Phelps v. Mayor Etc. of The London Borough of Hillingdon; Anderton v. Clwyd County Council; In Re G (A Minor) v. Hampshire County Council; Jarvis v. Hampshire County Council

The House considered whether local education authorities or their employees (teachers, educational psychologists and other professionals) owe a common-law duty of care to pupils in the assessment, diagnosis and provision of educational services for special educational needs, and whether damages may follow for negligent failure to diagnose or to provide appropriate educational provision. The court analysed the interaction between statutory schemes (notably the Education Acts and the Education (Special Educational Needs) Regulations 1983) and common-law negligence principles (Caparo foreseeability, proximity and whether it is fair, just and reasonable to impose a duty).

The House held that professionals engaged in providing educational assessments and advice (for example educational psychologists and teachers, on appropriate facts) may owe a duty of care to pupils and that a local education authority may be vicariously liable for breach of that duty by its employees. The court emphasised that recognition of such duties is subject to ordinary negligence limits (professional standards such as Bolam) and that direct liability of an authority for breaches of statutory discretions remains a distinct and fact-sensitive question, to be resolved only where necessary.

Background and parties:

• Pamela Phelps sued the London Borough of Hillingdon claiming that its educational psychology service failed to diagnose her dyslexia and therefore failed to secure appropriate educational provision, pleaded alternatively in breach of statutory duty and in negligence (vicarious liability and direct liability). Garland J found for the claimant; the Court of Appeal allowed the authority's appeal; the appellant appealed to the House.
• Three related cases raised similar issues: Jarvis (dyslexia), Anderton (pre-action discovery for a proposed dyslexia claim) and G (a child with Duchenne Muscular Dystrophy claiming failure to provide required computer support).

Nature of applications and procedural posture:

• Phelps reached the House after trial and subsequent Court of Appeal reversal. Jarvis and G concerned applications to strike out or to reinstate claims; Anderton concerned an application for pre-action discovery under section 33(2) of the Supreme Court Act 1981.

Issues framed:

• Whether educational professionals (educational psychologists and teachers) may owe a common-law duty of care to pupils in diagnosis, assessment and provision of teaching;
• Whether a local education authority may be vicariously liable for such negligence;
• Whether an education authority can be directly liable in negligence for the exercise of its statutory powers and discretions under the Education Acts;
• Whether failure to diagnose or to ameliorate dyslexia or similar congenital conditions can amount to 'personal injury' or other actionable damage; and whether pre-action discovery was appropriate.

Court's reasoning and conclusions:

• The House applied ordinary negligence analysis (foreseeability, proximity and whether it is fair, just and reasonable) and held that professionals with appropriate skills who are asked to assess and advise about a particular child will, prima facie, owe a duty of care to that child where it is foreseeable the child (through parents and school) will rely on the professional's assessment.
• The court distinguished between vicarious liability for negligent employees and direct liability of the authority exercising statutory discretions. It held that vicarious liability is prima facie available where an employee (for example an educational psychologist) negligently fails to diagnose or advise, subject to policy considerations which the defendant authority must prove would make recognition of such duty inappropriate in the particular context.
• The House declined to lay down an absolute rule denying direct liability for authorities under the Education Acts, but emphasised such claims are fact-sensitive and may be excluded where they would conflict with statutory schemes or involve non-justiciable policy decisions.
• On the facts of Phelps the House restored the trial judge's finding of liability (vicarious liability of Hillingdon for the educational psychologist's negligence) and did not disturb the judge's assessment of damages. In Jarvis and Anderton the House allowed the appeals (so the claims were permitted to proceed or pre-action discovery reinstated as applicable). In G the House dismissed the appeal (so the Court of Appeal's reinstatement of the claim was left in place).

The House gave mixed outcomes: in Phelps the appeal was allowed and the trial judge's finding of liability (vicarious liability of the local authority for negligent educational psychological assessment) was restored; in Jarvis and Anderton the House allowed the appeals (permitting the claims / reinstating pre-action discovery); in G the House dismissed the authority's appeal. The court held as a general principle that educational professionals who assess and advise about particular pupils may owe a common-law duty of care to those pupils and that a local education authority is prima facie vicariously liable for negligent acts of such employees; the possibility of direct liability of an authority remains fact-sensitive and is not excluded in all circumstances.

Phelps: Trial judge (Garland J.) found for claimant; Court of Appeal allowed the authority's appeal and entered judgment for Hillingdon; House of Lords allowed the appellant's appeal and restored Garland J.'s order. Jarvis: initial strike-out refused by Popplewell J., Court of Appeal struck out negligence claim, House allowed the appeal. Anderton: Master and High Court judge ordered pre-action discovery, Court of Appeal refused, House allowed the appeal and restored the pre-action discovery order. G: Master refused to strike out, Gray J struck out the claim, Court of Appeal reinstated it, House dismissed the authority's appeal (claim remains).