DN v London Borough of Greenwich Rev 2

A professional defendant may give admissible opinion evidence explaining why the defendant’s conduct met the required standard of care. A lack of independence affects the evidence’s weight, not its admissibility.

In educational negligence, the claimant must prove on the balance of probabilities what would have happened with appropriate education. Ordinary causation cannot be replaced by an award for a lost chance of a better outcome. Where only some improvement is probable and its extent remains uncertain, damages must reflect that uncertainty. Loss flowing from the claimant’s criminal convictions is irrecoverable.

A local authority appealed against findings that its educational psychologist negligently assessed a child with complex social and communication needs and consequently caused loss. The judge had found that a proper assessment would have led to placement in a suitable specialist school and that appropriate education would probably have enabled substantially greater independence and employment.

The appeal concerned the admissibility and assessment of the psychologist’s own professional evidence, whether negligence and placement causation were established, and whether the evidence proved the alleged personal, educational and financial consequences. It also raised the correct distinction between conventional causation and loss of a chance.

1. Disposition. The appeal on liability was dismissed, with some hesitation. The trial judge was entitled to find that the educational psychologist negligently failed to assess the child’s social, communication and cognitive needs adequately. The assessment of damages was to proceed on the Court of Appeal’s more limited findings concerning causation.
2. A professional defendant may give evidence explaining why the conduct complained of met the standard reasonably expected. Such evidence may address professional literature, the limits of the defendant’s experience and criticisms advanced by another professional. Its possible lack of objectivity affects cogency rather than admissibility. The trial judge’s contrary view was erroneous, consistently with ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284. Nevertheless, the judge had not excluded the psychologist’s evidence and had heard and balanced it against the claimant’s expert evidence.
3. The absence of an independent defence expert did not require judgment for the claimant, but it left the trial judge entitled to accept the claimant’s expert evidence about the standard of care. A competent assessment would have identified needs inconsistent with placement at a school for children with emotional and behavioural difficulties. The evidence also supported the finding that a suitable specialist placement would probably have been obtained.
4. Past hypothetical consequences of negligence must be determined on the balance of probabilities. This was not a case depending upon the hypothetical action of a third party, nor one requiring an exceptional departure from conventional causation. The judge therefore erred by treating improved social skills, behavioural management, educational qualifications and avoidance of fire-setting as lost opportunities. The evidence proved only that the outcome would probably have been better; it did not prove the much more favourable outcome assumed below.
5. Damages had to reflect the severe pre-existing brain damage and the extensive uncertainty about employment, independent living, behavioural problems and fire-setting. General damages were recoverable, but should not exceed the award discussed in Phelps v Hillingdon LBC [2001] 2 AC 619. Only a small award for loss of earning capacity was justified. Under Clunis v Camden and Islington Health Authority [1998] QB 978, no damages could be recovered for the consequences of the arson convictions.

1. Court of Appeal (Civil Division): Dismissed the local authority’s appeal on liability, corrected the basis on which causation and damages were to be assessed, and remitted the assessment of damages.
2. Queen’s Bench Division: Judge Overend entered judgment for the claimant on liability and causation and directed that damages be assessed in accordance with his findings.