Andrew Warnock on a landmark case for education authorities

Andrew Warnock on a landmark case for education authorities. Andrew Warnock is a barrister at No 1 Serjeant's Inn. IN Phelps v London Borough of Hillingdon (23 September, 1997) Mr Justice Garland held that a local education authority was liable to pay damages to the plaintiff for its failure to diagnose her dyslexia in the mid-1980s.

The judge found that the authority's educational psychologist had been negligent in her assessment of the plaintiff when she was 12. He further held that the plaintiff's teachers owed her a duty of care, although on the facts he held that they had not breached that duty because they had been entitled to rely on the advice they received from the psychologist.

The judgment in Phelps is the first of its kind since the House of Lords decisions in X v Bedfordshire County Council 1995 2 AC 633. It was argued by the defendant that the evidence revealed that the psychologist and the teachers were simply part and parcel of the multidisciplinary team engaged by the education authority in the discharge of its statutory duties under the Education Acts to identify and provide for children with special needs. It was submitted that the employees were in fact in a position akin to the social workers in the child abuse cases considered in X, to whom immunity was granted.

In particular, it was contended that there was not a sufficient degree of proximity between the plaintiff and the professionals to create an independent duty of care in tort.

The judge rejected submissions that the plaintiff had not been injured and that her losses were purely economic and irrecoverable. He adopted the reasoning of Lord Bingham in the Court of Appeal in X that a failure to mitigate the adverse consequences of a congenital defect with resulting detriment to a plaintiff's level of educational attainment could affect damages.

He awarded the plaintiff £12,500 general damages and the costs of remedial tuition. However, he rejected the plaintiff's claim for future loss of earnings calculated on a multiplier and multiplicand basis as speculative and awarded a lump sum of £25,000.

The judge in Phelps described the case as "ground-breaking". Few would disagree. With some psychologists estimating that up to 20 per cent of the UK's population may suffer from specific learning difficulties, further developments in this area of the law will be of considerable interest to local authorities, their insurers and the general public.