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Phelps v London Borough Of Hillingdon and Others, House of Lords, 27 July 2000

7 August 2000
The issues


The facts

In short, in Phelps the House of Lords allowed the Appeal by Pamela Phelps against the Court of Appeals decision.

Before the Court of Appeal Hillingdon had challenged the Judges findings that the damages claimed were compensatable in tort and his decision to the existence of a duty on the part of Miss Melling who was an Educational Psychologist in the employment of Hillingdon’s school psychological service. Hillingdon also challenged the Judge’s decision on breach, causation and quantum.

The decision

The Court of Appeal found that although dyslexia was not an injury there could be a claim for economic loss provided that there had been an assumption of responsibility to prevent Pamela from sustaining the type of loss or damage claimed. They thought it a matter of great concern that the non-liability of a Local Education Authority (following X) could be circumvented by suing the individual psychologist or teacher and claiming that the authority was vicariously liable. The Court of Appeal found that the evidence went no where near establishing an assumption of responsibility by Miss Melling to the Claimant. “Miss Melling was doing no more than discharging her duty to the Defendants to enable them to perform this statutory function”.

Lord Slynn noted that following Barratt v Enfield the fact that acts claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them. The Court would find that an issue was non justiciable only where the actions involved the weighing of competing public interest or had been dictated by considerations on which Parliament could not have intended that the Courts would substitute their views for the views of Ministers. In Pamela’s case there were no such grounds for holding that her claim was non-justiciable. The questions to be determined therefore was whether the damage relied on was foreseeable and proximate and whether it was just and reasonable to recognise a duty of care. Lord Slynn preferred to look at the decision from the reverse point of view i.e., why where a person is employed by a Local Education Authority to carry out professional services as part of the authorities statutory duty should there be any over-riding reason in principle why that person should not owe a duty of care and why if the duty of care is broken, the authority should not be vicariously liable. He accepted that there would be cases where to recognise such a vicarious liabilty might interfere with the performance of the Local Education Authorities duties and that in those circumstances it would be wrong to recognise any liability. “It must however be for the Local Authority to establish that; it is not to be presumed and I anticipate that the circumstances where it could be established would be exceptional”.

As to the first issue (why should such a person not owe a duty a care) it was trite law that professionals owed a duty of care in the performance of their duty to people who it can be foreseen would be injured if that skill and care is not exercised. An educational psychologist or psychiatrist or a teacher including a teacher in a specialised area (and perhaps an Education Officer performing the functions of a Local Education Authority) had the same duty as a Doctor, an Accountant or an Engineer. “There is no more justification for a blanked immunity in their cases than there was in Capital & Counties Plc v Hampshire County Council”.

[Although it is interesting that Lord Slynn in bringing that analogy to play did not take it to its logical conclusion which would suggest that where the “injury was no more than a failure to ameliorate there should be no duty as the Court of Appeal agreed in Capital and Counties and the LFCDA case].

It still remained to be shown that the Educational Psychologist was acting in relation to a particular child in a situation where the law recognised a duty of care. A casual remark or an isolated act might not be sufficient to create the nexus for a duty of care to exist. But where a psychologist was specifically called in to advise and in relation to the assessment and future provision for a specific child it was clear that a duty of care arose prima facie.

As to the second question, if a breach of duty of care to the child by an employers establish prima facie the LEA was vicariously liable for negligence of its employee. There were no public policy reasons against recognising such a liability. “I do not however see that to recognise the existence of the duty is necessarily deeds likely to lead” to the hampering of the activities of those engaged in the provision of Educational Services under the statutes. “The recognition of the duty of care does not in itself impose unreasonably high standards”.

As to a direct liability (“the issue apparently settled by X”) Lord Slynn was not prepared to accept that there could be an absolute statement that an education authority owed no common law duty of care in the exercise of its powers relating to children with special educational needs. [Accordingly, one of the other cases, Jarvis (which was a strike out case) was not struck out on the basis that there was an arguable case on the issue of vicarious liabilty and that the direct claim in that case was so closely linked that “whatever the eventual outcome I do not think that it would be right to strike it out at this stage”.

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