Devon County Council v Clarke

In an educational-negligence claim, causation does not require proof of a precisely measurable difference. It is enough to show that appropriate remedial teaching would probably have made a real difference; the court need not quantify the counterfactual educational outcome. Loss of earnings may be assessed by a lump sum where precise calculation is impracticable, provided the evidence places the award within a permissible range. Costs require a case-sensitive application of CPR 44.3. Success against one professional does not automatically entitle a claimant to all costs where other allegations concerned distinct reports, periods or issues. A broad educational history needed to prove causation does not, by itself, justify alleging negligence against every professional involved.

The respondent brought proceedings against the appellant local education authority for alleged negligence by two head teachers and three educational psychologists involved in his schooling. The county court found liability only for an educational psychologist's failure in 1991 to diagnose his special educational needs and recommend transfer to a school with specialist resources. The judge awarded £10,000 general damages and £25,000 for past and future loss of earnings, but ordered the Council to pay all the costs.

The Council appealed on causation, quantum and costs. The central issues were whether the evidence established that the missed specialist education caused compensable loss, whether the loss-of-earnings award was permissible, and whether the costs order properly reflected the respondent's substantial failure on separate allegations.

The court dismissed the appeal on causation and quantum, but allowed it in part on costs. The respondent was awarded 70% of his costs rather than all his costs.

1. Causation. The trial judge was entitled to find that, had the breach not occurred, the respondent would have received specialist remedial teaching at Queen Elizabeth Community College. The direction requiring proof of a measurable difference set the causation threshold too high. The correct question was whether the teaching would probably have made a real difference. Exact measurement of the educational benefit was unnecessary. The evidence that the specialist resource benefited the vast majority of comparable pupils was sufficient to support the inference that the respondent would have benefited.
2. Quantum. The lump-sum method was appropriate for the difficult assessment of past and future loss of earnings. Evidence from the educational and employment witnesses was sufficient to justify an award within the permissible range. The £25,000 award was not shown to be outside that range.
3. Costs. CPR 44.3 requires consideration of all the circumstances, including partial success. Educational-negligence litigation is not automatically one indivisible claim merely because a broad educational history must be examined. Allegations concerning separate reports and different periods may constitute discrete issues. The possibility that evidence about the whole educational history will be relevant does not justify allegations against every professional who may be called as a witness.
4. An all-costs order may nevertheless be appropriate where allegations against several professionals concern a single report or incident and were reasonably made, by analogy with a Sanderson or Bullock order. That analogy did not apply here. Of five allegations, two were withdrawn, two failed and one succeeded. Allowing for the overlap in evidence and the likely length of the trial, 70% was the appropriate costs award.

• Court of Appeal (Civil Division): Appeal from the county court dismissed on causation and quantum, but allowed to reduce the costs award to 70%: [2005] EWCA Civ 266.
• Torquay & Newton Abbott County Court: HHJ Overend awarded £10,000 general damages and £25,000 for loss of earnings, with all costs ordered against the Council.