DN v Greenwich London BC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 08 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1659 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2004/0099 |
| Date | 08 December 2004 |
[2004] EWCA Civ 1659
Lord Justice Brooke
Vice-President of the Court of Appeal (Civil Division)
Lord Justice May and
Sir Martin Nourse
Case No: B3/2004/0099
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Judge Overend
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Faulks QC and Andrew Warnock (instructed by Barlow Lyde & Gilbert) for the Appellant
Roger Ter Haar QC and Andrew Phillips (instructed by) Teacher Stern Selby for the Respondent
This is the judgment of the court.
This is an appeal by the defendants, the London Borough of Greenwich ("Greenwich"), from a judgment of Judge Overend, sitting as a high court judge, on 19 th December 2003 whereby he directed that judgment be entered in this action for the claimant DN on issues of liability and causation and directed that damages be assessed in accordance with his findings.
DN was born in 1980. His parents then lived in the Lewisham area, and in 1985 he was issued with his first statement of special educational needs. In 1987 his parents moved to the Greenwich area where he moved quickly from a local infant school to a local junior school. This appeal revolves around the allegations of negligence made against a school educational psychologist, Mr Moreland, who in May 1990 prepared a report on him. This report was then submitted with other reports to a panel who were to determine the direction of his future education when he was ten years old.
In August 1990 the panel decided that he should be educated at Moatbridge School, a special school for children with emotional and behavioural difficulties. It was close to his parents' home. He was due to start there in September 1991, but after he had been permanently excluded from his junior school in November 1990, he was admitted to Moatbridge in January 1991.
His first two years at his new school passed relatively uneventfully, but as he entered puberty things became more turbulent, and he was eventually excluded from that school, too, in May 199His educational career then stood still until September 1996, when he was admitted to Chelfham Mill School, a residential special school in Devon with a unit for the "16 plus" age group where he stayed until 1999. His life then became very turbulent again. In 2001 he was convicted of arson and made subject to a restriction order under the Mental Health Act 1983.
In this action he claimed, and the judge found, that if Mr Moreland's report in 1990 had not been negligently prepared, he would have received an education more suited to his needs.
It was not until DN was 12 years old that a diagnosis of Asperger's Syndrome was first made. It was not suggested that Mr Moreland could or should have made this diagnosis two years earlier. Instead, the judge found that he had been negligent in three respects. He had failed to appreciate that DN did not present a profile of a child with emotional and behavioural difficulties (so that it was inappropriate to place him in a school for such children). He had failed to carry out any psychometric tests, such as a general intelligence test using the Wechsler testing method. And he had failed to recommend to Greenwich and to DN's parents that DN's special educational needs could only be met by a school which had experience and expertise in teaching children with communication disorders. In this context the judge found that Mr Moreland should have identified DN's complex social and communication needs, which were not appropriately catered for in the school to which he was in fact sent.
Asperger's Syndrome is characterised by the same kind of qualitative abnormalities of reciprocal social interaction that typify autism, coupled with a restricted, stereotyped, repetitive reservoir of interests and activities. Its primary difference from autism is that there is no general retardation in language or cognitive development. Most of the people who are affected by it are of normal general intelligence, and it seems highly likely that at least some such cases represent mild varieties of autism. There is a strong tendency for the abnormalities to persist into adolescence and adult life. DN's case was complicated by the fact that he exhibited serious behavioural problems
Dr Dawkins, a consultant in child and adolescent psychiatry who gave evidence for DN, and Dr Campbell, a consultant forensic psychiatrist advising Greenwich, agreed that if DN had been provided with an appropriate educational environment throughout his school years (to include the social skills training and behavioural management recommended by specialists at the Maudsley Hospital from 1993 onwards) and had not experienced a long gap in his education, the outcome would have been better both academically and socially. In this context they quoted a recent statement published by the National Research Council to the effect that education has been the most powerful source of improvement for children and adolescents with autistic spectrum disorders in the last 50 years.
The trial was unusual in that Greenwich did not rely on any independent expert on the issue of the standard of care reasonably to be expected of an educational psychologist working for a local education authority at the relevant time. Instead it was content to rely on the evidence of Mr Moreland, coupled with the evidence of Mr Radcliffe, another educational psychologist who was charged (but acquitted) of negligence in connection with a report he wrote about DN in 1994. DN, for his part, was able to rely on the evidence of Mr Albert Reid, who was for ten years between 1980 and 1990 the senior specialist educational psychologist for children with complex needs in the Inner London Education Authority. The judge described Mr Reid as an impressive and highly experienced witness, whose evidence was frank, compelling and authoritative, even if he was prone to a tendency on occasions to use the language of an advocate.
Mr Reid was first asked to advise in May 1996, when DN had been away from school for two years and at a time when an unhappy state of tension existed between the team at the Maudsley Hospital who had been seeing DN from time to time since 1993 and those at Greenwich who were trying to find a new educational placement for him. Mr Reid wrote three further reports in connection with these proceedings, the latest of which was dated April 2001, two and a half years before the trial started. Unhappily, although Mr Moreland's manuscript notes were disclosed at the appropriate time (his more formal periodic reports had disappeared during the years since 1987–90 when they were written), Mr Reid saw them for the first time in the days immediately before the trial started. It was also unfortunate that he did not produce any of the learned papers on which he sought to rely until shortly before the hearing. This led to Mr Moreland providing a further paper himself while he was in the witness-box. We will refer in due course to these and other procedural difficulties which upset the orderly course of the trial.
Mr Reid was full of praise for the report prepared in 1985 by Mr William Conn, who was an educational psychologist in the Lewisham area. He said he was struck by this report as a thoughtful, candid summary of DN's difficulties. He said that Mr Conn's failure to identify DN as showing the symptoms of Asperger's Syndrome was not unreasonable, because DN was still only five years old and this would have made a differential diagnosis very hard. Furthermore, interest in Asperger's Syndrome children was still not widespread within professional circles at that time. Mr Conn was clearly puzzled about this case. He said that DN would require additional support at school, together with speech and language therapy. Mr Reid explained to the judge the effect of the findings which Mr Conn had made as a result of the psychiatric tests he administered. Mr Conn felt that DN's needs were complex, and Mr Reid said that there was a risk that DN's bizarre behaviour might be either discounted or interpreted as maladjusted behaviour.
Mr Reid said that Mr Conn's report, together with his contemporary notes, show that up to the age of seven DN was not presenting as a normal child with emotional and behavioural difficulties. He was experiencing evident difficulties in relation to his social functioning and his ability to communicate. He required continuous assessment. It was understandable that Mr Conn had not got to the bottom of his problems. DN's parents wished him to have mainstream schooling, and Mr Conn went along with their wishes, subject to the child having the extra support he recommended. Mr Reid identified features noted in Mr Conn's reports and in the contemporary school reports which were indicative of autistic tendencies – hand-wringing, repeating things, the literal use of words, and so on.
When DN moved to the Greenwich area and first came within Mr Moreland's field of responsibility in 1987, Mr Reid said that the same features became more and more evident. The judge set out a list of them in his judgment. They included over-excitement if praised, unconventional conversation, obsessions, jumping on the spot, low comprehension (despite a good vocabulary), and inappropriate social responses. Mr Reid was very critical of Mr Moreland's failure to explore the kind of cognitive profile he possessed. There was a live debate at the time among educational psychologists on the subject of higher functioning autistic...
To continue reading
Request your trial
-
Scott Hoyle v Julia Mary Rogers and Another Secretary of State for Transport (1st Intervener) International Air Transport Association (2nd Intervener)
...on. 64 The courts have in practice received expert evidence outside the confines of CPR 35. Thus in DN v London Borough of Greenwich [2004] EWCA Civ 1659 this Court held that the trial judge was wrong to decline to allow the defendants to a professional negligence claim to rely on the opini......
-
Vadim Don Benyatov v Credit Suisse Securities (Europe) Ltd
...NHS Trust [2003] EWCA Civ 1284 esp at [31]–[32], [41] and DN (By his father and litigation friend RN) v London Borough of Greenwich [2004] EWCA Civ 1659 esp at [25]–[26]. iii) This is particularly so where the evidence given is as to a hypothetical situation as to what would or could have......
-
Cleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd
...Court of Appeal held that an architect suing for fees could give opinion evidence as to the value of his work. In DN v LB Greenwich [2004] EWCA Civ 1659 the Court of Appeal dismissed an appeal against the trial judge's finding that an educational psychologist had been negligent. One of the......
-
Leanne Kendall v Southwark Borough Council
...made a real difference to her educational progress as a result of which she suffered loss and damage ( DM v London Borough of Greenwich 2004 EWCA Civ 1659 at paragraphs 70–71 per Brooke LJ and Devon County Council v Clarke 2005 1 FCR 752 per Mummery LJ paragraph 22). General loss and damage......
-
Commercial Court Decides That New Practice Direction In Relation To Trial Witness Statements In Business & Property Courts Has Not Changed Law On Admissibility Of Evidence
...to the factual evidence which they give, particularly if they have relevant experience or knowledge: DN v. London Borough of Greenwich [2004] EWCA Civ 1659 andMultiplex Construction (UK) Limited v. Cleveland Bridge UK Limited [2008] EWHC 2220 Second, non-expert witnesses of fact may give op......