Phelps v Hillingdon LBC [2001] 2 AC 619

Key point

  • The case signals a shift away from blanket exclusion of public authorities from duties of care on public policy grounds

Facts

  • This ruling concerns the combined appeal of three cases which concerned claimants who were dyslexic and a fourth where the claimant was suffering from muscular dystrophy
  • Cs claimed that educational psychologists employed by local authorities (Ds) negligently failed to identify their special needs when they were children through psychological assessment and consequently failed to provide appropriate education services for their needs
  • Damages amounting to loss of earnings and cost of tuition were claimed

Held (House of Lords)

  • Ds owed a duty of care to Cs and were negligent in performing their duty
  • Their duty of care was not excluded on public policy grounds

Lord Slynn

Justiciability

  • The fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them
  • It is only where what is done has involved the weighing of competing public interests and Parliament did not intend for the courts to substitute their judgment that a decision can be non-justiciable on the ground that the decision was made in the exercise of a statutory discretion
  • The current cases are justiciable

Duty of care had arisen

  • A duty of care can be owed in principle – it has long been established that persons exercising a particular skill or profession may owe a duty of care in the performance if injury or damage from lack of care is foreseeable
  • The relationship of the psychologist with the child and the pivotal role her assessment played created the necessary nexus and duty

Lord Clyde

Public policy not ground for immunity

  • The claims of floods of vexatious claims and defensive conduct were restricted by the Bolam test which must be met
  • Even if there are alternative procedures by which some form of redress might be obtained, such as resort to judicial review, or to an ombudsman, or the adoption of such statutory procedures as are open to parents, which might achieve some correction of the situation for the future, it may only be through a claim for damages at common law that compensation for the damage done to the child may be secured for the past as well as the future

Policy/operation distinction rejected

  • The policy/operation distinction does not provide any absolute test to determining whether a case allows for the imposition of a duty of care but may provide some guide
  • It was recognised by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 , 738 that even in matters of a discretionary character the authority may be liable in damages if its decision falls without the ambit of the discretion, as where the action taken is so totally unreasonable as to amount to an abuse of the discretion

Current case

  • On the facts there was sufficient proximity to justify a duty of care
  • While the psychologists were advising teachers, the parents were also recipients of the advice