DN v London Borough of Greenwich Rev 2 [2004] EWCA Civ 1659

[2004] EWCA Civ 1659Case No B3/2004/0099
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
Judge Overend
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 December 2004
Before
LORD JUSTICE BROOKEVice-President of the Court of Appeal (Civil Division) LORD JUSTICE MAYSIR MARTIN NOURSE
Between
DNClaimant/LONDON BOROUGH OF GREENWICHDefendant/Appellant
Edward Faulks QC and Andrew Warnock (instructed by Barlow Lyde & Gilbert) for AppellantRoger Ter Haar QC and Andrew Phillips (instructed by) Teacher Stern Selby for RespondentHearing Hearing dates : 18 th, 19 th and 20 th October 2004
Judgment
[1]This is an appeal by the defendants, the London Borough of Greenwich (“Greenwich”), from a judgment of Judge Overend, sitting as a high court judge, on 19th December 2003 whereby he directed that judgment be entered in this action for the claimant DN on issues of liability and causation and directed that damages be assessed in accordance with his findings.[2]DN was born in 1980. His parents then lived in the Lewisham area, and in 1985 he was issued with his first statement of special educational needs. In 1987 his parents moved to the Greenwich area where he moved quickly from a local infant school to a local junior school. This appeal revolves around the allegations of negligence made against a school educational psychologist, Mr Moreland, who in May 1990 prepared a report on him. This report was then submitted with other reports to a panel who were to determine the direction of his future education when he was ten years old.[3]In August 1990 the panel decided that he should be educated at Moatbridge School, a special school for children with emotional and behavioural difficulties. It was close to his parents’ home. He was due to start there in September 1991, but after he had been permanently excluded from his junior school in November 1990, he was admitted to Moatbridge in January 1991.[4]His first two years at his new school passed relatively uneventfully, but as he entered puberty things became more turbulent, and he was eventually excluded from that school, too, in May 1994. His educational career then stood still until September 1996, when he was admitted to Chelfham Mill School, a residential special school in Devon with a unit for the “16 plus” age group where he stayed until 1999. His life then became very turbulent again. In 2001 he was convicted of arson and made subject to a restriction order under the Mental Health Act 1983.[5]In this action he claimed, and the judge found, that if Mr Moreland’s report in 1990 had not been negligently prepared, he would have received an education more suited to his needs.[6]It was not until DN was 12 years old that a diagnosis of Asperger’s Syndrome was first made. It was not suggested that Mr Moreland could or should have made this diagnosis two years earlier. Instead, the judge found that he had been negligent in three respects. He had failed to appreciate that DN did not present a profile of a child with emotional and behavioural difficulties (so that it was inappropriate to place him in a school for such children). He had failed to carry out any psychometric tests, such as a general intelligence test using the Wechsler testing method. And he had failed to recommend to Greenwich and to DN’s parents that DN’s special educational needs could only be met by a school which had experience and expertise in teaching children with communication disorders. In this context the judge found that Mr Moreland should have identified DN’s complex social and communication needs, which were not appropriately catered for in the school to which he was in fact sent.[7]Asperger’s Syndrome is characterised by the same kind of qualitative abnormalities of reciprocal social interaction that typify autism, coupled with a restricted, stereotyped, repetitive reservoir of interests and activities. Its primary difference from autism is that there is no general retardation in language or cognitive development. Most of the people who are affected by it are of normal general intelligence, and it seems highly likely that at least some such cases represent mild varieties of autism. There is a strong tendency for the abnormalities to persist into adolescence and adult life. DN’s case was complicated by the fact that he exhibited serious behavioural problems[8]Dr Dawkins, a consultant in child and adolescent psychiatry who gave evidence for DN, and Dr Campbell, a consultant forensic psychiatrist advising Greenwich, agreed that if DN had been provided with an appropriate educational environment throughout his school years (to include the social skills training and behavioural management recommended by specialists at the Maudsley Hospital from 1993 onwards) and had not experienced a long gap in his education, the outcome would have been better both academically and socially. In this context they quoted a recent statement published by the National Research Council to the effect that education has been the most powerful source of improvement for children and adolescents with autistic spectrum disorders in the last 50 years.[9]The trial was unusual in that Greenwich did not rely on any independent expert on the issue of the standard of care reasonably to be expected of an educational psychologist working for a local education authority at the relevant time. Instead it was content to rely on the evidence of Mr Moreland, coupled with the evidence of Mr Radcliffe, another educational psychologist who was charged (but acquitted) of negligence in connection with a report he wrote about DN in 1994. DN, for his part, was able to rely on the evidence of Mr Albert Reid, who was for ten years between 1980 and 1990 the senior specialist educational psychologist for children with complex needs in the Inner London Education Authority. The judge described Mr Reid as an impressive and highly experienced witness, whose evidence was frank, compelling and authoritative, even if he was prone to a tendency on occasions to use the language of an advocate.[10]Mr Reid was first asked to advise in May 1996, when DN had been away from school for two years and at a time when an unhappy state of tension existed between the team at the Maudsley Hospital who had been seeing DN from time to time since 1993 and those at Greenwich who were trying to find a new educational placement for him. Mr Reid wrote three further reports in connection with these proceedings, the latest of which was dated April 2001, two and a half years before the trial started. Unhappily, although Mr Moreland’s manuscript notes were disclosed at the appropriate time (his more formal periodic reports had disappeared during the years since 1987-90 when they were written), Mr Reid saw them for the first time in the days immediately before the trial started. It was also unfortunate that he did not produce any of the learned papers on which he sought to rely until shortly before the hearing. This led to Mr Moreland providing a further paper himself while he was in the witness-box. We will refer in due course to these and other procedural difficulties which upset the orderly course of the trial.[11]Mr Reid was full of praise for the report prepared in 1985 by Mr William Conn, who was an educational psychologist in the Lewisham area. He said he was struck by this report as a thoughtful, candid summary of DN’s difficulties. He said that Mr Conn’s failure to identify DN as showing the symptoms of Asperger’s Syndrome was not unreasonable, because DN was still only five years old and this would have made a differential diagnosis very hard. Furthermore, interest in Asperger’s Syndrome children was still not widespread within professional circles at that time. Mr Conn was clearly puzzled about this case. He said that DN would require additional support at school, together with speech and language therapy. Mr Reid explained to the judge the effect of the findings which Mr Conn had made as a result of the psychiatric tests he administered. Mr Conn felt that DN’s needs were complex, and Mr Reid said that there was a risk that DN’s bizarre behaviour might be either discounted or interpreted as maladjusted behaviour.[12]Mr Reid said that Mr Conn’s report, together with his contemporary notes, show that up to the age of seven DN was not presenting as a normal child with emotional and behavioural difficulties. He was experiencing evident difficulties in relation to his social functioning and his ability to communicate. He required continuous assessment. It was understandable that Mr Conn had not got to the bottom of his problems. DN’s parents wished him to have mainstream schooling, and Mr Conn went along with their wishes, subject to the child having the extra support he recommended. Mr Reid identified features noted in Mr Conn’s reports and in the contemporary school reports which were indicative of autistic tendencies – hand-wringing, repeating things, the literal use of words, and so on.[13]When DN moved to the Greenwich area and first came within Mr Moreland’s field of responsibility in 1987, Mr Reid said that the same features became more and more evident. The judge set out a list of them in his judgment. They included over-excitement if praised, unconventional conversation, obsessions, jumping on the spot, low comprehension (despite a good vocabulary), and inappropriate social responses. Mr Reid was very critical of Mr Moreland’s failure to explore the kind of cognitive profile he possessed. There was a live debate at the time among educational psychologists on the subject of higher functioning autistic children, and Mr Moreland ought to have established that DN had the very specific social and communication needs which were a function of his autism.[14]In this context he would have derived assistance from psychometric tests. These would have provided information about the level of his cognitive functioning and shown whether the pattern of spiky profile sub-test scores which had puzzled Mr Conn was still evident. The results derived from such tests would have provided information about his capacity to understand social situations. Although there was a small minority of psychologists who did not use these tests, those psychologists would prepare structured questionnaires or observational schedules instead in order to tease out the information they needed, and Mr Moreland did not use these techniques, either.[15]Mr Reid illustrated the points he was making by detailed references to Mr Moreland’s notes and the school reports at the middle school. He said that by June 1990 considerable evidence had accumulated to the effect that the measures taken to meet DN’s needs had not been successful, and he was now exhibiting more bizarre behaviour. It was evident that although he may have appeared to be literate, his comprehension was poor, and Mr Moreland did not assess his comprehension. Although he did not blame Mr Moreland for not identifying Asperger’s Syndrome, Mr Reid said that the contemporary culture among educational psychologists in the Inner London area was one of considerable knowledge as to the methods of identifying autistic features in children, and that Mr Moreland failed in his duty of care towards DN by simply referring to his complex needs and not doing more to assess precisely what those needs were.[16]This, then, was the evidence on which the claimant relied in support of the first two allegations of negligence which the judge found to be proved (see para 6 above). Mr Moreland’s answer to these criticisms was that a lot of the features identified by Mr Reid were also common to children with emotional and behavioural difficulties. He said that many of them are very often lacking in self-esteem and self-confidence, have heightened levels of anxiety, and have poor communication skills. He had noted that DN found it very difficult to engage in a primary school curriculum, which was why he had suggested that he needed a setting which provided smaller groups and a different kind of curriculum approach. He was willing to accept, at least in part, that DN was a child with some sort of communication disorder, but he was not entirely sure how he would have found out what it was or that he definitely had one.[17]He did not accept that it was useful to divide up youngsters on the autistic spectrum, as opposed to those with emotional and behavioural disorders, by categorising them as either anti-social or asocial: sometimes there is an overlap. He was adamant that it was unwise to generalise about the characteristics of children who had emotional and behavioural disorders.[18]Mr Moreland’s view, which he had expressed at the time, was that DN had an unusual combination of complex difficulties, which included emotional vulnerability as well as difficult behaviour. He was not at all surprised that he had failed to detect that DN suffered from Asperger’s Syndrome, but even if he had done so, he believed that this would not necessarily have been very helpful. He thought that he had reported DN’s unusual combination of problems fairly and accurately, and a diagnosis of Asperger’s of itself would not have caused him to consider that the child needed alternative schooling from the mainstream.[19]In cross-examination Mr Moreland said that in 1987-90 he would not have recognised some of the matters that were put to him as features of autistic spectrum disorders. At that time his experience of youngsters on the autistic spectrum was limited to those with profound autism, whose presentation was very different from this child’s presentation. He accepted that DN had oddities, and he accepted that some of the matters that were put to him were sometimes symptomatic of conditions on the autistic spectrum. When asked about a note recording that DN repeatedly clapped and wrung his hands, Mr Moreland said that he was really not sure what he would have thought about it. He guessed that he would have thought it was some kind of habitual behaviour. He did not accept that a low test score for comprehension would be found exclusively in youngsters with Asperger’s Syndrome (even if he had known about it). In 1989 he did not know that a failure to cope with non-literal language was a sign that DN might be suffering from an autistic spectrum disorder. Similarly, in 1990 he did not know that DN’s practice of twisting a pencil between his fingers and grimacing to himself while he did so was a classic symptom of conditions on the autistic spectrum.[20]On this aspect of the case the judgment was challenged on two grounds: i) The judge misdirected himself in holding that he could not have any regard to expert opinions expressed by Mr Moreland because he was called as a witness of fact; ii) The judge failed to assess Mr Moreland’s evidence, notwithstanding that he went on to find him professionally negligent, and failed to give any consideration at all to his evidence as to why he acted and advised as he did.[21]The case was not an easy one to try, because the central question the judge had to determine was whether Mr Moreland (and, later, Mr Radcliffe) had failed to act with the care and skill that should reasonably have been expected of him, and the defendants, as we have said, decided not to call any expert evidence to assist the judge on this issue. Very soon after the trial started, the judge adverted to this fact in an exchange with counsel (mainly Mr Warnock, who appeared for Greenwich):
“Q. I have two questions. The first is that there is no educational psychologist that I am referred to for the defendant. Is that right? A. That’s right. Q. Do I assume, therefore that Mr Reid’s conclusions on liability are unchallenged? A. No, your Lordship should not assume that. Q. You do not have any expert evidence to counter his? A. No, I do have two very experienced educational psychologists. Q. They are the targets of the DNs’ allegation? A. Yes, that is right. Q. They are witnesses of fact. A. They are also able to explain why they acted as they did and certainly I will be testing Mr Reid’s evidence. Q. You are perfectly entitled to test but to rely upon the targets of Ns as experts I am afraid you are not permitted to do that. A. Perhaps we can address that when we come to it my Lord. J. I am telling you that that is the position.”
Q. Do I assume, therefore that Mr Reid’s conclusions on liability are unchallenged? Q. You do not have any expert evidence to counter his?

Q. They are the targets of the DNs’ allegation?

[22]During the first day the judge was handed the joint report of the parties’ psychiatrists (for which see para 47 below) which showed a significant measure of agreement. He immediately encouraged the parties to discuss settlement terms in the light of this report and the fact that the defendants did not have an expert on liability. Mr Warnock declined this invitation and told the judge that he had quite a lot to say on the question of liability.[23]The judge’s belief that the defendants should have conceded liability in the absence of an expert of their own was also evidenced by the terms of his later ruling that the claimant should receive his entire costs of the action.[24]The judge addressed the absence of an expert witness for the defendants in paragraphs 43-48 of his judgment in these terms:
“43. Mr Phillips for the claimant submitted that it is rare for a defendant in a professional negligence case to call no independent expert evidence. He submitted that there was no admissible evidence to rebut the evidence of Mr Reid. 44. Mr Warnock agreed that the defendant called Mr Moreland as a witness of fact, but said that if Mr Moreland gave opinion evidence, then the court should take it into account, relying on the case of ES v Chesterfield and North Derbyshire Royal HospitalNHS Trust [2003] EWCA Civ 1284. 45. In his closing address, however, Mr Warnock did not refer to any aspect of Mr Moreland’s evidence relating to opinion, other than by implication in submitting that his evidence should be preferred to that of Mr Reid. 46. It would be surprising, in my judgment, if in deciding ES the Court of Appeal intended to drive a coach and horses through the rules as to the giving of expert evidence contained in the CPR. In my judgment ES is a case management decision based on exceptional circumstances, which is directed at equality of arms in the giving of expert evidence. It cannot be said to amount to authorising the elevation of the evidence of a witness of fact (albeit a defendant in a professional negligence action) to that of expert witness, where the defendant has chosen to call no other expert evidence. 47. Thus I conclude that there is no expert evidence to counter the evidence of Mr Reid – or none that can be regarded as independent or of any weight. 48. That is not to say that the court can or should, without more, accept the opinions of Mr Reid. His evidence needs to be assessed and the effect considered of cross-examination by Mr Warnock (without the benefit of an expert witness instructing him).”
[25]It very often happens in professional negligence cases that a defendant will give evidence to a judge which constitutes the reason why he considers that his conduct did not fall below the standard of care reasonably to be expected of him. He may do this by reference to the professional literature that was reasonably available to him as a busy practitioner or by reference to the reasonable limits of his professional experience; or he may seek to rebut, as one professional man against another, the criticisms made of him by the claimant’s expert(s). Such evidence is common, and it is certainly admissible. Mr Phillips, who appeared for the claimant at the trial, did not believe he had told the judge that Mr Moreland’s evidence on matters of this kind was inadmissible, and neither of the very experienced leading counsel who appeared in this court was willing to support the judge’s view of the matter.[26]Of course a defendant’s evidence on matters of this kind may lack the objectivity to be accorded to the evidence of an independent expert, but this consideration goes to the cogency of the evidence, not to its admissibility. That such evidence was in principle admissible should have been reasonably apparent from the judgments in this court in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284 at [24], [31]-[32] and [41], [2004] Lloyd’s Rep Med 90.[27]If it had in fact been the case that the judge disregarded or excluded any evidence of this kind that was given or tendered by Mr Moreland, then that would certainly have constituted grounds for setting aside his judgment. Mr Faulks QC, who appeared for the appellants, did not suggest, however, that he had excluded anything Mr Moreland wished to say. Instead he contended that the judge’s references to Mr Moreland’s evidence in the judgment were so minimal that he must be taken not to have given it the weight and consideration it deserved.[28]The references which the judge made to Mr Moreland, other than by reciting his 1990 report in full, were as follows: i) He recorded Mr Moreland’s acceptance of the proposition that if he had concluded that it would be wrong to send DN to a school for children with emotional or behavioural disorders (“EBD”), or that a residential special needs school was appropriate for him, he would have said so in his report (there is another reference to this concession later in the judgment). ii) He said that the issue relating to Mr Moreland’s negligence came down to a dispute between Mr Reid’s professional assessment of Mr Moreland’s failings and Mr Moreland’s testimony, unsupported by independent expert evidence.[29]It is most unfortunate that the judge’s judgment-writing technique was to summarise the effect of Mr Reid’s evidence against Mr Moreland and to fail to summarise the effect of the evidence Mr Moreland gave in his own defence. It would have been very much better if the judge had explicitly shown that he understood the points Mr Moreland was making. If this had been a summing up to a jury in a criminal trial, the criminal division of this court would certainly have held that the defence was not being fairly put. But this appeal does not include a “reasons” challenge to the judgment. It is a complaint that the judge failed to assess Mr Moreland’s evidence at all, or to consider his evidence as to why he acted and advised as he did.[30]We have, with a good deal of hesitation, concluded that it would be wrong to order a retrial on this ground (and we certainly could not direct that judgment be entered for the defendants as a consequence of this complaint). After all, the judge had heard the whole of Mr Moreland’s evidence only seven days before he completed his reserved judgment, he had received written and oral closing submissions from Mr Warnock, and he said in terms that he was balancing Mr Moreland’s testimony against Mr Reid’s professional assessment of his failings.[31]It seems to us that the defendants’ dilemma ultimately stems from their decision not to field an independent educational psychologist of their own. Whether the evidence of such a witness could have led the judge to conclude that Mr Reid was applying an unreasonably high standard will never be known. As it is, it appears to us that the judge was entitled to adopt what Mr Reid told him Mr Moreland should have done if he had acted with the skill and care reasonably to be expected of him, and that it would be wrong for this court to interfere with the judgment on these grounds.[32]In the light of that conclusion it is possible to deal with the next head of challenge more briefly. The effect of upholding the judge’s finding that Mr Moreland ought to have conducted a more thorough assessment of DN’s needs is to conclude that Mr Moreland’s report ought to have identified the many autistic features to which Mr Reid drew attention even if he was excused from giving them the name of Asperger’s Syndrome. Mr Reid gave clear evidence to the effect that DN’s needs contra-indicated a placement in an EBD school because the techniques adopted in such a school for addressing disturbed behaviour were quite unsuitable for children like DN, whether they were described as suffering from Asperger’s Syndrome or as being in the higher functioning range of the autistic spectrum. To send such a child out of a classroom to stand somewhere on his own when he was behaving badly would do nothing of value for him since isolation is one of his characteristic features.[33]In this respect Mr Reid’s evidence was supported by both of the expert psychiatric witnesses (for whom see para 8 above). Although neither of them was employed in the education sector they both agreed that the EBD school to which he was sent “would not seem to be appropriate for his perceived educational needs”. It may be convenient here to set out their brief description of the inherent characteristics of Asperger’s Syndrome:
“[It] is a developmental disorder of social interaction characterised by (i) impairment of social interaction; (ii) narrow interests; (iii) repetitive routines and the insistence on the following of these routines; (iv) speech and language peculiarities.”
As we have said (see para 8 above), they both laid great stress on the value of education as a source of improvement for children and adolescents with autistic spectrum disorders.[34]Mr Faulks argued that the position was not as simple as this because DN also exhibited considerable behavioural difficulties which are not necessarily a feature of a child with Asperger’s Syndrome. He also relied heavily on the evidence of Mr Dawson, the very experienced former head teacher at Moatbridge School, who said that DN had coped reasonably well during his first two years at the school (“his behaviour – oddities apart – was not untypical of children with educational and behavioural difficulties”). Mr Dawson still felt that Moatbridge had been the best place for him at the time of Mr Moreland’s original assessment. He accepted that it was not ideal, and in an ideal world of unlimited resources one would “individualise” things far more for pupils, but it was a “best fit” at the time. He accepted that the staff at his school had little experience of dealing with Asperger’s Syndrome, which was only just coming to light at that time, but he did not know of anywhere that particularly dealt with Asperger’s Syndrome. It was common ground that a special school for autistic children would have been totally inappropriate.[35]Mr Reid, however, with his very specialist knowledge, did know of such schools, and he had produced the names of 15 schools. Although Mr Warnock embarked on the task of challenging the suitability of each, Mr Reid appears to have known quite a lot about them, and it was soon decided that the defendants should prepare a schedule overnight which set out their grounds for saying that every school on the list would have been inappropriate. In the event Mr Warnock did not revert to this topic the following day, and no such schedule ever appeared. Mr Faulks continued to assert in the appeal that schools which were otherwise suitable might have refused to accept DN because of the behavioural problems he presented (as did in fact happen later on in the case of one school).[36]After summarising the evidence on this point

the judge concluded (at para 109 of his judgment):

“I find on the evidence that there were at the material time specialist schools with the appropriate expertise to address DN’s needs, as identified by Mr Reid. In addition, while it is clear that schools would have had to be found that would have accepted DN, and DN’s parents would have had to be persuaded by the Defendant and by Mr Moreland that education in such a specialist school was in DN’s best interests, I think it is probable that both would have occurred. Mr Reid’s experience of placing children with complex needs in suitable schools was encyclopaedic – which is not surprising given his background. Further, having seen and heard both of DN’s parents give evidence, I conclude it is likely that they would have been persuaded that residential education was in his best interest, and that this would probably have overcome their natural reluctance to contemplate education away from their caring home.”
[37]We do not consider that the defendants are entitled to escape from the force of these findings by saying that Mr Moreland’s was just one of a number of reports about DN which were in front of Greenwich’s education panel who decided on his placement, or by referring to the fact that Greenwich’s senior educational psychologist was a member of that panel. Mr Moreland owed DN a legally enforceable duty of care when he was carrying out the assessment, and it was Mr Reid’s evidence, which the judge accepted, that if Mr Moreland had spelt out the particular features of DN’s needs which called for a placement at a quite different type of school from Moatbridge, the panel would have been bound to turn their attention in that direction.[38]The defendants did not set out to challenge the judge’s finding of fact as to DN’s parents’ likely reaction if they had been told what type of school would have been best for their son, even if this involved placing him in a residential school before he was 11 years old, so that no issue arises on that aspect of the case on this appeal.[39]So far as DN’s behavioural difficulties were concerned, Dr Dawkins accepted that he had an extreme behaviour disturbance, but it was important to understand why he behaved as he did. Were there things that sparked off his bad behaviour and made it worse? How did the child himself see the problem that confronted him? If he was having a bad time with other children and felt that he was being picked on, he would get more anxious, and the more anxious he got, the more likely it was he would have a shorter fuse in future. Specialists would identify the problem and say: What help does he need and from where may he get that help? They would not simply say that this was dreadful behaviour and that nobody would want him. Sometimes, she said, young people are turned down by residential or in-patient units because of their current client mix, and not because they are unsuitable for a child with difficulties like this one. Although the types of schools that would take him would be few and far between, they did exist. Some of these schools would say “no”, and some would say “yes”.[40]This evidence coincided in large part with that given by Mr Reid, and the judge was entitled to accept it. We do not consider that the fact that the specialists at the Maudsley Hospital who saw DN from 1993 onwards did not suggest a change of schooling until the following year takes the matter any further. The judge was entitled to find that if Mr Moreland had performed his duties non-negligently DN would have been placed in a much more appropriate school from 1991 onwards, even if as turned out things did not start going really wrong at Moatbridge until after the onset of puberty.[41]For these reasons we consider that the judge was entitled to find Mr Moreland was negligent for the reasons he gave.[42]It was also the judge’s duty to try “causation of loss (but not the quantum thereof)” as a preliminary issue. For this part of the appeal it is necessary to refer principally to the evidence given by Dr Dawkins and Dr Campbell.[43]In her original report dated 9th August 2002 Dr Dawkins stated that DN had complex psychiatric problems, including Asperger’s Syndrome, extreme behaviour disturbance (including fire setting), emotional lability, easy provocation, a tendency to react verbally and physically in many situations, and a fascination with, and enjoyment with, fires. She described how his behavioural difficulties, and particularly his difficulties with relationships and temper, were apparent from an early age, and how these difficulties had been compounded by lack of acceptance and teasing from his peers as he grew older. With increasing age his aggressive outbursts became increasingly violent, and those around him became scared of him. She referred to his exclusion from the middle school and his placement at Moatbridge where he did not have the necessary social skills to deal with his peers and became increasingly unhappy and violent. This had led to two exclusions, his refusal to attend school, and the period of two years when he had no schooling at all. Chelfham Mill had been of some benefit to him, but since then he had had more failed placements and had developed a fascination with fire. Following his conviction on three charges of arson he was currently an in-patient in a psychiatric unit for the purposes of a comprehensive detailed assessment.[44]She said that not all his difficulties were due to Asperger’s Syndrome alone. She referred in particular in this context to his fascination with fires and his paranoid attributions in relation to others. His learning difficulties, his Asperger’s Syndrome, and possibly his aggressive outbursts were most likely to be due to an organic cause – either injuries sustained at birth or injury sustained as a result of a blow to his head in a road traffic accident when he was seven years old. However, the experiences he had had throughout the rest of his childhood had played a formative part in his personality difficulties, especially his impulse control and relationships with others. She felt that if he had been in a specialised educational establishment which provided the type of approach recommended by Dr Simonoff (of the Maudsley Hospital), then the outcome for him might have been different:
“If he had been able to learn social skills and appropriate social behaviour and to control his impulses, particularly his temper, then many of his subsequent difficulties may not have developed….Had [Dr Simonoff’s] advice been heeded, the outcome may have been different.”
Dr Dawkins thought that his significant behavioural difficulties could be described as personality difficulties, and that they severely interfered with his day to day functioning.[45]Dr Campbell’s report was prepared nine months later. DN was by now subject to a restriction order, and he was detained in a unit (called “MIETS”) at the Bethlem Royal Hospital which Dr Campbell had co-founded and where he had served as a consultant psychiatrist for 12 years. Dr. Campbell was of the opinion that DN’s recent preoccupations with young girls and fire could not realistically be attributed to any failure of the educational process. He was also unable to identify any areas where any alleged failures by Greenwich could realistically have contributed to the causation of his present mental condition.[46]He said that normally learning disabilities and verbal comprehension disorders were thought of as arising from brain malfunctional difficulties, and that in many cases the ultimate cause was never identified. DN was known to have suffered from a head injury associated with a lineal skull fracture in August 1987. Although no specific brain injury was identified at the time, MRI brain imaging in 1996 had revealed focal areas of cortical atrophy in the frontal and temporal lobes, and he knew of no other realistic explanation for these lesions. His conclusions were expressed in these terms:
“…I am of the opinion that [DN] exhibits a complex combination of mental disorders which are likely to prove enduring. On the basis of his cognitive abilities, he should be capable of sheltered employment. However, given his persistent preoccupations with young girls and fire, sheltered employment would not be a feasible option for reasons of public safety. [DN] would therefore not be in a position to make any positive economic contribution towards his own support. This situation is not likely to change at all in the future. Essentially, public safety concerns would inevitably prevent [DN] from making any positive economic contribution throughout his working life.”
[47]Master Leslie had directed that experts in like disciplines should discuss and attempt to agree issues and serve statements under CPR 35.12(3) by 16th May 2003. Most unfortunately this order was not obeyed, and an appointment fixed for this purpose in August had to be cancelled. In the event the experts had their only discussion over the weekend before the trial started. This discussion led Dr Campbell to concentrate his attention not so much on the original cause of DN’s difficulties which, like Dr Dawkins, he took to be organic in origin, but on the question whether the outcome would have been better if he had had more appropriate schooling between the ages of 11 and 16. The outcome of the discussion was then reflected in the terms of their agreed statement which was handed to the judge and to the parties on the first day of the trial (see para 22 above). It should be borne in mind that CPR 35.12(5) provides that:
“Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.”
[48]They began this statement by saying that appropriate education would have assisted DN to develop more socially acceptable forms of interaction with young girls. Appropriate education would have ameliorated his interests in fires and exposed him to more socially acceptable forms of stimulation. They could not say whether it would have prevented his interests in fires altogether.[49]They went on to say that although DN was not very intelligent he did not have severe learning difficulties. His IQ results lay somewhere between mild learning disability and average intelligence. They would therefore have expected him to obtain anything between zero and five passes at GCSE level examinations. If he had attended a special school, he might have taken alternative examinations.[50]We have already recorded their view that Moatbridge School would not seem to be appropriate for his perceived educational needs. They went on to say that the time he was out of school (between May 1994 and September 1996) would not have been in his best interests. Chelfham School (which he joined in September 1996) seemed an appropriate placement, and he did well in his time there, but this was too brief and came too late in his educational career. They did not consider that DN’s social, emotional and educational needs had been met when he was at Moatbridge School or when he was out of school completely.[51]In paragraph 8 of this judgment we have set out their opinion on the question whether a different level of educational achievement would have been possible for DN by virtue of different schooling, and we need not repeat their answer here. They went on to note that his behaviour had led to his exclusion from a school which had been inappropriate for his particular needs, and that the subsequent prolonged period without education resulted in an absence of educational progress and a deterioration in his social progress. They had no adverse comment to make on the quality of schooling offered by Chelfham, but by then DN’s troublesome behaviour had developed and important educational opportunities had been missed.[52]Appropriate education would have reduced the risk of his developing secondary behavioural handicaps, and if he had been in continuous education of an appropriate kind these behaviours might have been nipped in the bud and might perhaps not then have developed at all. Although DN had some organic brain difficulties, the behavioural consequences of these could have been reduced through appropriate education and behaviour management.[53]In her oral evidence at the trial Dr Dawkins said that she felt that the head injury at the age of seven was probably a red herring. Mr Reid had earlier given evidence that there was nothing in the medical records to suggest that DN had been unconscious for two days (as had once been suggested), and she could not herself find any evidence that he had been unconscious or had a major bleed into the brain or anything like that. When the MRI scan was performed in 1996 it was observed that the affected areas were those that are usually affected in autism, but this did not establish whether the damage spotted in 1996 was done at birth or in the road traffic accident. He had certainly exhibited behavioural problems before that accident.[54]She said that she had seen recent reports from a clinical psychologist and a psychiatric social worker who had identified some external factors that were causative of DN’s recent conduct, but they had also said that his social isolation, his loneliness and his lack of skills were significant contributory factors in relation to his fire-setting tendency. These were the type of factors, she said, that could have been addressed by appropriate education earlier on:
“If he had not been so isolated, so lonely, had nothing to do constructively with himself, then he may have been less prone to develop this interest in fires.”
[55]She said that if he had experienced more appropriate behavioural work around the issues of anger management and self-control he could have come out with some form of qualification, if not the five GCSEs he was potentially capable of. He would also have come out more able to relate to others appropriately, to regulate his impulses, particularly his temper, and hopefully with some practical and vocational skills. She ended her evidence in chief by saying:
“…I agree with Professor Simonoff when she said that given his cognitive abilities and his Asperger’s he should have been capable of independent living and employment, but that his behavioural difficulties have made this less likely. So if he had received appropriate education earlier, then I would have hoped that he would have been capable of independent or semi-independent living and employment, even if it was supported.”
[56]In cross-examination she accepted that in her report she had listed his extreme behaviour disturbance as a separate condition from his Asperger’s Syndrome. She said that if they had been able to address his behavioural difficulties at a younger age they might have gone away, whereas they were now severe and entrenched and much more difficult to treat. She said that although he tended to let himself go when he was not receiving the kind of intensive support he needed, one could still argue that if he had had the benefit of such support earlier on he would have learnt his own strategies and not developed such severe behavioural problems. When asked whether it was possible to say what the chances were of the outcome having been different if he had gone to a different school, the following exchanges occurred:
“A. I still remain of the opinion that if he had gone to a different school then the outcome should have been better. Q. You say in your report that it might have been better. A. I thought it was “should” actually rather than “might”
. Q. We can all say that things should happen, but what are the chances, what do you think actually are realistically the chances that it would have happened? A. Well, I think there are reasonable chances. I mean, in my clinical experience, I manage a number of cases of Asperger’s Syndrome who receive appropriate specialist input and who are really doing very well – some of whom have had really bad problems but with the right expertise we are turning those problems round. So, I do believe it is possible. Q. Can you put a figure on it? You have not in your report. A. No, I have not, although in our joint statement I did quote some research that came from the classic textbook of child psychiatry which was evaluating, you know, a big scientific research study, which point to the importance of education in improving the outcome for people with Asperger’s. Q. There are lots of factors which are probably very important. What I am asking you is – and it may be that you cannot: is it possible to quantify the chances you think of the outcome being different if he had a different education? A. I can’t quantify it in terms of a statistic, but I think it is more likely than not.”[57]She added that if DN had had more positive experiences at school and more chance to learn and to succeed, then he would not be so knocked back by things in later life. She was referred to the passage in her report (see para 44 above) in which she said that the subsequent difficulties might not have developed. She said that after seeing the reports from Chelfham and the reports describing how well he had responded to behavioural interventions, she would be more inclined to upgrade her “might” to a slightly stronger adjective (sic). She would now be able to say that he had the psychological capacity to use psychological treatment and to modify his behaviour. His recent benefits could be put down to a combination of medication and psychological treatments. She could not say whether his preoccupation with fires would or would not have developed if he had received appropriate education.[58]In re-examination she said that whether the combination of Asperger’s Syndrome and his short fuse developed into a chronic behavioural problem depended on how the difficulties were managed, and that this was the whole purpose of appropriate intervention at an early stage.[59]In his oral evidence at the trial Dr Campbell explained that the reference to cortical atrophy in the MRI scan meant that at some stage the blood supply to certain important areas of DN’s brain had been disrupted. There must have been some substantial injury to cause that degree of damage. The fact of organic injury reduced the plasticity of the brain and its capacity for change, and it would also rather exaggerate the effects of any Asperger’s Syndrome in terms of disinhibition and possibly also in the understanding of language.[60]He said that the link between DN’s education and his fire setting seemed to be a rather long chain of causation. Like Dr Dawkins he had to accept the possibility of a link, but he thought he differed from her in terms of its likelihood. He contrasted her experience in child and adolescent psychiatry with his own background in learning disabilities and forensic psychiatry. Although he had seen a number of people with autistic spectrum disorders who had developed dangerous behaviours (most commonly sexual behaviours and fire setting), it was a very rare outcome and it was quite exceptional for a person with Asperger’s Syndrome to end up in the Royal Bethlem Hospital. He said that in their joint report Dr Dawkins and he had been trying to say that if DN had responded to a more appropriate education then one would have expected a better outcome, although whether it could really have been such as to prevent his interest in fires altogether was in his opinion much less certain.[61]In cross-examination Dr Campbell accepted that the injury to the brain could have been sustained as a perinatal injury. He also accepted that in his written report he had concentrated on identifying the original cause of DN’s difficulties. He said that he had found his discussion with Dr Dawkins, who had approached the issues from a different perspective, very helpful in switching the debate to one of identifying the difference that appropriate education might have made. He said that DN’s experience at Moatbridge was not positively damaging, but it was not positively helpful either. He accepted that the only autistic people he saw were the ones that had ended up in some kind of difficulty, but he said that what had happened to DN was a very rare outcome. He agreed that in his present situation DN would not be employable, and he thought it was unlikely that he could become economically self-sufficient.[62]Professor Simonoff was largely concerned to give evidence of fact in relation to the difficult relationship which had developed between her unit at the Maudsley and Greenwich during the period when DN was out of school. She said that intellectually she would have expected him to attain a greater degree of independence in terms of his overall cognitive ability, but it was his behavioural problems, and not his “just below normal” cognitive ability or his Asperger’s Syndrome, which were causing him the greatest difficulty. She said that the medication which was now proving successful had only become available very recently, and that DN had demonstrated quite extreme behaviour when he was only 10 or 11.[63]The judge summarised the effect of all this evidence in paragraphs 90 to 109 of his judgment. In the course of this summary he appears to have overstated the confidence with which Dr Dawkins was giving her answers at the trial. We have shown in para 55 above that she was saying continuously that if DN had gone to a different school then the outcome should have been different, or better (a phrase she later explained as meaning “more likely than not”). In paragraph 93 of his judgment the judge translates a “better outcome” as “the chances of improvement”. He continued:
“94. Mr Warnock also relied on the evidence of Professor Simonoff. He submitted that Professor Simonoff accepted in cross-examination that DN would always need therapeutic input. My note of her answer was:- “[B]y the time DN was in mid-teens – problems were not going to go away overnight. He would always need special (treatment). We saw extreme behaviour.” 95. I do not interpret that answer as in any way qualifying Dr Dawkins’s view that had DN been sent to an appropriate specialist school at the age 10, then his behavioural problems would probably not have emerged or would have been contained. 96. Although she was a factual witness, Professor Simonoff said in paragraph 7 of her written statement:- “It is particularly important in individuals with autism and Asperger’s Syndrome to deal with the kind of aggressive behaviour that DN was showing early on, before it becomes entrenched.” 97. Mr Warnock also relied on a raft of other factors that he submitted make it “highly likely”
DN would have suffered problems in any event. In my judgment, Mr Warnock was not supported in his contention by his own expert witness, Dr Campbell, who had agreed with Dr Dawkins’s prognosis when writing the joint report. 98. The factors relied upon by Mr Warnock included – noisy neighbours; the reaction of DN’s father to the neighbours; peer influences; the Limes management; alcoholism; drug abuse; the breakdown of the parental relationship which occurred when DN was 19. 99. Dr Dawkins agreed that each of these factors played a part in DN’s behaviour, at the time each occurred. She did not, however, agree that those factors would have led to DN’s current psychiatric and social state, had he been appropriately educated from the age of 10. As she said in cross-examination: - “If we had got them [DN’s behavioural difficulties] younger we could have dealt with them. Now they are entrenched and more difficult… If he had had consistent intensive help he would have learned his own strategies – (they) would not have developed.” 100. Of the breakdown in the Ns’ relationship, Dr Dawkins said:- “It is a pity his behaviour was not contained at that time, and the placement had broken down. It could have been a really useful learning experience”.” “[B]y the time DN was in mid-teens – problems were not going to go away overnight. He would always need special (treatment). We saw extreme behaviour.” “It is particularly important in individuals with autism and Asperger’s Syndrome to deal with the kind of aggressive behaviour that DN was showing early on, before it becomes entrenched.” “If we had got them [DN’s behavioural difficulties] younger we could have dealt with them. Now they are entrenched and more difficult… If he had had consistent intensive help he would have learned his own strategies – (they) would not have developed.” “It is a pity his behaviour was not contained at that time, and the placement had broken down. It could have been a really useful learning experience”.”[64]After referring to the evidence about the likelihood of DN developing fire setting tendencies even if he had been appropriately educated, and the evidence about alternative schools for him,

the judge ended his judgment in these terms:

“110. I conclude that the evidence points strongly in the direction that the failure of the education authority to send DN to an appropriate special education school at the age of 10 has resulted in the loss of the opportunity for DN to learn how to improve his social and communication skills and, when it was diagnosed, how to cope with his Asperger’s Syndrome, including managing his behavioural difficulties. He has also lost the opportunity of gaining some educational qualifications up to a maximum of five GCSE’s or their equivalents. 111. I accept the evidence of Dr Dawkins that the future for DN is now bleak, being currently subject to a section 41 restriction order. Once released – and MIETS is working towards a release – he is going to require a sheltered living environment and access to sheltered employment for the rest of his life. 112. Equally, I accept Dr Dawkins’s opinion that if appropriate education had been given an earlier stage at the age 10, DN would probably have been capable of independent or semi-independent living and employment, so as to be able to support himself. 113. There is one caveat, namely that the experts do not rule out the possibility that DN’s fire-setting tendency might have occurred despite appropriate education. The chances of this happening do not appear to be high but will need to be taken into account in assessing the quantum of DN’s claim.”
[65]Although we must be careful not to re-try the case on the transcripts, we have the advantage (denied to the judge) of access to the transcripts, from which it is clear that Dr Dawkins’s evidence was not as confident as the judge implied. She never said that if DN had been sent to an appropriate school at the age of 10 his behavioural problems would probably have not emerged. They existed, after all, during his time at the middle school, from which he ultimately had to be excluded. The highwater mark of her evidence is contained in the passages we have cited or summarised in paragraphs 54 to 58 above. The most she was willing to say was that it was more likely than not that the outcome of his educational years would have been better (or different) if he had had a different education.[66]Similarly the judge’s quotation in paragraph 99 of his judgment restates much more confidently what she actually said (see the transcript at pp 320-1). When it was put to her that Professor Simonoff had said that DN was always going to need some therapeutic support throughout his life because of his complex behavioural difficulties, the following exchanges occurred:
“A. Yes, because once he had developed these behavioural difficulties, they were severe, and he was then left out of school for a long time, getting worse, so that he was, if you like, allowed to develop worse behavioural difficulties which, if he had got – if we had got them younger, they might have gone away, whereas now they are severe and entrenched and much more difficult to treat and therefore much more likely to persist for the rest of his life. Q. A feature of [DN], it seems, … is that – you said, well, when he is getting the sort of support he needs, he copes reasonably well, and you highlighted his recent stay in the unit. But, sadly, it also seems to be true, does it not, that when he is not receiving that type of intensive support, he tends to let himself go? A. I think that has been the pattern, but one can still argue that if he had had intensive support consistently at an earlier age, he would have benefited from it such that by the time he was an adolescent and a young adult he did not need such intensive support to contain him; that he would have learnt his own strategies and that he would not have developed such severe behavioural problems which have then taken a long while to attempt to treat.”
[67]It will be evident that the judge has translated “the behavioural difficulties might have gone away” as “we could have dealt with them”; and “one can still argue that…he would not have developed such severe behavioural problems” as “[the behavioural difficulties] would not have developed”.[68]It is a commonplace that in the assessment of damages at the time of trial in a typical personal injuries case a judge must first look backwards and compare what would have happened but for the defendant’s negligence with what has in fact happened, and then look forward and make appropriate discounts for the chances of certain untoward events (the risk of epilepsy, the risk of losing a job, the risk of death or retirement before the normal retirement age being typical examples) operating to reduce what might otherwise be a fairly conventional calculation of future loss. The judge’s duty is clearly set out in McGregor on Damages (17th Edition) at para 8-028, which includes apt quotations from the speech of Lord Diplock in Mallett vMcMonagle [1970] AC 166, 176E-G and the speech of Lord Reid in Davies v Taylor [1974] AC 207, 213.[69]In deciding what would have happened the judge must make his findings on a balance of probabilities. Sometimes the assessment of what would have happened depends on matters outside the claimant’s control. This is Stuart-Smith LJ’s third category in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, 1611 which the editor of McGregor describes accurately in these terms at para 8-034:
“In the third category fall cases in which the claimant’s loss depends upon the hypothetical action of a third party, whether in addition to action by the claimant or independently of it; here the claimant need only show that he had a substantial chance of the third party acting in such a way as to benefit him.”
[70]We are not concerned with that type of case. In the present case it is taken as a starting premise that DN would have been placed in a more appropriate school with his parents’ agreement. The nature of the analysis is then to assess what, on the balance of probabilities, would have been the extent of the better outcome if he had had more suitable schooling within that scenario.[71]Nor are we concerned with the problems that arose in two recent cases in which the House of Lords has decided that the conventional rules on causation are not capable of providing a just outcome, and that justice demands a different approach: see Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32; Chester v Afshar [2004] UKHL 41.[72]There is a further class of unusual case on which we will need to pause. These are the cases where the claimant would probably have suffered an untoward outcome even if the treating doctor/surgeon had not been negligent, but the negligence reduced the chance of a happier result (already by definition less than 50%). If the House of Lords in the appeal in Gregg v Scott [2002] EWCA Civ 1471, [2003] 1 Lloyd’s Rep Med 105 decides to alter the ground rules set out in Hotson v East Berkshire Area Health Authority [1987] AC 750, the outcome of that appeal may affect the approach to the assessment of damages in the present case, although it is difficult to see how they could do so without radically altering the present rule by which a 51% likelihood of something happening is treated as if it would have actually happened (see Lord Bridge in Hotson at 782D-E) and vice versa. If on the present evidence the claimant has not on the balance of probabilities proved that if Mr Moreland had not been negligent, he would have had an outcome so much substantially better that he would have been capable of earning his own living and not got into trouble with his fire-setting tendencies, then it would be a revolutionary step to hold that he should nevertheless be compensated for the loss of the chance that the outcome would have been more satisfactory.[73]It follows that as the law now stands the judge was wrong to approach the issue of causation in holding, as he did, that Mr Moreland’s negligence caused DN to lose the opportunity to learn how to improve his social skills, to manage his behavioural difficulties, and to gain some educational opportunities. He was also wrong to consider the fire-setting issue as being concerned with the loss of a chance, as opposed to finding what would on the balance of probabilities have been the likely outcome (up to the date of trial) but for the fact that he did not go to an appropriate school.[74]What then, on this evidence, was the loss that Mr Moreland’s negligence probably caused to DN up to the date of the trial? In the leading case of Phelps v Hillingdon LBC [2001] 2 AC 619 the House of Lords seems to have realised that it was travelling on uncharted seas. Garland J (the trial judge) had found as a fact that if Pamela Phelps’s dyslexia had been diagnosed and she had been taught appropriately at school, she would have been “somewhat, perhaps substantially, more literate than she is now”. She would as a result have been in a position to take on work, including work requiring an element of literacy (see the report at (1997) 96 LGR 1, 36). Lord Slynn of Hadley said (at p 657) that the judge had been entitled to accept that “the adverse consequences of the plaintiff’s dyslexia could have been mitigated by early diagnosis as appropriate treatment or educational provision”.[75]In that case the House of Lords approved the judge’s award of £12,500 general damages and £25,000 for loss of future earnings. In respect of the latter the judge had said that he felt driven to adopt the approach in Blamire vSouth Cumbria Health Authority [1993] PIQR Q1, and to arrive at a lump sum representing the loss of the opportunity to earn at a higher rate than that which she could now command. He said, however:
“The uncertainties are so great that any award must be extremely modest.”
[76]In assessing damages in the present case the judge will have to adopt a less generous approach than he indicated in his judgment under appeal. He will need to remember that DN’s brain has at all material times been quite severely damaged, and all that the experts could really say on the balance of probabilities was that the outcome would have been better (or different) if his education had been different. That apart, their language was the language of uncertainty: Dr Dawkins “He may have been less prone to develop his interests in fires” (para 54 above); “He could have come out with some form of qualification” (para 55); “I would have hoped that he would have been capable of independent or semi-independent living and employment” (para 55); “His behavioural difficulties might have gone away” (para 56); “One could still argue that he would not have developed such severe behavioural problems” (para 56). Dr Campbell “There is the possibility of a causal link between his [poor] education and the fire-setting but this is not likely” (para 60 above); “I am much less certain whether a different education could really have been such as to prevent his interests in fires altogether.” (para 60) Dr Dawkins

Dr Campbell

[77]DN is clearly entitled to an award of general damages for what he has lost, but the uncertainties are so great that we would not consider a larger award than that given to Pamela Phelps to be appropriate. The likelihood that he would ever have been capable of gainful employment on his own account appears to be problematical on the evidence given at the trial. Although the House of Lords approved an award for loss of earning capacity in the Phelps case, they do not appear to have heard argument on the question whether it was fair, just and reasonable, or in accordance with rational principles of distributive justice, to impose this additional liability on a professional adviser found guilty of negligence in a case where the future course of a claimant’s life (had he or she had a different education) is in issue. In Rees v Darlington Memorial Hospital Trust [2003] UKHL 52, [2004] 1 AC 309 (a decision which post-dated Phelps) the majority of the House of Lords took forward the debate about the proper scope of an award of damages in another exceptionally difficult area of the law of professional negligence. They determined that a conventional award of £15,000 to the parents of an unplanned healthy child (born after a failed sterilisation) represented a just solution. We need only quote extracts from one paragraph (para 8) in the speech of Lord Bingham:
“I can accept and support a rule of legal policy which precludes recovery of the full cost of bringing up a child in the situation postulated, but I question the fairness of a rule which denies the victim of a legal wrong any recompense at all beyond an award immediately related to the unwanted pregnancy and birth… I would add [a conventional award of £15,000] to the award for the pregnancy and birth…. The conventional award would not be, and would not be intended to be, compensatory. It would not be the product of calculation. But it would not be a nominal, let alone a derisory, award. It would afford some measure of recognition of the wrong done.”
[78]Since we did not hear any argument along these lines, and since this point raises an issue of legal policy which in our hierarchical judicial system warrants the attention of the House of Lords in an appropriate case, we would decide the present appeal on the footing that because of all the uncertainties the evidence could only justify a small award (much smaller than the award in the Phelps case) for loss of earning capacity. If, in the upshot, DN ends up with a total award similar in amount to the type of award now sanctioned in the “wrongful conception” or “wrongful birth” lines of cases, we would consider that justice would be done, albeit by a different route from that approved by the House of Lords in Rees.[79]In any event Clunis v Camden and Islington Health Authority [1998] QB 978 is clear authority, binding on this court, for the proposition that DN is unable to recover damages for the consequences of his convictions for arson. Mr Ter Haar QC, who appeared for the claimant, argued that we could in some way distinguish that case, but we remained wholly unconvinced.[80]The appeal on liability must therefore be dismissed, and the matter remitted to the judge to assess damages, if the parties cannot reach agreement, in accordance with the principles set out in this judgment.[81]During the course of the hearing of the appeal the court discussed with counsel a number of untoward features of the course of this litigation in the lower court. It was no part of the defendants’ case in the notice of appeal to submit that the judge’s decision was unjust because of a serious procedural or other irregularity in the proceedings in that court (see CPR 52.11(2) for this test). We mention these matters only in the hope that mishaps like these may be avoided in similar litigation in the future. They related to the form of the Master’s orders, to the failure of the claimants’ representatives and/or experts to comply with those orders, and to incidents within the trial process itself.[82]On 7th November 2001 Master Leslie made an order for directions by consent. It appears that no answers to an allocation questionnaire had ever been filed, and in setting a timetable for the next nine months the only expert evidence which was permitted on the face of his order related to psychiatrists’ reports. Sequential dates for their exchange were set. The order also set directions for a “without prejudice” discussion “between the relevant experts”.[83]This timetable was not observed, at any rate so far as the exchange of witness statements and psychiatrists’ reports was concerned. On 11th November 2002, at a hearing attended by the parties’ solicitors, Master Leslie extended time “for service of Claimant’s expert reports”, set a new date for the “service of Defendant’s expert reports”, and directed that there was in due course to be a discussion (or discussions) between “experts in like disciplines” without stating how many experts he was permitting and in what disciplines.[84]On 3rd March 2003 the same Master made another order, this time by consent, extending the time for the exchange of witness statements and experts’ reports still further. On this occasion he directed a split trial and specified a trial window.[85]It appears that the first (at any rate) of Mr Reid’s reports had already been served, and the timetable theoretically gave the defendants 11 weeks to instruct an educational psychologist of their own if they had felt this to be necessary. But it would have been very much better if the Master’s second and third orders had been more specific about the disciplines to be represented by the experts he was permitting. The requirements of CPR 35.4 seem to have been overlooked.[86]As things turned out, it would also have been very much better if the Master had given timetabled directions for the disclosure of any articles or textbook entries on which the parties’ experts might wish to rely. In Mr Reid’s final report, dated 27th April 2001, which was disclosed in February 2003, there is a reference to “very clear and well-publicised research in relation to Asperger’s Syndrome” at the time that Mr Moreland wrote his report. Mr Reid ended his report by saying, inaccurately, that “I have indicated the sources of all the information I have used.”[87]On 5th August 2003 the defendants’ solicitors asked for details of the research to which Mr Reid had referred. Unhappily it was not supplied until the trial bundle was delivered on Thursday 4th December, with the trial due to start four days later. Ten days earlier the claimant’s solicitors had said, inaccurately, “that the requested literature will follow under separate cover towards the end of the week.”[88]This dilatoriness was unfair to a professional man charged with negligence, particularly as those charged with his defence were not instructing an expert of their own to help him. The Senior Master should now consider whether standard directions should be developed in educational negligence cases, along the lines of those now commonly used in clinical negligence litigation.[89]The difficulties created by the last minute disclosure of research material were compounded by the judge’s adoption of a rigid rule that for all practical purposes he would not allow any examination-in-chief of a witness of fact once that witness had identified and confirmed the accuracy of his/her witness statement. On the other hand he encouraged a practice whereby expert witnesses might expand at length in evidence-in-chief, well beyond the contents of their written report. Mr Reid’s evidence-in-chief, for instance, took up 38 pages of transcript, whereas Mr Moreland’s occupied a single page. The judge does not appear to have taken into account the fact that Mr Moreland had had no opportunity to comment in his witness statement on Mr Reid’s April 2001 report (except in so far as it was reflected in the statement of case against him), or on the research material delivered just before the trial, and he was now being given no opportunity to comment, in answers given to his own counsel, to the very detailed new criticisms now made of him by Mr Reid with reference to Mr Moreland’s own notes on DN which Mr Reid had considered for the first time just before the trial (although they had been disclosed to the claimant’s solicitors very much earlier in the pre-trial process).[90]We do not know how many of the pre-trial difficulties stemmed from funding constraints imposed on DN’s solicitors by the Legal Services Commission. We were told that a public funding certificate for the trial was not granted until 25th November 2003, less than a fortnight before the trial was due to start, although it had been requested seven or eight weeks earlier. Delays clearly occurred before that request was granted, but we do not know whether responsibility for the length of these delays rested with the claimant’s solicitors or the Commission (or possibly both).[91]Serious difficulties also arose over the psychiatrists’ inability or unwillingness to comply with Master Leslie’s order, which set a deadline of 16th May 2003 for the report that would follow their discussion. A joint meeting of psychiatrists was eventually fixed to take place on 16th August 2003, three months out of time, but we were told that it was cancelled at the last minute by the claimant’s representatives. Eventually, as we have said (see para 47 above), the psychiatrists discussed the case for the first time over the weekend before the trial, and their agreed report was delivered on the morning the trial started, far too late for the parties to absorb its significance in an orderly manner.[92]These serious deficiencies in the pre-trial preparation (which may well, for all we know, have been accentuated by funding constraints on the claimant’s side), coupled with Judge Overend’s indulgence to expert witnesses and extreme rigidity towards lay witnesses (including a man charged with professional negligence who was learning details of many criticisms of him for the first time while Mr Reid was commenting on his contemporary notes in the witness-box), led to a trial process which cannot be regarded as satisfactory. The lessons to be learned from this chapter of accidents are that: a) a case management order must specify the disciplines in which expert evidence is being permitted; b) in an educational negligence action, such an order should impose similar requirements as to the identification of learned articles, textbook entries and research studies as are now commonly made in clinical negligence cases; c) if an expert refers to research evidence in his report, he must identify it in the report, so that it will be available to be considered by the other side without delay, and not merely four days before the trial starts; d) the timetable laid down in a case management order for experts to discuss issues and to deliver a report is there to be obeyed and not ignored; (we must not go back to the sloppy disregard of court orders which characterised practice in civil proceedings before the Woolf reforms); e) an expert witness must not be permitted to depart substantially from his written report, as Mr Reid did in his evidence-in-chief, unless the trial judge is satisfied that no injustice will result in the circumstances of the particular case; f) a trial judge must not, without good reason, adopt the differential approach demonstrated by Judge Overend towards the evidence-in-chief of different categories of witness; g) constraints imposed by the public funding regime must not unreasonably inhibit the performance by a claimant’s solicitors of their obligation to ensure that the defendants are not disadvantaged by any disobedience on their part of pre-trial orders as to the disclosure of documents or the meetings of experts.[93]As we have already said, apart from the complaints about the judge’s treatment of Mr Moreland’s evidence, the grounds of appeal did not include any suggestion that we should order a retrial on the grounds set out in CPR 52.11(2), so that none of these deficiencies in the pre-trial and trial process constituted a substantive ground of appeal. We mention them in the hope that lessons may be learned from these mistakes in the future conduct of litigation of this kind.[94]For these reasons we would, with some hesitation, dismiss the defendants’ appeal on liability and direct that the assessment of damages be conducted in accordance with the findings on causation which are set out in this judgment.

Addendum (published by the Court on 25 January 2005)

[95]Since this judgment was delivered, Master Leslie has shown us a copy of the case management order he made at the hearing on 22 April 2002, which was attended by counsel for the claimant and the solicitor for the defendant. By this order, which was sealed on 2 May 2002, he granted permission to the parties to rely on expert evidence in the fields of educational psychology and psychiatry and set a timetable for the delivery of reports in these fields which was not observed.[96]Although we asked the parties to show us all the orders which had been made in the case, they did not show us this order. It is now clear that our criticism of the Master’s later orders in paragraph 85 of our judgment was entirely misplaced.

Cited in 11 later judgments

and 2 more of the most senior