“Had the claimant been properly diagnosed as having the specific learning difficulty known as dyslexia during the course of his attendance, both at Bleak Hill Infant/Junior School and Rainford High School, and had proper treatment been given, his interpersonal skills, both at school and at home would have developed normally and his academic skills and performance would have been considerably enhanced. As he progressed through school his chronological delay would have been nowhere near as serious as it became and as a result his feelings of failure and lack of self-esteem would not have proved as debilitating as they did. His learning and attention difficulties as they were not properly addressed made it very difficult for him to settle properly in class. In general terms he became emotionally and academically vulnerable. The claimant lost the opportunity of achieving any appropriate measure of academic success, given the claimant’s cognitive ability. Instead his level of achievements are equivalent to those which could be expected of a nine-year-old. The claimant is handicapped on the labour market.”
“Where the damages claimed by the plaintiff for the negligence consist of or include damages in respect of personal injuries to the plaintiff or any other person.”
“and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant.”
“What the House of Lords seem to be saying with regard to personal injury matters is that a claim in respect of dyslexia or other diseases or conditions which a school could ameliorate can, may, amount to a personal injuries claim. I asked counsel for the claimant what I thought was an important question and that is, was he saying that in every case where dyslexia was alleged and similar arguments put forward to the present case that those cases were cases of personal injury? He was reluctant to go so far. He said that really one did not need to go that far but it seems to me that you have to go that far. .... What the defendants say is that this is not a personal injury claim, none is pleaded, nor has the claimant adduced any evidence of personal injury. Again, I asked the claimant’s counsel whether or not there was any medical evidence to support the claim and he said no. In fact he put this case as part of the many cases which fall into “the twilight zone”
“Even if dyslexia can be regarded as an impairment of the applicant’s mental condition, it is not caused by the potential defendant. It is a congenital and constitutional condition. Failure to diagnose it does not exacerbate the condition.”
“General damages are claimed by analogy to cases of mental impairment, excluding the element of physical injury but including the history of frustration, antisocial behaviour, loss of self-confidence and loss of self-esteem.”
“A person whose self-confidence and self-esteem have been eroded by an unhappy time at school and the continuing handicap of having to live with these disadvantages of dyslexia. In so far as it was an attempt to turn matters which do not sound in damages into psychiatric injury which does, I have no regard to it.”
“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 financial loss and expense as that may entail, it may 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 and 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.”
“As regards the Anderton case the procedural point under reference tosection 33 (2) of the Supreme Court Act 1981 is not of critical importance but on the basis that what the claimant suffered was not simply a failure to have her condition ameliorated but an actual impairment of her mental condition when she was already burdened with considerable learning difficulties, I would be inclined to hold that the condition here could qualify as a “personal injury” to the person. That is sufficient for the disposal of that case.”
“It is clear that the loss suffered by a child who has not been treated in accordance with the statutory intent can often be said to be foreseeable, proximate and serious. The damage may be physical or psychological, emotional or economic.”
“The result of failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can no doubt that if foreseeability and 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.”
“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 educational 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. In any event, I did not understand it to be argued by the education authorities (if, contrary to their submission, any duty was owed) that the claims made by E and Richard for recovery of school fees were bad in principle.”
“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. It follows from this that the school teacher’s duty to exercise reasonable skill and care to safeguard the pupil from injury includes a duty to be aware of the symptoms which a reasonably careful parent or a reasonably skilled and careful teacher would regard as symptoms either of dyslexia or, more generally, of a need for specialist advice.”
“The broad definition of injury insection 35(5) of the Supreme Court Act 1981 makes it clear that the power under section 33(2) is not limited to physical injury, the sense in which as a matter of ordinary speech the word might be understood. Having regard to the purpose of the provision it would in any event, in my view, be wrong to adopt an over-legalistic view of what are ‘personal injuries to a person’. For the reasons given in my opinion in the Phelps case, psychological damage and a failure to diagnose a congenital condition and to take appropriate action as a result of which a child's’ level of achievement is reduced (which leads to loss of employment and wages) may constitute damage for the purpose of a claim. Accordingly, I consider that Garland J in the Phelps case was right in the passage which I have just quoted and that a failure to mitigate the adverse consequences of a congenital defect is capable of being ‘personal injuries to a person’ within the meaning of the rules. On the evidence before them, Master Prebble and Steel J were entitled to find that Rhiannon was likely to be a party to subsequent proceedings in the High Court and that in those proceedings a claim ‘in respect of personal injuries to a person…..is likely to be made’.”
“A disorder manifested by difficulty in learning to read despite conventional instruction, adequate intelligence, and socio-cultural opportunities. It is dependent upon fundamental cognitive disabilities which are frequently of constitutional origin.”
“If my claim is not allowed to proceed it will be a very serious thing for me. I was affected very badly by my literacy problems. They framed my entire development and my inability to read and access ordinary written material has seriously hindered my work and general development.”
“It seems to me that what the claimant is saying in this particular case is yes, the claimant well knew about his condition, he well knew about the name of his disability in 1992 when he got the Ruddick [sic] report. He knew that he had the ability to do something about it because the Ruddick report uses the words ‘amenable to structured remediation’ and he knew of the fact of his own disappointment and his own achievements with regard to his education. It is apparent that both the claimant’s parents and later on the claimant have had an anxiety about education, about the way the claimant was treated at school, for years and years and years. What the claimant says through his counsel is, yes, he did know the facts and in November, 1997, he knew that he had the makings of a case against the local authority because he went to see solicitors. In fact, sadly, no writ was issued then because that would have been within the 15 year long stop put forward by Section 14(a). But, in fact, he did not know he had a claim because it was only when the House of Lords gave the green light to such cases that a claim was viable and then a claim was brought. I disagree with the claimant’s view of the matter. What Section 14 says at Section 14(1)(d): ‘Knowledge that any acts or omissions did or did not as a matter of law involve negligence, nuisance or breach of duty, is irrelevant.’ Now, I recognise that the makers of this statute did not envisage, or did not have as their first matter of importance, a change in the law as radical as Phelps but the clear words of the statute are such as to mean that if you know the facts of your case, and you know that the condition that you suffer from could have been ameliorated by the activities of the defendants, then the fact that you did not know that you could have a good claim is by statute irrelevant. I do not accept that the date of knowledge should be 2000. The date of knowledge to my mind should be 1992 or at the latest at some stage before the claimant went to see the solicitors. It seems to me that to imply that the date of knowledge depends on the state of the law is to run contrary to the words put in the statute and I note the words of Brooke LJ in North Essex Health Authority – v- Spargo [1997] 8 MLR 125 when he says: ‘The knowledge required to satisfy Section 14(1)(b) attribution, is a broad knowledge of the essence of the causally relevant act or omission to which the injury is attributable.’”
“I had of course been told in 1992 that I was severely dyslexic but that otherwise I was of reasonably high intelligence. I did not know at that stage however that I had any legal redress against the defendant in respect of any negligence on the part of their schools or members of the staff. I knew from my parents that I had been badly treated at school and since 1992 I was aware that I was dyslexic and that this was a constitutional condition which would have required specific and special help during the course of my education if I were to achieve to my full potential.”
“Q. At the top of page 146, paragraph 5, you say, ‘I am aware from my parents that throughout my school career they did everything within their power to complain to the two schools and to the local education authority that in fact I was a bright boy who had been let down by the system’. That is true, is it not? A. Yes Q. That is what you knew at the time, is it not? A. Yes. Q. “Throughout, the school’s attitude to me was that I was of limited intelligence and their appropriate placement for me therefore was in either remedial units or in low streaming at both primary and secondary school; most of the teachers at either school showed little interest in me, and this was reflected in very poor examination results which I achieved at CSE level in 1983”
“The plaintiff’s case is that the teaching staff’s failure … and/or the defendant’s educational psychological service’s failure to diagnose her own specific learning difficulties … has caused a very significant retardation of her educational and personal skills … The result on [her] schooling has been an abiding sense of failure, an erosion of any self-esteem she once possessed, depression, susceptibility to bullying and social isolation.”
“[She] has personality difficulties which I think stem from deeper causes than her dyslexia. I would however be able to say that dyslexia would certainly not help somebody with personality difficulties in that it might lead to behaviour to disguise the difficulty and also feelings of inadequacy that arise from the inability to read.”
“The issue of limitation be tried as a preliminary issue … The hearing is limited to the question as to whether Sections 11, 14a and 14b of the limitation act shall be disallowed.”