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DN v London Borough of Greenwich, Court of Appeal, 8 December 2004

14 December 2004
The issues

Dyslexia – Claim For Failing To Identify Educational Needs – Measure Of Damages

The facts

The Claimant was born in 1980. In 1985 he was given a statement of special educational needs. In 1987 he moved from Lewisham to Greenwich where he went to a local infant and then a local junior school. In 1990 an Educational Psychologist, Mr Moreland prepared a report on him which was submitted with other reports from the panel who were to determine the direction of his future education. The claim revolved around the allegations of negligence made against Mr Moreland.

The panel decided that the Claimant be educated at a special school for children with emotional and behavioural difficulties close to his parents’ home (Moatbridge School). He was excluded from Moatbridge in May 1994 and his educational career “then stood still” until September 1996 when he was admitted to a residential special school in Devon, in the unit for 16+ age group. He stayed there until 1999. In 2001 he was convicted of arson and made subject to a restriction order under the Mental Health Act 1983.

He alleged that if Mr Moreland’s report had not been negligently prepared he would have received an education more suited to his needs. When the Claimant was aged 12 a diagnosis of Asperger’s Syndrome was made. It was not suggested that Mr Moreland should have made this diagnosis 2 years earlier. Instead the Trial Judge found Mr Moreland negligent in three respects:-

1. Failing to appreciate that the Claimant did not present a profile of a child with emotional and behavioural difficulties.
2. Failing to carry out any psychometric testing.
3. Failing to recommend to Greenwich and to the parents of the Claimant that his special educational needs could only be met by a school which had experience and expertise in teaching children with communication disorders.

Psychiatrists called to give evidence for the Claimant and Defendant agreed that if the Claimant had been provided with an appropriate educational environment throughout his school year it would have been better academically and socially. The Defendants did not rely on any expert evidence on the issue of the standard of care reasonably to be expected of an educational psychologist working for a local education authority at the relevant time. Instead it relied on the evidence of Mr Moreland together with that of Mr Radcliffe and other educational psychologists.

The Claimant relied on the evidence of Albert Reid who had been for 10 years senior specialist educational psychologist for children with complex needs in the inner London Education Authority. The Judge had indicated in exchange with Counsel at the beginning of the Trial that the Defendant should have conceded liability in the absence of an expert of their own.

The Defendant argued that although Mr Moreland was called as a witness of fact, the Court should take into account his opinion evidence and relied on ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust, a decision of the Court of Appeal from 2003. The Judge concluded that there was no expert evidence to counter the evidence of Mr Reid or none that should be regarded as independent or of any weight although the Judge accepted that Reid’s evidence needed to be assessed and the effect considered of cross examination by the Defendant. The Defendant contended that the Judge’s references to Mr Moreland’s evidence in the Judgment were so minimal that he had to be taken not to have given that the weight and consideration it deserved. The Trial Judge had found for the Claimant. The Defendant appealed.

The decision

1. The Judge’s judgment writing technique had unfortunately failed to summarise the effect of the evidence Mr Moreland gave in his own Defence. However, the Judge had heard the whole of Mr Moreland’s evidence only 7 days before he completed his reserve Judgment and had received written and oral closing submissions from Defendant’s Counsel. He had said in terms he was balancing Mr Moreland’s testimony against Mr Reid’s professional assessment of his failings.

2. The Defendant’s dilemma ultimately stemmed from their decision not to field an independent educational psychologist of their own. With hesitation the Court considered it would be wrong to order a re-Trial on this ground.

3. The Defendants had argued that the Claimant’s situation was not straightforward in that he exhibited considerable behavioural difficulties which were not necessarily a feature of a child with Asperger’s Syndrome. The Defendant relied on the evidence of the former Head Teacher at Moatbridge School who felt that Moatbridge had been the best place for him at the time of Mr Moreland’s original acceptance although it had not been ideal. It was common ground that a special school for autistic children would have been inappropriate. Mr Dawson knew of no school at the time who particularly dealt with Asperger’s Syndrome. The Claimant had however through Mr Reid produced a list of 15 such schools and the Judge had been entitled to find that if Mr Moreland had performed his duties non negligently the Claimant would have been placed in a much more appropriate school from 1991 onwards and he was therefore entitled to find Mr Moreland negligent].

4. An issue on causation arose between the psychiatrist called by the Claimant and Defendant as to the inter relationship between the Claimant’s behavioural disturbance which included fire setting, and Asperger’s Syndrome. The Claimant had at the age of 7 had a head injury. The Claimant’s psychiatrist believed that the head injury was probably a red herring. The Defendant’s psychiatrist believed that there had been some more substantial injury which had reduced the plasticity of the brain and its capacity for change and would exaggerate the effect of Asperger’s Syndrome in terms of disinhibition. He believed that the link between the Claimant’s education and his fire setting was a long chain of causation.

The Trial Judge had given an emphasis to the evidence of the Claimant’s psychiatrist that she had not placed upon it herself. He understood it as being more confident than it really was. The most that the Claimant’s expert had been willing to say was that it was more likely than not that the outcome of the Claimant’s educational years would have been better or different if he had a different education.

The Judge had found that the failure of the local authority to send the Claimant to an appropriate school at the age of 10 had resulted in a loss of opportunity of learning how to improve his social skills, manage his behavioural difficulties and gain some educational opportunities.

This was the wrong approach. In Phelps v Hillingdon the House of Lords had travelled on uncharted seas, particularly in respect of valuing the Claimant’s loss. It had approved the Trial Judge’s award of £12,500.00 general damages and £25,000.00 for loss of future earnings following the approach in Blamiare v South Cumbria Health Authority but noting that the uncertainties were so great that any award had to be extremely modest.

In this case the Trial Judge would need to remember that the Claimant’s brain had at all material times been quite severely damaged and that all that the experts could say was that on the balance of probability the outcome would have been better or different if his education had been different. The Claimant was entitled to an award of general damages but the uncertainties were so great that it would not be appropriate for it to be greater than that given to Pamela Phelps.

There remained the issue of an award for loss of earnings capacity. The House of Lords had approved an award for loss of earnings capacity in Phelps but had not heard argument on the question of whether it was fair, just and reasonable or in accordance with rational principles of distributive justice, to impose this additional liability on a professional advisor found guilty of negligence in a case where the future course of a Claimant’s life was in issue. No argument had been addressed to the Court on these lines, however and the point raised an issue of legal policy which warranted the attention of the House of Lords.

With all the uncertainties in the evidence, this appeal would be decided on the basis that only a small award and one much smaller than the award in the Phelps case would be appropriate for loss of earnings capacity. If at the end a total award similar in amount to the type of award now sanctioned in wrongful conception or wrongful birth cases (£15,000.00) was awarded, justice would be done.

In any event, Clunis v Camden & Islington health Authority remained clear authority that was binding on the Court of Appeal for the proposition that the Claimant was unable to recover damages for the consequences of its own convictions for arson.

Appeal dismissed and matter remitted to Trial Judge to assess damages if the parties could not reach agreement in accordance with the principals set out in the Court’s Judgment.

Comments

The Court of Appeal criticised the parties for not complying with the timetable ordered by the Master and also the Order made for lacking precision as to a number of experts permitted and in what disciplines. It would have been better, the Court noted if the Master had given timetabled directions for the disclosure of any articles or text book entries on which the parties’ experts might wish to rely.

Last minute disclosure of research material had created difficulties that had been compounded by the Judge’s adoption of a rigid rule that for all practical purposes he would not allow any examination in chief of a witness of fact once that witness had identified and confirmed the accuracy of his witness statement. On the other hand the Judge had encouraged the practice whereby expert witnesses might expand at length in evidence in chief well beyond the contents of their written report. The Trial process could not be regarded as satisfactory as a result of these matters (including funding constraints on the Claimant’s side) and the lessons to be learned were that:-

a) A Case Management Conference order should specify the disciplines in which expert evidence was permitted.

b) In an educational negligence action such an Order should impose similar requirements as to the identification of learned articles, textbook entries and research studies as now commonly made in clinical negligence cases.

c) If an expert referred to research evidence in his report he had to identify it in the report so it would be available to be considered by the other side without delay and not 4 days before the Trial started.

d) The timetable given laid down in a case management order for experts to discuss issues and to deliver a report should be obeyed and the Court would not sanction the return to the sloppy disregard of Court Orders which characterised practice and civil procedure before the Woolf reforms.

e) An expert witness should not be permitted to depart substantially from his written report unless the Trial Judge was satisfied that no injustice would result in the circumstances of the particular case.

f) A Trial Judge should not without good reason adopt the differential approach demonstrated by the Trial Judge in this case towards the evidence in chief of different categories of witness.

g) Constraints imposed by the public funding regime must not unreasonably inhibit the performance by a Claimant’s solicitor of their obligations to ensure that the Defendants were not disadvantaged by any disobedience on their part of pre trial orders as to disclosure of documents or meetings of evidence.

Interesting also for the courts of appeal’s incidental comments with regards to
Gregg-v- Scott and their apparent preference for the law to remain unchanged.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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