2.1.2.2. Recent Cases on Public Authority Liability: a Shift in Emphasis?

We have seen that for a long time the duty enquiry has been moulded to give a degree of protection to defendant public authorities. There are nonetheless indications that the tide is turning. Two recent cases, Barrett v Enfield LBC⁷⁸ and Phelps v Hillingdon LBC,⁷⁹ indicate a shift in favour of (p.68) compensation seekers. This new approach would seem to have been reinforced by other cases at a domestic and European level.

2.1.2.3. The House of Lords' Decisions in Barrett and Phelps

The Barrett case was concerned with the negligence of social welfare providers in respect of a boy who had been in their care. It was alleged that the authority and its employees had been negligent in a number of ways: failing to arrange the boy's adoption, not obtaining psychiatric treatment for him, and mismanaging his re-introduction with his mother. The claim was struck out in the County Court. The Court of Appeal dismissed the appeal, holding that it was not fair, just, and reasonable to impose a duty of care in relation to the exercise of the authority's statutory discretion regarding a child in care's future.⁸⁰ It was held that although there might be a case for negligence in the way the authority's decisions were implemented, the claimant would not be able to show his injuries were attributable to such acts alone. The House of Lords took a different view. It held that a duty of care should not be ruled out in this context.⁸¹ The impact of this case in terms of the illegality-liability rapport and the concept of justiciability has already been assessed,⁸² and we will focus here upon the attitude of the courts to the tripartite test of a duty of care. The court accepted that the first and second requirements for the recognition of a duty of care had been satisfied, namely foreseeability of damage and proximity between the parties.⁸³ In response to the argument that no completely analogous claim had succeeded, it was held that preexisting duties of care could be incrementally extended.⁸⁴ Social workers were skilled professionals who, in common with health care professionals and teachers, should be subject to a duty of care. Whilst not disputing the validity of policy concerns in X (Minors), their Lordships held that they did not apply with the same force in the circumstances of Barrett.⁸⁵ X (Minors) had involved the sensitive issue of whether or not to take a child into care, including the investigation of alleged sexual abuse, whereas in Barrett the claimant was already in the care of the authority. It was held that the case should go to trial.

The Phelps case arose from four joined appeals concerning the alleged (p.69) liability in negligence of Local Education Authorities (LEAs) for the provision of educational services for children. In Phelps v Hillingdon LBC, Ms Phelps alleged that an educational psychologist employed by the defendant local authority had negligently failed to diagnose her as suffering from dyslexia. At trial, the defendant was indeed found to be vicariously liable for the educational psychologist's negligence,⁸⁶ and the claimant was awarded just over £45,000 in damages for future loss of earnings, cost of tuition, and loss of congenial employment. This decision was overturned by the Court of Appeal on the basis that the psychologist was primarily employed to advise the school and the local authority, and so had not assumed a personal responsibility to the claimant.⁸⁷ It was also held that policy reasons militated against a duty of care.⁸⁸ In G (A Minor) v Bromley LBC the claimant, who suffered from muscular dystrophy, alleged that teachers at a special school for the physically disabled had failed to give him an appropriate education to cope with his disability, and that this caused a lack of educational progress, psychiatric injury, and financial expenditure. In the Court of Appeal, Auld LJ held in a clear and powerful judgment that teachers are under a duty to exercise reasonable skill in responding to the educational needs of their pupils, and refused to accede to the defendant's application to strike out the claim.⁸⁹

In Jarvis v Hampshire CC, a dyslexic young man sued Hampshire County Council in negligence and misfeasance in public office for what was admitted by one of the defendant's educational psychologists to have been ‘a catastrophe of an education’.⁹⁰ He claimed compensation for the cost of remedial tuition and the loss of prospective future earnings. At first instance, the judge had refused to strike out the action in negligence, based both on vicarious liability for the alleged negligence of an educational psychologist and various teaching advisers in properly treating the claimant's dyslexia and upon direct liability for the negligent manner in which the authority had operated an educational psychology service. The claimant appealed against the subsequent striking out of the action in negligence by the Court of Appeal. Finally, the fourth case, Anderton v Clwyd CC, also concerned the failure to diagnose and treat dyslexia. The issue at stake was whether pre-action discovery should be ordered on the basis that the intended claim was for personal injury. The Court of Appeal had refused to grant such an order.⁹¹1

The House of Lords was offered a choice between two starkly differing views of public authority liability. Auld LJ in the Court of Appeal in G (A (p.70) Minor) v Bromley LBC had espoused an essentially liberal view of duties of care in the education sphere, arguing that teachers and education advisers should be subject to a duty to take care in their teaching, and that the various policy factors which had traditionally defeated claims in negligence against local authorities ‘should now be read in the light of Barrett’.⁹² On the other hand, the Court of Appeal in Phelps v Hillingdon LBC had adopted a far more restrictive approach, arguing that public policy was against the recognition of a duty, and that the vicarious liability of the local education authority for the acts of its educators would amount to a circumvention of its immunity from a direct duty in negligence by the ‘backdoor’ of vicarious liability.⁹³

The House of Lords preferred the more liberal approach adopted by the Court of Appeal in G (A Minor) v Bromley LBC. Three substantial judgments were given by Lords Slynn, Clyde, and Nicholls.⁹⁴ The focus of these judgments was upon vicarious liability of the LEAs for the negligent acts of their employees, but important statements were also made about the direct liability of LEAs.

In terms of vicarious liability, the basic premise of their Lordships' analyses was that professionals owe a duty of care to the people they advise, and this similarly should apply to those engaged in the education process, be they psychologists, psychiatrists, classroom or special needs teachers.⁹⁵ Their Lordships rejected in a robust manner the policy concerns which had underlined the Court of Appeal's judgment in Phelps.⁹⁶ On the specific position of educational psychologists, their Lordships differed from the Court of Appeal in Phelps, deciding that neither the fact that psychologists owe a duty to the authority to exercise skill and care in their employment nor that they are acting in the context of the local authority's statutory duties meant that a duty of care should be excluded.⁹⁷ However, the claimant pupil must show that the ‘necessary nexus’ existed between him and the educational professional.⁹⁸ Where an educational psychologist is specifically asked to advise upon a child's education and it is clear that the parents and the teachers will follow that advice, then Lord Slynn argued that prima facie a duty of care arises.⁹⁹ Lord Nicholls described this type of case as ‘an example par (p.71) excellence of a situation where the law will regard the professional as owing a duty of care to a third party as well as his own employer’.¹⁰⁰

The issue of direct liability elicited a more nuanced response from their Lordships. It was the claimants' challenge to the decision in X (Minors) that a local authority owed no direct duty of care in the exercise of its statutory function to provide suitable education under the various Education Acts that had necessitated the constitution of a seven-judge panel. Although Lord Slynn did not think that the claim based on a direct duty was made out in the Phelps case, he would not as a matter of principle rule it out.¹⁰¹ Indeed, his Lordship held that in respect of the claim in Jarvis it was arguable that the local authority was under a direct duty, both in performing its functions under the Education Acts and in operating an educational psychology service. The direct claim was so closely linked with the vicarious claim that his Lordship did not think it was right to strike it out.¹⁰² In admitting the possibility of direct liability, Lord Slynn indicated that he was willing to overrule the House of Lords' decision in X (Minors). On the other hand, Lords Nicholls and Clyde were more cautious, preferring not to make a decision whether a direct duty could arise until the facts of each case were determined at trial.¹⁰³

Before considering the impact of these decisions, it is important to take account of two significant cases, contemporaneous with the domestic developments, decided by the European Court of Human Rights in Strasbourg.