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Liennard v Slough Borough Council [2002] EWHC 398 (QB) (15th March, 2002)

		Neutral Citation Number: [2002] EWHC 398 (QB)
		Case No: HQ 9902793

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

15 March 2002

B e f o r e :

THE HONOURABLE MR JUSTICE HENRIQUES
____________________

Between:

	IAN STEPHEN LIENNARD	Claimant
	And -
	SLOUGH BOROUGH COUNCIL	Defendant

____________________

Mr T Kerr QC (instructed by Levenes) for the Claimant
Mr A Warnock (instructed by Vizard Oldham) for the Defendant
Hearing dates : 19-25 February 2002
____________________

HTML VERSION OF HANDED DOWN JUDGMENT
____________________

Mr Justice Henriques:

This is a claim for damages by Ian Stephen Liennard now aged 29 for damages for the negligent failure by his teachers between 1986 and 1989 to assess properly, or at all, his learning difficulties and in consequence negligent failure to refer him for specialist advice and for assessment by a remedial teacher or educational psychologist. He was at the material time at Woodside Secondary School which in his final year became Wexham School. Since the majority of this judgment refers to the Claimant whilst he is at school, I shall refer to him as Ian.

The Defendant denies that any of his teachers at Woodside/Wexham was negligent.

What is said to be wrong with Ian?

It is admitted that his difficulties are complex and possibly unique. The experts have struggled to describe his condition with any degree of unanimity.

Lisa Blakemore-Brown Chartered Psychologist saw him in September 1996 and described him as a gifted young man with an autistic spectrum disorder and attention deficits. He fulfilled the criteria for Aspergers Syndrome.

His present treating psychiatrist Dr Rajendran, a Neuropsychiatrist describes him as suffering from a mental disorder namely bi-polar affective disorder with episodes of depression alternating with hypomania.

The Claimant’s experts describe him thus:

John Mallen neuropsychologist and chartered educational psychologist saw the Claimant on 4^th February 2000 and was of the opinion that he had a Non Verbal Learning Disorder (N.V.L.D).

Dr Mark Berelowitz, consultant Child and Adolescent Psychiatrist, saw the Claimant on 4^th February 2002 and concluded that he does not have Aspergers Syndrome or any form of Autism. He probably does have N.V.L.D. and possibly suffered A.D.H.D. (Attention Deficit Hyperactivity Disorder) as a child.

The Defendants experts described him thus:

John Acklaw, Chartered Educational Psychologist, saw the Claimant on 3 October 2001 and found that he had difficulty in functioning effectively but precise diagnosis of his psychological condition was uncertain. ‘He currently shows characteristics of cognition and social dysfunctioning that are impeding his successful adaptation as an adult’.

Professor Euan Ross Community Paediatrician who saw the Claimant on 30 September 2001 did not agree that he had an autistic spectrum disorder and described Ian as ‘a young man who has a unique pattern of behaviour that cannot be classified’.

The Claimant himself has some considerable insight into his problems. He has read books on the several disorders mentioned and gave evidence thus:

“I believe bi polar affective disorder is 80% accurate as a diagnosis – it could be refined.”

In the context of this claim I am satisfied no benefit is to be achieved by seeking to place a label on his condition. He does not suffer from ‘dyslexia’. He is highly intelligent probably in the highest 1%. He has social and emotional difficulties. He is being treated with Carbamazapine which is a mood stabiliser. Whilst at school he was massively disorganised frequently late for school and almost never did any homework or coursework set for him. The full picture will emerge from an analysis of his school reports.

In short – Ian’s condition was highly unusual if not unique. It contributed to Ian’s failure to achieve a standard of education commensurate with his ability.

The primary question raised in this action is whether in failing to address Ian’s problem and to refer Ian for professional advice on them, the teachers concerned fell short of the standard of skill and care required of a reasonable teacher in 1986-1988.

The Duty of Care

The existence of a duty of care is accepted by the Defendants. Lord Browne- Wilkinson in X (Minors) v Bedfordshire C.C. 1995 A.C. 633 at p766 described it thus:

“In my judgment a school which accepts a pupil assumes responsibility not only for his physical well being but also for his educational needs. The education of the pupil is the very purpose for which the child goes to the school. The Head Teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of a headmaster that a pupil is under-performing, he does owe a duty to take such steps, as a reasonable teacher would consider appropriate to try to deal with such under-performance. To hold that, in such circumstances, the head teacher could properly ignore the matter and make no attempt to deal with it would fly in the face not only of society’s expectations of what a school will provide but also of the fine traditions of the teaching profession itself.”

Since under-performance is the feature of the Claimant’s school life which was so obvious the underlined passage is particularly opposite. Lord Slynn of Hadley in Phelps v Hillington L.B.C. H.L. 2000 3. WLR 776 said:

“I fully agree with what is said by Lord Browne-Wilkinson in the X (Minors) case that a head teacher owes a duty of care to exercise the reasonable skills of a headmaster in relation to such a child’s educational needs and a special advisory teacher brought in to advise on the educational needs of a specific pupil, particularly if he knows that his advice will be communicated to the pupil’s parents, “owes a duty to the child to exercise the skill and care of a reasonable advisory teacher.”

It is now clearly established that teachers and head teachers owe a duty to exercise reasonable skills in responding to educational needs albeit as the defendants properly observe the duties relate to education, not medicine or social work.

The Standard of Care

The standard of skill and care required is that of a reasonable teacher in 1986-1988 and I have in mind the observations of Lord Slynn in Phelps at 9792E:

‘The difficulty of the tasks involved and of the circumstances under which people have to work in this area must also be borne in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability will be exceptional. But though claims should not be encouraged and the courts will not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded.’

I also bear in mind the observations of Lord Clyde at p 809 E:

‘Any fear of a flood of claims may be counteracted by the consideration that in order to get off the ground the Claimant must be able to demonstrate that the standard of care fell short of the Bolam test. That is deliberately and properly a high standard in recognition of the difficult nature of some decisions which those to whom the test applies require to make and of the room for genuine difficulties of view on the propriety of one cause of action against another. In the field of educational matters there may well exist distinct but respectable opinions upon matters of method and practice, and it may be difficult to substantiate a case of fault against the background of a variety of professional practices. In cases of a failure to diagnose a particular disability from which a child may be suffering there may well be considerable difficulties in the making of the diagnosis which may render proof of negligence hazardous.’

The last sentence may have particular relevance to this case.

Finally in considering the standard of care I have regard to Lord Nicholls observations in Phelps at p. 804 H:

‘Proof of under performance by a child is not by itself evidence of negligent teaching. There are many more reasons for under performance. A child’s ability to learn from what he is taught is much affected by a host of factors which are personal to him and over which a school has no control. Emotional stress and the home environment are two examples. Even within a school there are many reasons other than professional negligence. Some teachers are better at communicating and stimulating interest than others, but that is a far cry from negligence. Classroom teaching involves a personal relationship between teacher and pupil. One child may respond positively to the personality of a particular teacher, another may not. A style of teaching which suits one child, or most children in a class, may not be as effective with another child and so on. Suffice to say the existence of a duty of care owed by teachers to their pupils should not be regarded as furnishing a basis on which generalised ‘educational malpractice’ claims can be mounted.’

HISTORY

Pre School. Ian was born on the 10^th of March 1972. Since there is no evidence that any pre school history was ever made available to Woodside it is of limited relevance to the primary question in this action.

Ian cried a lot as a baby, liked to be held but not touched. He learned to read by the age of 3 years. He was a highly precocious toddler who built complicated structures using Lego. His mother indicated to Lisa Blakemore-Brown that disruption signs occurred when he was 4 years old. His desk was moved away from other children.

Aged 2 the family moved to Saudi Arabia where Ian's father was in well-paid employment involved in technical detailed work with the British Aircraft Corporation.

First School Aged 4- 11. British Aircraft Corporation School Dhahran, Saudi Arabia.

Reports are available for 1980, 1981, 1982 And 1983 when Ian was 8, 9,10 and 11 respectively. There is very little in these reports, in my judgment to give parental concern and virtually nothing to forewarn of what was to follow years later.

Mr Mallen has focused on three comments in these reports:

June 1980

Difficult to produce neat written work – must concentrate on presentation.

June 1981

Tending to race (reading) losing the meaning – needs more care in handwriting.

June 1982

Manner is often awkward.

In evidence Mr Mallen asserted that these comments suggested early difficulties. I must disagree. The reports from that school contain any number of complementary observations – not least in relation to handwriting. In April 1983 ‘Ian is developing a pleasing style of varied handwriting in both pencil and ink’.

As to reading in April 1983 ‘Tends to rush, but he is quite fluent and can pronounce nearly all the words he encounters. Comprehension and vocabulary good.’

A balanced reading of all 4 reports together with the letter dated 30^th April 1983 from the Headmistress of B.A.C. School to the head of Lord Williams School, Thame gives absolutely no concern that Ian may possibly be suffering from any learning difficulty.

Such difficulty as is apparent is referred to in the headmistress’s letter:

‘I suspect his home life is not too happy and that any discipline is physical. The father appears to take little interest in the children. Ian is often poorly dressed although I understand the home is well stocked with books and electronic equipment’.

By way of contrast she wrote:

‘Ian has an enquiring mind and should benefit from the wider range of subjects particularly science offered by a secondary school. ‘I hope you will be able to offer him a place.’

Mr Mallen in his report makes no mention of any potential failings during this period of lan’s life.

Dr Berelowitz summarised these 7 years in one sentence:

‘This notes that Ian had difficulty in work that requires sitting still or requires concentration.’

This wholly unrepresentative comment is based on a single report in a June 1981 report which in fact reads

‘Ian finds difficulty in work which means sitting still but with a firm hand produces a good level of attainment.’

In the reports for 1982 and 1983 there is not a single comment referring to Ian not sitting still.

As with Mr Mallen Dr Berelowitz makes no mention of any difficulties at home during this period. Both Ian’s mother and grandmother are silent on the topic.

The Claimant said in evidence that he was happy in Saudi Arabia. ‘We travelled a lot and went to lots of countries on holiday. My relationship with my father was o.k. He was a shift worker. I did not see him a lot. I was not sorry to leave Saudi’.

LORD WILLIAMS SCHOOL, THAME

In September 1983 aged 11 Ian started at the Boarding House of Lord Williams School, Thame, Oxon. This school took Boarders from abroad. Many of these were children of servicemen. Lord Williams is a comprehensive mixed ability and mixed sex school for pupils aged 11 to 18 years. The school was controlled by the L.E.A. in the 1980s and remains so controlled today. Until 1987, the school had facilities to accommodate fee paying boarders on an adjacent site. The boarders paid for their board and lodging but not their tuition fees.

Ian spent two academic years at Lord Williams. He flew back from time to time to Saudi Arabia as an unaccompanied minor something which he enjoyed greatly. He said ‘I enjoyed the boarding’. Ian joined the Dungeon and Dragons Club. ‘It was fantasy role playing I enjoyed that. When at boarding school I got on o.k. with grandfather that was fine’.

The autumn 1983 report again shows no real cause for concern – Tutors comments:

‘After a shaky start Ian is developing into a more responsible boy. Above all he shows enthusiasms for most subjects’ and senior staff. ‘Plenty of good comments here’.

Mr Mallen does not comment on this report. Dr Berelowitz states:

‘He did well enough socially in Thame’.

The autumn 1984 report begins to mention the problem of disorganisation:

‘The message is obvious get organised and concentrate’. ‘Ian spends too much time in a daze.’

‘Ian has matured this term but he is still far from consistent. His behaviour and level of organisation vary from week to week’.

It was during this academic year that Ian’s father left his mother and totally abandoned his family. He has never seen him since nor provided for them in any way. In evidence Ian said ‘I do not recall my ‘parents’ separation. It was a whirlwind. I was in a new country, boarding at a new school.’ Lisa Blakemore Brown commented:

‘at puberty Ian had suffered the trauma of his parents’ separation, the move from Saudi Arabia and a change of school in disastrous circumstances. Most people would react negatively to these situations and Ian was no exception. In addition the underlying difficulties continued with Ian presenting a variable performance to his teachers, exciting them with early promise and then cutting off and shutting down dramatically under achieving. I suspect that Ian suffered from a breakdown as his adolescence progressed and his fundamental difficulties had not been recognised alongside the trauma of rejection by his father and his school, in addition to failure in such a gifted person’.

Mr Acklaw questions whether any breakdown could have taken place. Indeed there is no evidence of it.

In evidence Ian agreed that he found it traumatic being abandoned by his father. Moving in with his grandparents was difficult and he found himself short of money. He gave up riding his BMX and took up skateboarding.

Mr Mallen made no mention of Ian’s father abandoning him or the concurrence of change of country and change of school change of living conditions etc. When cross examined he said:

‘I did not mention he had been abandoned by his father because I did not think that relevant. It did not produce the N.V.L.D. difficulty.’ He said ‘I would not regard the separation of parents and the separation from his father as in anyway responsible for learning difficulties or performance. I disagree with Lisa Blakemore Brown.’

He was asked what about no male role model and said:

‘It can be grossly overemphasised’.

Dr Berelowitz likewise makes no more than passing reference to the conduct of Ian’s father and does not attribute any of Ian’s difficulties or performance to that event.

Ian’s grandmother spoke of her visits to Lord Williams:

‘I recall Ian’s behaviour was very rebellious. I was often called in to see the Housemaster about Ian’s behaviour. He said he was very persistent and that he only wanted to do what he wanted to do and they could not understand what was wrong with him as he was one of the most intelligent in the school.’

Shortly after he commenced at Lord Williams, Ian’s parents marriage broke down, and it seemed as if the school put his behaviour down to this problem.

Ian’s mother’s evidence was that Ian had to leave Lord Williams School as his father left the family and was no longer prepared to pay Ian’s fees.

In evidence she said:

‘we chose Lord Williams School because it wasn’t as expensive as other schools. It seemed a good idea at the time but it probably wasn’t. My relationship with my husband broke down in Saudi. He abandoned us all. I have had no contact with him since the breakdown. It was a tough event. It must have been hard for Ian. My husband refused to pay the fees at Lord Williams. I made no claim against him. He had another family and had to decide where his loyalty lay. The two children were sad. It must have been a wrench. Ian had been moved too much. I sent him to the nearest school because he failed to gain entry to the Grammar School.’

For my part I find it impossible to conceive that the breakdown of the family unit exacerbated by the act of abandonment and Ian’s failure to gain a place at the Grammar School were not highly significant events in Ian’s development. I accept the evidence of Lisa Blakemore Brown and reject the evidence of John Mallen on this aspect of the case.

Professor Ross considers the breakdown of the marriage and its consequences highly relevant:

‘Ian had a highly unsettled early upbringing …. at its simplest one could say that Ian is a gifted child who went seriously off the rails in his teens due to lack of firm guidance….’

It was in February 1985 when Ian was still at Lord Williams that an important memo was sent by a teacher with the initials B.A.D to the headmaster Dr K E Schurch. It read:

‘Ian Liennard, 2 R, top set maths, has produced no homework for me this term. When I ask him to explain, he can only say ‘I don’t know’. I am totally exasperated with him.

I also don’t know how to deal with him. Apart from recommending he is seen by an Ed. Psych. He is a boarder. Can somebody please take him in hand. He is in fact quite bright – at least mid way up the top set. I have told him that if he can’t produce his homework, I am not going to teach him. He has therefore spent this last lesson sitting outside your office but this is obviously no solution. A homework Report perhaps? B.A.D. 5.2.85

P.S. I have previously spoken to his tutor, housemistress and boarding housemaster. They are aware that there are problems.’

It can be seen from the documentation that the headmaster responded to that memo by placing Ian on full report for a) homework and b) rate of settling down and preparing for work at the start of each lesson. Generally the response was good although on one occasion he forgot to collect his report form and on another he forgot his English Book.

On behalf of the Claimant Mr Kerr Q.C. places considerable reliance upon the memo of 5 February 1985 since it was sent with Ian’s most recent report from Saudi Arabia (April 1983) and other documents in the bundle originating from Lord Williams on to Woodside with the Headmaster’s letter of 12 September 1985 which read:

‘Please find enclosed our records on Ian Liennard who has joined your school.

Ian is a bright pupil, particularly able in science and maths. He is an amiable person, but very disorganised, and this often leads to frustration on the part of staff, and friction. He has been ‘on report’ on several occasions due, not to behaviour but to his general disorganisation.

I wish Ian well, and hope the change of school will motivate him to reach his full potential.’

The memo of 12 September 1985 is submits Mr Kerr of critical importance – a yellow card in footballing jargon – it flags up the fact that at least one teacher at Lord Williams was giving active consideration at that time to the possibility of intervention by an educational psychologist. The provision of that memo to Woodside should have alerted them sufficiently together with what they learned themselves to seek some outside intervention.

Further it is said the headmaster’s letter distinguishes between behaviour and disorganisation. Behaviour is something within the remit of the teacher or in an extreme case the police. Disorganisation suggests a psychological problem.

Mr Warnock for the Defendants submits that the February memo did no more than raise the possibility of the need for an educational psychologist. It was by inference considered by the Headmaster and Common Room at Lord Williams and rejected on the evidence available to them. Far from being a yellow card, that is an adverse finding, it was a judgment against the proposition that psychological intervention was called for.

In September 1985 Ian left Lord Williams and moved to Woodside. He sat the 11 plus examination and failed. Had he remained at Lord Williams of course he would not have needed to take the exam and thus it is highly unlikely that he was prepared to any great extent for the exam. The sole reason for his leaving was that his father declined to continue to pay the fees. The evidence of Ian’s grandmother that when she told a housemaster that Ian would be leaving, he responded that they would have expelled him had he not left, is not a reliable indication that expulsion was ever in fact considered. Documentation is to the contrary.

The boy leaving Lord Williams was plainly disorganised in the sense that he turned up for sport without kit and for lessons without books or pens. On the other hand his accomplishment in education terms was well above average. He was in the top set for English, Maths and French the only setted subjects (see p.262). He was able to do the work but ‘several homeworks missing’ was an indicator of events to follow.

First year at Woodside. September 1985 – July 1986

Woodside was a state co-educational comprehensive secondary school. It was in Slough adjoining a council housing estate. It had some problems of an inner city nature. Some pupils were in trouble with the law. There was an element of truancy and pupil numbers were falling to about 350 thus the amalgamation in 1987.

Ian had many excellent reports:

Technical Drawing - Attainment B Effort A. Ian has certainly fooled me. Although his work is good I did not anticipate such a high mark (92%)

Maths - Attainment A Effort A. Ian shows a very mature approach to this subject. He has worked well and achieved a very good examination mark (79%).

French - Ian’s work throughout the year has been of a very high standard Attainment A Effort A.

Science - Set A Attainment A Effort A. An excellent exam result (85%) well done. Ian is a capable pupil who appeared to gain these high marks easily ….could do really well in this subject in the future.

Religious Education – Attainment B+ Effort B+ Examination mark 88%. Ian has worked hard and with interest throughout the year although there has been some slackening in recent weeks.

English - Attainment B Effort B Examination mark 54% Ian has worked well in this subject …. At times a little more concentration is needed.

In terms of academic attainment – these are excellent results. On the other hand he accumulated 6 House Detentions the highest in the class and the head of house Mrs Pink wrote:

‘I still feel very concerned about Ian’s unacceptable classroom behaviour in certain subjects and it has been necessary to put him on report’ – a situation one does not expect with a capable intelligent boy. His form teacher recorded him 22 times late and wrote ‘Does he intend to spend his whole life drifting along and making nothing of his undoubted ability.’

Characteristically Mr Mallen fails to mention any of the excellent results written of in the July 1986 reports.

He writes:

‘unacceptable classroom behaviour in certain subjects - his punctually is appalling (29 + disgraceful) - Ian has some difficulties with this subject (Art) House Detentions highest in form.’

Remarkably it seems to me Mr Mallen indicates that a referral to a child psychologist was indicated in 1986. Not only does this observation appear in his report but when cross examined, to the question ‘Surely no competent teacher would make a referral to an Educational Psychologist in 1986’ He replied ‘I would expect a referral’.

I reject Mr Mallen’s evidence on that point. The balance of the report was extremely favourable.

In June 1986 a letter was written to Ian’s mother by Mrs Pink referring to Ian’s lateness that morning and the fact that he wore training shoes rather than uniform shoes. Further letters followed in October 1996 (no homework completed since he returned to school in September and he has failed to attend two detentions) A further letter was sent in June 1987 (he has 11 lates this term and although he has regular detentions his punctuality is not improving).

MRS PATRICIA LIENNARD

Mrs Liennard stated that she often had to attend school to discuss Ian’s behaviour with his teachers. The teachers always commented at those meetings that usually they would expect such a disruptive child to have problems with attendance also. In fact Ian never did truant. Mr Mallen at p.127 states

‘I consider that his reasons for failing to attend school were more to do with the failure of the school to understand his problems’ is based on a false premise. Although often late he always attended. Mrs Liennard stated that she would talk to him about his lateness:

‘Sometimes he was up o.k. I think he made an effort and it slid again. The school knew about the break up of the marriage. That is why he was there. The school wrote to me saying he was not doing his homework. They did care. When he was so little he was so intelligent. It was not linking in. I did not know what to do. I trusted the school. I thought they would do something. They were sympathetic. I cannot remember if I spoke to him about his homework but I must have done. I agree I did say in my statement that I never wanted to push Ian because he was so volatile so I never confronted him about his homework’.

She agreed that she had in fact signed a form in February 1987 stating ‘I will endeavour to keep him up to scratch with his homework.’ She also said in relation to his lateness:

‘I got him up. It was difficult. He did not want to go but always went sometimes late. Sometimes he skateboarded in the middle of the night. I did not know then that he had an erratic sleep pattern. I was confused. He was awkward to get to school. He would skate board 2-3 times a week during the night.’

Of course I had to assess Mrs Liennard and in particular I had to consider what view the teachers whom she saw at school must have formed of her. I found her very quiet, compliant, acquiescent in manner. She had sought no maintenance for herself or her children because she could not face another court case. She was non-confrontational in every sense and I have no doubt the school sent for her as much to galvanise her into action as to inform her of Ian’s failings. I have no doubt that Mrs Liennard tried to assist but she was in awe of her son and not naturally suited to the constant battle, which with some offspring, is a necessary part of good parenting. I bear in mind, of course that I saw Mrs Liennard some 16 years or so after the events.

I should add that she said:

‘My relationship with Ian was very distant not very close. At school it was distant even then. The difficulty was we did not get on. He was intolerant of me. I could not understand the things he did.’

73. For the sake of completeness I have noted what the Claimant said to Dr Nedaslingam ‘she is evil because she is not a good mother and she has not been there for me whenever I wanted her’.

Ian’s Grandmother

Her statement disclosed that when Ian first went to Lord Williams School he stayed with her and her husband in the school holidays and she could not do a thing with him. He would not wash, comb his hair or get out of bed and did nothing they asked of him.

Later on, probably 1986, he would fight with his sister and kick doors in and was very rebellious and uncontrollable. At that time she said her husband considered that Ian needed psychiatric help. It is important to note that there is no evidence that any of Ian’s misconduct within the home was ever related to any of the teachers at Woodside. Further no member of the family ever consulted any outside agency including the family G.P. about Ian’s behaviour.

Ian’s Sister

Tracey Liennard is two years younger than Ian. She is a most impressive young woman. Upon the family return from Saudi Arabia she went to Upton Middle School and from there passed the entrance examination to Upton Grammar School.

She went from there to the East Berkshire College where she gained 3 A levels, 2 As and 1B in English History and Sociology. She went on to Liverpool University where between 1994 and 1998 she took a 2.1 in Politics and Communication Skills. She went into Magazine Distribution and then Recruitment and now intends to take a Masters degree in Irish Politics at Belfast University.

She spoke of a very eccentric child not able or willing to act in the expected manner of a child. He was very serious and intense and when confronted by unfamiliar company slowed down his speech becoming less fluent and giving the appearance of being retarded. She is critical of teachers failure to observe his inability to communicate in some situations and his great intelligence in others. She spoke of his obsession with BMX biking and skateboarding which he would follow for hour upon hour beyond all young boys obsessions. She told her mother that Ian had a mental problem and needed help when he was aged about 15. After an argument with his mother he was unable to express himself and out of sheer rage and frustration threw himself at a wall and fell over sobbing.

Again this event was never communicated to Woodside School.

Mr Mallen comments at page 126:

‘Ian’s sister Tracey is now studying at University at Master degree level. I feel that Ian has no less intelligence than his sister and this demonstrates the familiar level of intelligence and contrasts with Ian’s poor educational level on leaving school.’

This observation fails to embrace the obvious namely that Ian had problems, problems which his sister did not have. A contrast between the two does not in my judgment assist in determining whether the teachers at Woodside were negligent.

Nor does the fact that Tracey sustained no lasting disadvantage by her father abandoning the family permit any conclusion that the event was any less emotionally distressing for Ian.

Second Year at Woodside September 1986 – July 1987

This year began badly for Ian with his form master David Taylor sending round a circular to all of Ian’s teachers. It stated:

‘Ian is causing great concern to a number of staff. To get an overall picture I should be grateful if you could comment on his general attitude and progress.’

The response was mixed.

Mr Alexander the English Master wrote:

‘For an able pupil, Ian has grossly underachieved so far this term. He is quietly disruptive and prefers inattention and silliness to effort of any kind. I do not believe the work is too difficult and/or beneath him and fail to understand the rationale behind his attitude. He says he wants to do well get good marks etc but is so lazy that this is questionable I feel. All work has to be forced out of him. He forgets pens, books etc all the time. I am very concerned about the boy.’

The physics report also gave cause for concern:

‘Ian has ability and comprehension well beyond most other pupils. For this reason if no other, I have been very disturbed by his lack of work this term. The problem has been resolved (to date) by excluding him from lessons until previous work had been done – but this practice cannot continue or he will miss vital new approaches to the subject’.

On the other hand the remaining reports were essentially problem free.

Mathematics

Ian has ability and generally works well. He takes little part in a class discussion but will discuss a point on a one to one basis. No real problem…’

Computer Studies

Shows interest but finds the deductive nature of the subject a little difficult. No real problem however.

French

Now that he is in an examination group for the subject he seems to find it slightly easier to participate as the rest of the group are able pupils in the subject. If he showed more interest he could be stretched and achieve an excellent standard.

Metal work

Ian can work well with his hands but as far as his written work is concerned I am rather concerned that he does not seem to respond all that quickly and is rather slap dash. I put this down to impatience. His practical work is of a fair standard.

David Taylor gave evidence about this round robin. He sent it but it was instigated by Sylvia Pink who was Ian’s Head of House. He recollects that she worked hard to get Ian to conform. He is sure that action was taken to improve Ian’s performance. ‘We wanted him to do well. We had the interests of the pupils at heart. We don’t just write reports we keep working’.

Mr Kerr describes the obtaining of this information in terms of approbation. ‘Mr Taylor made a promising start to his period as Ian’s form teacher, eliciting written comments from fellow teachers about Ian in October 1986 out of great concern in order to get an overall picture.’ The suggestion indeed allegation is made that having obtained that information nothing was done. Certainly no reference was made to the Special Needs Teacher, Welfare Office or Educational Psychologist. I am satisfied however that Ian’s teachers used their own best endeavours to persuade him to conform in the aftermath of that round robin. I will re-visit criticisms made of Mr Taylor in due course.

The next set of reports is at February 1987 in which his Head of House wrote:

‘These exam results are excellent and I wish the comments matched them. I do agree with Ian’s form teacher’s remarks that Ian has shown a slightly more mature attitude this term and I hope this is the beginning of a new approach.’

Mr Miller the headmaster wrote:

A number of excellent examination results. I hope this will help Ian to realise he can be an outstanding success in the GCSE next year, provided he works.’

The English report read:

‘although Ian has shown by his exam work and recent essays, that he is capable of high grades, he has not done very much since September either in class or in his coursework folder.’

The Maths and Computer “Studies” reports refer to him working well and in Physics the rport read:

‘Until recently Ian has made little appreciable effort – yet has sailed through the exam. If, IF he worked there would be little to stop him getting the highest grade at GCSE.’

The Geography report spoke of ‘Ian worked with interest and some application.’

Metal work ‘Ian has put in some hard work as far as his practical exam is concerned but needs to take the theory more seriously’.

My analysis of the February 1987 report is that Ian had made real progress following upon the October 1986 crisis. There was signs of increasing maturity, some excellent examination results and some real hope and expectation of good G.C.S.E. results.

I return to the allegation against Mr Taylor as framed by Mr Kerr in his closing argument namely ‘Mr Taylor obtained the comments but was driven to accept (or should have accepted if he did not) that he did nothing with them, and that no decision to do anything specific about Ian resulted from the exercise. That was negligent’.

I reject that submission. Mr Taylor in fact said they worked hard. The February 1987 report is consistent with such assertion. These teachers obviously cared and could properly have said to one another ‘Ian is trying to turn the corner’. He appeared to have not the slightest learning difficulty. He was competent and able at every subject. I cannot conceive that any reasonable and competent teacher present at a February 1987 staff meeting would have contended for any outside intervention in Ian’s case. I note that it was in February 1987 that the school required Mrs Liennard to sign the document ‘I will endeavour to keep him up to scratch with his homework.’

In July 1987 further exams took place and a further report was provided. Between February and July there was a marked deterioration.

English – ‘a terribly disappointing report. Even Ian’s exam result has dropped by 10 marks since February. I can hardly believe the wasted potential here. He is throwing away his chance of GCSE success, which depends heavily on coursework and continuous assessment. He is silly, lazy and disruptive.’

Mathematics – ‘Ian produces good examination results without really trying. He has a distinctly lazy attitude in class and towards homework.’

Physics – ‘With some effort from him the examination mark could have been in the 80s at least.

Why does Ian so dislike work?

Why does Ian so dislike neatness?

Why does Ian so dislike organisation?’.

Mr Kerr places much reliance on this particular report. In argument he refers back to the Lord Williams teacher who when similarly frustrated made reference to an Educational Psychologist.

I should add that in Physics Ian was in Set 1 his Attainment mark was B and his effort was C. The Examination mark was 67%.

Computer Studies – ‘Ian’s work is showing signs of deterioration since last report. He will have to pull himself together if he is to achieve his previous standard once again.’

Geography – ‘Ian needs to be more thorough in his work. His interest needs to be applied rather more consistently and coursework assignments completed more promptly. He needs to remember that he will be marked on work done during the year as well as the final exam.’

French – ‘Ian is still underachieving. He needs to be pushed all the time.’

Commerce – ‘Although Ian does some classwork and encounters no problem in following this subject his homework is non-existent.’

Mr Taylor wrote:

‘once again the report is both a sad reflection of Ian’s ability and also his total lack of interest and application. Does he intend to spend his whole life drifting along and making nothing of his undoubted ability?’

‘I ask myself hopefully ‘Will we see a change in September?’ The answer rests entirely with Ian.’

Mrs Pink wrote:

‘This is a typical Ian Liennard report. I do not think there is a pupil in his year who is wasting his time as much as Ian. It is sad to see so much potential being wasted. I wonder if he will complete his Commerce coursework during the holiday? I should like to think he will, but I doubt it.’

Mr Miller wrote:

‘Ian’s punctuality record reflects his attitude to school and general self-discipline. He is unwilling to cooperate and make the necessary effort. He is capable of outstanding success next year if he works.’

I indicated that I would re-visit criticism made of Mr Taylor Ian’s form teacher from September 1986 – June 1987. Two criticisms are made of him. First that having circulated the round robin he did nothing with the responses. I have rejected that submission. It is also said that in October 1987 he made a written prediction of failure of GCSEs and made no positive recommendation such as intervention or a repeat year.

Mr Taylor wrote:

‘Ian is probably the most intelligent person in the 5^th form. If he could apply himself to work he is quite capable of A/B grades in many subjects. However he is completely disorganised unpredictable generally lazy and disinterested.

He predicted one B, One B/C, 4 x C’s and 1 x E’.

As he readily conceded he was predicting an underachievement which it seems to me was entirely justified. This was just at the beginning of the G.C.S.E. year and consistent with realism and a desire to galvanise the pupil into action. As for the allegation that he should have offered another year I will deal with this in the context of the allegation against Mr Richardson. Suffice to say I find no negligence. Who was to say what the year ahead would bring? Ian had more than once proved his detractors wrong.

This is a convenient juncture at which to consider the allegation against Mr Miller and his evidence. It is alleged that Mr Miller, the head teacher until his retirement at the end of the summer term 1987, did not exert his authority so as to change Ian’s fortunes for the better. He should have been better briefed by Mr Taylor, but was sufficiently alerted by the reports to have either initiated action himself before withdrawing, or to have alerted his successor or staff to the need for formal action no later than the start of the autumn term 1987. Had he done so Mr Richardson would not have started the new Wexham School wholly ignorant of Ian’s predicament.

Mr Miller gave evidence 15 years into his retirement having retained all his faculties and a fine bearing. He had seen Mrs Liennard with Mrs Pink shortly after the letter of the 2^nd October 1986. Ian’s progress was not helped by lack of support from home. He was aware of the memo written at Lord Williams relating to an Educational Psychologist:

‘Ian was not identified as a child with any learning difficulty. The concerns were about lateness, lack of homework and coursework. This was not unusual. This was a very able pupil with a tendency to misbehave. He was by no means unique. I have had many children like this, particularly boys. Our special needs were for children with learning difficulties. He did not come into that category. He could achieve and did achieve some very good results. He did so in February 1987 and his teachers gave him encouragement and thought that he would be successful in GCSE the following year.’

‘So far as the last set of reports is concerned I saw him as going along with the more disruptive elements in the class. There was a full range of ability. The tone in the reports is becoming more shrill because we are trying to get across to him the urgency. Reports are read by parents and we were not getting the co-operation sought.’

Mr Kerr referred Mr Miller to the Warnock Report, the Education Act 1981 and the relevant circulars suggesting that in the enlightened mood of that decade he should have been more alert to the needs of this pupil. Mr Miller indicated that he had a remedial department and an Educational Psychologist who visited once a fortnight but Ian was not identified as a child with any learning difficulty. He was taught by some very experienced teachers. None of his staff had ever suggested that Ian should see an Educational Psychologist.

I do not accept the validity of any of the criticism made of Mr Miller. Ian could learn, and had learned and had demonstrated ability and potential in every academic subject. The teaching staff had reasonable grounds to believe that they knew what the problem was:

Punctuality – Ian was late 29 times out of 350 in the 3^rd year. 15 lates by February 1987 of the 4^th year and 22 lates between February 1987 and July 4^th 1987.

Disorganisation. - He forgot books and materials. Homework and coursework. He often failed to complete it.

The staff believed they knew what the problem was and that Ian had the capacity to solve it with the assistance of the staff. It was a discipline problem and not a learning problem. The absence of any disciplinary input at home was a contributory factor in their perception.

I accept Mr Acklaw's evidence that in ‘in the absence of extreme behaviour or behaviour that was outside their professional experience they had no reason to refer the Claimant to an Educational Psychologist. In the absence of specialised knowledge, it would have been reasonable for teachers at Woodside/Wexham School to draw upon their experience and knowledge of the potential effects of family disruption and dysfunction upon pupil behaviour and attitudes to learning and to interpret the Claimants behaviour accordingly. In this respect the approach of the teachers at Woodside/Wexham School was not different from that of teachers at the Claimants previous schools’.

I believe that Mr Miller acted professionally and competently in his duties towards Ian. He was encouraging in February and critical in July. He saw Mrs Liennard and I infer that he will have done his best to exhort her to a more positive parental role. He was a head teacher of experience with a teaching staff who were experienced. He considered the available evidence. The staff was not inactive. Their conclusions that this was a disciplinary problem for their own resolution with parental assistance was a reasonable decision. I do not consider that Mr Miller was under any duty to specifically inform his successor of Ian’s situation. Mr Richardson as incoming head master could rely upon his deputies, his head of year and his form tutors to inform him of problem pupils.

Ian’s final year at Woodside/Wexham September 1987-Spring 1988.

Woodside amalgamated with another secondary school Orchard School and became Wexham School. It remained a secondary modern school. Wexham was an amalgamation operating to a certain extent on two sites. The number of pupils increased from about 350 to Woodside to about 500 at Wexham.

The new head master was Jeffery Richardson. He reorganised the teaching structure, replacing heads of house with heads of year and assistant heads of year. He had two deputy heads and read every school report himself. Mr Richardson who had Ian in his school for one year only had a recollection of a tall slim individual. He did not recall him in any detail and did not call him into his study when writing his report. He conceded ‘for me personally I knew a limited amount about him but I was not the whole of Wexham School’. When asked if he had overlooked Ian’s needs because of school amalgamation he replied ‘No, we insisted there were systems in place. He said I do not agree it is a gifted pupil overlooked. It is a case of gross underachievement’.

Mr Kerr makes his criticism of Mr Richardson thus ‘he was ignorant of Ian’s plight and barely knew who he was; he became negligent in or about February 1988 when he was alerted to his reports. His inaction was seriously negligent. He had no satisfactory explanation for failing to offer a repeat year – except the implausible one that missing documents would supply the deficit. He regarded the psychologist as mainly for cases of criminal conduct, to protect others rather than the person referred. Mr Richardson passed over the school’s last chance to address the questions prophetically raised by the physics teacher in July 1987.’

The report prepared in February 1988 was far from good. Mock exams preparatory to G.C.S.E. had taken place:

English: ‘Ian is one of the biggest disappointments in my teaching experience. He has the potential to be the best performer in the school and yet throws away every chance he gets. I am not entering him for literature, as he has produced no coursework. Exam 35%.’

Geography - ‘Ian did well in the mock exam. (53%) using his general knowledge and intelligence. Unfortunately his class work has been completed haphazard and his lack of organisation is likely to result in him not being entered for the GCSE. I am still awaiting his long overdue individual project which is an essential element of the exam.’

French - ‘I am very disappointed in Ian’s effort this year. He has shown no interest whatsoever in improving his results. I can only predict a low grade at GCSE unless Ian decides to work very hard from now until the examination.’

Mathematics - ‘Ian is rather lazy in his attitude to his work. He can and has pulled out the stops and produced a good mock examination result. He has been entered for G.C.S.E. at level Z and if he throws off his lackadaisical attitude could produce a good grade. Exam 89% Y 60% Z.’

Physics - ‘what can I say that I have not said before? Ian has undoubted ability, Ian is idle. Ian is still underachieving. Ian is infuriating. Ian wasted his time and my time. Nothing has changed certainly not Ian.’

Commerce - ‘Exam 55%. This is a sound mock examination result. The highest grade is not beyond Ian’s abilities or his potential. He still has one item of compulsory coursework to hand in before he can be an entrant for his GCSE examination in this subject. It would be a privilege to see his class work and his homework.’

Computer Studies - ‘A pleasing exam result which shows Ian’s ability. However written work has not been forthcoming nor much on the practical side. To be entered Ian must produce a practical project and it would be a shame for him to fail when he has ability in this subject.’

The Head of Year, a Miss Taylor wrote:

‘Ian is seriously underachieving. He has a great deal of ability but lacks the motivation and application. Only Ian can execute a change.’

His form tutor wrote:

‘Unless Ian submits some coursework very soon he is unlikely to be entered for several examinations. The problem is that he does not seem to care, does not show any positive or negative reaction to any discussions about his future plans and generally exasperates anyone who shows any interest at all in his problem by remaining silent. A disastrous punctuality record (late 35 out of 167).’

Mr Richardson, the Head wrote:

‘What a waste of ability, Ian could achieve some very good exam results and yet he is wasting his ability. A sad report.’

It is at this moment that Mr Kerr complains of inactivity – some three or four months prior to G.C.S.E. In particular Mr Kerr submits that a further year should have been canvassed.

Mr Richardson said this:

‘I would discuss the situation with Miss Taylor. It would be very unusual to repeat the last year. It is more normal to go to college. It would be necessary to do 2 years but 1 further year is possible. If underachievers all stayed down a year we would have all the underachievers in year 11. The perceived cause was lack of effort, lack of commitment and lack of organisation. Increased knowledge now available might lead to a different conclusion. I do not think a repeat year would have been the answer. In many repeat years the results are even worse. The real time in any event to consider a repeat year is after the exams.’

I do not consider that the failure to offer a repeat year was negligent. Neither Mr Mallen nor Dr Berelowitz nor Lisa Blakemore-Brown canvasses this possibility. Nor indeed was it pleaded. The relevant particular of negligence pleaded is that the school failed to refer Ian to a special needs, or medical teacher or to an educational psychologist.

It is very easy to see why the school would not consider it appropriate at that stage to offer a further year. In the past Ian had from time to time exceeded all expectations. The highest grade in Commerce was not beyond Ian’s abilities. There was a pleasing exam result in computer studies. Although not entered for English Literature on past form a good GCSE in English language was on the cards. He did well in the mock Geography exam. In French if he worked hard he could do better than a low grade GCSE. He had pulled out all the stops in Maths and done well in the mocks. His Physics exam was 76%.

I find the suggestion that a further year should have been offered as being well wide of the mark. Further reference to a special needs teacher/remedial teacher/educational psychologist would have been singularly inappropriate some 3 months before such a critical exam.

I deal now with criticism made of Miss Pink Ian’s Head of House during the first two academic years. The criticism of her is that she doled out detentions for lateness and wrote three letters to Ian’s mother rather than suggesting the involvement of an Educational Welfare Officer in 1986.

Whilst failure to involve a Welfare Officer is a further particular of alleged negligence not pleaded nor supported by expert evidence, I nevertheless deal with it. The customary involvement of the Education Authority’s Welfare officer is in cases of truancy and Mr Kerr readily conceded that he has no experience of any involvement of a Welfare officer to remedy lateness. It is fanciful to conceive of a Welfare Officer attending each morning to get Ian out of bed. Most of the time – about 80% in the final year he would have been wasting his time. In any event the basic problem was far more than lateness which on its own would constitute a form of eccentricity. The apparent real problem was laziness and a failure to produce set work. As Miss Taylor wrote in February 1988, only Ian can execute a change.

I reject the submission that the school were negligent in failing to engage the Welfare Officer.

Returning to the absence of Miss Pink. Mr Kerr submits when a person is personally criticised in litigation they can be expected personally to defend themselves if they have a defence to advance unless unfit to do so. She lives in North Devon and is not the subject of a Civil Evidence Act notice. There is accordingly it is submitted an inference to be drawn adverse to the Defendants.

Very soon after parties were enabled to testify in most civil cases by the Evidence Act 1851, Alderson B recognised in Boyle v Wisman (1855) 10 Exch 647 that the failure of one of them to deny a fact which it is in his power to deny gives colour to the evidence against him.

In McQueen v Great Western Rly Co (1875) LR 10 QB 569 Cockburn C J said:

‘If a prima facie case is made out capable of being displaced, and if the party against whom it is established might by calling particular witnesses and producing particular evidence displace that prima facie case, and he omits to adduce that evidence then the inference fairly arises, as a matter of inference for the jury and not a matter of legal presumption, that the absence of that evidence is to be accounted for by the fact that even if it was adduced it would not displace the prima facie case. But that always pre-supposes that a prima facie case has been established and unless we can see our way clearly to the conclusion that a prima facie case has been established, the omission to call witness who might have been called on the part of the defendants amounts to nothing.’

For my part I cannot see my way clearly to a conclusion that a prima facie case exists against Miss Pink. In any event I have much assistance from contemporary records as to her involvement. She was part of a team. Her actions cannot properly be viewed in isolation. For example Mr Taylor circulated the round robin. The idea was Miss Pink’s. She wrote three letters calling Mrs Liennard in to to see her (in fact the third was written p.p. the headmaster). Mrs Liennard said ‘I often had to attend meetings at the school to discuss his behaviour.’ I infer additional communication.

I can find no fault in prescribing detention for lateness nor as I have stated in failing to involve the welfare officer. Any decision to involve remedial teaching would in the circumstances of this case been taken by or in conjunction with the head teacher. Miss Pink could of course have recommended such a course as could any one of Ian’s teachers. Not one of them saw fit to do so.

Before considering the overall position as opposed to the situation at specific dates I must of course consider the Claimant’s evidence as to his school career.

The Claimant

He said:

‘I underachieved because I was bored and depressed. I think nothing about my father no negative thoughts – no positive thoughts.’

‘I did not fit in at Woodside. It was much rougher than Lord Williams. There was more bullying. I took my 11+ in the middle of a whirlwind. I was not surprised that I failed. I felt no brighter than other children at Woodside. Some children were not interested in learning. I tried to fit in by being one of the lads. I pretended to support a football team. It was that sort of school. Classwork was no problem but I found the class soul destroying. You have to attend a 2 hour class for 10 to 20 minutes learning. I want to be working. A syllabus has a uniform rate. Homework depended if I could do it. Physics was o.k. I would not be able to organise myself in order to do homework on a regular basis. I started skateboarding at 13-14 and I still do it. I do not remember skateboarding in the middle of the night. You are not being held back by any external force. You do tricks. It needs good balance and co-ordination. I put so much effort into it but I did not get to sponsorship level because I am not a ramp skater. You can flip the board several hundred ways.’

‘When I left school I felt nothing. I felt an idiot. I did read my reports. My mother saw them. After leaving school I did not consider doing anything. I used to skateboard and do some minor jobs. I had no motivation no reason to work.’

G.C.S.E. Results

June 1988 Ian passed 5 G.C.S.Es four Ds and one C. This of course was a long way short of his potential but it should be mentioned that it put him in the top 13% in the school.

1998-1993

Ian left school and had a job in a warehouse for a short time. He stacked goods but had problems with organising his work life and had to leave. In late 1990 he had a job in a darts factory but had similar organisation problems and had to leave. Aged 20 to 21 he took drugs over a 2 year period including L.S.D. Ecstasy and Amphetamine.

East Berkshire College September 1993

Ian began an ‘Access’ course and studied Maths, Computing and Business Studies. In a report dated 1^st November 1995 the comments were uniformly good. ‘Ian is making good progress. He has demonstrated the ability for a good grade’. ‘Very good progress’. ‘Early indications are that Ian has the ability to do well in the subject and conscientious, thoughtful work. Good analytical skills’. The review action/plan read ‘No problems.’

His January 1996 reports are uniformly excellent with good punctuality. The Tutors report is sufficient summary ‘An excellent start. Ian has shown a real commitment to study unlike most students. Just occasionally he allows his interest in peripheral matters to distract him from his set work.’

In March 1996 however his performance started to slip in particular his attendance namely 11/18 in Maths and 8/16 in Business Studies. In June 1996 his tutor commented:

‘After dropping subjects in which Ian has no interest, Ian has adopted an individual programme including double A level mathematics, GCSE English, GCSE French. Next year he hopes to complete a ‘one year A level physics course’. The problem is that Ian’s intellectual interests are so wide and deep that it is difficult to focus on such mundane matters as gaining qualifications necessary for higher education.’

In June 1996 Grade A in Pure Maths module 1

Grade B in Pure maths module 2

Grade B in Mechanics

Grade D in Computing

It was in September 1996 that Ian was referred by his tutors at the East Berkshire College to Lisa Blakemore-Brown as ‘they were anxious to understand Ian’s unusual behaviour, his distractibility, poor attention and inability to sustain concentration and complete courses leading to considerable underachievement. It was also reported that Ian found personal relationships difficult perplexing and usually impossible being unable to look at people and finding crowds disorientating. He was also noted to have problems coping with a change and that this extended to changes of clothes. Various obsessions were noted alongside elements of hyperactivity.’

It was thought that Ian’s mother may have contacted Lisa Blakemore-Brown 2 years earlier but this seems unlikely on the totality of the evidence. A letter at p355 appears to have a typographical error.

Of course the question necessarily arises – since East Berkshire saw fit to make a referral why did not Woodside/Wexham?

The starting point of course is that all experts agree that whatever Ian’s condition may be, the manifestation of it became more pronounced or exaggerated with increasing of age. He was 24 when referred having left school at 16. At East Berkshire the contrast in performance appears even more marked than earlier. He covered the work for 9 modules in half the time most of the students took to complete 3 modules. He then became interested in linguistics and wanted to develop computer based translation systems. Other tutors were commenting that Ian would slip out of exercises to do his own thing, and gradually things fell apart again. Ian discussed with his tutor family break up and about his shift to Satanism saying ‘God had let him down at this time.’ On reading the book by Temple Grandin, he felt it was him.

I infer that his behaviour was more eccentric than 8 years earlier and I note of course that it took 12 months for them to decide to refer him. Indeed for the first three months or so Ian’s conduct was exemplary.

Ironically Ian’s last ever report on the 19 December 1996 was his best at any time:

‘Ian has an outstanding ability at mathematics and is totally immersed in it, essentially doing all the work by himself – there has been no need for me to teach him or help him with any aspect of his mathematics and his motivation is the highest imaginable in any student ….. Ian is very suited to a world of pure mathematics, as pure as possible, not that he is lacking in reflections and interests in other things too.’

1997 onwards