Phelps v London Borough Of Hillingdon

Factual and Procedural Background

This appeal concerns a judgment awarding damages to the Plaintiff against the Defendant Local Education Authority (LEA) for negligence by an educational psychologist employed by the LEA. The Plaintiff claimed that the educational psychologist failed to identify her dyslexia or special learning difficulties during her schooling years, resulting in inadequate remedial teaching and diminished literacy progress. The trial judge found the Defendant vicariously liable and awarded damages. The Defendant appealed, challenging the existence and scope of the duty of care, findings of negligence and causation, and the quantum of damages.

The Plaintiff was born in 1973 and attended various schools between 1978 and 1990. Early assessments by educational psychologists and the Child Guidance Clinic attributed the Plaintiff’s learning difficulties primarily to emotional and family-related issues rather than dyslexia. Throughout schooling, despite evidence of poor literacy skills, the Plaintiff was not formally diagnosed with dyslexia until 1990, after which specialized tuition was provided. The educational psychologist's failure to diagnose dyslexia earlier was central to the claim.

The appeal arises from a judgment given by Garland J. in 1997, with the Court of Appeal hearing submissions in 1998.

Legal Issues Presented

1. What is the nature of the damage claimed, and is it compensatable in tort?
2. Did the educational psychologist owe a duty of care to the Plaintiff?
3. If so, was there a breach of that duty by failing to diagnose dyslexia?
4. Did the breach cause the Plaintiff’s damage?
5. What is the appropriate quantum of damages?

Arguments of the Parties

Appellant's Arguments

• The educational psychologist owed no duty of care to the Plaintiff individually, as her role was to advise the LEA, not the Plaintiff or her parents.
• The type of damage claimed was not recoverable in tort, being economic loss rather than personal injury.
• The judge erred in finding negligence, particularly as the psychologist conducted appropriate tests and was entitled to rely on earlier assessments attributing difficulties to emotional issues.
• Causation was not established; it was not proved that the school would have taught the Plaintiff differently or that different teaching would have made a quantifiable difference.
• The quantum of damages awarded was speculative and unsupported by evidence.

Respondent's Arguments

• The educational psychologist owed a duty of care to the Plaintiff, as the Plaintiff’s parents relied on her advice and the advice was intended to influence educational decisions affecting the Plaintiff.
• The damage suffered was compensatable as a failure to mitigate the adverse consequences of a congenital defect (dyslexia).
• The psychologist was negligent in failing to diagnose dyslexia, resulting in inadequate teaching and lost educational opportunities.
• The school would have adopted a different, multi-sensory and structured teaching approach if dyslexia had been diagnosed earlier, leading to improved literacy.
• The damages awarded reflected the Plaintiff’s loss of educational and employment prospects.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed examination of the nature of the damage claimed, the existence of a duty of care, breach, causation, and quantum. It distinguished between compensatable personal injury and economic loss, concluding that dyslexia itself is a congenital condition, not an injury, but failure to mitigate its adverse consequences may give rise to recoverable damage.

The Court reviewed authoritative precedents including the House of Lords decision in X (minors) and the education cases, noting the immunity of LEAs from direct negligence claims but the potential liability of individual professionals if they assume personal responsibility. It emphasized that the educational psychologist’s role was to advise the LEA and school, not the Plaintiff or her parents directly, and no clear evidence showed a voluntary assumption of personal responsibility to the Plaintiff.

Policy considerations weighed heavily: the risk of vexatious claims, the involvement of multiple professionals in decision-making, the statutory framework involving parental participation and appeal rights, and the difficulties of proving causation and quantum many years after the events.

On breach, the Court found the judge had imposed too high a standard on the psychologist. The psychologist conducted appropriate tests and was entitled to rely on earlier assessments attributing difficulties to emotional factors. The failure to conduct additional tests was not established as negligent.

Regarding causation, the Court found that the judge did not adequately analyze whether the school would have taught the Plaintiff differently if dyslexia had been diagnosed, and whether such teaching would have resulted in measurable improvement. Evidence suggested that the Plaintiff received teaching incorporating multi-sensory techniques, though perhaps not fully structured for dyslexics. The extent of any improvement was speculative and could not be established on the balance of probabilities.

The Court also criticized the speculative nature of the damages awarded, noting the absence of a reliable basis for quantifying future loss of earnings or educational attainment.

Consequently, the Court concluded that the educational psychologist did not owe a duty of care to the Plaintiff in the circumstances, and even if a duty existed, breach and causation were not sufficiently established.

Holding and Implications

The Court of Appeal ALLOWED THE APPEAL and entered judgment for the Defendants, overturning the award of damages to the Plaintiff.

The direct effect is that the Plaintiff’s claim against the LEA for vicarious liability for the educational psychologist’s alleged negligence fails. The Court emphasized the importance of the statutory framework for addressing educational needs and the policy reasons for limiting liability of educational professionals and authorities.

No new precedent was established beyond clarifying the requirement for a clear assumption of personal responsibility by professionals to impose a duty of care in similar contexts, and the difficulties of proving causation and damages in claims of this nature.