England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TORQUAY AND NEWTON ABBOT COUNTY COURT
(His Honour Judge Vincent)

		Royal Courts of Justice Strand London, WC2
		6th May 2003

Tuesday, 6th May 2003

J U D G M E N T
1. LORD JUSTICE PETER GIBSON: I will ask Tuckey LJ to give the first judgment.
2. LORD JUSTICE TUCKEY: The defendant education authority appeal against a decision of His Honour Judge Vincent made in the Torquay and Newton Abbot County Court that their limitation defence to the claimant's claim failed.
3. Between 1977 and 1988, when the claimant was aged between 5 and 16, he was a pupil at the defendants' schools in Sandhurst. His case is that the defendants, their servants or agents failed to discover that he was dyslexic and failed to use appropriate teaching to ameliorate his learning difficulties, with the result that he has suffered emotional and psychological injury. The claim was started on 25th June 2002 when the claimant was 30. The defendants contended that it was statute barred and the judge tried this as a preliminary issue.
4. Following the decision of this court in Robinson v St Helens Borough Council [2002] EWCA Civ 1099, it is established that such claims are claims for personal injuries, for which section 11 of the Limitation Act prescribes a time limit of three years from the date when the cause of action accrues or the date of knowledge of the person injured, if that is later.
5. Section 14 defines the date of a person's knowledge as:

"(1) ... the date on which he first had knowledge of the following facts-

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence ... or breach of duty; and

(c) the identity of the defendant ...

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence ... or breach of duty is irrelevant."

Subsection (3) says:

"For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire-

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; ... ."

The remainder of the section is not relevant for present purposes. Section 33 of the Act gives the court discretion to exclude the section 11 time limit if it is equitable to allow the claim to proceed.

6. The claimant's case is that he was unaware that he had dyslexia until November 1999. At that time he was attending a carpentry course at a technical college and having difficulties coping with the paper work involved, and this was getting him down. He was discussing these problems with an acquaintance, Monica Harding, at a party. Unknown to him, she was an educational psychologist. As a result of what he told her she suggested that he was dyslexic. This surprised him. It had never crossed his mind. However, as a result of what Miss Harding said, he went to solicitors early the following year and was referred to a consultant educational psychologist, Dr Gardner, who diagnosed severe dyslexia in September 2000.
7. The claimant and Miss Harding gave evidence at the trial of the preliminary issue. The judge made the following findings of fact:

"It is clear from the claimant's evidence that he knew during childhood that he had reading and writing difficulties that set him apart from most other children. He knew too that teachers were there to help with such difficulties. He was the subject of periodic transfers to a remedial class. He was, save in that respect, taught as a normal child. He gave me quite a graphic account of the way in which over the years he had managed the practical problems that reading and writing posed to him, including a significant element of concealment of his problem from others. As a matter of fact, he did not meaningfully seek help with his difficulties before the diagnosis of dyslexia was made."

8. From the claimant's witness statement it can be seen that on leaving school he had been employed as a trainee mechanic on a YTS scheme. This had involved day release to a college. He had completed the first year successfully, but left during the second year because he had found the course work progressively more difficult. He had then worked on and off between 1991 and 1998 as a care worker but had difficulty writing reports on the patients who were in his care. Mr Faulks QC, for the defendant, has referred us to other passages in the transcript of the claimant's evidence which elaborate the judge's findings. They show how the claimant was affected by his difficulties which Miss Harding thought had blighted his life.
9. After referring to those difficulties, the judge dealt with the psychological effects of the dyslexia on the claimant, including poor self-esteem and panic attacks, but went on to add that those symptoms could not be divorced from their cause, which was dyslexia. He then made his findings about actual knowledge, saying:

"Throughout his childhood and on attaining majority (and thereafter) the claimant knew that he suffered from these psychological effects and that they were linked in some way to his problems with reading and writing, but I do not accept that he knew that those problems were attributable to the defendants as opposed to being just one of those things that made him the person that he was and is. His surprise in November 1999 at the suggested diagnosis of dyslexia is significant, in my view, because for the first time then he was able to link the reading and writing difficulties and their consequences to a recognised condition capable of being addressed or managed.

I think that using the proposition that the appropriate date when the claimant actually knows enough to make it reasonable to begin to investigate whether he had a case against the defendant, it was at that point in November 1999."

10. He then dealt specifically with constructive knowledge, saying:

"I reject the proposition that as a child a reasonable person with these injuries flowing from dyslexia would have reacted differently from the claimant or gained knowledge which I find he did not have. As an adult he had plenty of time to seek help and investigate the problem, but he did not. He gave me a cogent explanation for his failure, namely the fact that people with his disability develop coping strategies to mitigate its effect and find the idea of disclosing the inability to properly read and write humiliating.

This is, in my judgment, an entirely natural and reasonable consequence of having this type of learning disability which has not been properly addressed. You do not have to be shy to experience this reluctance to talk to people and disclose your inabilities. So I consider that a reasonable person with his unaddressed dyslexia would be unlikely to have sought help or to have put two and two together and seen the glimmerings of a claim against the defendant."

11. These conclusions on the issues of actual and constructive knowledge made it unnecessary for the judge to consider whether to extend time under section 33, and he expressed no view about that issue.
12. Mr Faulks submits that on the findings of fact which the judge did make he should have found that the claimant had acquired the necessary knowledge by no later than his eighteenth birthday. The claimant had known of his psychological difficulties (the injury) and that it was significant throughout his life. He also knew that these difficulties were linked to his ability to read and write. His evidence was that he knew that he was as bright as other children, but had difficulties putting things down on paper. His schools had not helped him. His difficulties with reading and writing were the very things he was there to learn.
13. Mr Faulks relies particularly on an answer which the claimant gave in cross-examination, when asked the question:

"You knew the teachers should help you. That is what you thought, is it, that they should help you?"

to which he replied:

"Yeah, and I suppose I couldn't understand why I wasn't getting it. I didn't understand why I couldn't do it."

So, Mr Faulks submits, he actually knew enough to make the connection between his injury and some act or omission on the part of the defendant. Knowledge that this amounted to negligence was not necessary, as the statute makes clear.

14. We were referred to passages in Robinson and Dobbie v Medway Health Authority [1994] 1 WLR 1234 as to the correct approach to the question of actual knowledge, but there is no issue about the approach to that question in this case. Section 14(1) contains a relatively straightforward code which it is not suggested the judge failed to follow on the issue of actual knowledge.
15. I do not accept Mr Faulks' submissions that this court should interfere with the judge's decision on this issue. That the claimant was meant to learn to read and write at school and had not done so adequately does not sufficiently make the link between the injury and the relevant causative acts or omissions by the defendant now relied on by the claimant in support of his claim. The passage in cross-examination to which I have referred could be said to make the link, but I think in context it is ambiguous; and although Mr Faulks submits to the contrary, I do not accept that the judge thought that it made the necessary link, because otherwise he would not have made the findings which he did.
16. There are any number of reasons why the claimant might have thought that he was not achieving what he was capable of. The judge found as a fact that he had not made the necessary link between his difficulties and anything which the defendants had or had not done in the course of his education. The link had to be made, furthermore, with a significant injury. It is not clear whether the judge accepted that the claimant did know that he had such an injury. His finding is confined to the symptoms which the claimant said he had experienced throughout his life. The judge's reference, however, to "a recognised condition capable of being addressed or managed" suggests that the judge was not satisfied that the claimant was, in the relevant sense, aware that he had suffered significant injury. These findings of fact are conclusive, in my judgment, on the issue of actual knowledge and it is not open to us to interfere with them.
17. The essence of the judge's conclusion about constructive knowledge is that people with undiagnosed dyslexia could not reasonably be expected to seek help for this condition because they are embarrassed to do so. Mr Faulks submits that this is a subjective approach. The Act requires the court to be objective: how would a reasonable person in the claimant's position have reacted? Considered objectively, and ignoring any personal characteristics of the claimant, a reasonable person suffering from apparently serious psychological symptoms arising from literacy difficulties would have sought expert help long before this claimant did. The claimant chose to do nothing, and it is quite unreasonable for him to turn round many years later and rely on his ignorance. This is what the Limitation Act was designed to avoid. A reasonable person would, or should, have sought help from his doctor, course tutors, adult literacy classes or an educational psychologist years ago. Even if diagnosis or identification of the condition could only have been made by an educational psychologist, going to one of the others would have started a chain of inquiry which would have revealed the condition.
18. We were referred to two cases in which this court has had to consider constructive knowledge in this type of case: Forbes v Wandsworth Health Authority [1997] QB 402 and Smith v Leicester Health Authority [1998] Lloyds Law Reps (Medical) 77. Both were medical negligence cases.
19. In Forbes the court (consisting of Stuart Smith, Evans and Roch LJJ) was concerned about a statement which had been made by Purchas LJ in the earlier case of Nash v Eli Lilly & Co [1993] 1 WLR 782 that:

"In considering whether or not the inquiry [that is, of an expert] is, or is not, reasonable, the situation, character and intelligence of the plaintiff must be relevant."

20. Stuart Smith LJ (at page 414 D) said he had difficulty in accepting that the character and intelligence of the plaintiff could be relevant to an objective test, and on the same page (at letter G) he said:

"It does not seem to me that the fact that a plaintiff is more trusting, incurious, indolent, resigned or uncomplaining by nature can be a relevant characteristic, since this too undermines any objective approach."

21. Evans LJ at page 423 said:

"As to situation, there is no difficulty. The reasonable man must be placed in the situation that the plaintiff was. The reference to character and intelligence, however, suggest that regard should be had to personal characteristics of the plaintiff, and this I find difficult to square with the application of an objective and, therefore, equal standard."

22. On the same page of what he described as the qualified objective approach in National v Eli Lilly he said:

"There is only the one-line statement, already quoted, and no indication in the report that this particular nuance of meaning was argued in that appeal. It may also be possible to give the references to character and intelligence a limited meaning, for there could be circumstances where the nature of the alleged negligence was such that those attributes of the 'reasonable man' might be relevant in applying the objective test."

23. In Smith Roch LJ giving the judgment of the court referred to Nash v Eli Lilly and Forbes and then said at page 86:

"We are prepared to accept for the purposes of this appeal the proper approach to this question is:

What would the reasonable person have done placed in the situation of the plaintiff?

And the answer in each case must depend on its own facts of Evans LJ in Forbes at 422D who said:

'The answer to this submission I am sure is that each case must depend on its own facts. The statute applies a test of reasonableness and it would be wrong to introduce categories or general rules as to what is reasonable or not.'

At page 422H Evans LJ added:

'I doubt, however, whether it is appropriate to regard this issue in terms of a decision made consciously or unconsciously by the deceased whether to accept his lot or consider making a claim. If the question is whether, objectively and reasonable, he could be expected to have obtained further advice, then I do not see that his actual mental processes are relevant at all.'

We agree with these observations. We accept that the plaintiff's individual characteristics which might distinguish her from the reasonable woman should be disregarded."

24. In this case Mr Faulks accepts, rightly in my judgment, that in asking whether it was reasonable for the claimant to seek advice it was relevant to take into account that he was a man with reading and writing difficulties. He did not accept, however, that it was relevant to consider that the claimant's low self-esteem, brought about by this difficulties, might have inhibited him from seeking advice because he did not wish, in the claimant's own words, to highlight himself as stupid. The consequences of such inhibition, Mr Faulks says, could be taken into account under section 33, but were not relevant for the purposes of section 14.
25. Skilfully though they were put, I do not accept Mr Faulks' submissions. As Evans LJ said, each case depends upon its own facts. The judge's essential finding in this case was that a reasonable person with the claimant's unaddressed dyslexia would be unlikely to have sought help or to have put two and two together and seen the glimmerings of a claim against the defendant. So his state of knowledge was not such as to give him an informed choice between accepting things as they were and getting on with his life or seeking advice to give him the required knowledge.
26. It does not, I think, follow that such a conclusion would be reached in every case where, by chance, sometimes many years later, a claimant discovers that he is or may be dyslexic.
27. There are difficulties in precisely defining the boundary between what is relevant to the objective standard imposed by section 14(3) and what is not, which are probably best left as the authorities stand by saying that the claimant's situation is obviously relevant but other more personal characteristics are not. However, if it is the case that those suffering from reading and writing difficulties, whether or not they are diagnosed with dyslexia, are inhibited from drawing attention to their disability, as one would expect, then I think the court is entitled to take this into account in considering whether or not they acted reasonably. So, as this is obviously what the judge thought in this case, I do not think he was wrong to take it into account in the way that he did in the passage from his judgment which I have quoted.
28. I have considerable sympathy with the defendants, faced with such a stale claim. The teachers concerned can hardly remember the claimant. Their records were destroyed when he became 21. If we had to consider section 33, I think it most unlikely that I would have allowed the claim to proceed. But, as it is, section 33 does not arise because I do not think we would be justified in interfering with the judge's finding of fact in this case.
29. For these reasons, I would dismiss this appeal.
30. LORD JUSTICE KEENE: I agree.
31. LORD JUSTICE PETER GIBSON: I also have considerable sympathy with the defendants seeking to defend a claim so many years after the claimant had been a pupil with them. But for the reasons which Tuckey LJ has given, I too would dismiss this appeal.

Order: Appeal dismissed with costs. Detailed assessment of the Respondent's publicly funded costs. Application to appeal to the House of Lords refused.