Robinson v St Helen's Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Sir Murray Stuart-Smith,Lord Justice Brooke,Lord Justice Peter Gibson |
| Judgment Date | 25 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1099 |
| Docket Number | Case No: CCRTI/B3/2002/0275 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2002 |
[2002] EWCA Civ 1099
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Mackay
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Peter Gibson
Lord Justice Brooke and
Sir Murray Stuart-Smith
Case No: CCRTI/B3/2002/0275
Mr. Nicholas Bowen (instructed by Messrs Maxwell Entwistle and Byrne of Kirby) for the Appellant
Mr. John Norman (instructed by Messrs Weightmans of Manchester) for the Respondent
Introduction
This is an appeal from the judgment of His Honour Judge Mackay in the Liverpool County Court on 4 th December 2001 on a preliminary issue as to limitation. The judge held that the claim was barred by limitation and dismissed the action. The claimant now appeals with the leave of the judge.
The claimant is now 35 years old. He was born on 13 th June 1967. Between 1972 and 1978 he attended Bleak Hill Infant/Junior School. He had speech therapy. His parents were concerned because he was making no progress, particularly in reading and writing. They expressed their concern to the school and he was placed in a remedial class.
Between 1978 and 1983 he went to Rainford High School. He got four GCSEs. Again his progress in reading and writing was painfully poor. His parents complained to the school. He had extra tuition. On 13 th June 1985 he attained his majority. Between 1990 and 1992 he went on an HND course in Art and Design and between 1992 and 1995 he went on a degree course in Art and Design at Trent University and achieved a second class degree. But he and his parents considered he should have achieved much more if his literary skills were not so poor. Since he left Trent University he has been teaching, apparently part time. But he is handicapped in coping with substantial written material. In 1992 he went to see a psychologist at the Dyslexia Institute, namely Mrs Jacqueline Ruddock, with regard to his problems. She said he had severe dyslexia. Thereafter he knew he had a handicap, and that it was not his fault; in fact he had a reasonably high level of intelligence. He also believed, and so did his parents, as the judge found, that he had been badly treated at school in the sense that although the school was sympathetic, they did nothing to help his condition. On 23 rd September 1997 in the case of Phelps v Hillingdon London Borough Council 96 LGR page 1 Garland J awarded damages against the local education authority on the basis that they were vicariously liable for the negligence of an Educational Psychologist who had failed to diagnose dyslexia in the claimant with the result that she did not have the teaching appropriate to a dyslexic. On 5 th November 1997 the claimant's mother on his behalf went to see his solicitors. On 1 st November 2000 the claim was issued and on 28 th February 2001 the particulars of claim were served. The defendants were the local education authority responsible for the two schools attended by the claimant. The particulars of negligence alleged that the teachers failed to refer the claimant on to the defendant for psychological assessment; the Head Teacher at both schools failed fully to investigate the causes of the claimant's failure to achieve, specifically in English language, and the teachers failed fully to investigate of the claimant's problems. Although the claim form stated that the claim was for personal injury, that was not repeated in the particulars of the claim which set out under the heading particulars of loss and damage the following:
"Had the claimant been properly diagnosed as having the specific learning difficulty known as dyslexia during the course of his attendance, both at Bleak Hill Infant/Junior School and Rainford High School, and had proper treatment been given, his interpersonal skills, both at school and at home would have developed normally and his academic skills and performance would have been considerably enhanced. As he progressed through school his chronological delay would have been nowhere near as serious as it became and as a result his feelings of failure and lack of self-esteem would not have proved as debilitating as they did. His learning and attention difficulties as they were not properly addressed made it very difficult for him to settle properly in class. In general terms he became emotionally and academically vulnerable. The claimant lost the opportunity of achieving any appropriate measure of academic success, given the claimant's cognitive ability. Instead his level of achievements are equivalent to those which could be expected of a nine-year-old. The claimant is handicapped on the labour market."
There was no claim for physical or psychiatric injury. There was a claim for special damage involving the costs of tuition and loss of earnings in his career. The defendants pleaded that the action was statute barred. Whether it was or not was the issue to be tried on the preliminary hearing.
The Limitation Act 1980 section 2 provides that actions founded on tort shall not be brought after the expiration of 6 years from date on which the cause of action accrued. In the case of a child the limitation period runs from the date of his majority, (see section 28).
Actions for personal injury are governed by section 11 which applies to cases:
"Where the damages claimed by the plaintiff for the negligence consist of or include damages in respect of personal injuries to the plaintiff or any other person."
Sub-section (2) disapplies the 6 year period laid down in section 2. Sub-section (4) provides that the period applicable is 3 years from (a) the date on which the cause of action accrued or (b) the date of knowledge of the person injured.
Section 14 defines the date of knowledge as being the date on which he first had knowledge of the following facts: (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence; and (c) the identity of the defendant. Sub-paragraph (d) is not relevant, but the words which follow are important; they are:
"and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant."
Section 38 provides that ""personal injuries" includes any disease and any impairment of a person's physical or mental condition, and "injury" and cognate expressions shall be construed accordingly". If the action is not brought within 3 years of the date of knowledge the court has a discretion under section 33 of the Act to extend the time limit.
The Judge's decision
The judge held that the action was not one for personal injuries. The six year limitation therefore applied. That expired on 13 th June 1991 six years after the claimant reached his majority. Moreover the overriding time limit of 15 years from the date of any alleged negligence had also expired (see section 14B). The judge nevertheless went on to consider the position if he was wrong on the question of personal injury. He held that the claimant's date of knowledge was November 1992 after he received Mrs Ruddock's report. Therefore the 3 year primary limitation period had expired. He then considered whether he should exercise his discretion under section 33 and declined to do so.
Issues on the appeal
The appellant challenges all three of the judge's conclusions. The first question therefore is whether this was an action for damages where the damages claimed consist of or include damages in respect of personal injury to the plaintiff.
After referring to the cases of Phelps v Hillingdon London Borough Council 2002 AC 619 and Anderton v Clwyd County Council the judge said this:
"What the House of Lords seem to be saying with regard to personal injury matters is that a claim in respect of dyslexia or other diseases or conditions which a school could ameliorate can, may, amount to a personal injuries claim. I asked counsel for the claimant what I thought was an important question and that is, was he saying that in every case where dyslexia was alleged and similar arguments put forward to the present case that those cases were cases of personal injury? He was reluctant to go so far. He said that really one did not need to go that far but it seems to me that you have to go that far.
….
What the defendants say is that this is not a personal injury claim, none is pleaded, nor has the claimant adduced any evidence of personal injury. Again, I asked the claimant's counsel whether or not there was any medical evidence to support the claim and he said no. In fact he put this case as part of the many cases which fall into "the twilight zone". I deprecated at the time and I deprecate now the use of such a phrase. A claim is either a personal injuries case or it is not. The rules of the Supreme Court provide for different rules in personal injury cases than non-personal injury cases.
The claimant accepts that the defendants have not caused any injury. The difference between upset, emotional disturbance and recognised personal injury, is comprehensively fully set out and summarised by Lord Reed in the Scottish case in Rorrison v West Lothian College Court of Session. Lord Reed is no doubt a hard judge but in that case there were reports and allegations and he said that they did not amount to personal injuries. In the present case there is no such report save the 1992 Report and there is no evidence. Today, on the second day of this case, towards the end of the arguments for the defendants, an attempt was made to put in evidence in support of...
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