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Smith v Hampshire County Council, Court of Appeal, 22 March 2007

26 April 2007
The issues

Dyslexia – learning difficulties – education claims – limitation – date of knowledge – Limitation Act 1980 Section 14.

The facts

The Claimant was born on the 21st October 1978 and educated in Hampshire between September 1986 and February 1993, being placed in a special school in 1987 and in Knowsley, between February 1993 and July 1994. He left school at the age of 15 and became 18 on the 21st October 1996.

Limitation began either then or on the date when he obtained knowledge, as defined by Section 14 of the 1980 Act. When the matter came before the Judge the Judge found that knowledge was obtained, at the latest, in October 1998 when the Claimant consulted his General Practitioner who referred him to a chartered clinical psychologist, Ms Carys Pritchard. The Claimant contended that he only obtained the relevant knowledge when he received Ms Pritchard’s report of the 17th January 1999 stating that he had a pattern of difficulties consistent with a diagnosis of severe dyslexia. Proceedings were commenced on 4th January 2002, more than 3 years after visiting his doctor but less than 3 years after receiving Ms Pritchard’s report. The Judge found that the Claimant knew in October 1998 that he was unable to read and write and that his condition was, or might be, dyslexia, that this was a significant injury and that it was attributable to a failure on the part of the school to diagnose him while he was in full-time education. The Judge found therefore that he had actual knowledge sufficient for Section 14 (3) of the 1980 Act. If that was wrong then the Judge found that his dyslexia was ascertainable with the help of expert evidence and that he had not taken reasonable steps to obtain that advice.

The Claimant appealed.

The decision

The Judge had been entitled to find on the evidence that a reasonable person in the Claimant’s position on being told (by his personal tutor on his art course in June 1998) that he might have dyslexia could be expected to seek assistance in dealing with it.

In Adams v Bracknell Forest Borough Council the Lord Hoffman had stated that no reason why the normal expectation that a person suffering from a significant injury would be curious about its origins should not also apply to dyslexics.

In this case the Claimant relied on a report from an educational psychologist to the effect that, in general, dyslexics felt inhibited from asking for professional help, even when invited to do so, and that therefore, on the evidence, the Claimant’s case was distinguishable from that of the Claimant in Adams.

Dr Randell, the educational psychologist, appeared to say that dyslexics were told at the school that they were of low intelligence and that they were inhibited from challenging that conclusion unless and until someone of comparable or higher authority told them that they were suffering from a condition which it was possible to do something about. That was the proper expression of expert opinion. To the extent that it went further, and said that the Claimant himself was of that frame of mind, it usurped the function of the Judge who saw and heard the Claimant giving evidence. On the Judge’s findings it was tolerably clear that Mr Smith did not suffer from the general inhibition to which Dr Randell referred. By the time the Claimant consulted his GP he had sufficient relevant knowledge for the purposes of Section 14 of the Act with the result that the proceedings were statute barred.

As to the exercise of discretion under Section 33, the Judge had had regard to all the relevant matters, including the prejudice to both the Claimant and the Local Authority and had been entitled to conclude that whilst the Claimant had some prospect of success at Trial the evidence of prejudice to the Local Authority was very strong because of the absence of documents lost after the passage of time.

Appeal dismissed.

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