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Stuart Clark v Devon County Council, 17 February 2005

21 March 2005
The issues

Specific Learning Difficulties (Dyslexia); Costs

The facts

The Claimant, born 29th August 1980, is severely dyslexic (with a reading age of 8-9 years) and dyspraxic. He was educated in Devon from November 1988 to June 1996, between the ages of 8 and 15. Having moved to Devon with his family from East Sussex, the Claimant first attended John Stocker Middle School. However, he was unhappy at that school and in December 1988 he transferred to Alphington Primary School, where he was very quickly referred to the Special Needs Advisory Teacher and also to the school Psychological Service.

The Claimant was seen by three Educational Psychologists during his time at Alphington Primary School and thereafter at St Thomas High School, which he attended from September 1992. Each of these produced reports on the Claimant dealing with his Specific Learning Difficulties. In May 1994, the Claimant was offered a place at the Queen Elizabeth Community College in Crediton, a school with a dedicated Special Learning Difficulties Support Centre. This offer was declined by the Claimant’s mother, who felt that the Claimant could not cope with the move.

In the autumn of 1994, the Head of the Special Learning Difficulties Support Centre at Queen Elizabeth’s attended St Thomas’ High School to provide the Claimant with weekly remedial sessions for a term. However, when the Claimant left school in June 1996, aged 15, he was illiterate and innumerate, capable only of casual, low paid employment. Since September 2000, the Claimant has been certified unfit for work and is now in receipt of benefits.

The Claimant issued proceedings against the Defendant Council shortly before his 21st birthday. Within the Particulars of Claim, the Claimant cited two Head Teachers (of Alphington Primary and St Thomas’ High) and the three Educational Psychologists that had reported on his during his period of education as being negligent. Having heard from 11 witnesses at Trial, including experts, the Judge found that the Defendant Council was only liable in respect of the negligence of the second Educational Psychologist that had assessed and reported to him whilst he was a pupil at Alphington Primary School.

It was held that this particular professional had failed to properly diagnose the Claimant’s Special Educational Needs and to identify the provision he needed to address those needs. She had recommended continued placement in a mainstream school, when it was held that she should have recommended placement in a school with special resources over and above those in a mainstream school. The Judge held that but for this breach, the Claimant would have been taught differently at Queen Elizabeth Community College between 1991 and 1994. The breach of duty was held to have deprived the Claimant of specialist education by specialist teachers, who would have helped him overcome his difficulties with reading and writing. The Judge however limited the period of loss for the three year period from 1991 (when the negligent Educational Psychologist reported) to 1994 (when the Claimant was offered a place at Queen Elizabeth’s which was declined). The refusal to move there in 1994 was held to be a failure to mitigate his losses.

Neither of the Head Teachers named within the Particulars were found to be negligent, the allegations against one of the Educational Psychologists were dropped during the course of the Trial and whilst the third Educational Psycholgist’s report was felt to have been in breach of the duty of care, no loss to the Claimant had flowed from it.

At Trial the Claimant was awarded £10,000 General Damages and £25,000 Special Damages for Loss of Earning, making a total award, inclusive of interest, of £38,210. The Claimant, despite only succeeding in respect of one of the many allegations of negligence that had been brought in the claim, was also awarded 100% of his costs by the Trial Judge. The Defendants appealed the decision on three grounds (1) causation; (2) Quantum and Loss of Earnings; (3) Costs.

The decision

Causation:

The Lord Justices noted that on this issue the Judge had directed himself in the same way of Stuart Smith LJ in the Court of Appeal decision in Phelps and recognised that once breach of duty had been established, it was necessary to decide (a) that but for the breach the Claimant would have been taught differently; and (b) that the different teaching (which should be specifically identified) would have made “a measurable difference”.

Counsel for the Claimant/Respondent argued that, whilst the Trial Judge did indeed find in favour of the Claimant using his direction, the need to establish “a measurable difference” stated the position on causation too high. He submitted that it was more accurate to look at remedial teaching making a “real difference” to the Claimant.

Counsel for the Defendant/Appellant contended that causation was difficult to prove and that the Judge had failed to make material findings of fact in respect of causation. Causation, he submitted, could not be established without any evidence measuring or quantifying the difference that Queen Elizabeth teaching would have made to the Claimant. The mere fact that three years there would have been beneficial was not enough and the “measurable difference” test had to be proved.

Having considered the evidence, specifically the evidence of the Head of the Special Learning Difficulties Support Centre at Queen Elizabeth Community College, the Court of Appeal held that there had been sufficient material for the Judge to find a causative link between the breach of duty and the loss to the Claimant of three years remedial teaching to ameliorate his dyslexia. The Court of Appeal concluded that the Judge was not required to find that there would have been a “measurable difference”, which put the test too high and it preferred the use of the phrase “a real difference”. It found that the Judge was entitled to conclude, on the evidence, that the vast majority of pupils who attended Queen Elizabeth did benefit.

Quantum – Loss of Earnings:

There was no appeal against the award of £10,000 General Damages. The Defendant Council’s appeal was from the £25,000 awarded for past and future Loss of Earnings. At Trial, the Judge had commented that it was almost impossible in the circumstances of this case to produce an accurate figure for Loss of Earnings, although he had approached it on the same lump sum basis as had been used in Phelps. Both Counsel had difficulty putting forward a figure and it appeared that the Judge’s £25,000 had been plucked from nowhere.

The Claimant’s Counsel at Trial would have had the sum at nearer £70,000. Counsel for the Appellant Council submitted that the Claimant’s claim for Loss of Earnings had been entirely speculative. It had been wrongly allowed without sufficient explanation by the Judge and without reasons to support it.

The Court of Appeal held that the lump sum method was the right approach, as in Phelps and that the size of the sum awarded was not outside the permissible range.

Costs:

CPR Part 44.3(2) provides that the unsuccessful party should pay the costs of the successful party, but it is open to the Court to make a different order in appropriate circumstances. CPR 44.3(4) confirms that the Court must have regard to all the circumstances when making an Order, including the conduct of the parties and whether a party has succeeded on part of its case, even if it has not been wholly successful.

In this case, the Claimant had made five discrete allegations of negligence. Two were withdrawn at the start of the Trial, two were dismissed by the Judge and one succeeded. Despite the measure of success achieved by the Defendant Council in this regard, the Judge at Trial had ruled that it had been necessary to cover the whole of the Claimant’s educational history in stating his claim. It would therefore not be reasonable to deprive the Claimant of some of his costs merely because allegations against other people in relation to that wider period had failed. Secondly, the Judge seemed to find that there should be no circumstances in which a Claimant should be denied some of his costs simply because the claim against other named persons had failed – the Court of Appeal found that reason to be unjustified.

Counsel for the Claimant/Respondent argued that the allegations made in this case could not be viewed as a series of self-contained claims. This was a single claim for a failed education over a period of time and it was correct to pursue allegations in the alternative against psychological advisers and teachers. He likened educational negligence claims to clinical negligence claims, where allegations are brought against a number of persons who played different parts in a failed operation. In Phelps, the allegations had been formulated in the same way and the Claimant had been awarded all of her costs.

The Court of Appeal commented that there might be some educational negligence cases that could be likened to clinical negligence cases. Provided it was reasonable for the Claimant to make allegations against several people in one claim, it might be appropriate for the Defendant to pay all of his costs. However, the Court of Appeal did not find such an analogy apt in this case. The allegations against the three Educational Psychologists did not relate to a single episode or incident – each report was made in different circumstances and relating to a different period in the Claimant’s life. It was accepted that it might be necessary to adduce evidence from a far wider part of the Claimant’s educational history to support a single allegation, but this cannot of itself justify making allegations against all of those who might be called as witnesses.

The Court of Appeal recognised that given the difficulties of proving causation and damage in this class of litigation, disallowing part of the Claimant’s costs may discourage other Claimants from making such claims. It also however pointed out that Claimants should not be encouraged to make allegations against all the professionals that have been involved in their education in the knowledge that provided they succeed on just one allegation, they will recover all of their costs from the Defendant Council. Whilst it was acknowledged that a child has a right to claim damages for negligence in this area, it was also acknowledged that the interests of the professionals should also be considered and that facing allegations of negligence is stressful as well as time-consuming for them.

In the present case, the Claimant had of course been successful in proving negligence against one professional and was entitled to damages from 1991-1994. However, he had seen a considerable amount of failure in relation to his other allegations. The Court of Appeal found that the Judge had erred in not reflecting that failure in his order for costs. Taking account of the fact that many of the witnesses who attended trial to face allegations against themselves would have been required in any event, even had the Claimant’s claim been confined to the one individual against whom he succeeded, and the fact that the Trial would only have been a little shorter had the allegations been limited, the Court of Appeal felt that the Claimant should have been awarded 70% of his costs.

The appeal was therefore allowed on the question of costs, but dismissed on the other two grounds.

Comments

A useful future authority in support of arguments for issue based costs awards.

For further information about the claim, please contact Mark Fowles (01392 288328) or Kate Winston (01392 288329) Emails: markfowles@veitchpenny.co.uk or katewinston@veitchpenny.co.uk

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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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