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Session 2003 - 04
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Judgments - Adams (FC) (Respondent) v. Bracknell Forest Borough Council (Appellants)


SESSION 2003-04
[2004] UKHL 29
on appeal from: [2003] EWCA Civ 706




Adams (FC) (Respondent)


Bracknell Forest Borough Council (Appellants)



The Appellate Committee comprised:

Lord Hoffmann

Lord Phillips of Worth Matravers

Lord Scott of Foscote

Lord Walker of Gestingthorpe

Baroness Hale of Richmond




Adams (FC) (Respondent) v. Bracknell Forest Borough Council (Appellants)

[2004] UKHL 29


My Lords,

The claim

    1.  The plaintiff Mr Adams issued proceedings on 25 June 2002 against the Bracknell Forest Borough Council claiming damages for negligence in failing to provide him with a suitable education. The claim is based upon the alleged neglect of the council properly to assess the educational difficulties he was experiencing at its schools which he attended between 1981 and 1988 and to provide him with appropriate treatment. He alleges that an assessment would have revealed that he suffered from dyslexia and the treatment would have ameliorated the consequences of that condition. As it is, his literacy skills are less than they should have been and he has been disadvantaged in the employment market. He also suffers from disabling psychological syndromes such as depression, panic and lack of self-esteem.

    2.  Dyslexia or "special learning difficulty" is a congenital condition, presumably neurological. As in the case of many brain functions, the mechanism remains unknown. Its distinctive feature is the combination of average or better general mental ability with severe and long-term difficulty in reading, writing and spelling. It is not curable but in some cases suitable teaching can develop techniques to mitigate its effects.

The limitation period

    3.  Mr Adams became of full age on 13 March 1990. The action was commenced more than 12 years later. His educational records at the school were destroyed when he turned 21. One of the teachers thinks that Mr Adams was referred to an educational psychologist but there are no surviving notes. Some of the teachers remember that he had learning difficulties which were addressed by remedial teaching but there is nothing very specific about what form this took. The council would be in very considerable difficulties in defending the claim.

    4.  The council has pleaded that the claim was statute-barred under section 11 of the Limitation Act 1980 which provides a special three year time limit for actions which claim damages for personal injury. (The normal time for actions in tort is six years). Time runs from the date on which the action accrued or the "date of knowledge", whichever is the later. I shall return later to what is meant by the "date of knowledge", an expression defined in section 14, because the essence of the council's case is that the action is barred because the date of knowledge was before 25 June 1999.

    5.  The judge (His Honour Judge Vincent, in the Torquay and Newton Abbot County Court) tried the question of the date of knowledge as a preliminary issue. He held that it was not before 19 November 1999. This decision was upheld by the Court of Appeal (Peter Gibson, Tuckey and Keene LJJ). The council appeals to your Lordships' House.

    6.  The case was argued before the judge and the Court of Appeal on the basis that the claim was for damages for personal injury and that it therefore came within section 11 of the 1980 Act. That was because the Court of Appeal had so decided in respect of a similar claim in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128. But Mr Faulks QC for the council raised the question of whether Robinson was rightly decided.

    What is the claim for?

    7.  An action for negligence against a local education authority for educational neglect is a new development. It was only in a trio of cases (E (A Minor) v Dorset County Council; Christmas v Hampshire County Council and Keating v Bromley London Borough Council) which are reported under the name X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (that being the name of another appeal which was heard at the same time) that the possibility of such an action was acknowledged. The appeals were against orders striking out the proceedings as disclosing no cause of action. In the Court of Appeal Sir Thomas Bingham MR said (at p 703) that although he would not go so far as to hold that the education authorities owed the plaintiffs a duty of care, he was equally not willing to say that the claims were "unarguable or almost incontestably bad". The House of Lords agreed: see Lord Browne-Wilkinson at pp 762-771. The actions were reinstated.

    8.  Because the question was whether a duty of care could exist at all, neither the Court of Appeal nor the House of Lords gave a great deal of attention to nature of the injury for which damages might be recoverable. Sir Thomas Bingham MR made brief reference to recoverable damage at p 703, saying that certain consequences of a negligent failure to provide suitable educational treatment were not compensatable in damages: for example, distress or feeling shy and diffident. But, he said:

    "If…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."

    9.  Evans LJ likewise rejected an argument that the plaintiffs' learning difficulties and behavioural problems were not injuries for which damages could be awarded. He drew an analogy with a physical injury for which the school was not responsible but which it negligently failed to notice or treat. Damages would be recoverable for "the consequences of delay in obtaining proper treatment" (p 706). It would not matter that the persistent learning difficulties were the result of an existing condition. The question was whether they could have been ameliorated by earlier diagnosis and treatment.

    10.  It seems to me that both Sir Thomas Bingham MR and Evans LJ were treating the claim as being for a mental disability (not being able to read and write properly) which ought to have been ameliorated but was allowed to persist. Such a claim in a post-Cartesian world is for personal injury and gives rise to a claim for general damages and, by way of special damages, any consequent economic loss such as loss of earnings or the need to pay for remedial treatment. Sir Thomas Bingham MR specifically said (at p 703) that fees paid for remedial teaching were in principle recoverable.

    11.  In Phelps v Hillingdon London Borough Council [1998] ELR 38 an action for educational neglect went to trial. Garland J held that an educational psychologist employed by the local education authority had been negligent in failing to diagnose the plaintiff's dyslexia. He referred to the passages from the judgments of Sir Thomas Bingham MR and Evans LJ in the X (Minors) case which I have mentioned and awarded general and special damages. The general damages included "loss of congenial employment" and the special damages were the cost of remedial tuition and an "extremely modest" (£25,000) award for loss of future earnings.

    12.  This decision was however reversed by the Court of Appeal [1999] 1 WLR 500. Stuart-Smith LJ (at p 513) disagreed with the analogy which, in the X (Minors) case, Evans LJ had drawn with an untreated physical injury: in his view, "dyslexia is not itself an injury and I do not see how failure to ameliorate or mitigate its effects can be an injury." What might be recoverable was economic loss on the basis that the educational psychologist had assumed responsibility to take reasonable care to diagnose the problem: compare Henderson v Merrett Syndicates Ltd [1995] 2 AC 145.

    13.  On the same day as the Court of Appeal gave judgment in Phelps, it decided Anderton v Clwyd County Council [1999] ELR 1. This raised the question of whether a claim based on failure to diagnose dyslexia was a "claim in respect of personal injuries" within the meaning of section 33(2) of the Supreme Court Act 1981, so as to give the court jurisdiction to order discovery before the commencement of the action. The same constitution of the Court of Appeal held that as failure to diagnose dyslexia did not exacerbate the condition and no recognised psychiatric injury was alleged, there was no claim for personal injury.

    14.  Both Phelps and Anderton were appealed to the House of Lords and heard together. In Phelps Lord Slynn of Hadley said [2001] 2 AC 619, 654 that psychological injury could constitute damage for the purposes of a claim in negligence and:

    "so…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."

    15.  When he came to deal with Anderton he said, at p 664:

    "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."

    16.  On Phelps, Lord Clyde said, at p 670:

    "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."

    17.  He also agreed with Lord Slynn of Hadley on the disposal of Anderton. The other members of the House agreed with both Lord Slynn of Hadley and Lord Clyde.

    18.  The outcome of the Phelps appeal was that the whole of the order of Garland J, including the awards of special and general damages, was restored. In my opinion the award of general damages can be justified only on the basis that the claim was for a personal injury consisting in the lack of ability to read and write. It also seems to me that although strictly speaking the Anderton case decides only that the claim was for personal injury within the meaning of section 33(2) of the Supreme Court Act 1981, the reasoning is equally applicable to section 11 of the Limitation Act 1980, which by section 38(1) defines "personal injuries" as including "any disease and any impairment of a person's physical or mental condition."

    19.  In Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128 Sir Murray Stuart-Smith examined the authorities to which I have referred and drew the following conclusion, at p 136:

    "Dyslexia…may itself be an 'impairment of a person's mental condition'. It is not of course caused by the defendant; but negligent failure to ameliorate the consequences of dyslexia by appropriate teaching may be said to continue the injury, in the same way that the negligent failure to cure or ameliorate a congenital physical condition so that it continues, could give rise to an action for personal injuries. Although as I understand it dyslexia cannot be cured, a dyslexic person can be trained to overcome the difficulties in reading and writing which he experiences."

    20.  In my opinion this summary of the effect of the cases is correct. But on what basis can the lack of the ability to read and write be a personal injury? We know very little about the way the brain works. Some mental disabilities are caused by congenital and irremediable defects in the brain circuitry. But the brain has the most remarkable capacity to compensate for defects or injuries by calling upon other parts of the circuitry. Compare, for example, the recoveries people make from strokes which have irreversibly damaged parts of the brain. Such people, with the aid of physiotherapy and other treatment, appear to get better. Other parts of the brain acquire the ability to do the work of the damaged tissue. It seems to me that Evans LJ was quite right to draw an analogy with negligent failure to treat a physical injury which the defendant did not itself cause. It would be drawing too fine a distinction to say that the neglect caused no injury because nothing could be done to repair the congenital damage in the brain circuitry and the other parts of the brain which would have to be trained to compensate had never been injured. What matters is whether one has improved one's ability to read and write. Treating the inability to do so as an untreated injury originally proceeding from other causes produces a sensible practical result.

    The date of knowledge

    21.  We are therefore concerned with the limitation period for a claim for personal injury and principally with the date of knowledge as defined in section 14 of the 1980 Act:

    "(1)  …references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts—

    (a)  that the injury in question was significant; and

    (b)  that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

    (c)  the identity of the defendant…

    (3)  For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire—

    (a)  from facts observable or ascertainable by him; or

    (b)  from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;

    but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."

    22.  The court has in addition a discretion under section 33 to disapply the limitation period if it appears that it would be equitable to do so. As both the judge and the Court of Appeal were of opinion that the action had been commenced within the limitation period, they did not have to consider the discretion, although the Court of Appeal expressed a view on how they would have exercised the discretion if called upon to do so.

    The trial of the preliminary issue

    23.  The judge tried the question of the date of knowledge as a preliminary issue because a decision in favour of the council would (subject to the discretion under section 33) have put an end to the proceedings and saved costs. Allegations of educational neglect are expensive to investigate and in Phelps [2001] 2 AC 619, 667 Lord Nicholls of Birkenhead said that:

    "The courts, with their enhanced powers of case-management, must seek to evolve means of weeding out obviously hopeless claims as expeditiously as is consistent with the court having a sufficiently full factual picture of all the circumstances of the case."

    24.  The trial of the preliminary issue was a response to this exhortation. The parties are to be encouraged to try to shorten the proceedings in this way but they may need to give careful thought to the consequences which the judge's findings may have upon the later stages of the trial. If, as appears to have been the intention here, the parties intend that the only finding which will be res judicata is the date of knowledge and that findings of fact incidental to that determination are to be open to reconsideration on further evidence at the merits stage of the trial, that should be made clear: compare the remarks of Brooke LJ in Robinson v St Helens Metropolitan Borough Council [2003] PIQR P128, P142.

    25.  The judge received witness statements from Mr Adams and his friend Ms Monica Harding, an educational psychologist who had met him through a shared interest in salsa dancing. It was she who first suggested to him on 19 November 1999 that he might be suffering from dyslexia. Both were cross-examined. In addition, there was a statement from the council's solicitor which exhibited a number of statements containing such information as the council had been able to gather about Mr Adams's time at school and a report from Dr Peter Gardner, a well known expert on dyslexia. He did not give oral evidence.

    26.  Mr Adams described how he had spoken to Ms Harding, with whom he had previously been acquainted ("our paths had crossed") at a salsa party on 19 November 1999. He was feeling depressed because he was having difficulty in coping with the paper work involved with a carpentry course he was doing. "I then went on to describe all the problems I had previously had during my working life…" Ms Harding told him that she thought he was dyslexic. As a result, he went to see a solicitor on 12 January 2000 and the solicitor obtained legal aid on 15 March. An appointment was arranged with Dr Gardner, who prepared a report.

    27.  Dr Gardner reported that Mr Adams was of average intellectual ability; more intellectually able than 65% of his age group peers. On the other hand, he suffered from severe dyslexia (5 on a scale of 1 to 6). He exhibited significant difficulties with depression, phobic symptoms and, to a lesser extent, obsessional symptoms. The scale of stress which he described himself as suffering was greater than 91% of adults. His personal self-esteem was low. He was prone abruptly to develop palpitations, pounding heart or accelerated heart rate, sweating, chest pain or discomfort and chills or hot flushes, which qualified for the diagnosis of liability to panic attacks. He said that he displayed all the symptoms of social phobia: marked or persistent fear of being exposed to unfamiliar people, causing anxiety and panic attacks, which he either avoided or endured with intense anxiety or distress. He also suffered from depression, evidenced by daily psychomotor agitation or retardation, fatigue or loss of energy, feelings of worthlessness or excessive or inappropriate guilt, diminished ability to think or concentrate or indecisiveness and recurrent thoughts of death or thoughts of suicide, all of which caused clinically significant distress or impairment in social, occupational or other important areas of functioning. Dr Gardner said that these psychological/psychiatric syndromes were a consequence of his undiagnosed and untreated learning difficulties.

    28.  Mr Adams said in evidence that he had not sought any advice about the literacy problems which were causing his distress because he wanted to hide them. He did not want people to think he was stupid. He went to the doctor about a variety of complaints over the years but never mentioned it. He said that he had heard of dyslexia and knew that it concerned people who had problems with writing. But he did not investigate his own problem because "I didn't want to go there." He spoke to the doctor about feeling unhappy and stressed and other personal problems ("just ended abusive relationship", noted the doctor in 1998) but not that their cause was inability to read and write. Nor did he mention it to anyone else. On the other hand, on a social occasion on 19 November 1999 he spilled out the entire story to Ms Harding, a lady nearly 20 years his senior whom he says he hardly knew and had no reason to believe had any expertise in the matter. After talking to her, the first thing he did was to consult a solicitor.

    The findings of fact

    29.  The judge found that although Mr Adams had known since childhood that he had psychological problems and that they were "linked in some way to his problems with reading and writing", he did not know that they were attributable to the council in the sense that he had a condition which had been capable of being addressed or managed and that the council had not done so. He therefore did not have actual knowledge which satisfied section 14(1)(b): "that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence". This finding was unsuccessfully challenged in the Court of Appeal but the challenge has not been pursued before your Lordships' House.

    30.  The judge then dealt with whether Mr Adams had constructive knowledge under section 14(3). As an adult, he had plenty of time to seek help and investigate the problem but he did not. But the judge held that he did not have constructive knowledge either:

    "He gave me a cogent explanation for his failure, namely the fact that people with his disability develop coping strategies to mitigate its effect and find the idea of disclosing the inability to properly read and write humiliating. This is, in my judgment, an entirely natural and reasonable consequence of having this type of learning disability which has not been properly addressed. You do not have to be shy to experience this reluctance to talk to people and disclose your inabilities. So I consider that a reasonable person with his unaddressed dyslexia would be unlikely to have sought help or to have put two and two together and seen the glimmerings of a claim against the defendant. The fact that the claimant could discuss feelings of stress with his GP, as is evidenced by his medical records, is a very different matter. Inability to properly read and write and the emotions that that engenders would not be seen by the reasonable undiagnosed dyslexic as medical concerns for a GP in any event, in my judgment."

    31.  In the Court of Appeal, Tuckey LJ accepted this opinion of what the reasonable dyslexic would have done. He said, at para 25:

    "The judge's essential finding in this case was that a reasonable person with the claimant's unaddressed dyslexia would be unlikely to have sought help or to have put two and two together and seen the glimmerings of a claim against the defendant. So his state of knowledge was not such as to give him an informed choice between accepting things as they were and getting on with his life or seeking advice to give him the required knowledge."

    32.  He went on however to say, at para 26:

    "It does not, I think, follow that such a conclusion would be reached in every case where, by chance, sometimes many years later, a claimant discovers that he is or may be dyslexic."

    The test for constructive knowledge

    33.  Section 14(3) uses the word "reasonable" three times. The word is generally used in the law to import an objective standard, as in "the reasonable man". But the degree of objectivity may vary according to the assumptions which are made about the person whose conduct is in question. Thus reasonable behaviour on the part someone who is assumed simply to be a normal adult will be different from the reasonable behaviour which can be expected when the person is assumed to be a normal young child or a person with a more specific set of personal characteristics. The breadth of the appropriate assumptions and the degree to which they reflect the actual situation and characteristics of the person in question will depend upon the reasons why the law imports an objective standard.

    34.  Section 14(3) has something of a history. Until the Limitation Act 1963, time ran from the date on which the cause of action accrued. If it accrued before the injured person knew or could have known about it, that was his hard luck: Cartledge v E Jopling & Sons Ltd [1963] AC 758. The 1963 Act allowed the limitation period to be extended in claims for damages for personal injury for the period during which the material facts had been outside the actual or constructive knowledge of the plaintiff. Section 7(5) defined what it meant to say that a fact was outside the plaintiff's constructive knowledge:

    "(b)  in so far as that fact was capable of being ascertained by him, he had taken all such action (if any) as it was reasonable for him to have taken…for the purposes of ascertaining it; and

    (c)  in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might have been ascertained or inferred, he had taken all such action (if any) as it was reasonable for him to have taken before that time for the purpose of obtaining appropriate advice with respect to those circumstances."

    35.  In Newton v Cammell Laird & Co (Shipbuilders and Engineers) Ltd [1969] 1 WLR 415, 419 Lord Denning MR explained how this test should be applied:

    "You have to ask yourself: At what date was it reasonable for him - for the sick man himself - to have taken advice and found out that his illness was due to his employer's negligence or breach of duty. You do not ask: At what date would a reasonable person have taken advice. You ask: At what date was it reasonable for this man to take it? In other words, at what date ought he to have taken advice and found out that he had a worthwhile action?"