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iIssn 1475-4711 June 20042005 Contents Editorial 2 interests and activities. Its primary difference from autism component of his damages. Some reference was made Education – stale claims is that there is no general retardation in language or to the Phelps decision and the award for loss of earnings cognitive development). in that case. The CA suggested a figure nearer £15,000 would be appropriate in this case. In puberty the claimant developed a preoccupation with 3 The claimant was unable to recover the damages young girls and fire setting. He was convicted of arson for the consequences of his convictions for arson. and lost opportunity and was made the subject of a restriction order under the Clunis v Camden & Islington (1998) QB978 applied. Mental Health Act 1983. 4 The court was especially critical of the case management Public inquiries – fairness and privilege of this case which had led to the joint statement of the Despite the landmark House of Lords decision provisions of Section 11, Section 14 and Section 33 of the The trial was unusual in that the defendant education psychiatrists being produced on day one of the trial and in Phelps v London Borough of Hillingdon (HL Limitation Act 1980. authority did not call any independent expert educational the defendant’s educational psychologist not being psychology evidence and instead relied on the evidence of given the opportunity to counter late served expert 27 July 2000), so called ‘failure to educate’ Their Lordships agreed that the earlier Court of Appeal the two educational psychologists involved in the material from the claimant. In particular the court said claims have remained difficult to prove and (CA) decision in Robinson v St Helens Metropolitan BC claimant’s original assessment. that in future education negligence claims any order for Jim Sherwood 3 win. Two recent court decisions highlight the (2003) PIQR P128 had been rightly decided. A negligent expert evidence should require the expert to identify the difficulties for prospective claimants. failure to ameliorate the consequences of dyslexia by The trial judge found that the educational psychologist learned articles, text book entries and research studies appropriate teaching may be said to constitute an injury. (Mr Moreland) had been negligent in failing to identify the relied on (as is commonly done in clinical negligence They believed that it was too fine a distinction to say that claimant’s complex social and communication needs – such claims). The senior procedure master was to consider In David Adams v Bracknell Forest Borough Council the neglect had caused no injury because nothing could needs not being appropriately catered for at the school to standard directions in these cases. The court also (HL 17 June 2004), the House of Lords was concerned be done to repair the congenital damage in the brain, or which he was sent. On causation the judge held that the emphasised that expert witnesses must not be permitted with the thorny issue of limitation. The claimant was to argue that the other parts of the brain which would failure to send the claimant to an appropriate school to depart substantially from their written report unless educated by the defendant between 1977 and 1988. He have to be trained to compensate had never been injured. resulted in a loss of opportunity for the defendant to learn the trial judge was satisfied that there would be no issued proceedings when he was aged 30 in June 2002. how to improve his social and communication skills, to injustice to the parties. Furthermore, the trial judge The claimant suffered from dyslexia. The distinctive The majority of their Lordships also concluded that whilst manage his behavioural difficulties and to gain an end should not (without good reason) adopt a differential Pleural plaques – anxious times ahead features of this condition are a combination of average to his dyslexia might have inhibited the claimant from qualification. He ordered damages to be assessed on that approach towards evidence from different categories of good general mental ability with severe and long term seeking advice, he ought reasonably to have sought basis. The local educational authority appealed. witness (ie expert and lay witnesses) as was done by the difficulties in reading, writing and spelling. It is not expert advice years ago. In the absence of evidence that trial judge in this case. curable but in some cases suitable teaching can his injury prevented him from seeking expert opinion In the CA, the appeal on liability was dismissed. The ameliorate its effects. about its cause, it could not be assumed that any such appeal on causation was allowed and the case was Undoubtedly, the defendants were hindered at trial by difficulty existed. Their Lordships therefore concluded that remitted for the judge to assess damages on the basis of the decision not to call their own, fresh expert evidence. Mr Adams’ dyslexia was not formally diagnosed until the relevant date of knowledge for the purposes of their findings on causation. The key findings were: The case does still demonstrate the considerable John Harland 6 November 1999. Prior to that he had known that he had considering limitation accrued well before the three years 1 The evidence of the defendant’s psychologist was evidential hurdles which claimants need to overcome suffered from some psychological affect linked to his poor prior to the issue of the summons. The defendant’s appeal admissible. The fact that such an expert might lack the where they are suffering from a complex behavioural reading and writing skills. was allowed and the action dismissed. This case is of objectivity of an independent expert went to the issue emotional and learning problem (a common feature in particular interest to insurers and local education of cogency not admissibility. Whilst critical of the these claims). The defendants must always focus on The claimant argued that for the purpose of limitation his authorities because of the strong policy stance taken judge’s approach, the court believed that what would have been the outcome but for the alleged date of knowledge was November 1999. He relied on the against stale claims – a particular feature of these he had balanced the testimony of the claimant’s expert professional negligence or alternative teaching options, decision in Phelps that a failure to ameliorate a congenital education claims. It also reaffirms the personal injury against the defendant’s educational psychologist which it is maintained should have been provided in condition can constitute a personal injury and that a three classification for this type of claim. (despite not expressly doing so in his judgment) and the first place. Often the teaching regime suggested by year limitation period applied subject, of course, to the that it would be wrong to order a re-trial on this basis. the claimant would have made no material difference In DN (by his father and litigation friend RN) v London 2 On causation, the trial judge had overstated the effect to the outcome in any event. Stress: rising pressure, rising claims Borough of Greenwich (CA 8 December 2004), the of the expert psychiatric evidence and had been wrong CA was concerned with a first instance decision of Judge to find that the defendant’s negligence had caused the It is also encouraging to see the courts starting to treat Overend concerning an adverse finding on liability claimant to lose the opportunity to learn how to these claims with the specific procedural interest that they and causation against the defendant local education improve his social skills etc. The judge should have deserve and which has until now been reserved to other authority. The claimant was assessed and found to have approached the question by considering, on the specialised claims. special educational needs at the age of 5. At 10 the balance of probabilities, what would have been the Vivienne Williams 9 defendant’s educational psychologist prepared a report likely outcome if the claimant had gone to an and in consequence the claimant was educated at a appropriate school. The claimant had at all material school for children with educational behavioural times been severely damaged (independent of his difficulties. It was not until the age of 12 that he was Asperger’s Syndrome) and all the experts could say on diagnosed as suffering from Asperger’s Syndrome (this the balance of probabilities was that the outcome syndrome is characterised by the kind of abnormalities of would have been better or different if his education had reciprocal social interaction that typify autism coupled been different. The court held that the claimant could Jeff Wale with a restricted, stereotyped, repetitive reservoir of only justify a small award for the loss of earnings Partner, BLM Southampton Education – stale claims and lost opportunity 12 DISCLOSURE • JUNE 2005 DISCLOSURE • JUNE 2005 13 Jeff Wale 12 Page 12: Are specialist claims gaining the interest they deserve? Council cleared of corporate manslaughter Chris Green 14 The CA responds to To catch a thief dishonest claimant Julian Smart 16 Yvonne Painting v University of Oxford Mrs Painting was employed by the University of Oxford as an administrator. On 1 June 1999 she fell from a stepladder whilst fetching a file from a shelf and sustained a back injury. It was her responsibility to ensure that work equipment was in good order. At the time of the accident she was heavily pregnant. The University conceded primary liability for the accident and the claimant accepted a reduction of 20% in respect of contributory negligence. The CA responds to dishonest claimant The claimant commenced proceedings relying The defendant applied for an order that the claimant upon evidence from an orthopaedic surgeon who pay the defendant’s costs, on the basis that the defendant recommended that the claimant should be examined had ‘won’ the case, albeit that the claimant had beaten by a spinal surgeon.