• In the case of Phelps v Hillingdon London Borough Council [2001] 2 AC 619, there existed a clash between public policy decisions absolving public authorities of liability, and vicarious liability to determine whether Hillingdon LBC offered a duty of care to Phelps for their negligent treatment of her educational disability
  • This case featured four appellants (Cs), hence, the other sub-cases include Anderton v Clwyd County Council, G (A Minor) v Bromley London Borough Council, and Jarvis v Hampshire County Council

Facts of the Case

  • C was born in 1973 and was referred the local education authority’s (D) school psychological service by her school as C was did not show much progress at school; this happened when D was aged 12; C’s reading progresses was the same as that of a 6-year old
  • D appointed an educational psychologist to report the results of C’s testing, which at the time indicated no specific weaknesses
  • C received further private testing just before leaving school and it was revealed that C had, in fact, been dyslexic – the diagnosis was affirmed separately in 1994 and 1996
  • C brought an action for vicarious liability (where an employer is responsible for the actions of their employee) for the educational psychologist’s negligence in assessing whether C had any disabilities
  • C was awarded damages as a duty of care to C by D’s psychologist was established; the worsening of C’s dyslexia could have been prevented by timely and appropriate treatment, so the psychologist had negligently caused C a damage

Issues in Phelps v Hillingdon London Borough Council [2001] 2 AC 619

  • C appealed to the House of Lords because the court in the previous instance (the Court of Appeal) allowed D (the local authority) the right to appeal

Held by the House of Lords  

  • Appeal allowed – a duty of care owed to C as the psychologist exercising a particular skill meant that unless his examination was performed properly, C may foreseeably be injured in the future; the psychologist owed C a duty of care, even if this may be contrary to public policy verdicts, which seek to establish protection over public establishments if they are negligent in their dealings with people
  • Held – failing to mitigate consequences, e.g. dyslexia constituted ‘personal injuries to a person’ under s.33(2) of the Supreme Court Act 1981
  • Appeals allowed in the first, second and fourth cases; appeal dismissed in G (A Minor) v Bromley London Borough Council

Lord Slynn of Headley

Restored the order of Garland J and concluded that Parliament’s intent was to award damages for employee failures based on the principle of vicarious liability, which Lord Slynn belived was applicable; accepted that Garland J’s view that ‘”the adverse consequences of the plaintiff’s dyslexia could have been mitigated’ [at p.657]

  • ‘Hillingdon was vicariously liable for breaches of that duty by Miss Melling. She was in breach, first, when she failed in October 1985 to diagnose that Pamela was dyslexic.’ [at p.646]
  • ‘I do not, however, accept the absolute statement that an education authority “owes no common law duty of care … in the exercise of the powers … relating to children with special educational needs” under the 1981 Act. That issue, however, as I have said does not fall for decision in Pamela’s case.’ [at p.658]
  • Persuaded Lord Lloyd of Berwick, Lord Hutton, Lord Millett and Lord Jauncey of Tullichettle to agree with him and allow the appeals; Lord Jauncey merely added an ‘observation of Lord Nicholls that the existence of a duty of care owed by teachers to their pupils should not be regarded as a basis for the mounting of generalised “educational malpractice” claims.’ [at p.665]
  • Lord Nicholls of Birkenhead broadly agreed with Lord Slynn, but dissented due to ‘reservations about any attempt to draw a sharp-edged distinction between “policy” decisions and “operational” decisions […]’ [at p.676]