Phelps v Hillingdon London Borough Council (Anderton v Clwyd County Council, G (A Minor) v Bromley London Borough Council, Jarvis v Hampshire County Council)

An educational psychologist employed to advise a local education authority does not assume a duty of care to a pupil merely by assessing the pupil, participating in a multidisciplinary process or communicating conclusions to the parents. A duty concerning educational or economic loss requires clear conduct objectively showing a personal assumption of responsibility beyond the employee’s ordinary functions.

Even where a failure to diagnose dyslexia might have altered the teaching provided, the claimant must prove that the different provision would probably have produced a measurable improvement. Speculation about educational attainment or future earning capacity cannot establish causation or loss.

The local education authority appealed against Garland J’s award of £45,651.50 in damages and interest. The judge had found it vicariously liable for an educational psychologist’s negligent failure to identify the claimant’s dyslexia in 1985 or later.

The claimant had severe literacy difficulties throughout school. The authority’s psychologist attributed them principally to emotional problems and reported that testing revealed no specific weakness. Dyslexia was diagnosed after the claimant left school.

The appeal concerned whether the claimant’s reduced educational attainment was compensatable damage, whether the psychologist owed her a duty of care, and whether breach, causation and recoverable loss had been proved.

1. Appeal allowed unanimously. Stuart-Smith LJ held, with Otton LJ adopting his analysis and Tuckey LJ agreeing with both judgments, that the educational psychologist owed the claimant no relevant duty of care. Judgment was entered for the authority.
2. The failure to ameliorate the consequences of dyslexia was not personal injury. Dyslexia was a congenital condition rather than an injury, and diminished educational attainment did not become an injury merely because earlier diagnosis might have mitigated it. Nevertheless, economic loss could in principle be recoverable where responsibility had been assumed to protect the claimant against that type of loss.
3. The decisive inquiry was whether the psychologist had objectively assumed personal responsibility to the pupil to assess her educational potential and provide strategies for improvement. Her role was to advise the authority and school in discharging their statutory functions. Assessing the pupil, discussing conclusions with the parents and participating in a multidisciplinary process did not, without clear additional conduct, establish such an undertaking.
4. It was also neither fair, just nor reasonable to impose a duty in the absence of a clear assumption of responsibility. Such liability would circumvent the policy-based exclusion of a direct duty on the authority. It could generate stale and vexatious claims, divert educational resources, duplicate statutory assessment and appeal procedures, and unfairly single out one contributor to multidisciplinary decisions.
5. Stuart-Smith LJ additionally concluded that the trial judge had imposed too high a standard when finding negligence. The psychologist had used the accepted test, obtained no dyslexic profile and was entitled to consider the earlier professional assessment of emotional causes. The finding that she should have used another test had not been supported by the pleaded case or expert evidence.
6. On causation, the claimant had to prove both that diagnosis would probably have produced different teaching and that the difference would probably have caused measurable improvement. The evidence permitted a finding that teaching would have become more individualised and structured. It did not establish that this would probably have overcome the interacting emotional, educational and attendance factors to produce a quantifiable improvement.
7. The award for future earning capacity was also unsupported. The claimant’s likely attainment and employment history absent the failure to diagnose were speculative, so neither a conventional calculation nor a global award was justified.

1. Court of Appeal: Allowed the local education authority’s appeal unanimously, set aside the damages award and entered judgment for the defendants. Leave to appeal to the House of Lords was refused.
2. Queen’s Bench Division: Garland J held the authority vicariously liable for its educational psychologist’s negligence and awarded the claimant £45,651.50 in damages and interest.