England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1686.html
Cite as: [1998] EWCA Civ 1686, [1999] 1 WLR 500, [1999] WLR 500

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QBENF 97/1404 CMS1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QBD (GARLAND J.)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 4th November 1998

B e f o r e :

LORD JUSTICE STUART-SMITH

LORD JUSTICE OTTON

LORD JUSTICE TUCKEY

PAMELA HELEN PHELPS Respondent

- and -

THE MAYOR AND BURGESSES

LONDON BOROUGH OF HILLINGDON Appellants

(Handed down transcript of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 421 4040 Fax: 404 1424

Official Shorthand Writers to the Court)

MR EDWARD FAULKS QC and MR ANDREW WARNOCK (instructed by Messrs Vizards) appeared on behalf of the Appellants (Defendants).

MISS CHERIE BOOTH QC and MR JOHN GREENBOURNE (instructed by Messrs Teacher Stern Selby) appeared on behalf of the Respondent (Plaintiff).

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE STUART-SMITH:

Introduction

1. This is an appeal from a judgment of Garland J. given on 23 September 1997, whereby he awarded the plaintiff £45,651.50 by way of damages and interest against the defendants, who were the Local Education Authority (LEA) with responsibility for the plaintiff’s education. The judge held that the defendants were vicariously liable for the negligence of an educational psychologist employed by them in failing to identify that the plaintiff was a child with special learning difficulty or dyslexia. He held that if her dyslexia had been identified in 1985 or the two or three years thereafter, appropriate remedial teaching would have been given so that she would have made greater progress in school and achieved a higher level of literacy.

2. We are told that this is the first case in which a plaintiff has succeeded in such a claim against a local authority, but that there are many similar cases awaiting trial. The case raises important questions of law relating to the existence and scope of a duty of care of an educational psychologist who is part of the LEA’s psychology service and the nature of the damage for which compensation is claimed. The defendants also challenge the judge’s findings of negligence and causation and the quantum of damage.

Narrative - 1973-1985 Hayes Park Schools and the Child Guidance Clinic

3. The plaintiff was born on 30 December 1973. She had an elder stepbrother, John, who gave evidence; a half sister, Linda; a half brother, Ian; and a younger brother, Colin. John had been adopted by Mrs Phelps and her former husband whom she divorced. Linda and Ian were Mr Phelps’ children by his first wife who had died. In September 1978 the plaintiff went to Hayes Park Infant School. Towards the end of 1980 she was referred to the School Psychological Service for “lack of educational progress”. She was seen by an Educational Psychologist, Miss Meyerhof, who assessed her overall IQ at 93, confirmed that she was underfunctioning and concluded that “time, patience, interest and praise are currently greater needs than measurable attainments”. An overall IQ of 93 put the plaintiff into the broad 90-109 “average” classification, though at the lower end. After meeting Mr and Mrs Phelps, Miss Meyerhof thought that there might be problems at home. The plaintiff was referred to the Child Guidance Clinic (“CGC”) and seen by Mrs Jones, a psychiatric social worker, and Dr Urquhart, the Director.

4. In a memorandum of 9 February 1987 Dr Urquhart noted his impressions of his interview with the plaintiff and her parents. Of the plaintiff he said that, “Listening to her talk .....[she] was pulled this way and that by submerged invisible currents of the unconscious in the deflecting pathways of her thoughts”. He described the drawing which he asked her to draw as the bleakest he had ever seen. When she wrote ‘bus’ she reversed the ‘b’. When she got halfway through writing ‘house’, “her concentration spilled off and even as she wrote the mess of letters she was already looking away towards me saying, ‘I don’t know how’.” He then described difficulty in explaining to the parents that the plaintiff needed psychotherapy.

5. On 19 February 1981, Dr Urquhart wrote to the Phelps’ General Practitioner as follows:-

"On her own with me the little girl presents a superficially innocuous picture of superficial or irrelevant chatter all amounting to, as it were, nothing, but it seems to me really a kind of whistling in the dark to stave off painful feelings, and I should add, of course, that the pattern of her failures in learning are those that go with unhappiness or emotional difficulty. We have proposed, and the parents have accepted, that she could be helped by individual psychotherapy here and which we hope to arrange fairly soon.”

6. On 21 May 1981 the plaintiff was seen by Miss Kerbekian, a psychotherapist. Unfortunately, for a number of reasons including illness, bereavement and holidays, Miss Kerbekian missed some 10 weekly sessions. Mr and Mrs Phelps became impatient with this, with an apparent lack of progress, and the fact that each session meant that the plaintiff missed a morning at school. In November 1981, they decided to discontinue the psychotherapy.

7. In September the plaintiff transferred to Hayes Park Junior School. On 17 November 1981, Mrs Ross, the senior Educational Psychologist for Hayes Park Junior School, wrote a memorandum after talking to the plaintiff’s class teacher. It was clear that the plaintiff’s work was the poorest in the class and that “her reading age on a good day is between 5 and 6 year level and is nil on a bad day”.

8. On 9 December 1981, Dr Urquhart again wrote to the Phelps’ General Practitioner in effect blaming Mr and Mrs Phelps for the plaintiff’s difficulties and regarding their conduct as confirmation of his original assessment of her problem. In her closing report Miss Kerbekian said that she was “aware that she has had learning difficulties and I believe continues to do so. I would link this to the numerous family secrets and crazy messages Pamela gets from her parents”. The explanation for this may be Mrs Phelps’ desire to keep the family relationships secret and her apparent lack of understanding as to what the CGC were trying to achieve.

9. Following a report in May 1982 which described the plaintiff’s Educational progress as ‘very slow’ and needing ‘ideally a one-to-one working/learning situation....and a lot of reinforcement with any new work.....and lots of repetition of work already covered’, the defendants proposed to refer the plaintiff back to the CGC, but Mrs Phelps said she didn’t want to see either Mrs Jones or Miss Kerbekian.

10. On 6 September 1982 the parents saw Dr Urquhart again. It was not a success. Mr Phelps said in evidence that Dr Urquhart was non-committal and unhelpful. Dr Urquhart in his memorandum describes Mr and Mrs Phelps as hostile and unco-operative. On the following day he wrote to the General Practitioner:

"[The parents] had come because the school told them that Pamela needs help and they themselves agree that she is not making any progress. They made plain they had come only because the school had said they should. They questioned the usefulness of coming and ridiculed the staff with whom they had come in contact here, and left after taking exception to a remark that I had not made but which the father thought he had heard and then recognised, I think, that he had not heard.

As I wrote in February 1981, the parents seem to find talking about Pamela’s difficulties extremely painful and indeed hurtful to themselves and tend to react in suspicious and critical ways.

When we saw them recently I suggested they might be better if they chose to seek help elsewhere as they found themselves unable to have any confidence in the staff here.”

But Mr and Mrs Phelps did not seek a second opinion or help elsewhere.

11. This was the last occasion that the plaintiff or her parents came into contact with the CGC. None of the four professionals involved gave evidence before the judge, but their reports and memoranda were available in the file. It is quite clear that they appreciated that the plaintiff was seriously underperforming in her literacy skills. They do not appear to have considered that the plaintiff might be dyslexic; rather they attributed her difficulties to emotional and behavioural problems which had their roots in the family relationships. This conclusion is important, because it is plain that it influenced the subsequent thinking of those responsible on behalf of the defendants. None of the professionals at the CGC is made the subject of any allegation of negligence. But it is implicit in the plaintiff’s case that their diagnosis was wrong, at least to the extent of attributing all the plaintiff’s problems to emotional factors to the exclusion of dyslexia.

12. In May 1984 Mrs Roberts, the Advisory Remedial Teacher, tested the plaintiff’s reading and spelling using the Daniels and Diak tests. Her reading age was 6 years 7 months and spelling age was 6½. Her chronological age was 10 years 3 months. Mrs Roberts recommended that the plaintiff ‘be given materials and tasks commensurate with her functional level in order to encourage her to be independent and successful’. The parents should be told of the low level at which she was functioning and ‘that permission sought for the school to seek advice of the Educational Psychologist’.

September 1985-1990 Mellow Lane School

13. In September 1985 the plaintiff moved to Mellow Lane School. This is a large comprehensive school with over 1000 pupils. The 1985 intake was 180. All the new arrivals were given a reading test. The Daniels and Diak test was used. Her reading age was 6¾, her actual age 11¾. Only two of the year’s intake scored less; very few were below 9, some of whom were subsequently removed to a special school for those with ‘moderate learning difficulty’. This is a euphemism for ‘severe learning difficulty’ and is appropriate for those with an IQ of 70 or less.

14. Mellow Lane, in accordance with the overall scheme of the Education Act 1981, had a Special Needs department where pupils with learning difficulties, but who were not moved to special schools, could be given support and remedial teaching while remaining in their classes for the remainder of the curriculum. There were two Special Needs teachers: Mrs Taylor, who gave evidence, and Mrs Murphy, who was living in Canada. A Miss Isherwood, another Special Needs teacher, was apparently available, but she was not called. Both Mrs Taylor and Mrs Murphy were well qualified. Mrs Taylor was on maternity leave from September 1985 to April 1986. In fact, shortly after returning from maternity leave, she became a Head of Year. She was not able to give very much direct evidence about the plaintiff.

15. In the course of her five years at Mellow Lane the plaintiff was taught by a considerable number of teachers in addition to those in the Special Needs department. These included Mr Rodrigues, her form tutor and Mr Vinall, the Head of Year for 1985-6. Neither of these witnesses gave evidence and the judge appears to have been critical of their absence. Mrs Collison, the head of Modern languages and Deputy Head of the plaintiff’s first year, gave evidence. She thought the plaintiff lacked motivation and did not try.

16. Mellow Lane had procedures for reviewing the progress of those with difficulties. A Care Committee chaired by Mr Pellegrini, the Deputy Head Teacher, met at regular intervals. Membership included (though not invariably) the Education Welfare Officer who dealt with attendance, the Educational Psychologist, the Special Needs Co-ordinator (Mrs Taylor and, in her absence, Mrs Murphy), the Advisory Remedial Teacher, Mrs Roberts (who did not give evidence, again a matter of which the judge seems to have been critical), any relevant Head of Year or teacher involved and any relevant social worker. No formal minutes were taken or resolutions recorded, but if it was necessary to circulate the results of the Committee’s deliberations a short ‘round robin’ would be produced. These procedures were described by Mr Pellegrini and by Mr Stafford, the Head Teacher.

17. Soon after her arrival at Mellow Lane the plaintiff was removed from English and Mathematics classes for six hours a week of Special Needs Training. Mrs Phelps saw Mrs Murphy, Mr Vinall and Mr Stafford about her anxieties and the plaintiff’s need for special assistance. The school referred the plaintiff to the school Educational Psychology Service, and on 24 October 1985 she was seen by Miss Melling (now Mrs Loffler, but referred to throughout as Miss Melling). She wrote a report of the same date which was expressed to be confidential to the defendants; copies were sent to the school and, for reasons which are not clear, to the Health Authority.

18. Miss Melling had a degree in developmental psychology and, after obtaining her certificate in education, taught for 4½ years before obtaining a Diploma of Educational Psychology. She worked for six months for the London Borough of Richmond before moving to Hillingdon early in 1985. Before producing her report, she had read the CGC file, including Dr Urquhart’s contributions, and had spoken to Mrs Ross.

19. Miss Melling tested the plaintiff’s reading using the Salford Sentence Reading Test B. and obtained a reading age of 7¼; her actual age was then 11¾. The plaintiff could not write her own address, this being an inability to spell it correctly. Her report contains the following passages:

"Assessment on the WISC scale indicated that Pamela’s verbal skills were below average (5-15 centiles) and her practical ability was good average. She scored at an average level on an auditory memory task. Testing revealed no specific weaknesses. Pamela was cautious and hesitant in her responses and her speech was sometimes unclear and mumbled.

The assessment was discussed with Mrs Phelps who expressed considerable concern at Pamela’s reading problem and seemed anxious to find a cause. It was emphasised that she has no specific weaknesses. Mrs Phelps recognised that Pamela lacks confidence but was not prepared to consider any emotional basis to her difficulties. In summary, Pamela is seriously underfunctioning in reading and spelling. In order to make progress she needs help to develop confidence and feel that she can read. This has been discussed with the school and with Mrs Phelps.

It is recommended that Pamela’s progress should be discussed again at the end of the first year."

20. Unfortunately the actual figures obtained by Miss Melling are no longer available. They were in the school file which was destroyed when the plaintiff was 21. Using the verbal descriptions the judge concluded that the scores would translate as follows:

“Verbal skills below average (5-15 centiles)” = 70-84

“Practical ability good average” : something just over 100

“Auditory memory average” = 95-104

“No specific weakness” = no significant ACID profile

Miss Melling did not identify the plaintiff as dyslexic. The plaintiff’s case is that she should have done and was negligent in failing to do so at that stage. The plaintiff accepts that Miss Melling did the appropriate WISC test correctly. It was her case at trial that she was in error in not finding a significant ACID profile. But the judge accepted her evidence that she had not done so. This is important because an ACID profile would have been indicative of dyslexia (as would poor auditory memory), but its absence does not exclude dyslexia; indeed there is no test that conclusively does so.

21. Following Miss Melling’s report the plaintiff continued with the six hours a week Special Needs teaching, though in 1986 she rejoined the main stream mathematics at her own request and appeared to be able to cope. In March 1987 all her teachers completed Form SN2 headed ‘Special Needs 1981 Education Act’. This was the first step towards ‘statementing’ the plaintiff as having special educational needs. After the forms were completed the defendants took no further steps towards the process.

22. The judge commented that it was difficult to believe that her teachers in Geography, German, Science and Social Education were properly aware of her problems. They did not know she was dyslexic, because they had not been told; but they must have been aware of her very poor reading and spelling. The judge also commented on the difference between Mrs Murphy’s views expressed to Mrs Phelps in a letter, dated 11 February 1986, in which she stated that the plaintiff was “making good progress with reading and writing and was able to attempt most tasks in her other subjects reasonably well”. She also said that she had told her other teachers of the plaintiff’s difficulties and asked them to set her work at an appropriate level. The judge compared this with comments made by Mrs Murphy in the SN2 form which was considerably less encouraging.

23. In July 1987 the plaintiff had an operation on her knee and during the Autumn and Winter Terms missed a great deal of schooling. She was given a home tutor who expressed surprise that the Special Needs teachers had apparently done so little for her. When she returned to school there was a series of meetings about her future including one between Mr and Mrs Phelps, Miss Melling and Mr Pellegrini where the possibility of transferring her to a special school was considered. Mr and Mrs Phelps were clearly desperately anxious about the plaintiff’s lack of progress: the school was maintaining that she had made some, and it was suggested that in her fourth and fifth years she might do a Foundation Course.

24. For her fourth and fifth years the plaintiff was put on the Foundation Course designed to develop practical and business skills. Her behaviour was less than commendable and her absences frequent. Before she left school in April 1990 she had started work experience with a company called Creative Logic, a position found for her by her sister-in-law.

25. Throughout her time at Mellow Lane the plaintiff was the subject of discussion by the Care Committee. Despite the presence of the Remedial teachers, either Mrs Taylor or Mrs Murphy, and the Advisory Remedial teacher, Mrs Roberts, all of whom must have been very familiar with the concept of dyslexia, no-one appears to have thought that this might have been the cause or partly the cause of the plaintiff’s difficulties. It was not suggested by them or Miss Melling that she should be re-tested. Also throughout her schooling Mrs Phelps made periodic visits to the school to express her concern at the lack of the plaintiff’s progress in literacy. Mrs Phelps believed very strongly, to such an extent that in one report she is described as being obsessed with the idea, that Pamela should go to a special school for backward children. The teachers, she said on these occasions, told her that a special school was not suitable; it was for unintelligent children and the plaintiff was not unintelligent; her problems could dealt with by the remedial teaching in the school. Miss Melling made the same point when she saw Mrs Phelps in March 1988, at a time when the plaintiff had returned to school after a long absence due to her knee and was having great difficulty in adjusting to her return. It is clear that the school and Miss Melling considered that her difficulties were largely due to emotional problems stemming from her relationship with her family and particularly her mother. In the last three years the lack of progress was not assisted by substantial periods of absence; in the third year she missed 54 out of 174 sessions; in the fourth year 25 out of 256 sessions, and in year 5 she was absent 82½ days out of 132. In this, her last year, it is plain that some of these absences were simply truanting. It is the plaintiff’s case that some of her illnesses accounting for her absences may have been psychologically based due to her lack of progress in literacy and the fact that she tended to be teased by her peers. This is also advanced as an explanation of her truancy. It is also true that, especially in the early years, the school, both when the teachers met Mrs Phelps and in the end of year reports may have been somewhat too optimistic and encouraging in relation to the plaintiff’s progress. But this may have been with a view to counteracting what was perceived as Mrs Phelps’ somewhat negative and discouraging attitude to the plaintiff. It would not be the first time that school reports have been rather too favourable so as not to discourage the pupil.

26. In February 1990 her parents referred the plaintiff to the Dyslexia Institute where the plaintiff was seen by Mr Walker, a clinical and educational psychologist. He concluded that the plaintiff was dyslexic. In May 1990 the plaintiff began tuition with Jacqueline Laluvein, the President of the Hillingdon Dyslexia Association. She noted some improvement although her progress was dogged by ill-health unconnected with her dyslexia. In September 1994 the plaintiff was referred by her solicitor to Mr Rabinowitz, an educational psychologist. On an analysis of the sub-tests (ACID) he concluded that the plaintiff showed “a pattern typical of dyslexics”.

27. Dr Gardner saw and tested the plaintiff on 11 October 1996 on behalf of the defendants. His ACID analysis of the sub-tests pointed to dyslexia. He also did a further test, known as the Bangor test, which pointed to a similar conclusion. He concluded that her dyslexia had interacted with her emotional/behavioural problems identified long ago by the CGC. He compared the results of his reading tests with those of Mr Walker in 1990:

Walker BAS Single Word - 7 years 11 months

Gardner - 8½ years

Walker Comprehension (Vernon-Warden) - 9 years

Gardner (Watts-Vernon) - 9 years 8 months

Dr Gardner, who greatly impressed the judge, did not think the plaintiff had made all that much progress in 6 years since leaving school.

28. Apart from some similarities and useful comparisons, there were substantial variations in the sub-test scores recorded by Mr Walker, Mr Rabinowitz and Dr Gardner, particularly between those of Mr Rabinowitz and the other two. Some of these could be explained in terms of increasing familiarity with testing, with the increasing effects of frustration and isolation (for example a decline in information) and other variations. Dr Gardner, with a view to explaining why Miss Melling did not obtain an ACID profile in 1985, also said that scores could often differ to some extent over time for no very obvious reason.

29. Mr Rabinowitz was unfit to give evidence; his report was spoken to by Dr Conn, a psychologist with particular interest in developmental disabilities, child abuse and neglect. He supported Mr Rabinowitz’s diagnosis of dyslexia. The position was therefore that all the psychologists who had seen the plaintiff since 1990 concluded that she was dyslexic based on the ACID profile and, in Dr Gardner’s case, additionally on the Bangor test. Such is the nature of the condition that the plaintiff has always been dyslexic.

30 There has been much debate among psychologists over the years whether the correct nomenclature is ‘specific learning difficulties’ or ‘dyslexia’. Some use one term, some another. For the purpose of this case it matters not, and it is convenient to use the term ‘dyslexia’. Specific developmental dyslexia is defined in the World Federation of Neurology (1968) as ‘a disorder in learning to read despite conventional instruction, adequate intelligence and socio-cultural opportunities. It depends on fundamental cognitive disabilities which are frequently of constitutional origin’.

31. The British Dyslexia Association (1980) defined dyslexia as ‘a specific difficulty in learning, constitutional in origin, in one or more of reading, spelling and written language which may be accompanied by difficulty in number work. It is particularly related to mastering and using written language (alphabetic, numerical and musical notation) although often affecting oral language to some degree’. It is therefore a constitutional or congenital condition, not a defect, illness or injury.

32. The effects of dyslexia can be ameliorated by appropriate teaching and support so that those with dyslexia can be helped to achieve higher levels of literacy than would otherwise be the case, and by understanding their condition, develop techniques for mitigating its effects. However, the degree to which people with dyslexia can be helped varies widely; some unfortunately make little progress at all.

33. It is common ground that the appropriate method of teaching children with dyslexia is what is known as a multi-sensory and structured approach. Multi-sensory means using many senses - sight, hearing and touch so that sounds are associated with letters and vowel sounds. The structured approach involves much repetition and over- learning, advancing step by step at a slow pace. The technique is explained in a number of books of which ‘Alpha and Omega’ is a well-known example. The technique and book were known to the school and, according to Mrs Taylor, were used in the Special Needs teaching.

The case at trial

34. The plaintiff’s case was that Miss Melling was negligent in failing to diagnose the plaintiff’s dyslexia in 1985 or subsequently; that had she done so the school would have adopted a multi-sensory and structured approach to teaching the plaintiff, which in the event they did not do. With the result that the plaintiff’s literary skills would have improved, at least to the level of a ten-year old, which would have enabled her to read sufficiently to do some GCSE exams. A reading age of 9 is sufficient to read the tabloid press. The defendants are vicariously liable for Miss Melling’s tort.

35. The defendant’s case was that Miss Melling owed no duty of care to the plaintiff and that such loss as the plaintiff may have sustained was not compensatable in damages in the law of tort. They also contended that Miss Melling had not been negligent and that causation was not established because it was not proved that the school would have done anything different in the way of teaching the plaintiff, even if they had been told she was dyslexic and it was not established that a more structured approach or more use of the multi-sensory technique would have made a quantifiable difference to the plaintiff.

36. The judge held that Miss Melling was under a duty of care to the plaintiff and was in breach of it in failing to discover her dyslexia in 1985 and subsequently. He also held that if the school had known that the plaintiff was dyslexic they would have adopted a different approach, with the result that her literacy skills would have been improved.

37. The plaintiff also alleged that the school teachers were negligent in failing to take proper steps when they knew that her literacy was so poor, and in failing to send her back for re-assessment when it was evident that she was not improving. The judge held that the teachers were under a duty of care, but they were not negligent. They were entitled to rely on Miss Melling. There is no cross-appeal from his finding.

The issues in the appeal

38. The issues in this appeal are as follows:

(a) What is the nature of the damage claimed? Is it compensatable in a claim for damages in tort?

(b) Was Miss Melling under a duty of care to the plaintiff?

(c) If the answers to questions (a) and (b) are affirmative, was the judge’s finding of breach of duty by Miss Melling correct?

(d) If the answer to question (c) is affirmative, was the judge’s finding that Miss Melling’s negligence caused the plaintiff’s damage correct?

(e) The quantum of damage.

The nature of the damage

39. Mr Faulks QC on behalf of the appellant LEA raised this issue at the outset of his submissions because he contended, rightly in my view, that it was fundamental to what is the most important issue in this appeal, namely whether Miss Melling owed the plaintiff a duty of care. It must be shown that the duty of care exists to prevent the plaintiff suffering the type of damage which she in fact suffered.

40. The judge made the following findings:

(a) that although the plaintiff made a belated attempt to establish that she had suffered a positive psychiatric injury, the claim was not made out.

(b) that claims in respect of loss of confidence, low self-esteem, embarrassment and social unease were not matters that sounded in damages.

(c) that a failure to mitigate the adverse consequences of a congenital defect sounded in damages and that, if necessary, he was prepared to regard that as an ‘injury’.

(d) that the damage claimed was not too remote.

There is no cross-appeal in relation to (a) and (b). In what one might call an ordinary personal injury action, proximity is established by the requirement that there must be reasonable foresight of injury; it matters not that the injury is physical or psychiatric. But in the case of psychiatric injury alone, not related to physical injury, or the foreseeability of physical injury, it must be caused by shock and the shock involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. (see per Lord Ackner in Alcock v Chief Constable of S. Yorkshire [1992] 1 AC 310 at 400-401. The psychiatric injury must be a recognised psychiatric illness. See per Lord Bridge of Harwich in McLoughlin v O’Brien [1983] AC 410.

41. The defendants challenge the judge’s finding at para 40(c). In particular Mr Faulks QC on their behalf submits that the judge was wrong to characterise what the plaintiff had suffered as an injury. It was the loss of an economic gain, for which damages were not recoverable. He cited Van Oppen v Clerk to Bedford Charity Trustees [1990] 1 WLR 235. At p261B Balcombe LJ said:

"The duties imposed upon the school must bear a fair and reasonable relationship to the activities carried on at the school. The school’s activities are not designed, nor are they intended (save in an indirect manner) to promote or protect the pupil’s economic welfare.”

42. In this appeal much debate has turned on the decision of the House of Lords in the three education cases, E (minor) v Dorset C.C. , Christmas v Hampshire C.C. and Keating v Bromley LBC , which were heard together and followed three cases involving social services which were referred to as the ‘Abuse cases’, the reference being X (minors) v Bedfordshire C.C. [1995] 2 AC 633 (which I shall refer to as X (minors )). The House of Lords did not consider the question of the nature of the damage. The point was however considered in the Court of Appeal. Sir Thomas Bingham MR at p703D said:

"I should refer to a separate ground advanced for striking out Richard’s claim. This was that he had suffered no loss which would found a claim to compensation in tort. Whereas in contract a plaintiff may sue for an unrealised gain, in tort he can sue only for loss, and it was said that he had suffered none. I would accept that certain elements pleaded as damage by Richard (for example, the allegation that he suffered distress and that he is a shy, diffident person) cannot be compensated in damages, and similar points may be made about E’s claim that he was “upset.” It is also quite clear that none of the plaintiffs can recover damages for a congenital defect. If, however, a plaintiff can show (1) that the adverse consequences of his congenital defect could have been mitigated by early diagnosis of the defect and appropriate treatment or educational provision; (2) that the adverse consequences of his congenital defect were not mitigated because early diagnosis was not made, or appropriate treatment not given or provision not made, with resulting detriment to his level of educational attainment and employability; and (3) that this damage is not too remote I do not regard the claim for damage to be necessarily bad."

It is to be noted that the Master of the Rolls does not refer to injury.

43. At p705H Evans LJ said:

"Two specific issues are raised as matters of principle. First, that the allegations of learning difficulties and behavioural problems do not amount to physical or psychological injury for which the defendants can be held responsible in law. Rather, it is submitted that the plaintiffs suffer or may suffer from congenital defects in their learning processes which do not amount to an injury for which damages can be awarded. In my judgment, this submission goes to far. If the plaintiffs suffer or have suffered from a pathological or psychological condition which accounts for the learning difficulties and other problems which they have experienced, then I can see no reason in principle why that should not be recognised as a form of injury for which compensation may be awarded, if the necessary conditions for liability are proved. Whether or not this is proved will depend upon the evidence to be given at the trial.

The second objection taken by Mr Tim Kerr for the defendants in Richard’s case is that damages for the torts alleged by the plaintiffs cannot be awarded, as he submits, for the loss or non-realisation of an expected gain, or for the defendant’s failure to confer a benefit upon the plaintiff, as distinct from causing identifiable damage or loss. There may be much to be said for this as a general proposition but in my judgment it does not amount to an invariable rule. It can be tested in this way. The closest analogy to the duties of care which the plaintiffs allege against a headteacher (Mark’s case) or an educational psychologist (E’s case) is the admitted duty which is owed by a school teacher in respect of the physical well-being, health and safety, of the pupil ( Van Oppen v Clerk to the Bedford Charity Trustees [1990] 1 WLR 235), or by a doctor to his patient. If the pupil or the patient is injured or shows symptoms of a physical illness which the teacher or the doctor negligently fails to notice or to treat, or to arrange medical treatment in the case of the teacher, then clearly the damages recoverable in tort as well as in contract will include compensation for the consequences of that failure, including the consequences of delay in obtaining proper treatment. If the submission was correct, it would mean that no damages could be recovered in tort where the injury or illness became no worse, even though the failure to treat it or the delay in treating it meant that it was slower to heal or be cured than otherwise it would have been."

And at p715H he said:

"At this point, the issues as to damage and duty overlap. In my judgment, for the reasons given at the outset, the failure to treat or the delayed treatment of dyslexia does arguably give rise to a form of injury which can support a claim for damages for negligence in tort. It follows from this that the school teacher’s duty to exercise reasonable skill and care to safeguard the pupil from injury includes a duty to be aware of symptoms which a reasonably careful parent or a reasonably skilled and careful teacher would regard as symptoms either or dyslexia or, more generally, of a need for specialist advice."

44. First of all it is well established that the fact that a court declines to strike out a particular claim as disclosing no reasonable cause of action does not involve the converse proposition that the claim did disclose a cause of action when the facts are established in evidence (see Morgan v Odhams Press Ltd [1971] 1 WLR 1239. It merely means that it is not clear and obvious that the facts pleaded, which have to be taken as correct, disclose no cause of action. The passages cited from the judgments in the Court of Appeal in X (minors) were obiter, although coming from such sources were entitled to respect. But I respectfully disagree with Evans LJ when he refers to the plaintiff’s damage as an injury and likens it to a physical injury which through neglect is left untreated. In such a case damages will only be awarded if the injury is exacerbated by delayed treatment or there is greater or more prolonged pain and suffering. Dyslexia is not itself an injury and I do not see how failure to ameliorate or mitigate its effects can be an injury.

45. This has important consequences. For example the three year Limitation period with the possible discretionary extension applies only to actions for personal injury (see s.11 and s.33 of the Limitation Act 1980) and pre-action discovery and discovery from non-parties are only available in such actions (Supreme Court Act 1981 s.33(2) and s.34(2), RSC order 24 r.7(A) - see also the related appeal in Anderton v Clwyd C.C.) . But in my judgment the fact, as I hold it to be, that it is not an injury is not conclusive of the fact that damages are irrecoverable. Damages for economic loss are recoverable in tort provided there has been an assumption of responsibility to protect the plaintiff from the type of loss sustained ( Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 and Hedley Byrne & Co. Ltd v Heller & Partners Ltd [1964] AC 465). Moreover, I consider that an Educational Psychologist who was consulted privately by parents concerned at the lack of literacy progress of their child, could be liable in contract for failing to take reasonable care in diagnosing dyslexia, if it was in the reasonable contemplation of the parties that the child would as a result be seriously handicapped in achieving literacy, as I think it must be. In such a case the parents can be regarded as acting as agents for the child. Though for reasons which I shall develop later in this judgment there may be serious difficulties in establishing causation.

46. Accordingly, I agree with Miss Booth QC that in fact the question is not so much the precise nature of the loss or damage, but whether the defendant has voluntarily assumed responsibility to the plaintiff to take care to prevent him or her sustaining the type of loss or damage claimed. And even though the courts have not hitherto awarded damages for this kind of loss, that ought not to be conclusive against the plaintiff’s claim. But it does focus the enquiry on the second question, namely the existence or otherwise of a duty of care on the part of Miss Melling in respect of the type of loss or damage claimed.

Duty of Care

47. Miss Booth founds the plaintiff’s claim on what was said by Lord Browne-Wilkinson (whose speech was agreed by other members of the House) in X (minors) when dealing with the education cases at p763E:

"The claim is that the educational psychologists and other members of the staff of the defendant authority owed a duty to use reasonable professional skill and care in the assessment and determination of the plaintiff’s educational needs. It is further alleged that the plaintiff’s parents relied on the advice of such professionals. The defendant authority is vicariously liable for any breach of such duties by their employees.

Again, I can see no ground for striking out this claim at least in relation to the educational psychologists. Psychologists hold themselves out as having special skills and they are, in my judgment, like any other professional bound both to possess such skills and to exercise them carefully. Of course the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 will apply to them, ie. they are only bound to exercise the ordinary skill of a competent psychologist and if they can show that they acted in accordance with the accepted views of some reputable psychologist at the relevant time they will have discharged the duty of care, even if other psychologists would have adopted a different view. In the context of advice on the treatment of dyslexia, a subject on which views have changed over the years, this may be an important factor. But that said, I can see no ground on which, at this stage, the existence of a professional duty of care can be ruled out. The position of other members of the defendant’s staff is not as clear, but I would not at this stage strike out the claims relating to them.

The position of the psychologists in the education cases is quite different from that of the doctor and social worker in the child abuse cases. There is no potential conflict of duty between the professional’s duties to the plaintiff and his duty to the educational authority. Nor is there any obvious conflict between the professional being under a duty of care to the plaintiff and the discharge by the authority of its statutory duties. If, at trial, it emerges that there are such conflicts, then the trial judge may have to limit or exclude any duty of care owed by the professional to the plaintiff. But at this stage no obvious conflict has been demonstrated."

Miss Booth submits the Court need look no further. The judge accepted the submission. I do not agree, having regard to the evidence now before the Court, that we are bound to find that Miss Melling was under a duty of care to the plaintiff.

48. In my judgment the critical question, as Miss Booth accepted, is whether Miss Melling had assumed or undertaken personal responsibility towards the plaintiff [to take reasonable care] to assess her educational potential and provide strategies to improve her position. Apart from the words in brackets, which I think have to be added, that was Miss Booth’s formulation.

49. It is important first of all to note that Lord Browne-Wilkinson held that it was not arguable that the LEA owed a direct duty of care in relation to the discharge of their statutory functions under the Education Acts of 1944 and 1981, and in particular in relation to the provision for children who have special needs. Lord Browne-Wilkinson gave three reasons for this at p761E-762B:

"First, in relation to the special statutory duties imposed by sections 2, 4, 5, and 7 of the Act of 1981, the exercise of the discretions involves the close participation of the parents who are themselves under a duty to cause the child to receive “efficient full-time education suitable to his ... ability and aptitude:” section 36 of the Education Act 1944. The parents are themselves involved in the process of decision making and can appeal against decisions which they think to be erroneous. Although in the Dorset case the parents availed themselves of all the advantages of the statutory machinery, in the generality of cases to allow either the parents (on behalf of the child) or the child when he attains his majority to bring a claim alleging negligence by the authority in the making of the decision would be to duplicate remedies. Although in the present case this factor is not directly in point, if a duty of care is to be held to exist it must apply as much in relation to actions brought by a parent or child who has not used the statutory machinery as in the case of parents or a child who have.

Next, the number of cases which could successfully be brought for breach of such a duty of care would be very small since, as I have said, it would have to be shown that the decision impugned was taken so carelessly that no authority could have reached it. Yet, if a common law duty of care is held to exist, there is a very real risk that many hopeless (and possibly vexatious) cases will be brought, thereby exposing the authority to great expenditure of time and money in their defence. If there were no other remedy open, this is a price which might have to be paid in the interests of justice. But, in almost every case which could give rise to a claim for the negligent exercise of the statutory discretions, it is probable that, as in the present case, there will be an alternative remedy by way of a claim against the authority on the grounds of its vicarious liability for the negligent advice on the basis of which it exercises its discretion: as to which see below."

50. There are a number of decisions in the United States’ courts where claims for ‘educational malpractice’ have been struck out both against the public education authority and its individual servants. These cases were not cited to the House of Lords in X (minors ). In addition to the reasons given by Lord Browne-Wilkinson, other considerations have weighed with the American courts. In Peter W. v San Francisco Unified School District (1976) 60 Cal.App.3d 867 a claim based both on direct and vicarious liability for failure to detect the plaintiff’s reading disabilities, the Californian Court of Appeal said that “classroom methodology affords no readily acceptable standards of care or cause or injury” (p860); “there are a host of factors which affect the pupil subjectively from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present, but not perceived, recognised but not identified” (p861).

51. In Donoghue v Copiague Union (1978) 407 NYS 2d.874, the Supreme Court, Appellate Division, New York, adopted similar reasoning. In addition the court said at p880 that the educational enactments “merely require the creation of a system of free common schools. Their purpose is to confer the benefits of a free education upon what would otherwise be an uneducated public. They were not intended to protect against the ‘injury’ of ignorance, for every individual is born lacking knowledge, education and experience. For this reason the failure of educational achievement cannot be characterized as an ‘injury’ within the meaning of tort law”.

52. Similar reasoning was adopted by the Court of Appeals of New York in Hoffman v Board of Education of New York (1979) 49 NY.2d.119. A claim against an educational psychologist was struck out. See also Hunter v Board of Education (1982) 439A.2d.582. The Court of Appeals in Maryland struck out a claim against the Education Board, headmaster, a teacher and employee of the board who performed a diagnostic test. Similar decisions are to be found in Suriano v Hyde Park (1994) 611.NYS.2d.20, Supreme Court Appellate Division, New York, and in Canada in Gould v Regina (East) School Division (1997) WWR.117 Saskatchewan Court of Queen’s Bench, where the court followed the American authorities.

53. Although the House of Lords in X (minors) therefore disallowed the claim against the LEA directly, it considered that an individual Educational Psychologist or teacher might be liable. This has led to a proliferation of claims, of which this is the first to succeed. If Miss Booth’s submissions are correct it is quite clear that the immunity of the LEA from suit granted for powerful policy reasons will be completely circumvented. A LEA can only act through its servants or agents; it is therefore always possible to attribute the alleged failure to one or more employee or agent of the defendant LEA. The position is well-illustrated in this case where, in addition to Miss Melling, various of the teachers and advisory teachers were said to have been negligent. The problem is even more starkly thrown up in the case of Anderton v Clwyd C.C. where, on an application for pre-action discovery, Mr Bowen said that he contemplated suing all the teachers who had taught the plaintiff between 1983 and 1990, and for good measure any educational psychologist who might have been concerned with the plaintiff’s education.

54. In my judgment, it would be a matter for very great concern if the policy considerations which led the House of Lords to hold that such actions would not lie against the LEA direct could be so easily circumvented. I very much doubt if their Lordships contemplated any such consequence. The result is that the LEA find themselves, as in this case, contesting a case many years after the event, when many of the relevant documents are no longer available, and witnesses cannot be traced. Moreover following the judge’s criticism in this case about the absence of certain witnesses, the defendant will need to call almost everyone who had an input into the decision making and teaching. As this case itself shows, and as the American courts recognise, immensely complex questions arise on negligence and even more so on causation, especially where many different professionals are involved.

55. Unlike the House of Lords in X (minors) , where the court had simply to accept what was pleaded, we now have the evidence. For example, Lord Browne-Wilkinson appears to have thought that in setting up an educational psychology service, the LEA were offering a service to the public which they could take advantage of, which he likened to a health authority running a hospital (see 763A-B). It is quite clear that that is not what the defendants’ psychology service was. It was set up and used by the LEA to advise it and its other employees on the discharge of its statutory functions in teaching the plaintiff. It is quite different from, for example, a Health Authority setting up a clinic where people can come to see doctors and nurses for treatment. In such a case there would be a direct relationship of doctor and patient, and an assumption of responsibility to treat him or her.

56. When considering the position of the psychiatrist and social worker in the abuse cases in X (minors) Lord Browne-Wilkinson said at p752D:

"The claim based on vicarious liability is attractive and simple. The normal duty of a doctor to exercise reasonable skill and care is well established as a common law duty of care. In my judgment, the same duty applies to any other person possessed of special skills, such as a social worker. It is said, rightly, that in general such professional duty of care is owed irrespective of contract and can arise even where the professional assumes to act for the plaintiff pursuant to a contract with a third party: Henderson v Merrett Syndicates Ltd. [1995] 2 AC 145; White v Jones [1995] 2 AC 207. Therefore, it is said, it is nothing to the point that the social workers and psychiatrist only came into contact with the plaintiffs pursuant to contracts or arrangements made between the professionals and the local authority for the purpose of the discharge by the local authority of its statutory duties. Once brought into contact with the plaintiffs, the professionals owed a duty properly to exercise their professional skills in dealing with their “patients”, the plaintiffs. This duty involved the exercise of professional skills in investigating the circumstances of the plaintiffs and (in the Newham case) conducting the interview with the child. Moreover, since the professionals could foresee that negligent advice would damage the plaintiffs, they are liable to the plaintiffs for tendering such advice to the local authority.

Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child. Moreover the tendering of any advice will in many cases involve interviewing and, in the case of doctors, examining the child. But the fact that the carrying out of the retainer involves contact with and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority. The Court of Appeal drew a correct analogy with the doctor instructed by an insurance company to examine an applicant for life insurance. The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not to damage the applicant in the course of the examination; but beyond that his duties are owed to the insurance company and not to the applicant."

57. In the absence of evidence, the House of Lords considered that there might be a distinction between the psychiatrist and social worker on the one hand, and the educational psychologist and teacher on the other. But on the facts of this case, as now established, I do not think this is a valid distinction. In particular, Lord Browne-Wilkinson considered that the former were involved in a multi-disciplinary team and it might be expected that there would be conflict between them and the parents, whereas these features were not present in the case of an educational psychologist or teacher. We are told by Mr Faulks that in the House of Lords these points were not advanced in the education cases, because the position was not in evidence and not clear from the pleadings. In my view it is now clear from the evidence that there was a multi-disciplinary approach, of which Miss Melling’s report and advice was but a part. There was the input of Miss Meyerhof, the original LEA educational psychologist to whom the plaintiff was referred at her junior school; then came the CGC, whose opinions obviously had a powerful influence on Miss Melling and the thinking of the teachers; and finally decisions at the school were taken by or as a result of discussions in the Care Committee of whom Miss Melling was only one member. Other professionals, including Miss Taylor, Miss Murphy and Mrs Roberts, the Advisory Remedial Teacher, as well as the Deputy Headmaster, Mr Pellegrini, all of whom were well aware of dyslexia, must have had an input into the decision-making and advice.

58. Moreover, I do not think that it is correct to distinguish the position of the social worker/psychiatrist and educational psychologist/teacher on the basis of potential conflict in one case and not the other. While it is true that in some cases the ultimate result may end in care proceedings and the court removing a child from its parents, the basic relationship of social worker and parent is one of co-operation. That is the desired aim in the educational field but, as this case illustrates, conflict can arise between the views of parents and those of the LEA, its servants or agents. Mrs Phelps was convinced that the plaintiff should go to a special school. The school and Miss Melling opposed this. It is now recognised on behalf of the plaintiff that she should not have been sent to a special school. Moreover, the whole process of ‘statementing’, as many of the cases show, involve conflicts or differences of view between parents on the one hand and teachers, educational psychologists and other employees of the LEA on the other.

59. The judge approached the question of duty as follows:

Under the heading ‘Duty of Care’ at p29A he said:

"I therefore approach the issues that I have to decide by asking whether, in a broad sense, advice was given to the plaintiff through her parents upon which they were expected to act, whether by making informed choices or by accepting decisions of the defendants concerning the plaintiff’s education. It was abundantly clear that Mr and Mrs Phelps were extremely concerned about the plaintiff’s lack of progress and apparent inability to cope with her schoolwork."

And at p29F:

"Mr Phelps is a comparatively prosperous businessman who, in the event, had the plaintiff privately tested by Mr Walker. On the evidence, it was clear that Mr Phelps would not have hesitated to do what he thought best for the plaintiff. Curiously, although Dr Urquhart told Mr and Mrs Phelps they could get a second opinion or go elsewhere, and Mr Stafford talks of second opinions and private assessments, this advice does not appear to have been repeated unequivocally, nor were the Phelps told that they could take the initiative in obtaining a statement of special educational needs."

At p30E he said:

"It goes without saying that the defendants and the school also relied on her advice but, in my view, it does not accord with reality or common sense to regard her as owing a duty only to the defendants. It is obvious that there would be, as there were, discussions with Mr and Mrs Phelps about what could be done to help the plaintiff. There was extensive discussion about special schools and why the plaintiff should not go to one (although this view faltered in 1988), and, as has already been noted, Mrs Murphy, Mrs Taylor and Mr Stafford all expected information, the fundamentals of which would derive from Miss Melling, to be passed on to Mr and Mrs Phelps, who did in fact have a number of choices and options open to them, although they may have forgotten Dr Urquhart’s 1982 letter and do not appear to have been told their rights under the 1981 Act. Accordingly, insofar as the duty owed by an Educational Psychologist is dependant on giving advice which will be relied on, I find that such a duty arose."

60. In these passages the judge did not ask himself the question whether Miss Melling had voluntarily assumed responsibility for advising the plaintiff through her parents. Her duty was to advise the school and the LEA. Merely because the plaintiff was the object of that advice and the parents were told in effect what the advice was, does not in my judgment amount to such an assumption of responsibility. Neither Mrs or Mr Phelps could recall meeting Miss Melling, though they claimed that they relied on her advice as relayed to them by the school. Miss Melling was doing no more than discharging her duty to the defendants to enable them to perform their statutory functions. The court ought to be slow to superimpose on a duty which the employee owed his employer, the defendants, a further duty towards the plaintiff, in the absence of very clear evidence that the employee has undertaken such responsibility. In his submissions in reply Mr Faulks suggested that an example of such responsibility might be if Mr and Mrs Phelps approached Miss Melling to advise them separately and independently, or perhaps if a teacher were to give private remedial lessons out of school. I strongly suspect that if they had asked Miss Melling so to advise them, she would have declined on the basis that it would be inconsistent with the duty to her employers. But it is conceivable that she might have done so in her free time, perhaps charging for her services. But in such a case she would not be acting in the course of her employment and the defendants would not be vicariously liable for her tort. In the passage cited the judge seems to criticise the school or Miss Melling for not telling the parents their rights under the Education Acts. But I do not think there was any such obligation on them.

61. In my opinion what happened here went nowhere near establishing such an assumption of responsibility to the plaintiff. It was no more than the discharge of her ordinary duties to the defendants. I derive much assistance from the speech of Lord Steyn (with whom other members of the House agreed) in Williams v Natural Life Foods Ltd [1998] 1 WLR 830. In that case an attempt was made to make the second defendant, the managing director and principal shareholder of the first defendant company, liable in respect of certain statements made in the company’s brochure, on the basis that the second defendant had assumed personal responsibility to the plaintiff. The action failed. In discussing what amounted to an assumption of risk or responsibility, Lord Steyn said at p835D:

"Two matters require consideration. First, there is the approach to be adopted as to what may in law amount to an assumption of risk. This point was elucidated in Henderson’s case by Lord Goff of Chieveley. He observed, at p181:

"especially in a context concerned with a liability which may arise under a contract or in a situation ‘equivalent to contract’, it must be expected that an objective test will be applied when asking the question whether, in a particular case, responsibility should be held to have been assumed by the defendant to the plaintiff...”

The touchstone of liability is not the state of mind of the defendant. An objective test means that the primary focus must be on things said or done by the defendant or on his behalf in dealings with the plaintiff. Obviously, the impact of what a defendant says or does must be judged in the light of the relevant contextual scene. Subject to this qualification the primary focus must be on exchanges (in which term I include statements and conduct) which cross the line between the defendant and the plaintiff. Sometimes such an issue arises in a simple bilateral relationship. In the present case a triangular position is under consideration: the prospective franchisees, the franchiser company, and the director. In such a case where the personal liability of the director is in question the internal arrangements between a director and his company cannot be the foundation of a director’s personal liability in tort. The inquiry must be whether the director, or anybody on his behalf, conveyed directly or indirectly to the prospective franchisees that the director assumed personal responsibility towards the prospective franchisees. An example of such a case being established is Fairline Shipping Corporation v Adamson [1975] QB 180. The plaintiffs sued the defendant, a director of a warehousing company, for the negligent storage of perishable goods. The contract was between the plaintiff and the company. But Kerr J. held that the director was personally liable. That conclusion was possible because the director wrote to the customer, and rendered an invoice, creating the clear impression that he was personally answerable for the services. If he had chosen to write on company notepaper, and rendered an invoice on behalf of the company, the necessary factual foundation for finding an assumption of risk would have been absent. A case on the other side of the line is Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517. This case concerned negligent advice given by a one-man company to a commercial fruit grower. Despite proper application of the spray it killed the grower’s fruit crop. The company was found liable in contract and tort. The question was whether the beneficial owner and director of the company was personally liable. The plaintiff had undoubtedly relied on the expertise of the director in contracting with the company. The New Zealand Court of Appeal unanimously concluded that the defendant was not personally liable. McGechan J., who analysed the evidence in detail, said, at p532, that there was merely “routine involvement” by a director for and through his company. He said that there “was no singular feature which would justify belief that Mr Ivory was accepting a personal commitment, as opposed to the known company obligation.” That was the basis of the decision of the Court of Appeal."

62. So too in Capital and Counties plc v Hampshire CC [1997] QB 1004, the Fire Brigade’s case, after referring to the passage from Lord Browne-Wilkinson’s speech cited at paragraph 56, I said at p1035H:

"In those instances, the social workers and doctors owed duties to the local authority or insurance company which were inconsistent with a duty being owed to the plaintiff. But that is only part of the reason why no duty existed. There was no undertaking to treat the plaintiff and no assumption of responsibility to try to effect a cure."

63. In my opinion the so-called rescue cases provide a valuable, if not precise analogy. They are concerned with a situation where the plaintiff’s person or property is in danger or suffer a misfortune such that greater damage will be sustained unless they are rescued or assisted. In general it is the public services such as fire brigades, coast guards or police who, pursuant to their public duty, go to the assistance of such people. In the Capital and Counties case this court held that by so doing, the rescue services did not undertake responsibility for preventing further harm or assume a duty of care to those they assisted. The extent of the duty is not negligently to create further danger or make the plaintiff’s situation worse. The distinction is illustrated in the case of a doctor. At p1035C, in giving the judgment of the court, I said:

"Likewise, a doctor who happened to witness a road accident will very likely go to the assistance of anyone injured, but he is not under any legal obligation to do so, save in certain limited circumstances which are not relevant, and the relationship of doctor and patient does not arise. If he volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse. Moreover, it is clear that no such duty of care exists, even though there may be close physical proximity, simply because one party is a doctor and the other has a medical problem which may be of interest to both."

I then referred to the passage for X minors already cited at paragraph 56.

In the rescue cases there is undoubtedly a relationship between the victim and the rescue service and there may also be foreseeability of deterioration in the safety of the plaintiff’s person or property if care is not taken. But there is no proximity in the legal sense because there is no assumption of responsibility.

64. In the same way that the House of Lords found that there were strong policy reasons why a direct duty of care should not be imposed on the LEA, in my opinion those same policy reasons dictate that it would not be fair, just or reasonable to impose such a duty on an educational psychologist, such as Miss Melling, unless it is quite clear that in addition to performing her duty to her employers, she assumed personal responsibility to the plaintiff; and the burden is upon the plaintiff to show this. In my judgment it is most unsatisfactory that the LEA should be made liable by the back door of vicarious liability, unless this responsibility is clearly established.

65. It may be convenient to summarise some of those policy reasons:

(1) there is a serious risk that vexatious claims may be brought, against many teachers or educational psychologists many years after the relevant decisions were taken. Documents may well no longer be available; witnesses cannot be traced. Scarce resources both financial and human will have to be directed from the proper function of the LEA, which is providing a free education for all those who wish to avail themselves of it, to fighting such cases.

(2) The exercise of discretion on the part of the LEA through its servants involves the close participation of the parents who are themselves under a duty to cause the child to receive efficient full-time education. The parents are involved in the process of decision making and can appeal against decisions they consider erroneous. It is unnecessary to set out the relevant provisions of the statute again in this judgment. They were set out by Lord Browne-Wilkinson in X(minors) at p756-759. Effectively it comes to this: if the LEA is not maintaining a statement, the parents can request an assessment of their child’s educational needs (Education Act 1981 (the 1981 Act) s9(1)). The LEA could only refuse that request if it was unreasonable. Unreasonableness can be challenged on judicial review. If the LEA carry out an assessment under s5 of the 1981 Act but decide not to statement, the parents can appeal to the Secretary of State (s5(6)). Decisions of the Secretary of State are amenable to judicial review. If the LEA decided to issue a statement but the parents disagreed with its contents, they could appeal to the LEA appeals committee, and thence to the Secretary of State. Likewise if the appeals committee remitted the case to the LEA and the parents disagreed with the new decision. If the LEA are maintaining a statement, the parents can ask for a new section 5 statutory assessment if one has not been made in the last 6 months. The LEA must comply unless the request is ‘inappropriate’ (s9(2)). Inappropriateness can be challenged on judicial review. Similar provisions now obtain under the Education Act 1996.

3) These procedures have the great advantage that they seek to remedy the situation at the time and when the views of those concerned are fresh and available for consideration and remedial action can be taken. An action for damages many years later has all the disadvantages to which I have referred. Merely because the parents accept the LEA’s decision and do not challenge it does not mean, in my opinion, that they are relying on the advice of Miss Melling so as to create a duty of care on her part towards the plaintiff.

(4) In this case, and no doubt in other such cases, decisions are taken after consideration of the views of many professionals; in this case the CGC, the Educational Psychologists, and teachers both ordinary and remedial. It is likely to be invidious to single out one and make him or her a scapegoat. Yet if all the professionals who had some input to the decision making and teaching are sued, that obviously circumvents the immunity of the LEA.

(5) The question of causation presents enormous difficulties. As was said in the case of Peter L v San Francisco , there are a host of factors which affect pupils subjectively. Even with appropriate treatment some pupils make little or no progress. These problems were evident in this case and I shall refer to some when I consider the question of causation.

(6) The public education system is set up at the tax-payers expense for the benefit of the public generally. There is a risk of what in a medical context is called ‘defensive medicine’. In the present context that involves the possibility of excessive and time consuming testing to guard against the possible charge of negligence in not doing enough. This can be wasteful of resources.

66. I find the reasoning of the American courts, which have extended the immunity in educational malpractice suits to cover the individual servants or agents of the education authority, persuasive, though I think in our jurisprudence we should reach the same result by holding that there is no assumption of responsibility giving rise to a duty of care in the mere performance by the servant or agent of his or her duty to the LEA, even though this will inevitably involve a direct relationship with the child who is the subject under consideration and the parents are inevitably told what is the outcome of the advice and decisions made by the LEA or school. Alternatively, it can be put on the basis that it is not fair, just and reasonable to single out one of a number of professionals for the imposition of such duty in the absence of a clear assumption of responsibility on that person’s part going well beyond what is merely the performance of that person’s duty to the LEA.

67. For these reasons I have come to the conclusion that the judge was wrong to hold that Miss Melling was under such a duty of care to the plaintiff; and I would allow the appeal accordingly.

Breach of duty

68. In the light of my conclusion that Miss Melling was not under any duty of care, I propose to deal as briefly as I can with the issues of breach of duty and causation. These issues were argued at length before us, the question of causation in particular illustrates the problems which arise in this sort of case.

69. The judge accepted that Miss Melling had done an ACID test and the profile did not show dyslexia. But he held that because of the discrepancy between the plaintiffs chronological age and her reading age and her inability to spell her address, Miss Melling should have gone further. In particular, she should have done the Bangor test, which would have revealed her dyslexia. Mr Faulks strongly criticised this finding. He pointed out that none of the experts in their reports criticised Miss Melling for not using the Bangor test and it was never put to Miss Melling in cross-examination that she should have done so. This was not done for the very good reason that it was not part of Miss Booth’s case that she should have. In my opinion Mr Faulks’ criticism on this point is well founded.

70. Miss Melling found that there was a discrepancy of four years between the plaintiff’s chronological and reading ages. Not having found an ACID profile Miss Melling attributed this to the emotional problems which had been identified by the CGC. At the trial it was accepted that emotional problems could not account for so great a discrepancy, though they clearly might have accounted for some. Was the judge right to hold that Miss Melling was negligent in accepting that they did account for the discrepancy and not considering dyslexia further? I have found this a most difficult question. Mr Faulks submits that the judge’s finding is informed by hindsight. It was accepted at the trial that Miss Melling was not only entitled, but bound, to take into account the views of the CGC. Some years earlier Miss Meyerhof had considered that the plaintiff’s emotional problems accounted for her learning difficulties, though at that age it would not have been easy or perhaps even possible to detect dyslexia. As I have already said, it was not the plaintiff’s case that Miss Melling should have done some further or other test. It was accepted that the WISC test was the appropriate. The plaintiff’s case was that Miss Melling should have found an ACID profile, because all subsequent psychologists found this and the plaintiff was dyslexic in 1985. But the judge accepted that she had not found this and no criticism was made of the way Miss Melling carried out the tests.

71. The judge placed great emphasis on Dr Gardner’s evidence given in response to a leading question from himself, that in view of the discrepancy in actual and reading age, he would like to think that he, Dr Gardner, would have carried out more tests. There is some force in Mr Faulks’ criticism that the judge put undue weight on this, because Dr Gardner went on to say that he did not know what Miss Melling’s thoughts were, but there was a suggestion that at least part of what Miss Melling was thinking was that there was an ongoing emotional component in the plaintiff’s difficulties. Dr Gardner never said that it was good practice to carry out further tests or that Miss Melling was wrong to conclude that emotional problems were an explanation. On the contrary, he considered that these problems did have an impact on the plaintiff’s learning difficulties (Dr Gardner’s evidence 25.7.97 - p22-28).

72. There is a great temptation in a case such as this for judgment to be informed by hindsight and to say “we know now that the plaintiff is dyslexic, therefore she has always been dyslexic, therefore it should have been detected at 11½”. If there had been no other explanation of the discrepancy of reading and actual age, this would be legitimate reasoning even in the absence of an ACID profile. But where there was an alternative explanation founded on the findings of other professionals in the CGC, albeit we now know that it could not explain the full discrepancy, it seems to me somewhat harsh to find that Miss Melling fell below the standard generally to be expected of an educational psychologist.

73. The judge also held that Miss Melling was negligent in failing to re-test the plaintiff at a later date. Mr Faulks criticised this finding. In my judgment there is force in his submissions. Miss Melling’s continued involvement was through the Care Committee at which other professionals, well aware of the problems of dyslexia and who were in regular contact with the plaintiff, were involved. It seems to me unfair to single out Miss Melling at this stage; those teachers who came into contact with Mrs Phelps clearly thought, rightly or wrongly, that her attitude was not helping Pamela. It was her teacher’s view that the plaintiff had made some progress in the first two years. In her third year she missed the whole of the Autumn and part of the Winter term through illness. It would hardly be surprising that she had difficulty in adjusting after this; it was something which would obviously cause serious interruption to her teaching, even though she had some home tuition. There were also substantial absences in the fourth year and even more so in the last year.

74. I fully appreciate that the judge had the advantage of hearing and seeing the witnesses. I would also wish to pay respect to the great experience of the judge. The finding of negligence is not one of primary fact, but inference from the facts found. For the reasons I have given, though not without hesitation, I have come to the conclusion that the judge imposed too high a standard of duty on Miss Melling.

Causation

75. There was a great deal of evidence about the nature and appropriateness of special needs teaching and whether or not the school would have taught the plaintiff differently even if they had been told by Miss Melling she was dyslexic. The judge did not analyse this evidence. He contented himself with saying that she was ‘not taught specifically as a dyslexic because she was not diagnosed as such’. (Judgment 35C).

76. Mr Faulks submits that the judge should have analysed this evidence and if he had done so, it would not have justified his conclusion. He submits that since liability depends upon the defendants’ vicarious responsibility for Miss Melling’s tort, which involves both breach of duty and causation, it was for the plaintiff to prove on balance of probability that the school’s teaching would have been different and more effective if she had identified the dyslexia, and that significant improvement in the plaintiff’s literacy skill would have resulted. Mr Faulks submitted that on the evidence the plaintiff failed to establish this. I agree with Mr Faulks that that is what the plaintiff had to prove. Moreover, it was not sufficient to show that if they had known she was dyslexic the school ought to have taught her differently and more effectively; it is necessary to show, on balance of probability, that they would have done so.

77. In support of his submission Mr Faulks relies inter alia on the following matters:

(a) It was common ground that the appropriate teaching for dyslexics was the multi-sensory technique with over-learning.

(b) The plaintiff received 20-25% withdrawal from mainstream classes for small group or one-to-one tuition. Dr Gardner considered that even by today’s standards this would be considered substantial.

(c) It was the evidence of Mrs Taylor that the basis of all the teaching within the Special Needs Department was the multi-sensory and over-learning approach advocated in ‘Alpha to Omega’, a book which the experts on both sides agreed was one of the best available for teaching dyslexics.

(d) The plaintiff’s exercise books evidenced application of the multi-sensory techniques and use of Alpha to Omega. These books only represented a small part of the work done by the plaintiff at the school, others not being available. But I got the impression that they did represent the bulk of the exercise books in the Special English teaching.

(e) The mathematics teaching provided relied little on the written word.

(f) Drama and computer teaching which the plaintiff received was appropriate.

(g) Dr Gardner considered that the foundation course in which the plaintiff was enrolled in her 4th year was appropriate for a child with the plaintiff’s learning difficulties.

(h) It was Dr Gardner’s opinion that the remedial treatment provided to the plaintiff was reasonable by the standards of the time.

(i) It appeared to be the evidence of Mr Stafford and Mrs Taylor, the latter of whom at any rate was very familiar with the technique of teaching dyslexics, that the school would not have adopted any different approach to that which they did, even if they had known she was dyslexic.

78. The judge rejected the submission that the teaching would have been no different. He said at p40A:

"It was suggested that even if the plaintiff had been diagnosed in 1985 she would not, in the circumstances of knowledge and practice at the time, have been taught differently. I do not accept this. All concerned were aware of Dr Hornsby’s book and methods. Mrs Taylor said that a programme of learning would have been tailored to an individual student. Mr Rodrigues was clearly thinking in terms of an individual programme being possible. I accept that the techniques of teaching dyslexics have moved on during the last ten years, but I find that had the plaintiff been diagnosed, she would have been specifically taught as a dyslexic following Dr Hornsby’s methods and have made greater progress towards literacy as she has done with Mrs Laluvein. In addition, both she and her parents would have had the advantage (that only came in 1990) of knowing what her difficulty was and what might be done to mitigate it. What the extent of such progress would have been is a matter of speculation.”

79. Once again I have had considerable doubt whether the judge was justified in finding that the teaching would have been different. But there was a considerable amount of evidence from Dr Conn, Miss Laluvein and Mr Watling to the effect that although the plaintiff’s exercise books showed evidence of a multi-sensory approach, it was not sufficiently structured and some work appeared to be confusing to a dyslexic because too many vowel sounds were being taught at the same time. Mrs Taylor gave an explanation of this, which it seems the judge did not accept. It was the opinion of the plaintiff’s witnesses I have just referred to that while the teaching was suitable for slow learners, it was not specifically tailored for dyslexics. Dr Gardner recognised that not all the teaching was multi-sensory or wholly structured. It is unfortunate that Mrs Murphy, who is the teacher primarily concerned with the plaintiff, was not available to give evidence. But in the end I have come to the conclusion that there was evidence upon which the judge was entitled to conclude that a somewhat more structured approach would have been adopted.

80. The real difficulty however on causation, was for the plaintiff to show that if such approach had been adopted it would have made a real difference to her. The judge himself said in the last sentence of the passage I have quoted in paragraph 78, that the extent of such progress is a matter of speculation. That is not sufficient for the plaintiff to discharge the burden of proof upon her. It seems to me to be impossible to say that on balance of probability whether, if the teaching had been more structured than it was, it would have made a measurable difference. It is impossible to know what effect the emotional factors may have been having on the plaintiff. Dr Gardner considered that they interacted with the dyslexia. The plaintiff’s reading age was already 4 years behind when she saw Miss Melling. There was a long way to make up. It does not follow that because the plaintiff made some progress with Miss Laluvein (though the extent of the progress was very much in dispute) she would have done so at 12. Not infrequently children entering puberty have difficulty in learning. Even such matters of lack of rapport with a teacher, especially in a small class, may have a significant impact. Her prolonged absences in her third and fifth years must have had an effect on her schooling. Some of these absences were due to genuine organic conditions. It was not established that all the others were due to a psychological reaction to her literacy failings, though it is possible that this played a part. These are all imponderable matters. They are well recognised in the decisions of the American courts.

81. It may be possible in a case where there are no pre-existing or concurrent emotional problems and where no special teaching or wholly inappropriate teaching is given, to say that if it had been, as a matter of probability a child’s reading and spelling would have improved by a quantifiable amount over a period of time. In my judgment it was quite impossible to do so here with any confidence. The judge’s difficulty is illustrated by his assessment of damages. At p40F he posed three situations to be considered, the first factual, the other two hypothetical:

1. The plaintiff as she is now.

2. The plaintiff as she may be in two or three years time

3. The plaintiff as she might have been if diagnosed in 1985.

It does not seem to me that the judge ever gave an answer to the third question. Indeed his conclusion, which I have referred to in the passage cited in paragraph 78 and especially the last sentence, that it was a matter of speculation as to what progress she would have made, which immediately precedes the questions at p40F, indicates that it could not be answered as a matter of probability.

82. In the light of my conclusion on liability, I do not find it necessary to consider the question of quantum. But it is far from clear how the judge reached his figures for future loss of earnings and general damages or what factors he took into account. It is difficult to resist the conclusion that he simply plucked a figure out of the air. One cannot blame him; in my view the task was virtually impossible.

83. For these reasons I would allow the appeal and enter judgment for the defendants.

LORD JUSTICE OTTON:

1. I have had the opportunity to read the judgment of Stuart-Smith LJ in draft. I gratefully adopt his analysis of fact and law. The fact that the House of Lords declined to strike out particular claims as not disclosing a reasonable cause of action does not involve a converse finding that those claims did disclose a cause of action (see Morgan, v Odhams Press Ltd [1971] 1 WLR, 1239). Having carefully studied what Lord Browne-Wilkinson said in X (Minors) and in particular at pages 741 C-D and 763 G-H, I am of the view that it is open to this Court, having reviewed the evidence to decide that the plaintiff has not shown that Miss Melling assumed responsibility to her to take care to prevent her from sustaining such loss or damage as may be recoverable. Similarly it would not be fair, just or reasonable to single out the Educational Psychologist from the multi-disciplinary team and to impose such a duty upon her. I wish only to add a few comments by way of emphasis and with a view to assisting those involved in a considerable number of cases which are said to be awaiting the outcome of this case. It would be wise for those who contemplate instituting or pursuing such claims to be aware of the formidable obstacles which they face in order to avoid or reduce the chances of ultimate disappointment.

2. Two questions arise on the issue of Causation:

(1) If a diagnosis of dyslexia had been made would the plaintiff have been treated differently than she in fact was;

(2) If further treatment had been given what would have been the probable level of attainment, i.e. the outcome.

3. The manner in which the learned Judge approached causation can be discerned from 3 passages.

"The short point is that the Plaintiff was not taught specifically as a dyslexic because she was not diagnosed as such."

and his conclusions:

"All concerned were aware of Dr Hornsby’s book and methods. Mrs Taylor said that a programme of learning would have been tailored to an individual student. Mr Rodrigues was clearly thinking in terms of an individual programme being possible. I accept that the techniques of teaching dyslexics have moved on during the last ten years, but I find that had the Plaintiff been diagnosed, she would have been specifically taught as a dyslexic following Dr Hornsby’s methods and have made greater progress towards literacy as she has done with Mrs Laluvein. In addition, both she and her parents would have had the advantage (that only came in 1990) of knowing what her difficulty was and what might be done to mitigate it. What the extent of such progress would have been is a matter of speculation."

4. Mr Edward Faulks QC submits that the Learned Judge erred in holding it unnecessary to review the evidence as to whether or not the defendant would have received tuition of a different nature had she been correctly diagnosed. The weight of the evidence was that the tuition received by the plaintiff was the same as that which she would have received even had a diagnosis of dyslexia been made.

5. I accept Mr Edward Faulks’ primary contention that it was necessary for the judge to review this evidence in order to make a finding as to whether or not the fact that Ms Melling did not diagnose dyslexia had any causative effect. That he did not do so calls into question his conclusion that she would have been taught differently. Merely to state ‘the short point is that the plaintiff was not taught specifically as a dyslexic because she was not diagnosed as such” was not a proper or sufficient basis upon which to address this issue.

6. However, I am unable to accept Leading Counsel’s second limb of the argument that on a proper consideration of the evidence the Learned Judge ought to have concluded that the nature of the provision made for the plaintiff would not have been materially different had the diagnosis been identified. Counsel on both sides took us to extensive passages in the evidence. I have come to the conclusion that there was evidence before the Learned Judge which entitled him to reach the conclusion a diagnosis would have resulted in an individualised programme centred on multi-sensory techniques with over-learning. The special needs staff were aware of the appropriate methods for dyslexics, it had the requisite knowledge and experience to teach using a proper structured multi-sensory approach. The evidence supported a conclusion that they did not do so. The contemporaneous documentary evidence included some school books retained by the plaintiff which indicated to the experts (notably Mrs Laluvein) that a properly structured approach was not employed. Although based on the Hornsby “Alpha and Omega” teaching method it was not fully implemented but modified in such a way that it was appropriate for children with conventional reading difficulties but confusing for dyslexics. Accordingly I am satisfied that the Learned Judge’s finding that she would have been taught differently is justified.

7. In some cases the Judge may be required to consider the nature of the provision which was being made available to dyslexic children in other LEAs at the relevant time. The picture elsewhere is relevant to the question of whether or not the plaintiff in fact received an education appropriate for a dyslexic child, as judged by the standards of the time. In the present case the only expert to consider this point was Dr Gardner on behalf of the defendants and whom the Learned Judge found a particularly impressive witness. His evidence was that the tuition provided by the defendant to the plaintiff compared favourably with that provided by other LEAs at the relevant time when there was a widespread reluctance by LEAs to acknowledge or designate dyslexia as a special need. The provision by Hillingdon LEA at Pamela’s school was not out of step with other providers. He wrote:

"..., a number of LEAs do now have provision for dyslexic children in units which the child can attend for part or all of the day. In recent years, Hillingdon Borough itself has implemented recommendations for children with specific learning difficulties including dyslexia. ....... In my experience of LEAs across the country. Hillingdon’s initiatives in this area were approximately contemporaneous with similar developments in other LEAs.

......: very few LEAs have such specialist full-time provision and certainly did not have at the time of Pamela’s school career. It is only in very recent years that most LEAs have even contemplated setting up units for dyslexic children within mainstream schools.

......, the principle of educating children with specific learning difficulties (and considerably more without special specific learning difficulties but with other educational disabilities) was well established within Hillingdon Borough."

8. In my view this evidence (if accepted) would have been sufficient to justify a conclusion that the defendants would not have been negligent in their provision of education for Pamela.

9. As to the second issue of causation, the Judge in an early part of his judgment when dealing with the nature of dyslexia said:

"It is an inborn condition. It has been described as the result of a neurological dysfunction or cognitive defect but the actual cause is unknown. It is not curable but with appropriate teaching and support those with SpLD can be helped to achieve higher levels of literacy than would otherwise have been the case and, by understanding their condition, to develop techniques for mitigating its effects. However, the degree to which people with SpLD can be helped varies widely: some, sadly, make little progress at all."

10. In the second of the passages cited supra the Judge recognised the difficulty of predicting with any accuracy what the probable level of attainment would have been if the appropriate treatment had been provided. He acknowledged “what the level of progress would have been is a matter of speculation”. He had earlier recorded:

"It is quite impossible to make any specific findings as to the plaintiff as she might have been. I have commented that to attempt to do so is to enter deeply into the realms of hypothesis. Clearly, she would be somewhat, perhaps substantially, more literate that she is now. She would probably have greater self-confidence and self-esteem which would improve her employment prospects. Whether she could ever have become a computer operator I regard as pure speculation."

I regret that I am unable to accept that the plaintiff succeeded in proving that there was any deficit which was attributable to the failure to diagnose, or which would not have been present had appropriate education been given. I would allow the Appeal on this ground also.

11 Although he dismissed the claim for past loss of earnings for lack of evidence he went on to award £25,000 for loss of future earning capacity. However, he awarded £25,000. He did so by adopting the approach in Blamire v South Cumbria Health Authority 1993 PIQR Q1 . and arrived at a lump sum representing the loss of opportunity:

"..... to earn at a higher rate than that which the Plaintiff is now able to command (if fit and willing) or may be able to command after two or three years further tuition and education. The uncertainties are so great that any award must be extremely modest."

12. McCullough J found that before her accident Ms Blamire was employed as a nurse, and that but for the accident she would have pursued a lifelong career in her chosen profession. As a result of her injuries she would probably have to work as a secretary, that it would be significantly more difficult to obtain such work and that it was reasonable to expect some recurrence of back trouble during her working life. Accordingly the Learned Judge declined to apply the conventional multiplier/multiplicand approach as inappropriate given the number of imponderables, considered the matter globally and assessed the present value of the future financial loss at £25,000. His decision and reasoning were confined by the Court of Appeal.

13. In my judgement the present case is distinguishable. McCullough J had some established historical facts upon which to base his award. He also had the benefit of a probable future work pattern with a chosen profession. Neither of those factors are present here. There is no history of employment, and the future is entirely speculation. Accordingly there is no justification for applying either the global or the conventional approach.

14. Any plaintiff with a congenital condition faces formidable difficulties in proving a causal link between failure to diagnose and/or to treat appropriately and outcome, particularly in relation to future earning capacity. The burden of proof was on the plaintiff; it was not discharged. Thus I have to conclude that the Learned Judge was in error in making any award under this head.

LORD JUSTICE TUCKEY: I agree that this appeal should be allowed for the reasons given in both judgments.

Order: Appeal allowed with costs; order nisi against

Legal Aid Board with nil contribution;

application for leave to appeal to the House

of Lords refused.