Phelps v. Mayor Etc. of The London Borough of Hillingdon Anderton and Clwyd County Council and In Re G (A Minor) v. Hampshire County Council [2000] UKHL 47 (27 July 2000)

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Cite as: (2000) 3 CCL Rep 156, (2001) 3 LGLR 5, [2000] Ed CR 700, [2000] BLGR 651, [2000] 4 All ER 504, [2000] UKHL 47, [2000] 3 WLR 776, [2000] ELR 499, [2001] 2 AC 619, [2000] 3 FCR 102

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JISCBAILII_CASE_TORT

Phelps v. Mayor Etc. of The London Borough of Hillingdon Anderton and Clwyd County Council and In Re G (A Minor) v. Hampshire County Council [2000] UKHL 47 (27th July, 2000)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Jauncey of Tullichettle Lord Lloyd of Berwick Lord Nicholls of Birkenhead Lord Clyde Lord Hutton Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

PHELPS (A.P.)

(APPELLANT)

v.

MAYOR ETC. OF THE LONDON BOROUGH OF HILLINGDON

(RESPONDENT)

ANDERTON (A.P.) (BY HER MOTHER AND NEXT FRIEND)

(APPELLANT)

v.

CLWYD COUNTY COUNCIL

(RESPONDENTS)

IN RE G (A.P.) (A MINOR) (BY HIS NEXT FRIEND)

JARVIS (A.P.)

(APPELLANT)

v.

HAMPSHIRE COUNTY COUNCIL

(RESPONDENTS)

ON 27 July 2000

LORD SLYNN OF HADLEY

My Lords,

    The appeals in these four cases were heard together. They all raise questions as to the liability of a local education authority for what is said to have been a failure, either by the local authority or by employees for whom the local authority was vicariously liable, in the provision of appropriate educational services for children at school.

     Three cases are concerned with children who were dyslexic; the fourth was a child suffering from Duchenne Muscular Dystrophy. In one case (Phelps) there has been a trial. The plaintiff succeeded before the Judge, but failed in the Court of Appeal. In two others, there was an application to strike out the statement of claim under Order 18 r. 19 as being an abuse of the process of the Court, or as disclosing no cause of action - in one of those ("G") the Judge struck out the statement of claim but the Court of Appeal reinstated it: in the other (Jarvis) the Judge did not strike out the claim in negligence, the Court of Appeal struck it out. In the fourth case (Anderton) the question was whether pre-action discovery should be ordered on the basis that the intended claim was for "personal injuries to a person". The Master and the Judge held that it was and ordered discovery; the Court of Appeal held that it was not and refused the order.

    In this area of the law, as Auld L.J. said in his valuable analysis in the Court of Appeal in G, "The law is on the move and much remains uncertain". These cases were accordingly heard together so that your Lordships could reconsider the principles to be followed and the House has had the benefit of very able arguments on behalf of all parties. Some of the questions in issue arise in all or in three of the cases; others are specific to particular cases. The facts of the four cases are set out clearly and in detail in the judgments below and I shall refer only to those which seem important for the determination of the appeals. I shall refer to each of the individuals by their first names and the local authorities by their place names.

     In recent cases before the House concerning applications to strike out statements of claim, the importance of considering actual rather than assumed facts, where there may be scope for argument as to liability, has been stressed (See X minors v. Bedfordshire [1995] 2 AC 633, Barrett v. Enfield London Borough Council [1999] 3 WLR 79, W. v. Essex County Council [2000] W.L.R. 601). It is therefore preferable to begin with the case where there has been a trial though taking into account the relevant arguments in the other cases.

Pamela Helen Phelps

    Pamela was born on 30 December 1973 and, as is now known, since birth has been dyslexic. Dyslexia is normally a congenital condition defined by the World Federation of Neurology (1968) as "a disorder manifested by difficulty in learning to read despite conventional instruction, adequate intelligence and socio-cultural opportunities. It is dependent upon fundamental cognitive disabilities which are frequently of constitutional origin". It is agreed that at all material times methods of psychological assessment have been in use which provided guidance as to whether a person might be dyslexic and that the techniques for mitigating the effects of dyslexia by a multi-sensory and structured approach were known. It is, however, accepted that the extent to which the effects of dyslexia can be ameliorated varies widely.

    Pamela began school at Hayes Park Infants School in September 1978 and on 25 November 1980, because of a lack of progress at school, she was seen by an educational psychologist who found her to be of average general intelligence (IQ 93) but recommended child guidance. Pamela received psychotherapy from 21 May 1981 until November 1981 when it was discontinued by her parents. From September 1981 she was at Hayes Park Junior School. Her reading was at a very low standard, but Dr. Urquhart, the Director of the Child Guidance Clinic, and it seems Miss Kerbekian, a psychotherapist, thought in late 1981 that Pamela's problems stemmed from emotional sources particularly in relationships with her parents. In September 1982 Dr. Urquhart again saw the parents but they were critical of him and he of them. None of the staff involved suggested that Pamela might be dyslexic.

    In September 1985 Pamela transferred to Mellow Lane School. Her actual age was then 11 years 9 months but her reading age was assessed at 6 years 9 months and only two of the 180 children entering the school at that time had a lower reading age. There was a special needs department where pupils with learning difficulties who were not moved to special schools could be given remedial teaching in addition to their ordinary class work.

    On 14 October 1985, following an interview between Pamela's mother and the acting Head of Special Needs, the deputy head teacher referred Pamela to Hillingdon's School Psychological Service because of poor progress in reading and writing and on 24 October she was seen by an educational psychologist, Miss Melling. The latter reported that testing had revealed no specific weaknesses, but her reading age was 7 years 3 months. She concluded that Pamela was "seriously underfunctioning in reading and spelling. In order to make progress she needs help to develop confidence and feel that she can read". Dyslexia was not diagnosed and what is called an ACID profile (arithmetic, coding, information, digit span) which indicates dyslexia was not shown by the tests performed.

    From late 1985 Pamela was given six hours a week special needs teaching in English and Maths, but this was not specifically designed for a dyslexic pupil. In her last three years at the school Pamela missed many teaching periods because of ill health and in her last year because of truancy. Both the illnesses and the truancy are alleged to be of psychological origin because of her educational failure. There was on occasion discussion about her going to a specialised school, but this was not pursued. Her parents were clearly very anxious about her lack of progress and it seems that some of the staff thought that she was not unintelligent but needed remedial teaching which could be given at Mellow Lane. None of the teachers or remedial specialists at any stage appear to have thought that she was dyslexic. Shortly before she left school in 1990 she was assessed, pursuant to arrangements made by and paid for by her parents, by a clinical and educational psychologist at the Dyslexia Institute who reported that she was dyslexic. Her reading age was there assessed at 7.9 years.

    After leaving school she obtained a job in April 1990, but had difficulties with anything requiring literacy and was dismissed in July 1991, since when she has not been employed. In the intervening period she has had tuition on an irregular basis, but tests in 1996 put her reading age at 8.5 to 8.6 years, her reading comprehension at 9.8 years and her spelling age at 8.2 years.

The legal proceedings

    Pamela issued a writ against Hillingdon on 22 December 1994 claiming damages for breach of statutory duty under the Education Acts 1944 and/or 1981 and the Education (Special Educational Needs) Regulations 1983 alternatively in negligence. It was said that Hillingdon had failed to identify her needs and to exercise reasonable care of her at all three schools in the detection, assessment, diagnosis and treatment of her learning difficulties and/or dyslexia. In the subsequent statement of claim it was alleged that Hillingdon, its servants or agents, in breach of their duty to use reasonable professional skill and care, failed to appreciate or assess Pamela's learning difficulties and her dyslexia and failed to refer her to an "educational psychologist reasonably sufficiently experienced in the diagnosis of specific learning difficulties"; they further failed to provide or arrange for the provision of reasonably appropriate tuition and treatment. Damages were claimed on the basis of past and future loss of earnings and the cost of tuition.

    Garland J., after a careful review of the evidence and the submissions, held that Miss Melling owed a duty of care to Pamela on the basis that her findings, recommendations and advice would be acted upon by the plaintiff through her parents, nonetheless so because her advice was also relied on by Hillingdon and the school. Hillingdon was vicariously liable for breaches of that duty by Miss Melling. She was in breach, first, when she failed in October 1985 to diagnose that Pamela was dyslexic. The Judge accepted evidence that her serious lack of progress was highly unlikely to have been caused by emotional difficulties and that by using an appropriate test (the "Bangor" test) she would in all probability have found the cause. He held: "This was more than an error of judgment: it was a failure to exercise the degree of care and skill to be expected of an ordinarily competent member of her profession". She was in breach, second, when she did not revise her opinion when Pamela "made so little progress despite Special Needs teaching".

    He held, however, that although a school may owe a duty of care to an under-performing pupil the teachers here relied on Miss Melling and kept Pamela's case under review through the Care Committee. To have expected the school to have required Miss Melling or someone else to take a fresh look at Pamela "would be to impose too high a duty when the school was being advised by Miss Melling as part of the Defendants' Educational Psychology Service, by Mrs. Roberts, the Special Needs Advisory Teacher, and itself providing special needs teaching by suitably qualified staff in accordance with the scheme and provisions of the 1981 Act" (Transcript, page 34). He awarded special damages for tuition fees incurred and likely to be incurred and for future loss of earnings together with general damages of £12,500, making a total award of £44,056.50 plus interest.

    In the Court of Appeal, Hillingdon challenged the Judge's findings that the damage claimed was compensatable in tort, his decision as to the existence of a duty on the part of Miss Melling to Pamela, the breach, the causation and the quantum of damage. There was no cross-appeal from the finding that the teachers were not negligent and so your Lordships are not concerned directly with the question whether any claim could lie against the teaching staff, or against Hillingdon as being vicariously liable for the teachers.

    The Court of Appeal allowed the appeal and entered judgment for Hillingdon. Stuart-Smith L.J., with whose analysis and reasoning Otton L.J. and Tucker L.J. agreed, considered first that although dyslexia was not an injury, there could still 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. The critical question was therefore "whether Miss Melling had assumed or undertaken personal responsibility towards the plaintiff (to take reasonable care) to assess her educational potential and provide strategies to improve her position". Stuart-Smith, L.J. accepted that in X Minors v. Bedfordshire County Council [1999] 2 A.C. 633 the House, whilst disallowing a claim against a local education authority directly, considered that an individual educational psychologist or teacher might be liable. Yet he thought it a matter of very great concern that the non-liability of a local education authority directly could be circumvented by suing the individual psychologist or teacher and claiming that the authority was vicariously liable.

    In the present case, and contrary to what Lord Browne-Wilkinson in X Minors appeared to have thought, Stuart-Smith, L.J. stressed that the Hillingdon Educational Psychology Service was not a service available to the public generally but was set up and used by Hillingdon to obtain advice for the authority and its employees in the discharge of their statutory functions in education. The educational psychologist was part of a multi-disciplinary team with the teachers and remedial teachers; there was just as much room for conflict between the educational psychiatrists and the parents as between the educational psychologist or the teacher and the parent and in X Minors this indicated that there should be no liability. But crucially the Court of Appeal found that the evidence went nowhere near establishing an assumption of responsibility by Miss Melling to the plaintiff. "Miss Melling was doing no more than discharging her duty to the Defendants to enable them to perform their statutory functions" (page 519E). There were in addition strong policy reasons why it was not fair, just or reasonable to impose a duty on an educational psychologist unless the plaintiff established that that person had assumed personal responsibility to the plaintiff.

    On the facts Stuart-Smith L.J. found that at the beginning there was no breach of duty by Miss Melling in failing to apply the Bangor test or in considering that the basic cause of the condition lay in emotional problems even if they could not have been responsible for the whole extent of the reading difficulty. The Lord Justice concluded: "not without hesitation, I have come to the conclusion that the Judge imposed too high a standard of duty on Miss Melling" (page 525A). Even on the basis that if dyslexia had been diagnosed a more structured approach to teaching would have been justified it was impossible to say that that would have made a measurable difference to Pamela's condition. Otton L.J. added "I regret that I am unable to accept that the Plaintiff succeeded in proving that there was any deficit which was attributable to the failure to diagnose or which would not have been present had appropriate education been given" (page 529H).

The issues

    In considering this case and the other cases, it is necessary, as has been seen, to distinguish between claims that the authority was directly liable for its own negligence or breach of duty and cases where the local authority is said to be vicariously liable for the negligence or breach of duty of its servants or agents. In Pamela's case the claim is pleaded in both ways, but, as I read it, was dealt with below by the Judge and by the Court of Appeal primarily on the basis of a claim for vicarious liability. Pamela contends, however, that a direct liability can arise and asks the House so to rule. As to this, it is clear that Garland J. took the view that "this case is concerned with relatively narrow issues: the failure to identify the plaintiff's SpLD [special learning difficulty] and by the use of appropriate teaching to ameliorate her difficulties" (page 28A). Miss Melling owed a duty of care "on the basis that her findings, recommendations and advice would be acted on by the plaintiff, through her parents …. It goes without saying that the defendants and the school also relied on her advice but, in my view, it does not accord with reality or common sense to regard her as owing a duty only to the defendants" (page 30D-E). The Court of Appeal also dealt with the claim on the basis that the first question was whether Miss Melling had owed a duty and had been negligent and if so whether the local authority could be vicariously liable.

    On the present appeal, both sides analysed in considerable detail what had been said in X minors, both as to the principles involved and as to their application to the facts of the particular case. There Lord Browne-Wilkinson, with whom other members of the House agreed, distinguished between three types of case. The first was where a breach only of statutory duty was alleged; then the question whether a claim for damages arose depended on the statutory provisions. A cause of action in damages will arise if it can be shown as a matter of construction of the statute that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of the class a private right of action for breach of the duty. The second class was where it was alleged that a breach of care had been committed in performing a statutory duty when there was no common-law duty of care. In such a case no claim lay, though the statutory power or duty would not be a defence to a common-law claim if the statutory duty was performed negligently. The third case was where a common-law duty of care arose from the performance of the statutory duty or arose from the relationship between the parties in the performance of the statutory duty. He held that the common-law duty of care may co-exist with a statutory duty where the duty of care "is alleged to arise from the manner in which the statutory duty has been implemented in practice" (page 735F) but that it will not arise when an authority is acting within the limits of a discretion conferred on it and when policy matters, with which the courts are not concerned, may be an important factor. Further "in my judgment a common-law duty of care cannot be imposed on a statutory duty if the observance of such common-law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties" (page 739D). Where vicarious liability is alleged the question is whether "the duty of care alleged to be owed by the servant of the local authority [is] consistent with the proper performance of his duties to the local authority;" if so, "is it appropriate to impose on the servant the duty of care alleged?" (Page 740F-G).

    He applied these principles in the following ways in cases where an application had been made to strike out the plaintiff's claim.

    (a) Dorset. Here there was a claim for breach of statutory duties under the 1981 Education Act and a claim in respect of negligent advice given by the psychology service provided by the authority. As to the former (the statutory claim) it was held that a claim would only lie if the acts complained of lay outside the statutory discretion but that "an education authority owes no common-law duty of care in the exercise of the powers and discretions relating to children with special educational needs specifically conferred on them by the Act of 1981" (page 762G-H). On the other hand, if an authority offered a "service (psychological advice) to the public" even if pursuant to a statutory power, then it would assume a duty to exercise reasonable care in the conduct of the service to those using it. If, however, the service is "merely part and parcel of the system established by the defendant authority for the discharge of its statutory duties under the Act of 1981" then "the existence and scope of the direct duty owed by the defendant authority will have to be excluded or limited so as not to impede the due performance by the authority of its statutory duties" (p 673D).

    As to the latter (the common law claim in negligence), a psychologist held himself out as having special skills and he like any other professional was bound both to possess such skills and to exercise them carefully. As to the facts in that case, Lord Browne-Wilkinson said "I can see no ground on which, at this stage, the existence of a professional duty of care can be ruled out" (p 763H).

    (b) Hampshire. Here the claim was in respect of the authority's vicarious liability for the negligence of the headmaster who had failed to refer the child for an assessment or to have an experienced educational psychologist consider her case. It was also said that the advisory service had been negligent, since it had failed to ascertain the learning difficulty or to diagnose dyslexia or to refer the plaintiff to an educational psychologist. No reliance was placed on breach of statutory duty.

    This was a pure common law claim in negligence. Lord Browne-Wilkinson said that, as long as there was no inconsistency between the performance of the two duties, "I can see no legal or common sense principle which requires one to deny a common law duty of care which would otherwise exist just because there is a statutory scheme which addresses the same problem" (p 765F-G). The headmaster has a duty of care to exercise the reasonable skills of a headmaster in relation to the child's educational needs:

So equally, "if [an advisory teacher] knows that his advice will be communicated to the pupil's parents he must foresee that they will rely on such advice" so he must exercise reasonable skill and care.

    (c) Bromley. The claim for damages for failure to provide a proper schooling under section 8 of the 1944 Act was dismissed; there was no right in such a context for damages for breach of statutory duty. Nor was there any right to damages for breach of duty in relation to the provision of teaching for special educational needs. Nor did a claim lie for negligence in exercising statutory discretions in assessing or providing for such special needs. The claim for vicarious liability for a servant of the authority was not struck out, however, despite its vagueness.

The Legislative provisions

    In the present case, Pamela claims that Hillingdon, as the local educational authority had responsibilities pursuant to the Education Act 1944. Accordingly, its servants or agents "owed a duty to the plaintiff who was reliant upon them to use reasonable professional skill and care in their assessment and treatment of her educational needs and problems". The defendants, its servants or agents employed at Mellow Lane and their school psychology service acted in breach of the aforesaid duty of care between 1985 and 1990.

    Breaches of specific sections of the Education Acts are not alleged but the claim in negligence has to be seen in the context of Hillingdon's duties and powers under the legislation. Does the legislation itself create an enforceable claim in damages or does a common law duty of care exist in addition to any statutory duties which the Local Authority may have? That in itself, as has been seen from X Minors, is largely a question of whether a common law duty of care would be inconsistent with the due performance of the other duty.

    Under section 8 of the 1944 Act the Authority is to secure the provision of schools sufficient in number, character and equipment to afford for all pupils opportunities for education

The Authority must have regard "to the need for securing that provision is made for pupils who suffer from any disability of mind or body by providing, either in special schools or otherwise, special educational treatment, that is to say education by special methods appropriate for persons suffering from that disability."

    In section 34 the Authority is under a duty "to ascertain what children in their area require special educational treatment" and if they "decide that the child requires special educational treatment, they shall give to the parent notice of their decision and shall provide such treatment for the child".

    By section 36 the parent is under a duty:

    The Education Act 1981 requires a local authority to identify and assess a child who it considers has or probably has special educational needs. If they consider that a child has such needs, they must make a statement of his special educational needs and the provisions to be made for him. The parents must be given an opportunity to make representations before an assessment is made and as to the terms of the proposed statement of the child's special educational needs. The parents are also to be given opportunities to meet the persons who give advice to the local authority on the assessment; they have the power to appeal against the special educational needs provision both to an Appeal Committee and to The Secretary of State. Under the Education (Special Educational Needs) Regulations 1983 (S.I. 1983 No. 29) a local Education Authority is under a duty in making an assessment to seek educational, medical and psychological advice. The psychological advice is to be sought from an educational psychologist employed by the education authority or from a person appointed ad-hoc by the authority as an educational psychologist (Regulation 7).

    Where a statement is made the child is to be educated in an ordinary school so long as the views of the child's parents are taken into account and so long as "educating the child in an ordinary school is compatible with:-

    (a) his receiving the special educational provision that he requires;

    (b) the provision of efficient education for the children with whom he will be educated; and

    (c) the efficient use of resources" (Section 2(3) of the 1981 Act).

    These statutory duties laid on local education authorities are of the greatest importance; the authorities must provide the facilities which Parliament intended should be available for children with learning difficulties. A failure to fulfil the duties by an authority either generally or in a particular case can have a serious effect on a child's education, his well-being and his future life.

    It is clear from the legislative provisions to which I have referred that Parliament intended that various stages of the process were to be monitored by an appeals procedure. Moreover, there can be no doubt that some of the acts of the authority may be examined by way of judicial review, even if in other areas the extent of the discretion conferred on the authority with its particular expertise is likely to lead to a Court refusing to interfere even by way of judicial review (see e.g. A. v. Liverpool City Council [1982] A.C. 363 at page 373 per Lord Wilberforce).

    There is, however, no express indication that a failure to carry out these duties, even in respect of a particular individual, should lead to an award of monetary compensation if damage can be shown. That still leaves the question whether, having regard to the purpose of the legislation, Parliament is to be taken to have intended that there should be a right to damages.

    It is clear that the loss suffered by a child who has not been treated in accordance with the statutory intent can often be said to be foreseeable, proximate and serious. The damage may be physical or psychological, emotional or economic. This does not, however, in itself lead necessarily to the conclusion that Parliament intended there to be a remedy in damages for breach of statutory duty.

    In Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398, Lord Simonds said:

    In Lonrho Ltd. v. Shell Petroleum Company Ltd. (No. 2) [1982] A.C. 173, Lord Diplock said that even where a remedy was provided to enforce the obligation, a further remedy (sc. in damages) might be available to a person belonging to a class of individuals for whose benefit or protection the obligation was imposed.

    Arguably, both of these can be said to apply to some sections of the Education Acts. But again neither is conclusive; a broader approach is required. As Lord Jauncey of Tullichettle put it in Reg. v. Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 at page 170H:

(See also Calveley v. Chief Constable of the Merseyside Police [1989] A.C. 1228 per Lord Bridge of Harwich at page 1237.

    In the present case, although the duties were intended to benefit a particular group, mainly children with special educational needs, the Act is essentially providing a general structure for all local education authorities in respect of all children who fall within its provision. The general nature of the duties imposed on local authorities in the context of a national system of education and the remedies available by way of appeal and judicial review indicate that Parliament did not intend to create a statutory remedy by way of damages. Much of the Act is concerned with conferring discretionary powers or administrative duties in an area of social welfare where normally damages have not been awarded when there has been a failure to perform a statutory duty. The situation is quite different from that concerning the maintenance of factory premises as in Groves v. Wimborne (Lord) [1898] 2 QB 402.

    Taking all these factors into account, it does not seem to me that it can be said that Parliament intended that there should be a remedy by way of damages for breach of statutory duty in respect of the matters complained of here.

The common law

    It does not follow that the local authority can never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants ot agents. This House decided in Barrett v. Enfield London Borough Council [1999] 3 WLR 79 that the fact that acts which are 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. It is only where what is done has involved the weighing of competing public interests or has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion. In Pamela's case there is no such ground for holding that her claim is non-justiciable and therefore the question to be determined is whether the damage relied on is foreseeable and proximate and whether it is just and reasonable to recognise a duty of care (Caparo Industries plc v. Dickman [1990] 2 AC 605, at 617-8). If a duty of care would exist where advice was given other than pursuant to the exercise of statutory powers, such duty of care is not excluded because the advice is given pursuant to the exercise of statutory powers. This is particularly important where other remedies laid down by the statute (e.g. an appeals review procedure) do not in themselves provide sufficient redress for loss which has already been caused.

    Where, as in Pamela's case, a person is employed by a local education authority to carry out professional services as part of the fulfilment of the authority's statutory duty, it has to be asked whether there is any overriding reason in principle why (a) that person should not owe a duty of care (the first question) and (b) why, if the duty of care is broken by that person, the authority as employer or principal should not be vicariously liable (the second question).

    I accept that, as was said in X Minors, there may be cases where to recognise such a vicarious liability on the part of the authority may so interfere with the performance of the local education authority's duties that it would be wrong to recognise any liability on the part of the authority. 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 question, it is long and well-established, now elementary, that persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused by the lack of care. Such duty does not depend on the existence of any contractual relationship between the person causing and the person suffering the damage. A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist a teacher including a teacher in a specialised area, such as a teacher concerned with children having special educational needs. So maybe an education officer performing the functions of a local education authority in regard to children with special educational needs. There is no more justification for a blanket immunity in their cases than there was in Capital & Counties Plc. v. Hampshire County Council [1997] QB 1004.

    I full agree with what was said by Lord Browne-Wilkinson in X Minors (supra) at page 766B-E that a head teacher owes "a duty of care to exercise the reasonable skills of a headmaster in relation to such [sc. a child's] educational needs" and a special advisory teacher brought in to advise on the educational needs of a specific pupil, particularly if he knows that his advice will be communicated to the pupil's parents, "owes a duty to the child to exercise the skill and care of a reasonable advisory teacher". A similar duty on specific facts may arise for others engaged in the educational process, e.g. an educational psychologist being part of the local authority's team to provide the necessary services. The fact that the educational psychologist owes a duty to the authority to exercise skill and care in the performance of his contract of employment does not mean that no duty of care can be or is owed to the child. Nor does the fact that the educational psychologist is called in in pursuance of the performance of the local authority's statutory duties mean that no duty of care is owed by him, if in exercising his profession he would otherwise have a duty of care.

    That, however, is only the beginning of the enquiry. It must still be shown that the educational psychologist is acting in relation to a particular child in a situation where the law recognises a duty of care. A casual remark, an isolated act may occur in a situation where there is no sufficient nexus between the two persons for a duty of care to exist. But where an educational psychologist is specifically called in to advise in relation to the assessment and future provision for a specific child, and it is clear that the parents acting for the child and the teachers will follow that advice, prima facie a duty of care arises. It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. It is, however, clear that the test is an objective one (Henderson v. Merrett Syndicates Ltd. [1995] 2 AC 145, 181). The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law.

    The question is thus whether in the particular circumstances the necessary nexus has been shown.

    The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can be no doubt that if foreseeability and causation are established, psychological injury may constitute damage for the purpose of the common law. But so in my view can a failure to diagnose a congenital condition and to take appropriate action as a result of which failure a child's level of achievement is reduced, which leads to loss of employment and wages. Questions as to causation and as to the quantum of damage, particularly if actions are brought long after the event, may be very difficult, but there is no reason in principle to rule out such claims.

    As to the second question, if a breach of the duty of care to the child by such an employee is established, prima facie a local or education authority is vicariously liable for the negligence of its employee. If the educational psychologist does have a duty of care on the facts is it to be held that it is not just and reasonable that the local education authority should be vicariously liable if there is a breach of that duty? Are there reasons of public policy why the courts should not recognise such a liability? I am very conscious of the need to be cautious in recognising such a duty of care where so much is discretionary in these as in other areas of social policy. As has been said, it is obviously important that those engaged in the provision of educational services under the statutes should not be hampered by the imposition of such a vicarious liability. I do not, however, see that to recognise the existence of the duties necessarily leads or is likely to lead to that result. The recognition of the duty of care does not of itself impose unreasonably high standards. The courts have long recognised that there is no negligence if a doctor "exercises the ordinary skill of an ordinary competent man exercising that particular art."

    The difficulties of the tasks involved and of the circumstances under which people have to work in this area must also be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged once the Courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded.

    The House has been referred to a number of decisions of the United States Courts in some of which it has been held that a local education authority did not owe an actionable duty of care. But the legislative and administrative provisions and the approach of the courts in those cases are different and there is not complete unanimity. I do not consider that these cases assist in the determination of the present problem.

    The duty in this case on the basis, therefore, that an educational psychologist may owe a duty of care in performing duties on behalf of the local education authority, was the Judge justified in finding that there was a duty here and that there was a breach?

    As to the duty, Miss Melling had a degree in Developmental Psychology and a Diploma in Education Psychology in addition to her Certificate in Education. She had over four years' teaching experience and six months' or so experience as an educational psychologist. It has not been suggested that the authority was negligent in appointing her in the first place or that she was not competent to hold the post.

    She was specifically asked on a number of occasions to assess and advise as to Pamela, whose learning difficulties were very plain, whatever their cause. Finding the cause was a major task. She was called in to and did advise not only Hillingdon, but the staff. She had a number of interviews with the parents, who were clearly anxious about their daughter and Mrs. Phelps certainly had her own views about sending Pamela to a special school. She knew, or ought to have known, of the fact that her advice would be followed and of the importance of her assessment and advice to Pamela's future.

    I do not think that in this case it is any answer to the claim that a duty of care existed that others had been involved in psychological advice at an earlier stage, or that she was said to be part of the multi-disciplinary team, including the teaching staff. At Mellow Lane, she was the professional person brought in to this case and her role, difficult though it was, was pivotal. I see no reason why in this situation she did not have a duty of care to Pamela. Her relationship with the child and what she was doing created the necessary nexus and duty. The learned Judge was both entitled and right to find that she owed a duty of care. He was equally entitled and might hold that, if she was in breach of her duty, Hillingdon was vicariously liable.

    As to whether there was a breach, the learned Judge found that she should have diagnosed dyslexia in October 1985 or shortly thereafterwards. The experts who were called found it surprising that the WISC test had not shown an ACID profile. It seems that their view was that she should have found an ACID profile there but that if the test which she used did not give very clear results the Bangor Test would have done so. She too readily assumed that the lack of progress was due to emotional difficulties and failed to make adequate or further enquiries as to the cause of Pamela's difficulty. As the Judge put it

    The second finding of negligence was that she should have "thought again when the plaintiff made so little progress despite Special Needs teaching", not least when the parents were expressing such anxiety and when her reading difficulties were so obvious. There was evidence from Dr. Conn, an educational psychologist, that a more thorough and detailed examination of Pamela's cognitive, linguistic and attainment profile should have been undertaken in 1985. Dr. Conn and Dr. Gardner, another educational psychologist, both considered that she should have gone further than she did in the early investigation. The possibility of dyslexia should have been explored at the beginning.

    Mr. Rabinowitz, another educational psychologist, thought that the difficulties the child had in reading and writing (not least that at age 11 years she could not write her own address) were such that her exceptionally high degree of specific learning difficulty was unlikely to have been caused by emotional difficulties alone, a view which the Judge accepted.

    The Court of Appeal and the Judge disagreed as to whether the failure to diagnose dyslexia would have made any real difference, though they both accepted that she would have been taught differently if the diagnosis of dyslexia had been made.

    Garland, J. found that if the dyslexia had been diagnosed, and she had been taught appropriately at school, then she would have been "somewhat, perhaps substantially, more literate that she is now". Consequently, he held that she would have been in a position to take on work including work requiring an element of literacy. The Judge's finding was based very much on the evidence of the expert witnesses. Mr. Rabinowitz said (section 6 of his Report) that if she had been diagnosed and treated "it is likely she would have been literate by the time she left school" and that she would have been able to gain some formal qualification and would have been employable. Dr. Conn substantially agreed with Mr. Rabinowitz's diagnosis. Dr. Gardner thought that Pamela could have made progress with special tuition. The learned Judge said:

    This again is a very difficult issue, but it seems to me that there was evidence upon which the Judge was entitled to find that the negligence had caused the damage in respect of which the claim was made.

    I am very conscious of the great experience of the members of the Court of Appeal in this area, but on my conclusions as to the issues of principle it follows that the Court of Appeal was not justified in holding that the educational psychologist did not assume responsibility and therefore that Hillingdon could not be liable. On my conclusions, Garland, J. adopted the correct approach and was entitled on the evidence to find liability and on that approach he was entitled, in my view, to accept that "the adverse consequences of the plaintiff's dyslexia could have been mitigated by early diagnosis and appropriate treatment or educational provision" (p 47D). He was right to have regard to the judgments of Sir Thomas Bingham, M.R. and Evans, L.J. in the Dorset case at pages 703 and 705-706 respectively.

    The assessment of damages in this case was extremely difficult. Stuart-Smith, L.J. did not find it necessary to deal with quantum on the view to which he had come. Otton, L.J. thought that the plaintiff had not shown that the failure to diagnose or treat had caused the damage, particularly in relation to earning capacity, and that future employment prospects were largely speculative. Although I agree that there is room for much debate as to quantum in this type of case, no better approach in this case has been suggested than that adopted by the learned Judge. I would not interfere with his assessment of the damages.

    Pamela thus succeeds on the basis of vicarious liability of the local authority. I do not consider that the case of direct liability on the part of Hillingdon is made out, nor indeed was necessary. Your Lordships have, however, been asked to consider whether such a claim can exist and such a question is relevant in the case of Jarvis.

Direct liability

    In X (Minors) at page 762H, Lord Browne-Wilkinson said:

    It seems to me that if he had not thought that the service of psychological advice was offered to the public (which in fact in the present case it was not), but was "merely part and parcel of the system established by the defendant authority for the discharge of its statutory duties under the Act of 1981" (page 763C), he would have accepted that there was no duty of care in respect of an educational psychologist in the present case.

    I do not, rule out the possibility of a direct claim in all situations where the local authority is exercising its powers. If it exercises its discretion by deciding to set up a particular scheme pursuant to a policy which it has lawfully adopted, there is no, or at least there is unlikely to be any, common law duty of care. If, however, it then, for example, appoints to carry out the duties in regard to children with special educational needs a psychologist or other professionals who at the outset transparently are neither qualified nor competent to carry out the duties, the position is different. That may be an unlikely scenario, but if it happens, I do not see why as a matter of principle a claim at common law in negligence should never be possible. Over-use of the distinction between policy and operational matters so as respectively to limit or create liability has been criticised, but there is some validity in the distinction. Just as the individual social worker in Barrett v. Enfield London Borough Council (supra) could be "negligent in an operational manner" (Lord Woolf, M.R. [1998] Q.B. 367 at page 378, my speech [1999] 3 WLR 79, 97E), so it seems to me that the local education authority could in some circumstances owe a duty of care and be negligent in the performance of it. The fact that the parents have their own duties under Section 36 of the Act of 1944 and that consultation and appeal procedures exist (of which the parents may or may not be informed) does not seem to me to lead to the conclusion that a duty of care does not or should not exist.

    Since the authority can only act through its employees or agents, and if they are negligent vicarious liability will arise, it may rarely be necessary to invoke a claim for direct liability. After the argument in these cases, I do not, however, accept the absolute statement that an education authority "owes no common law duty of care … in the exercise of the powers … relating to children with special educational needs" under the Act of 1981. That issue, however, as I have said does not fall for decision in Pamela's case.

    I would accordingly allow the appeal and restore the order of Garland, J.

"G"

    David, who was born on 27 June 1984, suffers from Duchenne Muscular Dystrophy which involves progressive muscle wasting. He was provided with a Statement of Special Needs which emphasised the need for him to have access to a computer and to be trained in its use. As Auld, L.J. said in the Court of Appeal: "The all-important thing as the disease takes hold is to preserve, so far as possible, his means of communication". After being at a main-stream school, he was transferred to the Marjorie McClure School, which had facilities for children with special disabilities and which was maintained by Bromley. He claims that negligently and in breach of duty to him, Bromley failed to provide a proper education and, in particular, computer technology and suitable training to enable him to communicate and to cope educationally and socially. As a result he suffered damage in the form of a lack of educational progress, social deprivation and psychiatric injury consisting of clinical depression.

    He issued a Writ on 18 May 1998. Bromley applied to strike out the Statement of Claim under Order 18, Rule 19 after serving a defence. Master Miller dismissed Bromley's Summons; Gray, J. struck out the Statement of Claim; the Court of Appeal reversed Gray, J.

    The issues broadly are whether teachers owe a duty at common law to exercise reasonable skill and care and to exercise the reasonable skills of their calling in providing education for their pupils in relation to their needs, and to take reasonable care for their health and safety, including the monitoring of their needs and performance. If there is such a duty, what is its nature? Is the existence of such a duty at any rate arguable? The second issue is whether in the light of Article 6 of the European Convention on Human Rights and the Human Rights Act 1998 it is right to strike out the action before trial. The third issue is whether G can claim for psychiatric damage or economic loss if there was a negligent failure to provide him with teaching at an appropriate standard.

    Gray, J. rejected the claim that Bromley was in breach of a duty in loco parentis as being unarguable. He considered that what was said in X Minors about the duty of school teachers was to be read in the context of "the potential liability of professionals, such as psychologists, brought in to advise local education authorities, rather than (as here) with the liability of the providers of education". He further relied on the decision in X Minors that it would be wrong to impose on the statutory machinery for the investigation and treatment of the Plaintiff's special educational needs a direct duty of care on the part of the local education authority to exercise the statutory discretion carefully. He held:

    He would not have struck out the claim for "educational disbenefit" on the ground of lack of causation, but held that since the claim for economic loss did not allege the assumption of responsibility to David it must be struck out.

    In the Court of Appeal, Auld, L.J., with whom Aldous, L.J. and Gage, J. agreed, held that it was the law that: (i) teachers have a duty to take such care of pupils in their charge as a careful parent would have in like circumstances and (ii) teachers have a duty to exercise the reasonable skills of their calling in teaching and otherwise responding to the educational needs of their pupils. Those responsible for teachers may be vicariously liable for their negligence. The duty is to exercise the skill and care of a reasonable teacher on the basis of what would have been acceptable to reasonable members of the teaching profession. Whether there is a duty depends on foreseeability, proximity and what was "fair, just and reasonable". On the facts pleaded, the Court of Appeal held that it would be wrong to strike out the Statement of Claim. Although there might be no valid claim for direct duty in respect of the exercise of a statutory discretion there could be vicarious responsibility for the acts of the staff once the task was undertaken. It would, in any event, be wrong to strike out at that stage.

    On the basis of my conclusions as to the right approach and of what was said in X Minors, Barrett and W. v. Essex County Council as to striking out claims, it seems to me that Auld, L.J. was plainly right to refuse to strike out this statement of claim. For the reasons he gives, which do not need elaboration or repetition, I would dismiss this appeal.

Jarvis

    Marcus was born on 21 February 1979. He began at Vigo Junior School, Andover, Hampshire on 4 October 1989, having previously lived in Alderney. The Head Teacher reported at once to Hampshire that he was "well behind even the poorest" and that this was an "'emergency' situation". He was seen by Mrs. Hickmore, an educational psychologist employed by Hampshire, and it was decided to assess his special educational needs under the Education Act 1981. Mrs. Hickmore advised an education officer that Marcus would benefit from attendance at Winton School, the local main-stream secondary school with extra support which she specified. Her report was sent to his parents on 17 September 1990, but that did not refer to dyslexia and although saying that he would benefit from going to a main-stream school with extra support, the report did not specify what the support should be. Marcus started at Winton in September 1990. A Statement for the purpose of the Act was finalised on 4 October 1990, but by November 1990 concern was being expressed about the likelihood of his behaviour deteriorating owing to difficulties with learning. The Deputy Head at Winton on 9 May 1991 suggested a review of Marcus' suitability for a main-stream school and on 14 May 1991 Mrs. Hickmore replied referring to difficulties of placing children with Marcus' strengths and weaknesses and hence the need to investigate thoroughly ways of supporting him in a main-stream school. On 19 June 1991, Hampshire informed his parents that they had decided to reassess him since efforts to support Marcus were failing. On 5 July 1991, the Head of Winton said that Marcus' needs were "very specialised" and that they were not being met at the school. Mrs. Hickmore wrote on 18th July 1991 that Marcus continued to have specific learning difficulties and that he would benefit from:

    On the same day, Mrs. Hickmore sent a memorandum to Mr. Rose, an education officer, which stated:

    Although leaving Winton in the summer of 1991, Marcus did not attend Mark Way as the Headmaster felt it was inappropriate, but from then until September 1992 he had sporadic home tuition. His home tutor recorded that Mrs. Jarvis felt that he should be placed in a unit specialising in dyslexia, but on 29 July 1992 Mr. Eric Smith, the chairman of the divisional placement panel, told the local education officer that he had reassured Mrs. Jarvis of the suitability of a placement at Lankhills School.

    On 18 December 1992, Marcus was temporarily excluded from Lankhills School, but he never returned. Until October 1995 when his Statement of Special Educational Needs came to an end, he received home tuition and part-time tuition at a tutorial centre/pupil referral unit.

    A Writ was issued on 4 March 1997. In the statement of claim it was alleged that there had been negligence, misfeasance in a public office and breach of duty, both by the educational psychologist, for whom the authority was vicariously liable, and by the authority itself for failing to provide competent advice through its educational psychology service.

    On 19 February 1999, Popplewell, J. struck out the claim for misfeasance, but, though with obvious reluctance, refused to strike out the claim in negligence. On 11 November 1999, the Court of Appeal upheld Popplewell, J. on the misfeasance claim, but struck out the negligence claim.

    The Court of Appeal accepted, on the basis of X Minors, that (i) a local education authority does not owe a direct common law duty of care in the exercise of its powers and discretions in relation to children with special educational needs, which it specifically conferred on them by the Education Act 1981; (ii) the local education authority does not owe a direct duty of care in respect of the performance of an educational psychological service it sets up unless the authority also provides psychological services to the public in a medical advisor/patient relationship; (iii) if a duty of care at common law does arise in respect of the exercise of professional skills by an employee acting in the course of his authority, the local authority will be vicariously liable if the existence of such a duty does not conflict with the proper exercise by the local authority of its statutory powers and discretions; (iv) where an assumption of responsibility is necessary to give rise to a duty of care, the mere advising of a local authority as to how to exercise its statutory powers does not of itself constitute the assumption of responsibility; (v) a claim for compensation for failure to diagnose or ameliorate the consequences of dyslexia is a claim for economic loss for which an assumption of responsibility must be shown before a duty of care can arise.

    In this case, held the Court of Appeal, no direct duty of care arose in respect of Mrs. Hickman's advising and Hampshire was not providing psychological advice and help for the public. In discussing with Marcus' mother the proposed placement of Marcus at Lankhills, the Chairman of the Divisional Placement Panel, Mr. Smith, did not assume responsibility so as to create a duty of care. Nor did Mrs. Hickmore assume responsibility to Marcus when she gave psychological advice after discussing the problem with Marcus' mother. The same was true as to the advice as to the placing of Marcus in a tutorial centre. It followed that there could be no vicarious liability on the part of Hampshire.

    The issues raised on the strike-out are thus, it is agreed, whether it is arguable that an educational psychologist employed by a local authority owes to a child referred under the Education Acts a duty to take reasonable care in carrying out the assessment and advising of the child; whether a local education authority taking decisions in relation to a child's special needs owes a duty to take reasonable care; whether the local education authority itself is under a direct common law duty of care in performing its functions under the Education Acts; whether it is arguable that the local authority offers an educational service to the public and thereby owes a direct duty to take reasonable care in doing so; whether a claim that there has been a failure to diagnose and ameliorate any specific learning difficulty is a "personal injury" claim or is a claim for pure economic loss; whether there can be a claim in damages when there is no recognisable psychiatric condition as described in the nervous shock cases; and whether the strike-out procedure violates Article 6(1) of the European Convention on Human Rights.

    The essence of the claim is that Marcus should have been put in a Special Unit expert in teaching dyslexic children and that to put him in schools for children with moderate learning difficulties was wrong; such a decision led to a deterioration of his behaviour which resulted in his being in prison for robbery. The question is whether Hampshire is directly liable or vicariously liable for the acts of the education psychologist or the education officers for the advice and decisions which were given and made.

    For the reasons already given in Phelps, I do not consider that it would be right to strike out the claim on the basis of vicarious liability. The direct claim is so closely linked that, whatever the eventual outcome, I do not think that it would be right to strike it out at this stage. On the face of it, it is arguable.

    I would accordingly allow the appeal.

Anderton

    Rhiannon was born on 7 July 1979. She was educated from September 1983 at Bryn Koch Primary School maintained by Clwyd as a local education authority. She suffered severe speech and language problems. She contends that because her problem was not appreciated and she was not referred to Clwyd's educational psychology service, she was not given appropriate education. In August 1988 under private arrangements made by her parents, she was diagnosed as being severely dyslexic. After discussion between her parents and Clwyd as to whether she should go to a main-stream comprehensive school or to a specialist residential school, she was transferred in July 1990 to the local state secondary school. She alleges that here she was bullied and she developed psychological problems due to the failure to make suitable educational provision for her. As a result of the treatment at both schools, she suffers from psychological problems.

    Her solicitors issued a summons seeking pre-action discovery pursuant to Section 33(2) of the Supreme Court Act 1981 and Order 24, Rule 2 of the Rules of the Supreme Court. That was granted by Master Prebble and upheld by Mr. Justice Steel, but refused by the Court of Appeal.

    The questions raised are in summary (i) whether the effect of failing to diagnose and deal with dyslexia is "personal injury"; (ii) whether the effects of such failure sound in damages where there is no recognisable psychiatric condition; (iii) whether the teaching staff owes a common law duty of care to take reasonable steps to investigate the reasons for, and to provide for, a child's under-performance, including reference to a psychological service, and whether the educational psychologist owes a duty of reasonable care in carrying out an assessment and giving advice; and (iv) whether an LEA is under a direct common law duty of care in performing its functions under the Education Act 1996 and in particular whether the House should depart from its decision in X (Minors) v. Bedfordshire County Council and Others [1995] 2 AC 633 at pp.760H-770B-D.

    In reaching his conclusion that what was alleged here was "personal injuries to a person", Mr. Justice Steel was guided by what was said by Sir Thomas Bingham, M.R., and Evans, L.J. in E (A Minor) v. Dorset [1995] 2 A.C. at pp. 703, 705 and 715, and by Garland, J. in Phelps v. London Borough of Hillingdon (1997) 96 L.G.R. 1. The Court of Appeal held that the evidence fell far short of establishing that the applicant suffered any psychiatric injury and that:

    The Court of Appeal therefore held that failure to mitigate or ameliorate the consequences of the condition could not be an injury.

    The issues that it was said would arise in this case are very similar to those in Phelps and the answer to those must be the same as in Phelps. There are, however, other issues. It seems to be quite inappropriate to deal with the latter at this stage, when not even pleadings have been served, let alone a trial taken place. The sole question to be dealt with at this stage is whether pre-action discovery should be ordered.

    Section 33(2) of the Supreme Court Act 1981 provides as follows:

    Further, section 35(5) of the Act provides:

                  …

    In the Court of Appeal, Stuart Smith, L.J. said at page 4 of the transcript:

    In E (A Minor) v. Dorset (supra), Sir Thomas Bingham, M.R. said at page 703:

    Lord Justice Evans said:

    In Phelps, Garland, J. said:

    The broad definition of injury in section 35(5) makes it clear that the power under section 33(2) is not limited to physical injury, the sense in which as a matter of ordinary speech the word might be understood. Having regard to the purpose of the provision it would in any event, in my view, be wrong to adopt an over-legalistic view of what are "personal injuries to a person". For the reasons given in my opinion in Phelps, psychological damage and a failure to diagnose a congenital condition and to take appropriate action as a result of which a child's level of achievement is reduced (which leads to loss of employment and wages) may constitute damage for the purpose of a claim. Accordingly, I consider that Garland, J. in Phelps was right in the passage which I have just quoted and that a failure to mitigate the adverse consequences of a congenital defect are capable of being "personal injuries to a person" within the meaning of the rules. On the evidence before him, Master Prebble and Steel, J. were entitled to find that Rhiannon was likely to be a party to subsequent proceedings in the High Court and that in those proceedings a claim "in respect of personal injuries to a person … is likely to be made".

    I accordingly consider that the appeal be allowed and that the order of Master Prebble be restored.

General

    I should add lest it be thought that the case had been overlooked that I have not found it necessary in any of these cases to consider the judgment of the European Court of Human Rights in Osman v. United Kingdom. The issue in that case does not arise.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley, Lord Nicholls of Birkenhead and Lord Clyde. For the reasons they give, I would make the orders proposed by Lord Slynn. I would only add my particular agreement with the observation of Lord Nicholls that the existence of a duty of care owed by teachers to their pupils should not be regarded as a basis for the mounting of generalised "educational malpractice" claims.

LORD LLOYD OF BERWICK

My Lords,

    I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Slynn of Hadley and Lord Clyde. For the reasons which they have given, I, too, would allow the appeals in Phelps, Anderson and Jarvis and dismiss the appeal in G.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Slynn of Hadley and Lord Clyde. For the reasons they give, with which I broadly agree, I too would make the orders proposed by Lord Slynn. I have reservations about any attempt to draw a sharp-edged distinction between 'policy' decisions and 'operational' decisions, for the reasons I stated in Stovin v. Wise [1996] AC 923, 938D-939B. I add some observations only on the general question whether local education authorities may be liable in damages when serious mistakes are made in the education of a child.

Vicarious liability of local education authorities: educational psychologists

    Let me consider three instances. Take a case where an educational psychologist is employed by an education authority. In the course of his work he assesses a pupil whose lack of progress at school has been causing concern all round: to teachers and parents alike. The child has a learning difficulty. The psychologist sees the child and carries out an assessment. He makes a diagnosis and advises the education authority. The diagnosis is hopelessly wrong. No reasonably competent educational psychologist, exercising reasonable skill and care, would have given such advice. In consequence, the pupil fails to receive the appropriate educational treatment and, as a result, his educational progress is retarded, perhaps irreparably. When carrying out the assessment and advising the education authority, did the psychologist owe a duty of care to the child?

    I confess I entertain no doubt on how that question should be answered. The educational psychologist was professionally qualified. He was brought in by the education authority to assist it in carrying out its educational functions. The purpose of his assessment was to enable him to give expert advice to the education authority about the child. The authority was to act on that advice in deciding what course to adopt in the best interests of the pupil with a learning difficulty. Throughout, the child was very dependent upon on the expert's assessment. The child was in a singularly vulnerable position. The child's parents will seldom be in a position to know whether the psychologist's advice was sound or not.

    This seems to me to be, on its face, an example par excellence of a situation where the law will regard the professional as owing a duty of care to a third party as well as his own employer. The duty to the pupil would march hand in hand with the professional's responsibilities to his own employer. He should exercise reasonable skill and care when assessing the child and then advising the education authority. If he fails to do so, the education authority as his employer will be vicariously liable to the child for the negligent acts or omissions of the psychologist committed in the course of his employment.

    Education authorities have statutory obligations regarding children with special educational needs, under the Education Act 1981. Every local education authority is under a duty, in short, to make an assessment of the educational needs of a child who has or probably has special educational needs. When making an assessment the education authority must seek educational, medical and psychological advice (regulation 4 of the Education (Special Educational Needs) Regulations 1983). The educational advice is to come from a qualified teacher, usually the head-teacher of the child's school. The psychological advice comes from an educational psychologist.

    The educational psychologist in my example may be called in by the education authority to give advice as part of this statutory procedure, along with the head-teacher and a doctor. If so, he will be asked to give his professional advice on the child's needs and how these should be met. Or, as often happens, he may be brought in by the education authority at an earlier stage. He may be involved in assessing the child and reviewing the provision the child needs long before any decision is made by the education authority on whether a statutory assessment is necessary.

    For present purposes, this is a distinction without a difference. The psychologist cannot owe a duty to the child in the first case but not the second, or vice versa. The factors which found the existence of a duty of care to the child are present in both cases. The two cases are to be treated the same. Further, participation by the parents in the assessment does not seem to me to displace the need for the psychologist to exercise skill and care and, should he fail to do so, for the child to have a remedy at law if in consequence the child suffers loss. This is so, whether the parents' participation is under the formal statutory scheme or not. Nor does the existence of a statutory appeals process displace this need.

Vicarious liability: teachers

    My second illustration concerns a teacher. Does a teacher owe a common law duty of care to a pupil who is obviously having difficulty and not making the progress he should? Teachers are not educational psychologists, and they are not to be treated as though they were. But they, too, are professionals. It would make no sense to say that educational psychologists owe a duty of care to under-performing pupils they are asked to assess, but teachers owe no duty of care to under-performing pupils in their charge or about whom they give educational advice under the statutory scheme. In the same way as an educational psychologist owes a duty of care in respect of matters falling within the scope of his professional expertise, by parity of reasoning so must a teacher owe a duty of care to a child with learning difficulties in respect of matters which fall within his field of competence. A teacher must exercise due skill and care to respond appropriately to the manifest problems of such a child, including informing the head-teacher or others about the child's problems and carrying out any instructions he is given. If he does not do so, he will be in breach of the duty he owes the child, as well as being in breach of the duties he owes his employer, and his employer will be vicariously liable accordingly.

    My third illustration raises a particularly controversial issue. It cannot be that a teacher owes a duty of care only to children with special educational needs. The law would be in an extraordinary state if, in carrying out their teaching responsibilities, teachers owed duties to some of their pupils but not others. So the question which arises, and cannot be shirked, is whether teachers owe duties of care to all their pupils in respect of the way they discharge their teaching responsibilities. This question has far-reaching implications. Different legal systems have given different answers to this question.

    I can see no escape from the conclusion that teachers do, indeed, owe such duties. The principal objection raised to this conclusion is the spectre of a rash of 'gold digging' actions brought on behalf of under-achieving children by discontented parents, perhaps years after the events complained of. If teachers are liable, education authorities will be vicariously liable, since the negligent acts or omissions were committed in the course of the teachers' employment. So, it is said, the limited resources of education authorities and the time of teaching staff will be diverted away from teaching and into defending unmeritorious legal claims. Further, schools will have to prepare and keep full records, lest they be unable to rebut negligence allegations, brought out of the blue years later. For one or more of these reasons, the overall standard of education given to children is likely to suffer if a legal duty of care were held to exist.

    I am not persuaded by these fears. I do not think they provide sufficient reason for treating work in the classroom as territory which the courts must never enter. 'Never' is an unattractive absolute in this context. This would bar a claim, however obvious it was that something had gone badly wrong, and however serious the consequences for the particular child. If a teacher carelessly teaches the wrong syllabus for an external examination, and provable financial loss follows, why should there be no liability? Denial of the existence of a cause of action is seldom, if ever, the appropriate response to fear of its abuse. Rather, the courts, with their enhanced powers of case-management, must seek to evolve means of weeding out obviously hopeless claims as expeditiously as is consistent with the court having a sufficiently full factual picture of all the circumstances of the case.

    This is not to open the door to claims based on poor quality of teaching. It is one thing for the law to provide a remedy in damages when there is manifest incompetence or negligence comprising specific, identifiable mistakes. It would be an altogether different matter to countenance claims of a more general nature, to the effect that the child did not receive an adequate education at the school, or that a particular teacher failed to teach properly. Proof of under-performance by a child is not by itself evidence of negligent teaching. There are many, many reasons for under-performance. A child's ability to learn from what he is taught is much affected by a host of factors which are personal to him and over which a school has no control. Emotional stress and the home environment are two examples. Even within a school, there are many reasons other than professional negligence. Some teachers are better at communicating and stimulating interest than others, but that is a far cry from negligence. Classroom teaching involves a personal relationship between teacher and pupil. One child may respond positively to the personality of a particular teacher, another may not. A style of teaching which suits one child, or most children in a class, may not be as effective with another child, and so on. The list of factors could continue. Suffice to say, the existence of a duty of care owed by teachers to their pupils should not be regarded as furnishing a basis on which generalised 'educational malpractice' claims can be mounted.

Direct liability of local education authorities

    So far I have been considering the duties owed to a child by individual educational psychologists and teachers, and the resultant vicarious liability of local education authorities. This leaves unresolved the question whether the education authority itself owes a duty of care to the children in its schools. It was common ground, and rightly so, that the educational obligations imposed on local education authorities by statute cannot give rise to a (private law) action for damages for breach of statutory duty at the suit of pupils in their schools. But does an education authority owe to school pupils a duty at common law to take reasonable care in discharging its educational functions, either as regards children with special educational needs or generally?

    This is an exceedingly difficult question. One of the difficulties lies in identifying satisfactorily what are the types of case which would be left without remedy if direct liability, as distinct from vicarious liability, were excluded. This, in turn, makes it difficult to evaluate the validity of drawing a distinction between direct liability and vicarious liability of local education authorities in this context.

    In X (Minors) v. Bedfordshire County Council [1995] 2 AC 633, 762, Lord Browne-Wilkinson concluded that an education authority owes no common law duty of care in the exercise of powers and discretions relating to children with special educational needs specifically conferred on it by the Act of 1981. Your Lordships' House has been invited by counsel to depart from this view of the law. Of the present appeals Jarvis is the only case in which this issue may have practical consequences. That case has not yet reached trial. I prefer to leave this question open for decision in a case where the facts make a decision necessary. The existence of such facts will enable attention to be focused more effectively on the practical implications of the arguments for and against the existence of direct liability.

LORD CLYDE

My Lords,

    The importance of the provision of an education appropriate to the particular needs of children cannot be denied. It is not only in the interests of the child and his or her parents that such provision should be made but also in the interest of the country that its citizens should have the knowledge, skill and ability to play their respective parts in society with such degree of competence and qualification as they may be able to develop. The wide purpose of the provision of education has been recognised by Parliament. Section 13 of the Education Act 1996, echoing section 7 of the Education Act 1944, describes the obligation on local authorities to securing the availability of efficient education in their respective areas as a contribution "towards the spiritual, moral, mental and physical development of the community". It is then obviously desirable that those engaged in this important concern should possess and observe the high standards required of their calling. Their efforts require to be respected and admired as contributing in an essential way to the future health and well-being of the nation. At the same time the participation of parents in the educational process deserves increasing recognition. The responsibility for the education of their children lies on them as well as on others and it is right that their role in the process should be borne in mind. The propriety of the co-operation and involvement of parents in the education of their children can be seen in the Department of Education and Science Circulars 1/83 and 22/89.

    The present group of four appeals raises questions as to the liability of those engaged in the education of young persons for negligent acts and omissions which have caused loss, injury or damage to their students. In only one of them has the matter been taken to trial. That is the case of Phelps. There the claimant sought damages for the negligence of an educational psychologist who had examined her and had failed to diagnose her dyslexia. The judge awarded her damages consisting of sums respectively for the cost of past and future tuition, a lump sum to represent the loss of the opportunity in the future to earn as much as she would now be able to earn, and a sum for general damages. In Anderton the claimant sought and was granted a pre-action discovery for the purposes of a proposed claim for damages for a failure to diagnose dyslexia, but that decision has been reversed on appeal. In Jarvis, another case of dyslexia, a claim for negligence against various persons employed by the local education authority has been struck out. In G, which concerns a child suffering from Duchenne Muscular Dystrophy who claims damages for negligence on the grounds that he was not provided with the equipment and training necessary to enable him to communicate and receive a proper education, a decision to strike out the claim has been reversed by the Court of Appeal. The basic point of principle which is common to all these cases is whether there is a duty of care owed by the employees of a local education authority to the students of whatever age they may be in the meeting of their educational needs. The question arises most sharply in relation to children with special educational needs, where erroneous decisions on the course of their education may have particularly damaging consequences and may involve some risk of irremediable harm. But the scope of the problem is a general one which may potentially relate to anyone undergoing a course of education.

    There is no question that a teacher owes a duty of care for the physical safety of a child attending school under the charge of that teacher. The teacher has a duty to take reasonable care that the child does not come to harm through any danger which may arise during the course of the child's attendance at the school. But the present case is different in certain respects from that situation. The allegation of negligence is directed not at the risks of physical dangers which might occur through something dangerous in the premises, but at something done in the course of the educational activities of the school. Secondly, the criticism is directed essentially at a failure in the giving of advice upon the condition and educational needs of the child. Thirdly, while the injury which is alleged to have occurred is principally a loss or at least a retardation of their educational progress with such consequential financial loss and expense as that may entail, it may also involve some form of mental or psychological injury. The loss claimed may be purely of an economic character. But the mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damages, such as a post-traumatic stress disorder or a psychological illness. Dyslexia is a condition which may in itself become worse through the absence of an appropriate educational regime, and the frustration of an inappropriate regime may cause psychological stress and injury. The consequences of negligent advice regarding the future treatment of a child with some special educational need may take a variety of forms and may be extensive.

    It is clear on principle that where a professional person gives advice, knowing, or being taken to know, that another will rely on that advice in deciding how to manage his affairs, the adviser may owe a duty of care to that other person. Opinion has differed on the question whether the language of an assumption of responsibility is useful or not. In Smith v. Bush [1990] 1 AC 831 Lord Griffiths observed (at pp. 862 and 864) that he did not think that voluntary assumption of responsibility was a helpful or realistic test for liability, at least in most cases. That opinion was followed by Lord Roskill in Caparo Industries plc v. Dickman [1990] 2 AC 605, 628. On the other hand the use of the expression received the support of Lord Goff of Chieveley in Henderson v. Merrett [1995] 2 AC 145, 180-181. The expression may be descriptive rather than definitive, but the point does not seem to me of significance in the present context.

     In principle it is not immediately easy to see why the law should not admit the possibility of a duty of care upon professional employees of an education authority. Indeed the decision in E (A Minor) v. Dorset C.C., reported with X v. Bedfordshire C.C. [1995] 2 AC 633, directly supports the existence of such a duty of care upon an educational psychologist. As Lord Browne-Wilkinson observed (p. 763) "Psychologists hold themselves out as having special skills and they are, in my judgment, like any other professional bound both to possess such skills and to exercise them carefully". In principle the same view should apply to any professional member of the staff of an education authority. Where a child privately consults an educational psychologist there should be a duty on the latter to exercise due professional care in the giving of advice. While a basis for a claim might be found in contract in such a case, by way even of an implied term of an obligation to take reasonable care, it would be curious if it could not be found also in tort. If in the private arena an educational psychologist culpably erred in the diagnosis which he or she made of the cause of a child's disability and the child suffered some consequential loss or injury, there would seem to be no reason why a liability in damages should not follow. It would be surprising if the same was not also to be possible where the advice is given by one employed by an education authority. One consideration which influenced the Court of Appeal in their holding in Phelps that there was no duty of care was the fear that by admitting a vicarious claim the immunity which local education authorities may enjoy against direct claims could readily be circumvented. But it has to be noticed that one consideration which weighed with Lord Browne-Wilkinson in excluding a direct claim in the Dorset case was that a vicarious liability would be available. As he observed (at p. 762) "in almost every case which could give rise to a claim for the negligent exercise of the statutory discretions, it is probable that….there will be an alternative remedy by way of a claim against the authority on the grounds of its vicarious liability for the negligent advice on the basis of which it exercises its discretion".

    But it is contended that such persons are under no such duty. Two issues then arise, one general and one particular. The question whether the defendant in any claim for damages on the ground of negligence owes a duty of care to the claimant can be answered in the negative on the basis that on grounds of fairness the law will not recognise a duty of care between such parties. There was no duty because there cannot be a duty. It is only if the law admits the possibility of such a duty that the next question can arise: whether in the circumstances of the particular case a duty did exist between the particular parties. Whether a duty can exist and whether a duty does exist are different kinds of questions and it seems to me that the law gives different kinds of answers to them. The former may be resolved by considerations of policy, and in particular whether it is fair, just and reasonable to admit such a duty. The latter requires a consideration of the facts of the case and may be susceptible to different answers in different circumstances. Of course common kinds of relationship, like that of employer and employee acting within the course of an employment, may so often satisfy the test of proximity that categories of cases can be identified where a duty will arise with little if any further investigation or analysis. But the requirements of proximity and foreseeability form the basis on which the existence of the duty may rest in any particular circumstances.

    The test for the existence of a duty of care which looks to what the court considers is fair, just and reasonable is of a different order from the test of proximity or neighbourhood with its further ingredient of foreseeability. The test of fairness is a test which may principally involve considerations of policy. Thus, for example, it was considered in the cases reported as Capital & Counties plc v. Hampshire C.C. [1997] QB 1004, in the context of a public policy immunity. It has the advantage of flexibility, enabling the court to define the boundaries of claims for negligence in the light of new situations and the recognition that incremental growth may require to be controlled, albeit at the risk of some uncertainty at least in the prediction of the directions in which the law may develop. But this test may also have regard to the particular facts and circumstances of a particular case. Broader considerations may not alone be determinative. Thus in Osman v. UK [1999] 1 FLR 193, (para. 151) the European Court of Human Rights required account to be taken of such matters as the gravity of the negligence in question, the assumption of responsibility by the police for the safety of the eventual victim, and the seriousness of the harm sustained. Even where sound policy reasons can be put forward for excluding a claim it is not thereby necessarily to be excluded.

    In the present case I am not persuaded that there are sufficient grounds to exclude these claims even on grounds of public policy alone. It does not seem to me that there is any wider interest of the law which would require that no remedy in damages be available. I am not persuaded that the recognition of a liability upon employees of the education authority for damages for negligence in education would lead to a flood of claims, or even vexatious claims, which would overwhelm the school authorities, nor that it would add burdens and distractions to the already intensive life of teachers. Nor should it inspire some peculiarly defensive attitude in the performance of their professional responsibilities. On the contrary it may have the healthy effect of securing that high standards are sought and secured. If it is thought that there would only be a few claims and for that reason the duty should not be recognised, the answer must be that if there are only a few claims there is the less reason to refuse to allow them to be entertained. As regards the need for this remedy, even if there are alternative procedures by which some form of redress might be obtained, such as resort to judicial review, or to an ombudsman, or the adoption of such statutory procedures as are open to parents, which might achieve some correction of the situation for the future, it may only be through a claim for damages at common law that compensation for the damage done to the child may be secured for the past as well as the future.

    Any fear of a flood of claims may be countered by the consideration that in order to get off the ground the claimant must be able to demonstrate that the standard of care fell short of that set by the Bolam v. Friern [1957] 1 W.L.R. 582 test. That is deliberately and properly a high standard in recognition of the difficult nature of some decisions which those to whom the test applies require to make and of the room for genuine differences of view on the propriety of one course of action as against another. In the field of educational matters there may well exist distinct but respectable opinions upon matters of method and practice, and it may be difficult to substantiate a case of fault against the background of a variety of professional practices. In cases of a failure to diagnose a particular disability from which a child may be suffering there may well be considerable difficulties in the making of the diagnosis which may render proof of negligence hazardous.

    Not only may there be difficulties in establishing negligence in relation to the making of professional judgments in particular circumstances or the exercise of a professional choice in particular cases, but there may well be practical difficulties in the adequacy of records or of recollection about the details regarding the educational progress and achievements of a particular child which may be highly relevant to the claim which is brought. But that there may be such difficulty is no reason for excluding deserving cases. There may also be severe difficulty in establishing a causal connection between the alleged negligence and the alleged loss and in the assessment of any damages. But these possible difficulties should not be allowed to stand in the way of the presentation of a proper claim, nor should justice be altogether denied on the ground that a claim is of a complex nature. That any claims which are made may require a large number of witnesses, a consideration which weighed with the Court of Appeal, and involve considerable time and cost, are again practical considerations which should not be allowed to justify a total exclusion of an otherwise legitimate claim. While I recognise that the general view in the jurisprudence of the United States of America is adverse to the admission of a liability upon teachers for negligence upon general grounds of policy, I am not persuaded that a corresponding view should be taken in this country.

    The present claims all arise in the public sector where there is a very obvious statutory context. The education authorities are creatures of statute and operate to a considerable extent under the provisions of the Education Acts. The question arises whether the common law duty can or cannot stand in the face of the statutory context. But while no common law can stand in contradiction of some statutory provision, and it may be hard to impose a duty of care in the exercise of a statutory power, Stovin v. Wise [1996] AC 923, 954, the existence of a statutory background against which the professionals are exercising their particular skills should not inhibit the existence of a common law duty of care. The provisions of the Education Act 1981 sought to secure that appropriate education would be available for children with special educational needs. The procedures contained in the Act include various rights for the parents, for example the provisions for consultation in section 3, for notification under section 5(3), in relation to assessments under sections 6(1) and 9, and for discussion and for appeal in relation to the making of statements under sections 7 and 8. Such provisions plainly reflect the interest which the parents are recognised to have in the child's education. What is envisaged is not some adversarial relationship between the authority and the parents, but rather a partnership between them aimed at securing the interests of the child's education. Indeed in paragraph 6 of the Circular 1/83 by the Department of Education and Science the process of assessment was seen as a "partnership between teachers, other professionals, and parents, in a joint endeavour to discover and understand the nature of the difficulties and needs of individual children". However at least in the case of Phelps the procedures and systems contained in the statutory provisions were not directly in issue. In Phelps what was alleged to have gone wrong was a failure to diagnose the existence of a dyslexia. The psychologist was not carrying out any particular function under the statute. There is no statutory provision in the case which is inconsistent with the existence of a duty of care on the part of an educational psychiatrist.

    A distinction may be suggested between on the one hand matters of policy or discretion and on the other hand matters of an operational or administrative character. But this kind of classification does not appear to provide any absolute test for determining whether the case is one which allows or excludes a duty of care. The classification may provide some guide towards identifying some kinds of case where a duty of care may be thought to be inappropriate. Where a statutory authority has to make a choice between various courses of action, all of which are within its powers, and the choice involves a weighing of resources and the establishment of priorities, it will in general be inappropriate that someone injured through the particular decision which the authority has made should have a remedy in damages. But it was recognised by Lord Browne-Wilkinson in X (at p. 738) that even in matters of a discretionary character the authority may be liable in damages if its decision falls without the ambit of the discretion, as where the action taken is so totally unreasonable as to amount to an abuse of the discretion. Beyond that, as Lord Keith of Kinkel observed in Rowling v. Takaro Properties Ltd [1988] AC 473 at p. 501, "classification of the relevant decision as a policy or planning decision in this sense may exclude liability; but a conclusion that it does not fall within that category does not, in their Lordships' opinion, mean that a duty of care will necessarily exist".

    Another circumstance which may give rise to difficulty in the present context is that there may be a multi-disciplinary unit concerned in the giving of the advice. But that is a practical problem which cannot constitute a legal bar on a claim. Even where such a situation exists it should be possible to disentangle the relevant parts played by particular individuals and identify where the alleged negligence occurred. The problem may not of course be significant for a plaintiff if a claim can lie directly against the authority, as in Barrett. Certainly the view of the Commission in Z v. United Kingdom, Application No. 29392/95 in paragraph 114 of their report took the view that the multi-disciplinary aspect of child protection work "may provide a factual complexity to cases but cannot by itself provide a justification for excluding liability from a body found to have acted negligently". At least in the present cases there is no difficulty in identifying the advice given by each of the professional persons involved, and in particular in identifying that it was particularly within the area of expertise of the educational psychologist to make the diagnosis.

    I turn now from matters of policy to matters of proximity and foreseeability. One question which arises here is whether the advice was being given to the education authority for their guidance, and not to the child nor the parents. Circumstances may of course occur where it can be shown that although the parents had some involvement with the decision making process the advice given was not intended to be acted upon by them nor was reliance expected to be placed by them on it. The distinction noted by Lord Browne-Wilkinson in the Dorset case (at pp. 763-764) is drawn between education cases and child abuse cases. In the former case it may more readily be concluded that the involvement of the parents is both consistent with and supports the conclusion that a duty of care existed through them to the child. In the latter, despite the general intention that all the interested parties should work together, the opportunity for conflict between the parents and the professional advisers may be far greater than in the educational context. But that is not the situation in the present case where all shared the same intention to secure the proper education for the child concerned. Where a professional person is employed by one person to advise him, it is a question of circumstances whether there will also be a duty owed to other persons. Examples may be found in the cases of a doctor examining a patient for insurance purposes or a surveyor acting for a prospective mortgagee.

    The view was taken by Stuart-Smith L.J. ([1999] 1 WLR 500 at p. 517) in the Court of Appeal in Phelps that the defendants' psychology service was not a service to the public. "It was set up and used by the defendants to advise them and their other employees on the discharge of their statutory functions in teaching the plaintiff. It is quite different from, for example, a health authority setting up a clinic where people can come to see doctors and nurses for treatment. In such a case there would be a direct relationship of doctor and patient, and an assumption of responsibility to treat him or her". But it seems to me that while that analysis may be strictly correct, it is not inconsistent with the conclusion that the psychologist was in the circumstances in Phelps also advising the plaintiff through her parents. I consider that the judge was right to observe that "it does not accord with reality or common sense to regard her as owing a duty only to the defendants". On the evidence he was certainly entitled to reach the conclusion that the psychologist also owed a duty to the plaintiff through her parents. In the particular circumstances of the case of Phelps it appears perfectly clear that the plaintiff and her parents were going to and did rely upon the advice. Miss Melling, who is blamed by the plaintiff, discussed the contents of her report with Mr. and Mrs. Phelps. While the educational psychiatrist was advising the teachers, the parents were also recipients of the substance of the advice. The judge found that the Special Needs Co-ordinators and the head teacher all expected information to be passed to the parents and the fundamental elements of that advice would derive from Miss Melling. Indeed the respondent's own consultation document 'Learning Together' of November - December 1990 stresses the support which the educational psychologist may give to a parent and the involvement educational psychologists will have with the family as well as the teachers. Nor can it be seriously doubted that the plaintiff was in a sufficient proximity to the defendant. The statutory context to which I have already referred shows very clearly that the parent is to be involved in the identification of the appropriate forms of education for the child and even if the statutory provisions are not immediately relevant that is at the least consistent with the child through her parents being in a close relationship with the education authority.

    So far as the case of Phelps is concerned I have reached the view that there was a duty on the educational psychologist to exercise due care to the appellant. Two areas of the case have caused me some hesitation, namely, whether the plaintiff had in fact established professional negligence on the part of the psychologist and whether the causal link had been proved between the alleged negligence and the loss which was claimed. I have however been persuaded that both of these hurdles have been surmounted on the facts and that the judge was entitled to reach the conclusion which he did.

    The appellant claims a direct liability on the authority as well as a vicarious liability. But there is no necessity to explore that aspect of the matter in the case of Phelps which can succeed upon the basis of a vicarious liability. With regard to the other cases where the issue is still open, careful consideration would require to be given to the view expressed by Lord Browne-Wilkinson in Dorset at pp. 761-2, along with the further qualification which he added in Barrett v. Enfield London B.C. [1999] 3 All ER 193 at p. 197. But it may be open to argument that a prohibition upon a direct liability should not be a matter of absolute exclusion. Where the parents of a child have participated in the decision under attack it may well be difficult to allow a claim that the decision was negligently taken. But the case might be different if the parents did not take a hand in the making of the decision. It may be that few cases would arise of direct claims, but it might not seem that justice is being served if on that account the door of the court should be closed. The point may be open to further argument but it would be inappropriate to embark upon that chapter without any inquiry into the facts. I am certainly not prepared to deny the possibility that such a duty may exist. A comparable point was raised in Cassidy v. Ministry of Health [1951] 2 K.B. 343 and some academic support for the proposition can be found in Montgomery "Suing Hospitals Direct" (1987) 137 New L.J. 573, referred to in Clerk and Lindsell on Torts 17th ed. Para 8-63. Given the room for argument on the point in the present context it seems to me that this is pre-eminently a point to be resolved after trial when the facts have been explored.

    As regards the case of Anderton the procedural point under reference to section 33(2) of the Supreme Court Act 1981 is not of critical importance but on the basis that what the claimant suffered was not simply a failure to have her condition ameliorated but an actual impairment to her mental condition when she was already burdened with considerable learning difficulties, I would be inclined to hold that the condition here could qualify as a "personal injury" to her person. That is sufficient for the disposal of that case. I would regard it as premature to advance a view about the substance of the claim. The case of Jarvis should follow the result in Phelps. Indeed the facts in that case seem to me more compelling than those in Phelps. The case of G is to my mind also one which cannot be excluded at this stage. I would accordingly allow the appeals in Phelps, Anderton and Jarvis and dismiss the appeal in G.

LORD HUTTON

My Lords,

    I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Slynn of Hadley and Lord Clyde. I agree with them and for the reasons which they have given I too would allow the appeals in Phelps, Anderson and Jarvis and dismiss the appeal in G.

LORD MILLETT

My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Slynn of Hadley and Lord Clyde, with which I am in large measure of agreement.

    At the conclusion of the argument I was inclined to agree with Stuart-Smith L.J. in the Court of Appeal that the appellant's claim in Phelps could not hope to succeed on the basis of vicarious liability. Her claim was argued on the Hedley Byrne principle, that is to say, on an allegation that the educational psychiatrist Miss Melling gave negligent advice to the appellant (or more probably her parents) in the knowledge or expectation that she (or they) would rely upon it. Miss Melling was, however, employed by the respondent authority to advise it how best to discharge its statutory duties to the appellant and achieve its aim to provide her with an education appropriate to her needs, not to give advice to the appellant or her parents on which they could rely. If this is the correct analysis, then either she was merely communicating to the appellant and her parents the gist of the advice she had given or was proposing to give to the respondent, without assuming a separate responsibility to them for that advice; or (less probably) she was giving separate though similar advice to the appellant and her parents on which they were entitled to rely, in which case she was acting outside the scope of her employment. The fact that everyone had the same end in view, so that there was no conflict between them, does not in my opinion affect this.

    I have, however, been persuaded that, even though Miss Melling did not give advice to the appellant or her parents on which they were entitled to rely, she did owe the appellant a duty to take care that the advice which she gave to the respondent was properly given. If this is the correct analysis, as I believe it is, then the respondent is vicariously liable for the breach of the duty of care which Miss Melling owed the appellant when, in the course of her employment, she gave negligent advice to the respondent on which the respondent acted. Thus the appellant's claim does not depend (nor should it) on what Miss Melling told the appellant's parents, but on what she told the respondent.

    For these reasons, as well as those given by my noble and learned friends Lord Slynn of Hadley and Lord Clyde, I agree with the order proposed.


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