Carty v Croydon London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gibbs |
| Judgment Date | 13 February 2004 |
| Neutral Citation | [2004] EWHC 228 (QB) |
| Docket Number | Case No: HQ01X01429 |
| Court | Queen's Bench Division |
| Date | 13 February 2004 |
[2004] EWHC 228 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Gibbs
Case No: HQ01X01429
Nicholas Bowen (instructed by Ashok Patel) for the Claimant
Andrew Warnock (instructed by Barlow Lyde & Gilbert) for the Defendant
Hearing dates : 10 th to 14 th November 2003 and 15 th December 2003
Introduction
The claimant, Leon Carty, is a young man now aged twenty-five. He brings this claim by his mother and litigation friend Dorothy Brown-Carty for damages against the defendants, the London Borough of Croydon. The defendants are a local education authority. It is alleged on the claimant's behalf that they were in breach of their duty of care towards him in that over a substantial period of his schooling they failed to provide him with a proper, suitable or sufficient education appropriate to his needs. The breaches alleged are based on the defendants' vicarious liability for the negligence of their servants or agents and/or their direct or corporate duty of care towards the claimant.
Factual Summary
The claimant was born on 2 nd November 1978. His family lived in South Norwood, not far from Croydon. In or about January 1982, at the age of three years and a few months, the claimant started at Crossfield nursery school. By then, his mother had already identified him as having suffered a number of physical and developmental problems. He had an excess of mucus in his nose and throat, and frequently suffered from colds. Antibiotics were often prescribed, but without (according to his mother) addressing his real health problems. The claimant began to get frequent attacks of diarrhoea and vomiting, due (so his mother believed) to antibiotics. He became dehydrated. He failed to put on weight and was very small for his age. His mother lost faith in the medical advice she received about him and sought her own remedies.
Unfortunately, the claimant's physical ill health was accompanied by poor intellectual and social development. He was a slow learner, and by the age of eighteen months to two years, was unable to speak. In addition, he suffered from hearing difficulties.
When he went to Crossfield, his mother explained his difficulties to the staff. Meanwhile, his digestive problems had eased somewhat with the use of "Actifed". Unfortunately, however, the claimant's behaviour became aggressive; he was therefore referred to the defendants' school psychological service, who in October 1982 reported that the claimant was behind in his language development, his speech was poor and his behaviour towards his peers was often aggressive.
In or about February 1983 the claimant was placed at St. Lukes Day Nursery. By now he was over four years old, and shortly due to start primary school. St Lukes was a unit which was used to investigate the special educational needs of children with a variety of difficulties, both mental, physical and educational. The object of this placement was to see how best the claimant could be integrated into a mainstream school. His mother was concerned because so many of the children there seemed to suffer from physical disabilities. The name of the unit was changed in the course of 1983 to Acorn House. Whilst at St Lukes, the claimant continued to be assessed by the psychological service, who recommended that he start at mainstream school in the autumn.
During the same year, Mrs Brown-Carty took her son to the doctor because of his hearing difficulties. He was found to be suffering from "glue ear"; he was referred to a paediatrician, and advice was given that he needed grommets to be inserted in his ears to assist his hearing. After that, the claimant periodically attended Lodge Road Clinic to have his hearing monitored. Through the 1980s, fluctuating hearing problems occurred, largely due to recurrent infections. But the measures to combat his hearing difficulties seem to have been effective. By 1991, according to medical records, there was no significant hearing deficit
By summer of 1983, Leon was thought to be doing well enough to be integrated into Thomas Beckett Primary School in September. Despite continuing behavioural problems there, positive aspects of his progress were noted —for example, some progress in numeracy, and his ability to relate to other children. Integration at Thomas Beckett School was achieved by the claimant attending at first part-time, then by the end of the first term, full-time. The claimant's sister was also at the school. The claimant remained at the school for just over three years, until the end of 1986, by which time he was nearly eight. His educational and linguistic progress was slow, and behavioural problems persisted; but reports also showed a positive side to his personality, and pointed to his ability to make some headway when he wanted to, and/or under close supervision.
The head teacher of Thomas Beckett was Mr McGuinness (who died several years ago). Mr. Michael McCormack was the defendants' officer with responsibility for educational decisions affecting the claimant, and gave detailed written and oral evidence in the case. Mrs Dorothy Storey was the defendants' educational psychologist with responsibility for the claimant. She retired in 1989; her written statement was in evidence on the defendants' behalf, but she did not give oral evidence.
It is clear that by the end of 1985 the claimant's problems were becoming such that Mrs Storey considered that there should be a statutory assessment. He appeared unable to cope with the educational and behavioural standards of the classroom. By summer of 1986, Mr McGuinness considered that continued placement at Thomas Beckett was not appropriate. The claimant's mother discussed these problems with Mr McGuinness. They included both behavioural problems and lack of educational progress. Several referrals of the claimant's case to Mrs Storey were made in the course of the year. She recommended that he should have his school programme adapted so that he could be withdrawn for significant periods from class teaching and provided with 1:1 support.
By October 1986, Mr McCormack believed, on the basis of assessments obtained, that the claimant suffered from learning difficulty, emotional and behavioural difficulties and language difficulties. By November, the reports were available for a draft Statement of Special Educational Needs to have been prepared. But at that stage none was produced.
In late summer and autumn of that year, consideration was being given by the defendants, and Mr McCormack in particular, to placing the claimant in an alternative junior school for a fresh start. The possibility of a placement at St Nicholas School was explored by Mr McCormack in September 1986. This was a small school catering for children with learning difficulties and behavioural problems. When the problems at Thomas Beckett came to a head, Mrs Brown-Carty was at first opposed to the claimant changing schools; but later she agreed to the proposal that he move to St. Nicholas. However, there was no place available there until Easter 1987.
Meanwhile, in or about November 1986, Mrs Brown-Carty and her family had moved to Croydon. The claimant thus came to be enrolled, and on 21 st November 1986 started, at a school local to their new home, Duppas Junior School. However, in the early months of 1987 he was first suspended, then in early March excluded, from Duppas.
By that time, there was a place for him at St Nicholas. He began there almost immediately, initially attending there in the mornings, with home tuition in the afternoons, before settling in for full-time attendance. In July 1987, a Statement of Educational Needs was produced.
The claimant remained at St Nicholas until approximately November 1988. By September 1988 it had become apparent that his placement there was breaking down, and consideration would have to be given to his transfer to another school. St Nicholas was a school for children with mild or moderate learning difficulties. Among them were a number with additional physical problems, for example, cerebral palsy which resulted in the children affected having difficulty in feeding tidily at mealtimes. The claimant found this difficult to accept. His behaviour at the school became disruptive and challenging. On the other hand, his reports showed significant (if uneven) progress in a number of subjects, an ability to learn if interested and an agreeable, less aggressive side to his personality. Regrettably, however, by September 1988 it was clear that the extent of the claimant's behavioural and emotional problems were such that they were a hindrance to his learning, and St Nicholas could no longer cope with them.
Thus in November 1988 the claimant was placed at the Sir Cyril Burt School ("Cyril Burt"), which catered for children with emotional and behavioural difficulties. The change took place after consultation with the claimant's mother, who says that she was re-assured about Cyril Burt by the head teacher of St Nicholas, Dr Bartram, whom she respected. The claimant stayed at Cyril Burt from the end of November 1988 until autumn 1993.
Reports about the claimant's behaviour and educational progress at Cyril Burt, whilst mixed, had significant positive elements. For example, he seemed to be showing effort and making good progress in some subjects; his behaviour was variable, in that whilst he was described more than once as "likeable", and responded well to adults, he was also said to be inconsistent and to display aggression to other children. He went to the school when he was just ten years old. His physical development continued to be slow; he put on a...
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