B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE BROOKE
and
SIR MURRAY STUART-SMITH
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Between:
| | DAVID ROBINSON
| Appellant
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| | - and -
|
|
| | ST HELENS METROPOLITAN BOROUGH COUNCIL
| Respondent
|
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(Transcript of the Handed Down Judgment of
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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
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HTML VERSION OF JUDGMENT
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Sir Murray Stuart-Smith :
Introduction
- This is an appeal from the judgment of His Honour Judge Mackay in the Liverpool County Court on 4th 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 13th 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 13th 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 23rd 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 5th November 1997 the claimant’s mother on his behalf went to see his solicitors. On 1st November 2000 the claim was issued and on 28th 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 13th 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 a personal injury claim. I rejected that and I declined to read it which is an exception in my court as it seemed to me that one would be, as it were, moving the case a different way to the prejudice of the defendants.
It seems to me quite clear that this is not a personal injuries case. It is a case brought against a Local Authority for a lack of not treatment but care, a failure to assume responsibility which could have led the claimant to bigger and better things. Now, in fact, I do not accept what the claimant’s counsel was seeking to suggest to me that the claimant was a damaged person and had been a failure. There is no justification, in my view, for saying that. I do not consider for one moment that this is a personal injuries case and I do not consider that Phelps v Hillingdon Borough Council and the remarks made by their learned Lordships make it one or make it one which could be one because either a case is a personal injuries case or not.”
- I have considerable sympathy with the learned judge since this view accords with what this court held in the Anderton case where I gave the leading judgment with which Lords Justices Otton and Tuckey agreed. In the Anderton case there was medical evidence that the claimant was suffering from psychological problems; but in the Court of Appeal we considered that this evidence fell short of establishing that she suffered any recognised psychiatric injury; I said: “Even if dyslexia can be regarded as an impairment of the applicant’s mental condition, it is not caused by the potential defendant. It is a congenital and constitutional condition. Failure to diagnose it does not exacerbate the condition.” And we held that the failure to mitigate or ameliorate the consequence of the condition could not be an injury.
- But the House of Lords reversed our decision. In the Phelps case the question whether the claimants suffered personal injuries was not of great importance. No question of limitation arose; the question was simply whether the defendant could be liable for the type of damage which the claimant had sustained. At first instance Garland J made it plain that he was not awarding damages for a recognised psychiatric injury. At page 23 of the Report he said:
“General damages are claimed by analogy to cases of mental impairment, excluding the element of physical injury but including the history of frustration, antisocial behaviour, loss of self-confidence and loss of self-esteem.”
And a little later he describes the claimant as:
“A person whose self-confidence and self-esteem have been eroded by an unhappy time at school and the continuing handicap of having to live with these disadvantages of dyslexia. In so far as it was an attempt to turn matters which do not sound in damages into psychiatric injury which does, I have no regard to it.”
He then awarded general damages of £12,500 to include something to represent the loss of congenial employment.
- But in the Anderton case it did matter. That was an application for pre-action discovery, which under section 33 sub-section (2) of the Supreme Court Act 1981 was only available in proceedings in which “a claim for personal injuries….. is likely to be made”.
- Two of their Lordships gave judgments on the point, Lord Slynn of Hadley and Lord Clyde, the other five members of the House agreed with both judgments. It is convenient to consider first the speech of Lord Clyde. At page 670 at B he said this:
“Thirdly 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 expense as that may entail, it may also involve some form of mental or psychological injury. The loss claimed may be purely of an economic character. But the mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damages such as a post-traumatic stress disorder or a psychological illness. Dyslexia is a condition which may in itself become worse through the absence of an appropriate educational regime and the frustration of an inappropriate regime, may cause psychological stress and injury. The consequences of negligent advice regarding the future treatment of a child with some special educational need may take a variety of forms and may be extensive.”
In that passage Lord Clyde appears to be drawing a distinction between cases of dyslexia which cause economic loss only – because the claimant is less qualified to get remunerative employment – and cases where frustration may cause psychological stress, an injury, post traumatic stress disorder being a recognised psychiatric injury.
- At page 676 E to F he said:
“As regards the Anderton case the procedural point under reference to section 33 (2) of the Supreme Court Act 1981 is not of critical importance but on the basis that what the claimant suffered was not simply a failure to have her condition ameliorated but an actual impairment of her mental condition when she was already burdened with considerable learning difficulties, I would be inclined to hold that the condition here could qualify as a “personal injury” to the person. That is sufficient for the disposal of that case.”
As I read that passage Lord Clyde is again reverting to the distinction between a failure to have the condition ameliorated and actual impairment of her mental condition. This dichotomy appears to me to support the learned judge’s reasoning and conclusion.
- But Lord Slynn went much further than this at page 652A he said:
“It is clear that the loss suffered by a child who has not been treated in accordance with the statutory intent can often be said to be foreseeable, proximate and serious. The damage may be physical or psychological, emotional or economic.”
- Mr Norman submitted that in this passage Lord Slynn is equating psychological damage with a recognised psychiatric injury. The traditional view is that actions for negligence will lie for causing physical injury or a recognised psychiatric injury or disorder but not for frustration dissatisfaction embarrassment and upset or anything short of a recognised psychiatric disorder (see for example the opinion of Lord Reed in Rorrison v West Lothian College and Lothian Regional Council [2000] SCLR 245. But in the light of a later passage at page 664, to which I shall refer, it seems to me Lord Slynn uses the expression psychological damage as referring to damage falling short of a recognised psychiatric illness or injury. At page 654 at F Lord Slynn said this:
“The result of failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can no doubt that if foreseeability and causation are established, psychological injury may constitute damage for the purpose of the common law. But so in my view 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.”
In this passage it seems to me Lord Slynn may be equating psychological injury with a recognised psychiatric disorder or injury and is drawing a distinction between that and a reduction of a child’s level of achievement leading to economic loss, which, if it is a reasonably foreseeable consequence of the failure to diagnose and take appropriate action to ameliorate the congenital condition, can also found an action in damages. At page 664 Lord Slynn cited passages from the judgment of Sir Thomas Bingham MR and Evans LJ in E (a minor) v Dorset County Council [1995] 2 AC 633. Sir Thomas Bingham said at page 703:
“I would accept that certain elements pleaded as damage by Richard (for example, the allegation that he suffered distress and that he is a shy, diffident person) cannot be compensated in damages, and similar points may be made about E’s claim that he was ‘upset’. It is also quite clear that none of the plaintiffs can recover damages for a congenital defect. If, however, 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. In any event, I did not understand it to be argued by the education authorities (if, contrary to their submission, any duty was owed) that the claims made by E and Richard for recovery of school fees were bad in principle.”
- Sir Thomas does not describe the damage which he regards as recoverable as damages for personal injury. But Lord Justice Evans did describe it as injury. He said at page 715 to 716:
“In my judgment, for the reasons given at the outset, the failure to treat or the delayed treatment of dyslexia does arguably give rise to a form of injury which can support a claim for damages for negligence in tort. It follows from this that the school teacher’s duty to exercise reasonable skill and care to safeguard the pupil from injury includes a duty to be aware of the symptoms which a reasonably careful parent or a reasonably skilled and careful teacher would regard as symptoms either of dyslexia or, more generally, of a need for specialist advice.”
- At page 664F Lord Slynn said this:
“The broad definition of injury in section 35(5) of the Supreme Court Act 1981 makes it clear that the power under section 33(2) is not limited to physical injury, the sense in which as a matter of ordinary speech the word might be understood. Having regard to the purpose of the provision it would in any event, in my view, be wrong to adopt an over-legalistic view of what are ‘personal injuries to a person’. 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 the evidence before them, Master Prebble and Steel J were entitled to find that Rhiannon was likely to be a party to subsequent proceedings in the High Court and that in those proceedings a claim ‘in respect of personal injuries to a person…..is likely to be made’.”
Discussion and conclusion
- It seems to me that in this latter passage Lord Slynn is quite clearly stating that emotional and psychological damage resulting in failure by appropriate teaching to ameliorate the congenital condition of dyslexia is a personal injury although it falls short of psychiatric injury in the recognised form. Dyslexia is defined by the World Federation of Neurology (1968) as:
“A disorder manifested by difficulty in learning to read despite conventional instruction, adequate intelligence, and socio-cultural opportunities. It is dependent upon fundamental cognitive disabilities which are frequently of constitutional origin.”
As such it may itself be an “impairment of a person’s mental condition”. It is not of course caused by the defendant; but negligent failure to ameliorate the consequences of dyslexia by appropriate teaching may be said to continue the injury, in the same way that the negligent failure to cure or ameliorate a congenital physical condition so that it continues, could give rise to an action for personal injuries. Although as I understand it dyslexia cannot be cured, a dyslexic person can be trained to overcome the difficulties in reading and writing which he experiences.
- Moreover loss of enjoyment of life or loss of amenity, which is frequently a head of damage consequent upon physical or psychiatric injury, would seem to be more appropriately classified as damages for personal injury, rather than economic loss, if it stands on its own and is not consequent upon other injury. In awarding Miss Phelps £12,500 general damages Garland J was including damages for loss of enjoyment of life and loss of amenity.
- There is however in this case remarkably little evidence of any emotional or psychological impairment of the claimant. Although the particulars of claim allege that he suffered both “feelings of failure and lack of self esteem which proved debilitating” and that he became “emotionally and academically vulnerable” there was no medical evidence before the judge to support this. The psychological report of Mrs Ruddock served with the particulars of claim did not deal with the effects on the claimant. Moreover there is very little to be found in the evidence of the claimant himself. Mr Bowen relies on a passage from the claimant’s second supplementary witness statement which included this passage:
“If my claim is not allowed to proceed it will be a very serious thing for me. I was affected very badly by my literacy problems. They framed my entire development and my inability to read and access ordinary written material has seriously hindered my work and general development.”
The matter does not seem to have been further explored in his oral evidence. This being the high water mark of the claimant’s case it is understandable the judge did not think it was sufficient. Before us Mr Bowen sought to adduce further evidence from a psychologist to supplement the evidence. But we declined to admit it on the ground that it quite clearly could have been made available in the court below.
- Not without considerable hesitation I have concluded that the claimant’s evidence is just sufficient to establish that this is a claim for personal injuries as well as one for economic loss.
Date of knowledge
- On the basis that this was a personal injury case, was the judge wrong to hold that the date of knowledge was November 1992 after the receipt of Mrs Ruddock’s report? What the judge said about that was this:
“It seems to me that what the claimant is saying in this particular case is yes, the claimant well knew about his condition, he well knew about the name of his disability in 1992 when he got the Ruddick [sic] report. He knew that he had the ability to do something about it because the Ruddick report uses the words ‘amenable to structured remediation’ and he knew of the fact of his own disappointment and his own achievements with regard to his education.
It is apparent that both the claimant’s parents and later on the claimant have had an anxiety about education, about the way the claimant was treated at school, for years and years and years. What the claimant says through his counsel is, yes, he did know the facts and in November, 1997, he knew that he had the makings of a case against the local authority because he went to see solicitors. In fact, sadly, no writ was issued then because that would have been within the 15 year long stop put forward by Section 14(a). But, in fact, he did not know he had a claim because it was only when the House of Lords gave the green light to such cases that a claim was viable and then a claim was brought.
I disagree with the claimant’s view of the matter. What Section 14 says at Section 14(1)(d):
‘Knowledge that any acts or omissions did or did not as a matter of law involve negligence, nuisance or breach of duty, is irrelevant.’
Now, I recognise that the makers of this statute did not envisage, or did not have as their first matter of importance, a change in the law as radical as Phelps but the clear words of the statute are such as to mean that if you know the facts of your case, and you know that the condition that you suffer from could have been ameliorated by the activities of the defendants, then the fact that you did not know that you could have a good claim is by statute irrelevant. I do not accept that the date of knowledge should be 2000. The date of knowledge to my mind should be 1992 or at the latest at some stage before the claimant went to see the solicitors.
It seems to me that to imply that the date of knowledge depends on the state of the law is to run contrary to the words put in the statute and I note the words of Brooke LJ in North Essex Health Authority – v- Spargo [1997] 8 MLR 125 when he says:
‘The knowledge required to satisfy Section 14(1)(b) attribution, is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable.’”
- That is a finding of fact as to what the claimant knew once he had received Mrs Ruddock’s report. Although it is now challenged by Mr Bowen, it seems to me that it is supported by the evidence and a conclusion to which the judge was entitled to come and with which this court ought not to interfere. In his witness statement at paragraph 12 the claimant said this:
“I had of course been told in 1992 that I was severely dyslexic but that otherwise I was of reasonably high intelligence. I did not know at that stage however that I had any legal redress against the defendant in respect of any negligence on the part of their schools or members of the staff. I knew from my parents that I had been badly treated at school and since 1992 I was aware that I was dyslexic and that this was a constitutional condition which would have required specific and special help during the course of my education if I were to achieve to my full potential.”
- In the course of his cross examination the claimant’s evidence was to this effect:
“Q. At the top of page 146, paragraph 5, you say, ‘I am aware from my parents that throughout my school career they did everything within their power to complain to the two schools and to the local education authority that in fact I was a bright boy who had been let down by the system’. That is true, is it not?
A. Yes
Q. That is what you knew at the time, is it not?
A. Yes.
Q. “Throughout, the school’s attitude to me was that I was of limited intelligence and their appropriate placement for me therefore was in either remedial units or in low streaming at both primary and secondary school; most of the teachers at either school showed little interest in me, and this was reflected in very poor examination results which I achieved at CSE level in 1983”. Again, that is something which you knew at the time, is it not?
A. Yes.
Q. And in paragraph 12, which is two pages on, page 148, in the middle of that paragraph you say, ‘I knew from my parents that I had been badly treated at school and since 1992 I was aware that I was dyslexic and that this was a constitutional condition which would have required specific and special help during the course of my education if I were to achieve to my full potential’. And that is true, is it not? When you signed that statement of truth you thought that was true, did you not?
A. I thought I was dyslexic in - - yeah, to the report, yes.
Q. And that it was a constitutional condition which would have required specific and special help—that is what you knew after you had spoken to Mrs Ruddick and read her report in 1992?
A. Yes.”
- The judge held that the claimant’s absence of knowledge that he had a good claim in law until he consulted his solicitors was irrelevant. He was plainly right in my judgment because this is what the statute says and has been so held in a number of cases, for example Dobbie v Medway Health Authority [1994] 1 WLR 1234 Court of Appeal.
- If I have correctly understood Mr Bowen’s submission, it is that, unlike conventional claims for medical negligence, it was not recognised in 1992 that failure to diagnose or treat dyslexics could give rise to liability; the claimant therefore did not know that the injury was attributable to the act or omission of his teachers, and further if he had then consulted a solicitor, the solicitor would not have considered that the injury was significant, because he would not have considered it sufficiently serious to justify proceedings, until the result of the Phelps case at first instance was known. This is an entirely circular argument. As the judge held the claimant knew as soon as he got Mrs Ruddock’s report that he was dyslexic and that he had been badly treated at school in as much as they had failed to do anything to help him. That is sufficient to satisfy section 14(1)(b). As soon as he consulted solicitors, they considered the injuries sufficiently significant to justify commencing proceedings. They would presumably have taken the same view in 1993 if they had been consulted then and appreciated that the acts or omissions complained of, as a matter of law, could have constituted negligence. In my judgment the judge was right to conclude that the date of knowledge was on or shortly after receipt of Mrs Ruddock’s report.
Discretion under Section 33
- In his notice of appeal the appellant’s challenge to the judge’s refusal to exercise his discretion under section 33 of the Limitation Act 1980 is entirely predicated upon the contention that he was wrong as to the date of knowledge. On that basis the attack on the exercise of discretion must fail. In his skeleton argument Mr Bowen sought to widen his criticism. In effect he submitted that even if the writ had been issued within the three years of 1992, the damage would have already been suffered by the defendants through inability to trace witnesses and get their evidence. Moreover he submitted that proceedings would have been likely to have been stayed pending the outcome of the Phelps case. This ignores the fact that the sooner a claim is notified to a defendant the greater opportunity he will have to trace witnesses and recover documents even though the actual trial may be deferred until a test case has been determined.
- Mr Bowen submitted, as I understood him, that, armed with Mrs Ruddock’s report, this was really an open and shut case; the appellant was bound to win. The judge did not accept this view; he said that although the defendants would be in difficulty as most of their witnesses had either disappeared, died, retired, or could remember nothing of the claimant and there were no documents at all save some of the claimant’s school reports, the claimant still faced considerable difficulty on liability and causation. I agree. In Phelps Lord Slynn drew attention to the difficulties of establishing negligence having regard to the Bolam test for professional negligence, the difficulties in proof in the absence of records and difficulty in establishing causation (see pages 672E, 673A).
- The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases are very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice.
- The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a claimant in the absence of cogent medical evidence showing a serious effect on the claimant’s health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases they are likely to take a considerable time to try. A claim that the claimant’s dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant’s majority, will inevitably place the defendants in great difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant.
- In my judgment there are no grounds for interfering with the judge’s exercise of his discretion. For these reasons I would dismiss the appeal.
Lord Justice Brooke :
- Personal injuries litigation has been traditionally concerned with claims for compensation for the foreseeable damage to a claimant’s body and/or mind when it has been caused by a breach of a particular type of duty of care. This duty is concerned with protecting a person’s physical or mental integrity from reasonably foreseeable harm. In this context the law demands that a claimant must prove an injury – either a physical injury or a recognisable psychiatric injury – before he/she can succeed.
- The present appeal shows that the House of Lords has now recognised the existence of a legal duty of care concerned with a person’s well being where the foreseeable (and recoverable) damage resulting from a breach is not necessarily a physical or recognisable psychiatric injury. In Phelps v Hillingdon LBC [2002] 2 AC 619 the duty identified by the House was a duty to take care in relation to the diagnosis of a particular kind of congenital condition. A negligent failure to diagnose this condition could foreseeably lead to damage in the sense of economic loss (stemming, for instance, from the failure of a child to achieve the level of educational attainment reasonably to be expected) and/or to damage in the sense of emotional or psychological harm which would usually fall short of developing into a recognisable psychiatric injury. This is the kind of damage which the duty exists to prevent (see Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1997] AC 191, 212). A claimant is therefore entitled to recover that kind of damage when the duty of care is broken.
- After establishing that damage of this type should be recoverable when a duty of this type is broken, the House of Lords decided on policy grounds to eschew “an over-legalistic view of what are ‘physical injuries to a person’” (see paragraph 20 of the judgment of Sir Murray Stuart-Smith above). In this context, they decided, emotional or psychological harm falling short of a positive psychiatric injury could be properly categorised as constituting “impairment to a person’s mental condition”. In other words, they first identified the scope of the duty of care, and then the kind of damage which might foreseeably flow from breach of that duty. They then went on to categorise the damage. Once this is understood, it is easy to understand why the House should wish this type of claim to fall within the general parameters of the personal injuries litigation regime (including the special limitation regime) even though it is not concerned with vindicating a person’s physical or mental integrity in the traditional sense.
- The House did not explain the status of a claim in which the claim in respect of undiagnosed dyslexia is for economic loss alone. It is hard to see how such a claim could be categorised as a claim in respect of personal injuries however widely the language of the statutory definition is stretched. When Parliament is invited to consider reforms to the law of limitation in the light of the Law Commission’s recent report it would be sensible for this issue to be revisited, as it would be hard to justify two different limitation regimes in respect of claims for damage flowing from breaches of the same duty of care.
- It follows that the judge was wrong, just as the Court of Appeal in Anderton v Clwyd County Council (CAT 4th November 1998: see Phelps at pp 622H-623A) were wrong, to hold that the foreseeable psychological harm caused to a dyslexic claimant following a negligent misdiagnosis of his condition could not amount to a “personal injury” (within the statutory definition) unless it developed into a recognisable psychiatric illness. It appears from page 2 of the transcript of the judgments in the Court of Appeal in that case that the claimant’s case in the relevant respect was founded on an affidavit by her solicitor and a letter from a doctor.
- The solicitor said:
“The plaintiff’s case is that the teaching staff’s failure … and/or the defendant’s educational psychological service’s failure to diagnose her own specific learning difficulties … has caused a very significant retardation of her educational and personal skills … The result on [her] schooling has been an abiding sense of failure, an erosion of any self-esteem she once possessed, depression, susceptibility to bullying and social isolation.”
The doctor said:
“[She] has personality difficulties which I think stem from deeper causes than her dyslexia. I would however be able to say that dyslexia would certainly not help somebody with personality difficulties in that it might lead to behaviour to disguise the difficulty and also feelings of inadequacy that arise from the inability to read.”
- This court held, quite briefly, that the medical evidence in this case fell far short of establishing that the applicant suffered any psychiatric injury, and that the failure to mitigate or ameliorate the consequences of that condition could not be an injury. In reversing that decision Lord Slynn did not challenge the first of these findings: Lord Clyde’s view on that matter is less easy to pin down. The upshot of that case was that the House of Lords merely expressed itself satisfied that the damage described by the claimant’s solicitor was recoverable as a matter of law, and that it should be categorised as “personal injuries” for the purposes of the statutory definition.
- I agree with Sir Murray Stuart-Smith, for the reasons he has given, that we should not disturb the judge’s conclusions on the “date of knowledge” or his unwillingness, in the exercise of his discretion, to override the usual limitation rules in this case. I therefore agree that the appeal should be dismissed.
- There are two matter of general importance that I would wish to add. The first is that a claimant’s legal advisers should do rather more by way of identifying the psychological or emotional harm their client suffered before embarking on the trial of a preliminary issue of this kind. If they do not, the court may find it difficult to identify the psychological harm on which they rely in order for the case to be brought within the specialist regime for personal injuries litigation.
- The second is that the order for the trial of a preliminary issue in this case, made by District Judge Knopf on 7th August 2001, was ineptly drawn. The relevant paragraphs of the order read:
“The issue of limitation be tried as a preliminary issue …
The hearing is limited to the question as to whether Sections 11, 14a and 14b of the limitation act shall be disallowed.”
In McLoughlin v Jones [2002] 2 WLR 1279 David Steel J, sitting as a member of this court, drew attention to the need to identify preliminary issues with greater precision. If this had been done in the present case a lot of the difficulties Mr Bowen was subsequently to encounter in his handling of the case might have been avoided.
Lord Justice Peter Gibson:
- I agree with both judgments.
Order: Appeal dismissed. The appellant is to pay the respondent’s costs of the appeal, such costs to be assessed on the standard basis and be subject to a detailed assessment if not agreed. The appellant’s costs to be assessed pursuant to the Community Legal Service Costs regulations 2000. Any determination of what reasonable sum, if any, the appellants should be ordered to pay pursuant to those Regulations to be postponed and/or determined on the defendant’s application to a costs judge.
(Order does not form part of the approved judgment)
