Adams v Bracknell Forest Borough Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD HOFFMANN |
| Judgment Date | 17 June 2004 |
| Neutral Citation | [2004] UKHL 29 |
| Date | 17 June 2004 |
| Court | House of Lords |
[2004] UKHL 29
The Appellate Committee comprised:
Lord Hoffmann
Lord Phillips of Worth Matravers
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
HOUSE OF LORDS
My Lords,
The claim
The plaintiff Mr Adams issued proceedings on 25 June 2002 against the Bracknell Forest Borough Council claiming damages for negligence in failing to provide him with a suitable education. The claim is based upon the alleged neglect of the council properly to assess the educational difficulties he was experiencing at its schools which he attended between 1981 and 1988 and to provide him with appropriate treatment. He alleges that an assessment would have revealed that he suffered from dyslexia and the treatment would have ameliorated the consequences of that condition. As it is, his literacy skills are less than they should have been and he has been disadvantaged in the employment market. He also suffers from disabling psychological syndromes such as depression, panic and lack of self-esteem.
Dyslexia or "special learning difficulty' is a congenital condition, presumably neurological. As in the case of many brain functions, the mechanism remains unknown. Its distinctive feature is the combination of average or better general mental ability with severe and long-term difficulty in reading, writing and spelling. It is not curable but in some cases suitable teaching can develop techniques to mitigate its effects.
The limitation period
Mr Adams became of full age on 13 March 1990. The action was commenced more than 12 years later. His educational records at the school were destroyed when he turned 21. One of the teachers thinks that Mr Adams was referred to an educational psychologist but there are no surviving notes. Some of the teachers remember that he had learning difficulties which were addressed by remedial teaching but there is nothing very specific about what form this took. The council would be in very considerable difficulties in defending the claim.
The council has pleaded that the claim was statute-barred under section 11 of the Limitation Act 1980 which provides a special three year time limit for actions which claim damages for personal injury. (The normal time for actions in tort is six years). Time runs from the date on which the action accrued or the "date of knowledge", whichever is the later. I shall return later to what is meant by the "date of knowledge", an expression defined in section 14, because the essence of the council's case is that the action is barred because the date of knowledge was before 25 June 1999.
The judge (His Honour Judge Vincent, in the Torquay and Newton Abbot County Court) tried the question of the date of knowledge as a preliminary issue. He held that it was not before 19 November 1999. This decision was upheld by the Court of Appeal (Peter Gibson, Tuckey and Keene LJJ). The council appeals to your Lordships' House.
The case was argued before the judge and the Court of Appeal on the basis that the claim was for damages for personal injury and that it therefore came within section 11 of the 1980 Act. That was because the Court of Appeal had so decided in respect of a similar claim in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128. But Mr Faulks QC for the council raised the question of whether Robinson was rightly decided.
What is the claim for?
An action for negligence against a local education authority for educational neglect is a new development. It was only in a trio of cases ( E (A Minor) v Dorset County Council; Christmas v Hampshire County Council and Keating v Bromley London Borough Council) which are reported under the name X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (that being the name of another appeal which was heard at the same time) that the possibility of such an action was acknowledged. The appeals were against orders striking out the proceedings as disclosing no cause of action. In the Court of Appeal Sir Thomas Bingham MR said (at p 703) that although he would not go so far as to hold that the education authorities owed the plaintiffs a duty of care, he was equally not willing to say that the claims were "unarguable or almost incontestably bad". The House of Lords agreed: see Lord Browne-Wilkinson at pp 762-771. The actions were reinstated.
Because the question was whether a duty of care could exist at all, neither the Court of Appeal nor the House of Lords gave a great deal of attention to nature of the injury for which damages might be recoverable. Sir Thomas Bingham MR made brief reference to recoverable damage at p 703, saying that certain consequences of a negligent failure to provide suitable educational treatment were not compensatable in damages: for example, distress or feeling shy and diffident. But, he said:
"If…a plaintiff can show (1) that the adverse consequences of his congenital defect could have been mitigated by early diagnosis of the defect and appropriate treatment or educational provision; (2) that the adverse consequences of his congenital defect were not mitigated because early diagnosis was not made, or appropriate treatment not given or provision not made, with resulting detriment to his level of educational attainment and employability; and (3) that this damage is not too remote, I do not regard the claim for damage to be necessarily bad."
Evans LJ likewise rejected an argument that the plaintiffs' learning difficulties and behavioural problems were not injuries for which damages could be awarded. He drew an analogy with a physical injury for which the school was not responsible but which it negligently failed to notice or treat. Damages would be recoverable for "the consequences of delay in obtaining proper treatment' (p 706). It would not matter that the persistent learning difficulties were the result of an existing condition. The question was whether they could have been ameliorated by earlier diagnosis and treatment.
It seems to me that both Sir Thomas Bingham MR and Evans LJ were treating the claim as being for a mental disability (not being able to read and write properly) which ought to have been ameliorated but was allowed to persist. Such a claim in a post-Cartesian world is for personal injury and gives rise to a claim for general damages and, by way of special damages, any consequent economic loss such as loss of earnings or the need to pay for remedial treatment. Sir Thomas Bingham MR specifically said (at p 703) that fees paid for remedial teaching were in principle recoverable.
In Phelps v Hillingdon London Borough Council [1998] ELR 38 an action for educational neglect went to trial. Garland J held that an educational psychologist employed by the local education authority had been negligent in failing to diagnose the plaintiff's dyslexia. He referred to the passages from the judgments of Sir Thomas Bingham MR and Evans LJ in the X (Minors) case which I have mentioned and awarded general and special damages. The general damages included "loss of congenial employment' and the special damages were the cost of remedial tuition and an "extremely modest' (£25,000) award for loss of future earnings.
This decision was however reversed by the Court of Appeal [1999] 1 WLR 500. Stuart-Smith LJ (at p 513) disagreed with the analogy which, in the X (Minors) case, Evans LJ had drawn with an untreated physical injury: in his view, "dyslexia is not itself an injury and I do not see how failure to ameliorate or mitigate its effects can be an injury." What might be recoverable was economic loss on the basis that the educational psychologist had assumed responsibility to take reasonable care to diagnose the problem: compare Henderson v Merrett Syndicates Ltd [1995] 2 AC 145.
On the same day as the Court of Appeal gave judgment in Phelps, it decided Anderton v Clwyd County Council [1999] ELR 1. This raised the question of whether a claim based on failure to diagnose dyslexia was a "claim in respect of personal injuries' within the meaning of section 33(2) of the Supreme Court Act 1981, so as to give the court jurisdiction to order discovery before the commencement of the action. The same constitution of the Court of Appeal held that as failure to diagnose dyslexia did not exacerbate the condition and no recognised psychiatric injury was alleged, there was no claim for personal injury.
Both Phelps and Anderton were appealed to the House of Lords and heard together. In Phelps Lord Slynn of Hadley said [2001] 2 AC 619, 654 that psychological injury could constitute damage for the purposes of a claim in negligence and:
"so…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."
When he came to deal with Anderton he said, at p 664:
"For the reasons given in my opinion in the Phelps case, 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 the Phelps case was right in the passage which I have just quoted and that a failure to mitigate the adverse consequences of a congenital defect is capable of being "personal injuries to a person' within the meaning of the rules."
On Phelps, Lord Clyde said, at p 670:
"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...
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