Phelps v London Borough of Hillingdon
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE OTTON,LORD JUSTICE TUCKEY |
| Judgment Date | 04 November 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1104-19 |
| Docket Number | QBENF 97/1404 CMS1 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 November 1998 |
[1998] EWCA Civ J1104-19
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD (GARLAND J.)
Royal Courts of Justice
Strand, London, WC2A 21L
Lord Justice Stuart-Smith
Lord Justice Otton
Lord Justice Tuckey
QBENF 97/1404 CMS1
MR EDWARD FAULKS QC and MR ANDREW WARNOCK (instructed by Messrs Vizards) appeared on behalf of the Appellants (Defendants).
MISS CHERIE BOOTH QC and MR JOHN GREENBOURNE (instructed by Messrs Teacher Stern Selby) appeared on behalf of the Respondent (Plaintiff).
Introduction
This is an appeal from a judgment of Garland J. given on 23 September 1997, whereby he awarded the plaintiff �45,651.50 by way of damages and interest against the defendants, who were the Local Education Authority (LEA) with responsibility for the plaintiff's education. The judge held that the defendants were vicariously liable for the negligence of an educational psychologist employed by them in failing to identify that the plaintiff was a child with special learning difficulty or dyslexia. He held that if her dyslexia had been identified in 1985 or the two or three years thereafter, appropriate remedial teaching would have been given so that she would have made greater progress in school and achieved a higher level of literacy.
We are told that this is the first case in which a plaintiff has succeeded in such a claim against a local authority, but that there are many similar cases awaiting trial. The case raises important questions of law relating to the existence and scope of a duty of care of an educational psychologist who is part of the LEA's psychology service and the nature of the damage for which compensation is claimed. The defendants also challenge the judge's findings of negligence and causation and the quantum of damage.
Narrative�1973-1985 Hayes Park Schools and the Child Guidance Clinic
The plaintiff was born on 30 December 1973. She had an elder stepbrother, John, who gave evidence; a half sister, Linda; a half brother, Ian; and a younger brother, Colin. John had been adopted by Mrs Phelps and her former husband whom she divorced. Linda and Ian were Mr Phelps' children by his first wife who had died. In September 1978 the plaintiff went to Hayes Park Infant School. Towards the end of 1980 she was referred to the School Psychological Service for "lack of educational progress". She was seen by an Educational Psychologist, Miss Meyerhof, who assessed her overall IQ at 93, confirmed that she was underfunctioning and concluded that "time, patience, interest and praise are currently greater needs than measurable attainments". An overall IQ of 93 put the plaintiff into the broad 90-109 "average" classification, though at the lower end. After meeting Mr and Mrs Phelps, Miss Meyerhof thought that there might be problems at home. The plaintiff was referred to the Child Guidance Clinic ("CGC") and seen by Mrs Jones, a psychiatric social worker, and Dr Urquhart, the Director.
In a memorandum of 9 February 1987 Dr Urquhart noted his impressions of his interview with the plaintiff and her parents. Of the plaintiff he said that, "Listening to her talk �[she] was pulled this way and that by submerged invisible currents of the unconscious in the deflecting pathways of her thoughts". He described the drawing which he asked her to draw as the bleakest he had ever seen. When she wrote 'bus' she reversed the 'b'. When she got halfway through writing 'house', "her concentration spilled off and even as she wrote the mess of letters she was already looking away towards me saying, 'I don't know how'." He then described difficulty in explaining to the parents that the plaintiff needed psychotherapy.
On 19 February 1981, Dr Urquhart wrote to the Phelps' General Practitioner as follows:-
"On her own with me the little girl presents a superficially innocuous picture of superficial or irrelevant chatter all amounting to, as it were, nothing, but it seems to me really a kind of whistling in the dark to stave off painful feelings, and I should add, of course, that the pattern of her failures in learning are those that go with unhappiness or emotional difficulty. We have proposed, and the parents have accepted, that she could be helped by individual psychotherapy here and which we hope to arrange fairly soon."
On 21 May 1981 the plaintiff was seen by Miss Kerbekian, a psychotherapist. Unfortunately, for a number of reasons including illness, bereavement and holidays, Miss Kerbekian missed some 10 weekly sessions. Mr and Mrs Phelps became impatient with this, with an apparent lack of progress, and the fact that each session meant that the plaintiff missed a morning at school. In November 1981, they decided to discontinue the psychotherapy.
In September the plaintiff transferred to Hayes Park Junior School. On 17 November 1981, Mrs Ross, the senior Educational Psychologist for Hayes Park Junior School, wrote a memorandum after talking to the plaintiff's class teacher. It was clear that the plaintiff's work was the poorest in the class and that "her reading age on a good day is between 5 and 6 year level and is nil on a bad day".
On 9 December 1981, Dr Urquhart again wrote to the Phelps' General Practitioner in effect blaming Mr and Mrs Phelps for the plaintiff's difficulties and regarding their conduct as confirmation of his original assessment of her problem. In her closing report Miss Kerbekian said that she was "aware that she has had learning difficulties and I believe continues to do so. I would link this to the numerous family secrets and crazy messages Pamela gets from her parents". The explanation for this may be Mrs Phelps' desire to keep the family relationships secret and her apparent lack of understanding as to what the CGC were trying to achieve.
Following a report in May 1982 which described the plaintiff's Educational progress as 'very slow' and needing 'ideally a one-to-one working/learning situation�.and a lot of reinforcement with any new work�and lots of repetition of work already covered', the defendants proposed to refer the plaintiff back to the CGC, but Mrs Phelps said she didn't want to see either Mrs Jones or Miss Kerbekian.
On 6 September 1982 the parents saw Dr Urquhart again. It was not a success. Mr Phelps said in evidence that Dr Urquhart was non-committal and unhelpful. Dr Urquhart in his memorandum describes Mr and Mrs Phelps as hostile and unco-operative. On the following day he wrote to the General Practitioner:
"[The parents] had come because the school told them that Pamela needs help and they themselves agree that she is not making any progress. They made plain they had come only because the school had said they should. They questioned the usefulness of coming and ridiculed the staff with whom they had come in contact here, and left after taking exception to a remark that I had not made but which the father thought he had heard and then recognised, I think, that he had not heard.
As I wrote in February 1981, the parents seem to find talking about Pamela's difficulties extremely painful and indeed hurtful to themselves and tend to react in suspicious and critical ways.
When we saw them recently I suggested they might be better if they chose to seek help elsewhere as they found themselves unable to have any confidence in the staff here."
But Mr and Mrs Phelps did not seek a second opinion or help elsewhere.
This was the last occasion that the plaintiff or her parents came into contact with the CGC. None of the four professionals involved gave evidence before the judge, but their reports and memoranda were available in the file. It is quite clear that they appreciated that the plaintiff was seriously underperforming in her literacy skills. They do not appear to have considered that the plaintiff might be dyslexic; rather they attributed her difficulties to emotional and behavioural problems which had their roots in the family relationships. This conclusion is important, because it is plain that it influenced the subsequent thinking of those responsible on behalf of the defendants. None of the professionals at the CGC is made the subject of any allegation of negligence. But it is implicit in the plaintiff's case that their diagnosis was wrong, at least to the extent of attributing all the plaintiff's problems to emotional factors to the exclusion of dyslexia.
In May 1984 Mrs Roberts, the Advisory Remedial Teacher, tested the plaintiff's reading and spelling using the Daniels and Diak tests. Her reading age was 6 years 7 months and spelling age was 6 1/2. Her chronological age was 10 years 3 months. Mrs Roberts recommended that the plaintiff 'be given materials and tasks commensurate with her functional level in order to encourage her to be independent and successful'. The parents should be told of the low level at which she was functioning and 'that permission sought for the school to seek advice of the Educational Psychologist'.
September 1985-1990 Mellow Lane School
In September 1985 the plaintiff moved to Mellow Lane School. This is a large comprehensive school with over 1000 pupils. The 1985 intake was 180. All the new arrivals were given a reading test. The Daniels and Diak test was used. Her reading age was 6 3/4, her actual age 11�. Only two of the year's intake scored less; very few were below 9, some of whom were subsequently removed to a special school for those with 'moderate learning difficulty'. This is a euphemism for 'severe learning difficulty' and is appropriate for those with an IQ of 70 or less.
Mellow Lane, in accordance...
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