 6 year limitation peiod applied and it expired in June 1991. In any event, for the purposes of the 3 year rule, knowledge was acquired in 1992 when dyslexia was diagnosed, so again that period had expired.

Held, by CA -

* Failure to ameliorate the congenital condition of dyslexia, resulting in emotional and psychological damage, was a PI, because the injury was continued by the lack of appropriate education.

* For limitation period purposes, the fact that R did not know he had a good claim until he saw a solicitor made no difference to the date his knowledge was acquired. The court would not exercise its discretion to extend or ignore the limitation period, in the absence of cogent medical evidence showing a serious effect on the claimant's health or enjoyment of his life or employability.

* Brooke LJ advised legal advisers to ensure that in such cases they identified the psychological harm upon which they relied upon for the claim.

nsh 11/2002

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