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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DN v London Borough of Greenwich Rev 2 [2004] EWCA Civ 1659 (08 December 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/1659.html Cite as: [2004] EWCA Civ 1659 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Judge Overend
Strand, London, WC2A 2LL |
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B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE MAY
and
SIR MARTIN NOURSE
____________________
DN (by his father and litigation friend RN) |
Claimant/ Respondent |
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- and - |
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LONDON BOROUGH OF GREENWICH |
Defendant/Appellant |
____________________
Roger Ter Haar QC and Andrew Phillips (instructed by) Teacher Stern Selby for the Respondent
Hearing dates : 18th, 19th and 20th October 2004
____________________
Crown Copyright ©
Lord Justice Brooke : This is the judgment of the court.
i) The judge misdirected himself in holding that he could not have any regard to expert opinions expressed by Mr Moreland because he was called as a witness of fact;
ii) The judge failed to assess Mr Moreland's evidence, notwithstanding that he went on to find him professionally negligent, and failed to give any consideration at all to his evidence as to why he acted and advised as he did.
"Q. I have two questions. The first is that there is no educational psychologist that I am referred to for the defendant. Is that right?
A. That's right.
Q. Do I assume, therefore that Mr Reid's conclusions on liability are unchallenged?
A. No, your Lordship should not assume that.
Q. You do not have any expert evidence to counter his?
A. No, I do have two very experienced educational psychologists.
Q. They are the targets of the DNs' allegation?
A. Yes, that is right.
Q. They are witnesses of fact.
A. They are also able to explain why they acted as they did and certainly I will be testing Mr Reid's evidence.
Q. You are perfectly entitled to test but to rely upon the targets of Ns as experts I am afraid you are not permitted to do that.
A. Perhaps we can address that when we come to it my Lord.
J. I am telling you that that is the position."
"43. Mr Phillips for the claimant submitted that it is rare for a defendant in a professional negligence case to call no independent expert evidence. He submitted that there was no admissible evidence to rebut the evidence of Mr Reid.
44. Mr Warnock agreed that the defendant called Mr Moreland as a witness of fact, but said that if Mr Moreland gave opinion evidence, then the court should take it into account, relying on the case of ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284.
45. In his closing address, however, Mr Warnock did not refer to any aspect of Mr Moreland's evidence relating to opinion, other than by implication in submitting that his evidence should be preferred to that of Mr Reid.
46. It would be surprising, in my judgment, if in deciding ES the Court of Appeal intended to drive a coach and horses through the rules as to the giving of expert evidence contained in the CPR. In my judgment ES is a case management decision based on exceptional circumstances, which is directed at equality of arms in the giving of expert evidence. It cannot be said to amount to authorising the elevation of the evidence of a witness of fact (albeit a defendant in a professional negligence action) to that of expert witness, where the defendant has chosen to call no other expert evidence.
47. Thus I conclude that there is no expert evidence to counter the evidence of Mr Reid – or none that can be regarded as independent or of any weight.
48. That is not to say that the court can or should, without more, accept the opinions of Mr Reid. His evidence needs to be assessed and the effect considered of cross-examination by Mr Warnock (without the benefit of an expert witness instructing him)."
i) He recorded Mr Moreland's acceptance of the proposition that if he had concluded that it would be wrong to send DN to a school for children with emotional or behavioural disorders ("EBD"), or that a residential special needs school was appropriate for him, he would have said so in his report (there is another reference to this concession later in the judgment).
ii) He said that the issue relating to Mr Moreland's negligence came down to a dispute between Mr Reid's professional assessment of Mr Moreland's failings and Mr Moreland's testimony, unsupported by independent expert evidence.
"[It] is a developmental disorder of social interaction characterised by
(i) impairment of social interaction;
(ii) narrow interests;
(iii) repetitive routines and the insistence on the following of these routines;
(iv) speech and language peculiarities."
As we have said (see para 8 above), they both laid great stress on the value of education as a source of improvement for children and adolescents with autistic spectrum disorders.
"I find on the evidence that there were at the material time specialist schools with the appropriate expertise to address DN's needs, as identified by Mr Reid. In addition, while it is clear that schools would have had to be found that would have accepted DN, and DN's parents would have had to be persuaded by the Defendant and by Mr Moreland that education in such a specialist school was in DN's best interests, I think it is probable that both would have occurred. Mr Reid's experience of placing children with complex needs in suitable schools was encyclopaedic – which is not surprising given his background. Further, having seen and heard both of DN's parents give evidence, I conclude it is likely that they would have been persuaded that residential education was in his best interest, and that this would probably have overcome their natural reluctance to contemplate education away from their caring home."
"If he had been able to learn social skills and appropriate social behaviour and to control his impulses, particularly his temper, then many of his subsequent difficulties may not have developed….Had [Dr Simonoff's] advice been heeded, the outcome may have been different."
Dr Dawkins thought that his significant behavioural difficulties could be described as personality difficulties, and that they severely interfered with his day to day functioning.
"…I am of the opinion that [DN] exhibits a complex combination of mental disorders which are likely to prove enduring. On the basis of his cognitive abilities, he should be capable of sheltered employment. However, given his persistent preoccupations with young girls and fire, sheltered employment would not be a feasible option for reasons of public safety. [DN] would therefore not be in a position to make any positive economic contribution towards his own support. This situation is not likely to change at all in the future. Essentially, public safety concerns would inevitably prevent [DN] from making any positive economic contribution throughout his working life."
"Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement."
"If he had not been so isolated, so lonely, had nothing to do constructively with himself, then he may have been less prone to develop this interest in fires."
"…I agree with Professor Simonoff when she said that given his cognitive abilities and his Asperger's he should have been capable of independent living and employment, but that his behavioural difficulties have made this less likely. So if he had received appropriate education earlier, then I would have hoped that he would have been capable of independent or semi-independent living and employment, even if it was supported."
"A. I still remain of the opinion that if he had gone to a different school then the outcome should have been better.
Q. You say in your report that it might have been better.
A. I thought it was "should" actually rather than "might".
Q. We can all say that things should happen, but what are the chances, what do you think actually are realistically the chances that it would have happened?
A. Well, I think there are reasonable chances. I mean, in my clinical experience, I manage a number of cases of Asperger's Syndrome who receive appropriate specialist input and who are really doing very well – some of whom have had really bad problems but with the right expertise we are turning those problems round. So, I do believe it is possible.
Q. Can you put a figure on it? You have not in your report.
A. No, I have not, although in our joint statement I did quote some research that came from the classic textbook of child psychiatry which was evaluating, you know, a big scientific research study, which point to the importance of education in improving the outcome for people with Asperger's.
Q. There are lots of factors which are probably very important. What I am asking you is – and it may be that you cannot: is it possible to quantify the chances you think of the outcome being different if he had a different education?
A. I can't quantify it in terms of a statistic, but I think it is more likely than not."
"94. Mr Warnock also relied on the evidence of Professor Simonoff. He submitted that Professor Simonoff accepted in cross-examination that DN would always need therapeutic input. My note of her answer was:-
"[B]y the time DN was in mid-teens – problems were not going to go away overnight. He would always need special (treatment). We saw extreme behaviour."
95. I do not interpret that answer as in any way qualifying Dr Dawkins's view that had DN been sent to an appropriate specialist school at the age 10, then his behavioural problems would probably not have emerged or would have been contained.
96. Although she was a factual witness, Professor Simonoff said in paragraph 7 of her written statement:-
"It is particularly important in individuals with autism and Asperger's Syndrome to deal with the kind of aggressive behaviour that DN was showing early on, before it becomes entrenched."
97. Mr Warnock also relied on a raft of other factors that he submitted make it "highly likely" DN would have suffered problems in any event. In my judgment, Mr Warnock was not supported in his contention by his own expert witness, Dr Campbell, who had agreed with Dr Dawkins's prognosis when writing the joint report.
98. The factors relied upon by Mr Warnock included – noisy neighbours; the reaction of DN's father to the neighbours; peer influences; the Limes management; alcoholism; drug abuse; the breakdown of the parental relationship which occurred when DN was 19.
99. Dr Dawkins agreed that each of these factors played a part in DN's behaviour, at the time each occurred. She did not, however, agree that those factors would have led to DN's current psychiatric and social state, had he been appropriately educated from the age of 10. As she said in cross-examination: -
"If we had got them [DN's behavioural difficulties] younger we could have dealt with them. Now they are entrenched and more difficult… If he had had consistent intensive help he would have learned his own strategies – (they) would not have developed."
100. Of the breakdown in the Ns' relationship, Dr Dawkins said:-
"It is a pity his behaviour was not contained at that time, and the placement had broken down. It could have been a really useful learning experience"."
"110. I conclude that the evidence points strongly in the direction that the failure of the education authority to send DN to an appropriate special education school at the age of 10 has resulted in the loss of the opportunity for DN to learn how to improve his social and communication skills and, when it was diagnosed, how to cope with his Asperger's Syndrome, including managing his behavioural difficulties. He has also lost the opportunity of gaining some educational qualifications up to a maximum of five GCSE's or their equivalents.
111. I accept the evidence of Dr Dawkins that the future for DN is now bleak, being currently subject to a section 41 restriction order. Once released – and MIETS is working towards a release – he is going to require a sheltered living environment and access to sheltered employment for the rest of his life.
112. Equally, I accept Dr Dawkins's opinion that if appropriate education had been given an earlier stage at the age 10, DN would probably have been capable of independent or semi-independent living and employment, so as to be able to support himself.
113. There is one caveat, namely that the experts do not rule out the possibility that DN's fire-setting tendency might have occurred despite appropriate education. The chances of this happening do not appear to be high but will need to be taken into account in assessing the quantum of DN's claim."
"A. Yes, because once he had developed these behavioural difficulties, they were severe, and he was then left out of school for a long time, getting worse, so that he was, if you like, allowed to develop worse behavioural difficulties which, if he had got – if we had got them younger, they might have gone away, whereas now they are severe and entrenched and much more difficult to treat and therefore much more likely to persist for the rest of his life.
Q. A feature of [DN], it seems, … is that – you said, well, when he is getting the sort of support he needs, he copes reasonably well, and you highlighted his recent stay in the unit. But, sadly, it also seems to be true, does it not, that when he is not receiving that type of intensive support, he tends to let himself go?
A. I think that has been the pattern, but one can still argue that if he had had intensive support consistently at an earlier age, he would have benefited from it such that by the time he was an adolescent and a young adult he did not need such intensive support to contain him; that he would have learnt his own strategies and that he would not have developed such severe behavioural problems which have then taken a long while to attempt to treat."
"In the third category fall cases in which the claimant's loss depends upon the hypothetical action of a third party, whether in addition to action by the claimant or independently of it; here the claimant need only show that he had a substantial chance of the third party acting in such a way as to benefit him."
Dr Dawkins
"He may have been less prone to develop his interests in fires" (para 54 above);
"He could have come out with some form of qualification" (para 55);
"I would have hoped that he would have been capable of independent or semi-independent living and employment" (para 55);
"His behavioural difficulties might have gone away" (para 56);
"One could still argue that he would not have developed such severe behavioural problems" (para 56).
Dr Campbell
"There is the possibility of a causal link between his [poor] education and the fire-setting but this is not likely" (para 60 above);
"I am much less certain whether a different education could really have been such as to prevent his interests in fires altogether." (para 60)
"I can accept and support a rule of legal policy which precludes recovery of the full cost of bringing up a child in the situation postulated, but I question the fairness of a rule which denies the victim of a legal wrong any recompense at all beyond an award immediately related to the unwanted pregnancy and birth… I would add [a conventional award of £15,000] to the award for the pregnancy and birth…. The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done."
a) a case management order must specify the disciplines in which expert evidence is being permitted;
b) in an educational negligence action, such an order should impose similar requirements as to the identification of learned articles, textbook entries and research studies as are now commonly made in clinical negligence cases;
c) if an expert refers to research evidence in his report, he must identify it in the report, so that it will be available to be considered by the other side without delay, and not merely four days before the trial starts;
d) the timetable laid down in a case management order for experts to discuss issues and to deliver a report is there to be obeyed and not ignored; (we must not go back to the sloppy disregard of court orders which characterised practice in civil proceedings before the Woolf reforms);
e) an expert witness must not be permitted to depart substantially from his written report, as Mr Reid did in his evidence-in-chief, unless the trial judge is satisfied that no injustice will result in the circumstances of the particular case;
f) a trial judge must not, without good reason, adopt the differential approach demonstrated by Judge Overend towards the evidence-in-chief of different categories of witness;
g) constraints imposed by the public funding regime must not unreasonably inhibit the performance by a claimant's solicitors of their obligation to ensure that the defendants are not disadvantaged by any disobedience on their part of pre-trial orders as to the disclosure of documents or the meetings of experts.
Addendum (published by the Court on 25 January 2005)