England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
HHJ Hawkesworth, QC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
HALIFAX DISTRUICT REGISTRY HX 350016

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th March 2006

Lord Justice Latham:

1. In her action, the appellant claims damages against those responsible for her primary and secondary school education for their failure to identify her dyslexia and take appropriate steps either to ameliorate her condition, or to mitigate its consequences. The first respondent is the local education authority responsible for All Saints Junior and Infants School in Halifax, which the appellant attended between September 1987 and July 1994. From September 1994 to July 1999 she attended Crossley Heath School for which the second respondents were responsible. She left there after her GCSE examinations and thereafter attended Huddersfield College where she took her A level examinations.
2. On the 17^th December 2004, HHJ Hawkesworth concluded that the appellant's claim had no real prospects of success and struck it out pursuant to the provisions of CPR 24.2. The appellant now appeals against that order.
3. In his judgment, the judge summarised the nature of the Appellant's claim against the two respondents in the following terms:

"(i) Negligence is alleged against the staff at All Saints School up to the 31^st March 1984 in particular respects:

(a) against the headteacher, Mrs Bigham in failing to appreciate at least from Year 3, (1991) the claimant had a specific learning difficulty which required investigation;

(b) Mrs Bigham should have assessed the claimant properly and then have referred her to a suitably qualified teacher or educational psychologist and had she done so the claimant's dyslexia would have been diagnosed and appropriately been treated by July 1992.

(c) The school failed to inform the secondary school, Crossley Heath, of the claimant's literacy problems.

(ii) Negligence is alleged against the first defendant's educational psychologist to whom the claimant was allegedly referred in 1994, in failing to properly diagnose and advise regarding the claimant's dyslexia. Secondly it is alleged that he was negligent in January 1997 in his further assessment.

(iii) Negligence is alleged against the 2^nd defendants:

(a) in failing to appreciate the "obvious learning difficulties of the appellant in relation to literacy skills," following her admission to the school in 1994 and failing to appropriately investigate them at least up till late 1996;

(b) following Mr Griffiths' diagnosis of dyslexia in January 1997, failed to ensure that the note produced by the parents informing the school of the diagnosis was circulated and properly acted upon by the teachers by way of the provision of proper support."

4. The appellant claimed damages in her particulars of claim as follows:

"The claimant suffered humiliation whilst at school as a result of her literacy difficulties, her continuing and increased inability to keep up with her work and the persistent attitude of teachers that she was lazy and could do better if she tried. She lost confidence and self-esteem.

By reason of the failure to ameliorate the effect of her dyslexia, the claimant is at a disadvantage on the labour market and she claims in respect of such handicap and/or loss of future earnings and/or earning capacity. It is her case that she is of above average general intelligence and that if her dyslexia had been diagnosed when it should have been and if she had received appropriate teaching and concessions, her educational and occupational attainments would have been commensurate with her general intelligence and ability. She would have at least obtained a Grade higher in each of her ten GCSEs, achieving at least one A with the majority of the rest at least Bs, and the remainder at Cs. She would have had a greater range of options open to her at A Level. She would have obtained at least three A Levels at higher grades than in fact she achieved. Those grades would have been at least one higher, more in literacy orientated subjects. She would very probably have achieved an A in Psychology (if not an A then a B Grade) at least Bs (or at worst a B and C) in the other subjects. She wanted to be a child psychologist or to join the RAF as aircrew as a loadmaster (or navigator). She would have been accepted as a loadmaster. She had a good chance of becoming a psychologist. She would have had a satisfying career appropriate to her level of intelligence. Instead she has been obliged to undertake the HND course in a practical subject of which she has completed the first year but has deferred the rest of the course to explore the opportunity of a career as a shop manager."

5. The judge concluded that the allegations of breach of duty against the two respondents, although not free from difficulty, could not be categorised as hopeless, and would, in themselves have justified a trial. But he held that the pleadings and the materials before him did not establish that there was any real prospect of the appellant being able to establish general damages or damage by way of lost earning capacity. As in his view the appellant would not be able to prove that she had suffered any loss, her case was bound to fail. The appellant appeals on the grounds that the judge's conclusions were wrong. There is no cross appeal against the judge's conclusions in relation to the breaches of duty. We therefore have to approach the question of damage raised by the appeal on the basis that the appellant will succeed in establishing these allegations.
6. The appellant was born on the 1^st October 1982. She therefore started school at All Saints just before her fifth birthday. As Mr Gilchrist, the Educational Psychologist instructed by the appellant says in his report, the documentation suggested that she was a happy and successful girl during her primary school years with very positive reports. She concluded her time at that school as a house captain through a ballot of the house members, she was a member of the school council, a member of the guides and enjoyed technology. She applied for a place at three different grammar schools and was offered places at each. However it is clear that she had considerable difficulty with her spelling; and her mother had expressed concern to the headmistress, Mrs Bigham. Although neither Mr Gilchrist nor the Educational Consultant instructed by the appellant, Miss Berman, considered that her difficulties were such as to have required the intervention of a child psychologist or statementing, nonetheless they considered that steps should have been taken to help her reading and spelling despite the fact that generally she was progressing well. As a matter of detail, it is agreed that the First Respondent ceased to be responsible for All Saints in April 1994. As a result, an allegation in the Particulars of Claim in paragraph 18(v) which relates to the end of the Appellant's time at All Saints can no longer be sustained and must be struck out.
7. At Crossley Heath, she was soon found to have the difficulties reported by Mr Gilchrist and Miss Berman in both spelling and reading. Their view is that these significantly affected her performance. The evidence from the appellant's mother was that a Mr Griffiths, an educational psychologist, employed by the first respondent, made a preliminary informal assessment of her in 1994. There is no written record in the papers before us of this assessment; but it is said that he made certain suggestions in relation to her reading. On the 29^th January 1997, Mr Griffiths provided a more formal assessment in which he set out the learning difficulties that she had and said:

"This kind of difficulty is usually call a specific learning difficulty and quite commonly referred to as dyslexia."

8. She was also assessed by a Miss Susan Tidswell who noted that she had problems relating to recall of information, and made suggestions as to the help that she would need including the use of a dictaphone or word-processor, and being given extra time in which to complete work. Despite these assessments, it is said on the appellant's behalf that no, or no adequate steps were taken to follow them up with the appropriate remedial action. Ultimately, so far as Crossley Heath is concerned, she left having taken 9 GCSEs (1, science, counting in fact as 2 hence the ten pleaded in the particulars of claim). She got a B in Design Technology, a C in English Language, Mathematics, Science, and Art, and a D in English Literature, German, IT, and Physical Education. She then went to Huddersfield New College for her A Levels, where she obtained a C in Design Technology, a D in Psychology and an E at A/S Level in Design Systems.
9. Mr Gilchrist believes there is "no reason to think that her results would not have improved in GCSEs and A Levels by at least a grade, and even more in the literacy orientated subjects. Furthermore I would have expected her to have coped perfectly adequately with the normal number of three A Levels giving her a far more effective academic platform for further education." But his opinion has to be read in the light of the fact that it is based on the assumption that she should have been given more time for her exams. In fact, the school asked for more time; the examination board refused. As a result, the Appellant accepts that the allegations in paragraph 18(vii) and (xiii) can no longer be sustained and should be struck out.
10. Miss Berman expressed her opinion as follows:

"…..It is difficult to speculate as to the level of GCSEs and A Levels that Fiona would have achieved. I am sure that she would have improved her grades…. In my view had she not had a specific difficulty or had her difficulties been appropriately addressed, she would have made a grade improvement at the very least.

I have specific knowledge of A Level Psychology. I have set up a department for psychology in a secondary school and have taught the subject. I feel sure, given Fiona's apparent ability, and given that her learning disability would have been addressed at an early age, she would have achieved an A in Psychology at A Level. It is difficult to speculate on the grades for Design Technology and Design Systems at A Level but I am sure they would have been higher than a C and E respectively. She may even have had the confidence to choose different subjects."

11. While she was at College the appellant was in the Air Training Corps which she had first joined in 1996 as a Cadet and became a Warrant Officer in 2002. She became a qualified Marksman and achieved a NVQ in Aviation Studies by qualifying as an ATC Staff Cadet. In her statement she said that she applied to join the RAF as aircrew but was rejected and invited to apply for ground crew, took the aptitude test and was told that she could apply for any ground trade. But at her final interview she was found to be overweight. A letter from the Director of Recruitment at the RAF dated the 2^nd November 2004 does not, however, confirm that she applied as aircrew; the records simply say that she made an application for an undisclosed branch or trade in November 2000 and then made a fresh application in January 2001 for ground trades entry. The letter confirmed that she was found to be overweight in July 2001 and, according to the records, she herself terminated her application. The letter continued:

"Had she resolved her problem and successfully completed her application, basic and trade training, the opportunity to re-muster to Non Commissioned Aircrew would have remained up to her 35^th birthday. Any such transfer would be dependent on attaining the prerequisite academic qualifications, the aptitude skills sets and successful completion of the selection process at the Officers and Aircrew Selection Centre."

12. Whatever may be the circumstances in which her application was "terminated", the fact is that she was accepted for and commenced in September 2002 a two year HND furniture making and restoration course at Leeds College of Art and Design. She completed the first year successfully. In the summer of 2003 she returned to work at a computer games shop in Leeds called the Games Station at which she had worked in the summer of 2002, and was then offered a position of senior sales assistant. She decided to accept that offer and see how her career developed. She accordingly deferred the rest of her HND Course.
13. As can be seen from the particulars of claim which I have set out above, the appellant's main case is that she would have been either a child psychologist or aircrew in the RAF, but has been "obliged" to take a different course. As far as her prospects of being a child psychologist were concerned, Mr Gilchrist said:

"Whether she could have gone on to train as a Child or Educational Psychologist is a matter of some debate. Most MA or Dip Psych courses require an upper second degree in Psychology in the first place and would normally have looked for two B's and a C at A Level. This target would have been a possibility for Fiona but the odds would have been against its attainment."

14. Miss Berman said:

"I do not know whether she would have received sufficient qualifications to become either a child psychologist or a member of the aircrew with the RAF. I think that a career expert would be able to advise more accurately."

15. As to the latter possibility, that is her hope of becoming aircrew in the RAF, Mr Gilchrist provided a fuller answer:

"Joining the Air Force as aircrew would certainly have been conceivable. We now know that she was certainly intellectually able but would have needed high grades in her A Levels to be perceived as an attractive candidate. Had she achieved the level of which she is truly capable, following adequate remedial input, especially during her teenage years, herA level targets could well have been met and she would been able to offer herself as a perfectly satisfactory candidate….. I see no reason why Fiona should not have been perfectly successful in this environment. She has the natural aptitude and is at present a Warrant Officer in her local Air Training Corps. She shows considerable enthusiasm for life and is extremely hardworking. However the academic criteria that she was able to present to the selection boards in the RAF would have been extremely fragile and would have left her as a less than attractive candidate. In many ways I feel that the RAF missed a very worthwhile candidate."

16. The judge, having reviewed this material said in para 16 of his judgment:

"The essence of this claimant's claim is loss of earning and loss of earning capacity. There is no claim put forward on the basis of expert evidence for psychological or psychiatric injury. A claim for distress for unhappiness at school itself would not sound in damages. The essential claim is that the claimant has been deprived, to quote her expert, of a chance to "follow a professional career with the attendant salary." In view of the claimant's history, however, I find it impossible to conclude that the claimant would be able to establish that loss in view of the choices she has made. Had she chosen to do so, the claimant could have pursued a degree course at university and followed a career as an interior designer or alternatively could have pursued her studies in furniture making and restoration. The claimant's case does not attempt to show that her earning capacity in either of those careers would have been less than that in the RAF or in Child Psychology and I certainly can make no assumptions that this would have been the case. The fact is that the claimant has elected not to pursue further studies or qualifications, building upon her A Levels, but has taken employment for which she appears to have needed no academic qualifications at all. It therefore seems to me to be wholly unrealistic to assume that her current earning capacity is the result of a limitation which has been caused to her by her lack of academic qualifications. In truth, as Miss Berman her expert has conceded in relation to academic attainment, much speculation would be involved in any attempt to make a comparison between her present career path and the career path which she might have followed had she obtained higher GCSE Grades or A Level Grades, assuming her allegations to be well founded. I am thus wholly unable to accept that any claim for recoverable loss could be established. It therefore follows that on that basis I accept the defendant's submissions that the claim has no reasonable prospects of success in relation in particular to causation of loss. It does not seem to me that at a trial the evidence of the claimant or her experts could be expanded in any way to remedy these deficiencies in her claim."

17. Mr Greenbourne, on behalf of the appellant submits to us that the judge was wrong both in respect of general damages for loss of amenity, and damages for loss of future earning capacity. As far as the first is concerned, he submits that the appellant is entitled to a sum for general damages on the basis that she has in her statement asserted that she suffered considerable frustration and distress at school, and her school time was made harder by reason of the difficulties that she faced. This, submits Mr Greenbourne is all capable of sounding in damages as is the fact that she has lost, if she is to be believed, the prospect of being able to do a job, such as child psychology or aircrew in the RAF, which would give her real satisfaction. He relies upon the decision of Garland J at first instance in Phelps –v- London Borough of Hillingdon [1998] ELR 38, which was upheld by the House of Lords, the decision being reported at [2001] 2AC 619.
18. As far as lost earning capacity is concerned, he submits that assuming, as we have to, the breaches of duty which are alleged, it cannot be said that there is no substance in the evidence of Mr Gilchrest and Miss Berman to the effect that with proper assistance she could have improved her GCSE Levels and her A Levels. In those circumstances, even if she is not able ultimately to produce evidence to show that her present job is unlikely to provide her with the same remuneration as, for example, air crew in the RAF, nonetheless the mere fact of her poorer grades could properly found an argument to the effect that she is at a disadvantage on the labour market, so as to entitle her to a lump sum award, however modest. He submits that the court is not entitled to assume that no evidence is likely to be forthcoming to support such a proposition.
19. In Phelps which was, and remains, the landmark case in relation to the failure to diagnose dyslexia, Garland J had to consider claims for loss of earnings or loss of earning capacity and handicap on the labour market, and a claim for "loss of a congenial occupation". He also had to consider general damages which were claimed by analogy to cases of mental impairment, and included a history of frustration, anti-social behaviour, loss of confidence and loss of self esteem which the judge found established on the evidence. The defendants contended that as far as the latter were concerned, the plaintiff had not suffered any personal injury recognised by law. The judge at page 62 put this issue in the following terms:

"Can the plaintiff recover on the basis that on the balance of probabilities, had her condition been diagnosed earlier, it would to some extent have been ameliorated, and by raising her level of literacy improved her quality of life and prospects of employment? Does the law of tort recognise a lost gain as well as an inflicted loss?"

20. He derived assistance from the judgments of the Court of Appeal in E (a minor) –v- Dorset County Council [1995] 2AC 633. At page 703 Lord Bingham (then Sir Thomas Bingham MR) said:

"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 education 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."

21. And at pages 715H to 716B, Evans LJ said:

"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."

22. In Phelps at page 64 Garland J said:

"I respectfully adopt the propositions set out, by Lord Bingham. If it is necessary to do so, I am prepared to regard "injury" as including a failure to mitigate the adverse consequences of a congenital defect. I have already found that the early diagnosis was not made with the result that appropriate treatment was not given or provision made. This was detrimental to the plaintiff's education attainment and employability. I find that the adverse consequences of the plaintiff's dyslexia could have been mitigated by early diagnosis and appropriate treatment or educational provision… I am satisfied that the damage is not too remote. The plaintiff is therefore entitled to recover damages."

23. Dealing with quantum, he considered that the claim for future loss of earnings had to be approached on the basis of a loss of opportunity to earn at a higher rate than that which the plaintiff was then able to demand and awarded a lump sum of £25,000. He went on:

"(4) General Damages. The plaintiff is entitled to general damages including something to represent the loss of congenial employment. Counsel realistically accepts that the bracket is a low one. Doing the best I can, I award £12,500."

24. In the House of Lords, Lord Slynn said as follows, at page 654F:

"The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can be no doubt that if forseeability or causation are established, psychological injury may constitute damage for the purpose of the common law. But so in my view can a failure to diagnose a congenital condition and to take appropriate action as a result of which failure a child's level of achievement is reduced, which leads to loss of employment and wages. Questions as to causation and as to the quantum of damage, particularly if actions are brought long after the event, may be very difficult. But there is no reason in principle to rule out such claims."

25. At page 657, he continued:

"On my conclusions, Garland J adopted the correct approach and was entitled on the evidence to find liability and on that approach he was entitled, in my view, to accept that "the adverse consequences of the plaintiff's dyslexia could have been mitigated by early diagnosis and appropriate treatment or educational provision". He was right to have regard to the judgments of Sir Thomas Bingham MR and Evans LJ in E (a minor) –v- Dorset County Council….

The assessment of damages in this case was extremely difficult…. Although I agree that there is room for much debate as to quantum in this type of case, no better approach in this case had been suggested than adopted by the judge. I would not interfere with his assessment of the damages."

26. Lord Jauncey, Lord Lloyd, Lord Hutton and Lord Millett expressly agreed with the speech of Lord Slynn. Lord Clyde agreed generally and had this to say about damages at page 670 C:

"Thirdly, while the injury which is alleged to have occurred is principally a loss or at least a retardation of their educational progress with such consequential loss and expense that that might entail, it might also involve some form of mental or psychological injury. The loss claimed may be purely of an economic character. But the mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damages, such as a post-traumatic stress disorder or a psychological illness. Dyslexia is a condition which may in itself become worse through the absence of an appropriate educational regime, and the frustration of an inappropriate regime may cause psychological stress or injury. The consequences of negligent advice regarding the future treatment of a child with some special educational need may take a variety of forms and may be extensive."

27. It seems to me to be clear from these passages that as a matter of principle general damages can be awarded for the consequences for a failure to take appropriate steps to ameliorate dyslexia, including frustration, loss of self confidence and loss of self esteem as identified by Garland J, and implicitly accepted by Lord Slynn, despite the more cautious approach of Lord Clyde. I confess that I find the dividing line between that and the distress and "upset" which Lord Bingham acknowledged could not found a claim for damages somewhat elusive. But I consider that Phelps is authority for the proposition that if it can be shown that a claimant's disability had a real effect on his or her ability to cope with school and work, or has otherwise interfered significantly with his enjoyment of life, that will be a loss of amenity which can properly sound in damages.
28. In the present case the appellant has expressly pleaded humiliation, lost confidence and lost self-esteem. In those circumstances it seems to me to be extremely difficult on the material that we have to say that she will not be able to establish that the degree of humiliation, lost confidence and self-esteem she may prove will not be sufficient to justify an award of damages under this head. Bearing in mind the school reports at All Saints, it is unlikely that she will establish any claim for that period, but there is evidence which ought to be considered at trial for the period thereafter; and the appellant's case is that the failure of All Saints to identify her dyslexia and deal with it appropriately had a continuing effect. It follows that in relation to this head of damage, the appellant is entitled to pursue her claim. Whether, on the material that we have, it is likely that the level of damages will be of the order of those awarded in Phelps is, I would have thought, a matter of some doubt, particularly bearing in mind the fact that she appears to enjoy her present employment. But that will be a matter for trial.
29. As far as damages for lost earning capacity are concerned, there must be considerable speculation involved in the claim in the light of the evidence which we have seen. The extent to which her dyslexia could have been ameliorated or provided for will always remain uncertain, as will the extent to which that would have affected her performance in public examinations; the evidence that we have includes material to suggest that she, not surprisingly, reacted adversely to the break-up of her parents marriage when she was 15, in other words at a critical time in her education. Whether any improvement in her examination results would have led to her life taking a significantly different course will also be a matter for some speculation. Her case in relation to joining the RAF is not wholly supported by the evidence from the RAF itself; if she really had such an ambition, it is surprising that she did not pursue it with more vigour than she has. Be those doubts as they may, I do not consider that they are sufficient to allow the court to say at this stage that the appellant will be unable to put before a judge at trial a case which at least establishes that she may have suffered some loss of earning capacity even though modest. And in this context, by modest I mean a figure significantly less than that in Phelps which would appear to have been a stronger case.
30. I would accordingly allow this appeal, although with considerable regrets. This case simply does not justify the expense which is likely to be incurred in taking the matter to trial; and so far as the respondents are concerned, this means expenditure on litigation of funds which should be being applied more constructively. But the rules do not permit us to dismiss a claim merely because we consider pursuing it to be disproportionate; we can only do so if "the claimant has no real prospect of succeeding on the claim". I sympathise with the judge's desire to fit this case into the rule; but I am afraid that, for the reasons that I have given I cannot conscientiously do other than allow the appeal, save to the extent indicated in paragraphs 6 and 9 above.

Lady Justice Hallett: I agree.

President of the Queen's Bench Division:

31. I am reluctantly driven to agree with Latham LJ's judgment. I cannot avoid reflecting that there is likely to be a huge disproportion between any damages which might properly be awarded to the claimant if her action were to succeed to its fullest possible extent, and the likely disruption and cost and diminution of valuable resources which will inevitably be required before it can succeed, or indeed if, as may happen, it fails altogether. Indeed I suspect that the costs already incurred by both sides to date may already have come close to, if they have not exceeded, the damages which would accrue to the claimant at the end of what from her point of view would be successful litigation. These are significant considerations.
32. The requirement that civil litigation should be conducted proportionately is now axiomatic. However, I have been unable to persuade myself that this requirement, and the provisions of the Civil Procedure Rules which support it, enable the powers of the court under CPR 24.2 to be exercised where the claimant has a real prospect of success on her claim. That would be a misuse of the rule. A claim with a real prospect of success cannot be struck out under CPR 24.2 just because the issues are complex or difficult, and the value of the claim, in money terms, is modest.
33. This successful appeal must be followed by intensely rigorous case management in which every practical step to save expense and ensure expedition and fairness is deployed. The case should be listed before Judge Hawkesworth within one month (or such further time as he may feel appropriate to allow) with proposals to ensure that the objective that the case should be dealt with proportionately is achieved.