Editorial Committee of the Cambridge Law Journal

Negligence. Vicarious Liability of Health Authorities. Diagnosis of DyslexiaAuthor(s): Steve HedleySource: The Cambridge Law Journal, Vol. 58, No. 2 (Jul., 1999), pp. 270-273Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4508560 .

Accessed: 11/06/2014 05:04

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 194.29.185.22 on Wed, 11 Jun 2014 05:04:11 AMAll use subject to JSTOR Terms and Conditions

The Cambridge Law Journal The Cambridge Law Journal

should encourage non-violent forms of self-defence. On the facts of Backshall it did not matter whether the defence was classified as duress of circumstances or self-defence. But in cases where the defendant anticipates only a minor injury or is unreasonably mistaken that an attack is about to take place, it is crucial whether the defence is seen as duress or self-defence. This is because duress is not available if the anticipated harm is not serious or if the belief that an attack is about to take place is unreasonable. Does it really make sense that if Backshall, fearing a minor injury, had pushed Howell he would have a defence to a charge of assault, but if he drove away carelessly without causing any harm he would not be able to plead duress or self-defence to a charge of careless driving? The problem is perhaps more a theoretical than a practical one because no doubt he would be found to be driving with due care and attention. However, the law is not intellectually satisfying.

The defence of duress of circumstances at present is papering over the problems with the availability of self-defence and the lack of a general defence of necessity in the justificatory sense. If we are not to have a general defence of necessity, the time has come to acknowledge that there should be a defence of duress when the defendant acts reasonably when faced with a threat of any kind of injury (not just serious injury) and that self-defence can apply to any crime.

JONATHAN HERRING

NEGLIGENCE-VICARIOUS LIABILITY OF HEALTH AUTHORITIES-

DIAGNOSIS OF DYSLEXIA

DYSLEXIA is a specific difficulty in learning how to use written notation, not attributable to generally low intellectual performance, emotional difficulties, or external factors. While its existence as a condition in its own right had been suspected for over a century, it is only much more recently that relatively definite tests for its existence have been developed. Even now, no one test can conclusively show its presence or absence. Local education authorities must provide for the special educational needs of children under their care, though it is settled law that the authorities cannot themselves be sued for breach of those duties (X (Minors) v. Bedfordshire CC. [1995] 2 A.C. 633). However, X contains strong dicta that where the plaintiff can demonstrate negligence by particular members of staff, such as educational psychologists, then those members of staff will be personally liable, and the authority will be vicariously liable. Phelps v. Hillingdon L.B.C. [1999] 1 W.L.R. 500 raises the question whether

should encourage non-violent forms of self-defence. On the facts of Backshall it did not matter whether the defence was classified as duress of circumstances or self-defence. But in cases where the defendant anticipates only a minor injury or is unreasonably mistaken that an attack is about to take place, it is crucial whether the defence is seen as duress or self-defence. This is because duress is not available if the anticipated harm is not serious or if the belief that an attack is about to take place is unreasonable. Does it really make sense that if Backshall, fearing a minor injury, had pushed Howell he would have a defence to a charge of assault, but if he drove away carelessly without causing any harm he would not be able to plead duress or self-defence to a charge of careless driving? The problem is perhaps more a theoretical than a practical one because no doubt he would be found to be driving with due care and attention. However, the law is not intellectually satisfying.

The defence of duress of circumstances at present is papering over the problems with the availability of self-defence and the lack of a general defence of necessity in the justificatory sense. If we are not to have a general defence of necessity, the time has come to acknowledge that there should be a defence of duress when the defendant acts reasonably when faced with a threat of any kind of injury (not just serious injury) and that self-defence can apply to any crime.

JONATHAN HERRING

NEGLIGENCE-VICARIOUS LIABILITY OF HEALTH AUTHORITIES-

DIAGNOSIS OF DYSLEXIA

DYSLEXIA is a specific difficulty in learning how to use written notation, not attributable to generally low intellectual performance, emotional difficulties, or external factors. While its existence as a condition in its own right had been suspected for over a century, it is only much more recently that relatively definite tests for its existence have been developed. Even now, no one test can conclusively show its presence or absence. Local education authorities must provide for the special educational needs of children under their care, though it is settled law that the authorities cannot themselves be sued for breach of those duties (X (Minors) v. Bedfordshire CC. [1995] 2 A.C. 633). However, X contains strong dicta that where the plaintiff can demonstrate negligence by particular members of staff, such as educational psychologists, then those members of staff will be personally liable, and the authority will be vicariously liable. Phelps v. Hillingdon L.B.C. [1999] 1 W.L.R. 500 raises the question whether

270 270 [1999] [1999]

This content downloaded from 194.29.185.22 on Wed, 11 Jun 2014 05:04:11 AMAll use subject to JSTOR Terms and Conditions

Case and Comment

this is actually so. The Court of Appeal, reversing Garland J., have now held that there is no such liability. The court heard that even if (contrary to their view) the plaintiff in the case could establish professional negligence by an educational psychologist through failure to diagnose her dyslexia, and that this negligence caused her appreciable harm, none the less she had no cause of action.

The case is treated as a claim against the local authority, and its merits considered in that perspective. This reflects the realities of the matter, but in passing we should note how completely it ignores basic tort doctrine. What was being alleged was a tort by a particular educational psychologist, a claim which (in theory) the psychologist would have had to meet from her own resources had the court found against her. Therefore, we might expect the action to turn solely on what was just and reasonable as between the plaintiff and the psychologist. The statutory responsibilities of local authorities would not be relevant, except where they cast light on the psychologist's duties. Yet the psychologist was treated as a woman of straw. Liability was refused because it would achieve by indirect means what is impossible directly, namely to make the education authority liable for the consequences of a misdiagnosis.

This novel approach to vicarious liability is all the more surprising given that it had no basis in authority. Insisting that the rule in X should not be subverted, the court found that the principal authority to the contrary was X itself, where Lord Browne-Wilkinson (in a passage with which the whole House agreed) expressly suggested that vicarious liability might be one route to liability in cases of this sort (see especially [1995] 2 A.C. 763H-764B). Neither is there anything incoherent about this approach. The Lords refused liability where the plaintiff's case was an unspecific charge of poor education. But it is quite different when the plaintiff can point to a specific instance of misconduct by a specific employee, which can be shown to have had significant consequences for the plaintiff. As the convoluted facts of Phelps illustrate, any actual case will involve a succession of dealings between the authority, the plaintiff and the plaintiff's parents; and the liability for which Lord Browne-Wilkinson argued in X would only exist in the rare case where both fault by a specific individual, and the causal effect of that fault, could be demonstrated.

The Court of Appeal considered briefly how to categorise the plaintiff's loss-was it an "injury" or an "economic loss"? The authority, which throughout its long dealings with the plaintiff had insisted that her problems were of an emotional nature, now insisted that she had suffered a purely economic loss, and relied on a rather extraordinary dictum of Balcombe L.J. that the activities of schools are not "intended (save in an indirect maner), to promote or protect

C.L.J. 271

This content downloaded from 194.29.185.22 on Wed, 11 Jun 2014 05:04:11 AMAll use subject to JSTOR Terms and Conditions

The Cambridge Law Journal

the pupil's economic welfare" (Van Oppen v. Clerk to the Bedford Charity Trustees [1990] 1 W.L.R. 235, 261). The Court of Appeal agreed that a failure to diagnose dyslexia could not be regarded as an "injury", but recognised that that did not resolve the matter one way or another. Liability was refused on the basis of a list of policy considerations. The list stresses the enormous difficulties for plaintiffs in establishing a case of negligence in these circumstances. But why should these factors tell against the plaintiff? Why is the fact that it is hard to establish duty, breach of duty and causation a reason for denying a claim to a plaintiff who has succeeded in doing so? The court's concern that individual employees might be "scapegoated" is also strange, for it is only employees who are demonstrably at fault who have anything to fear. As so often with concern over "defensive medicine", the courts lose sight of the point that a significant proportion of allegations of professional misconduct are true, and demand a response from the legal system. It may be that the disincentives to professional negligence are in fact already adequate, and need no supplement from the law of tort; but if so, let this be demonstrated, rather than simply assumed.

The Court of Appeal suggested that a psychologist acting for private patients might be liable, though they do not say how the problems of privity might be overcome, other than through a vague and unconvincing reference to "agency". They also suggest that matters might be different if there had been an "assumption of responsibility" by the psychologist. But what, precisely, would constitute evidence of this? Surely in every case the psychologist is assuming a responsibility to perform her task properly. Can it be said that the psychologist's duties were too various, the considerations to which she should pay attention too diverse, to say that she had a duty to look to the plaintiff's welfare? But this psychologist's job was to determine whether the plaintiff suffered from dyslexia. It is futile for the Court of Appeal to stress that she was merely one member of a multi-disciplinary team with multifarious responsibilities, for her failure to diagnose dyslexia was treated as exonerating every other member of the team ([1999] 1 W.L.R. 510G-H)! If everyone else is able to pass the buck to her, then presumably it should stay with her.

And this is perhaps the nub of the case. It is only by the purest luck that a plaintiff will be able to sue a professional whose client they are not-only by chance that the professional, though not paid to look after the plaintiff's interests, none the less finds that their duty requires them to act in the plaintiff's interests to the exclusion of other concerns. And in most such cases, the action can be defeated by insisting on the strict limits of the professional's duty: if the professional has to take other factors than the plaintiff's well-being

272 [1999]

This content downloaded from 194.29.185.22 on Wed, 11 Jun 2014 05:04:11 AMAll use subject to JSTOR Terms and Conditions

Case and Comment Case and Comment

into account, then the plaintiff can have no complaint. The difficult question is, what is to happen in the few cases where this is not so, where the professional's duty was fairly and squarely to benefit the plaintiff, and yet failed to do so? The majority in White v. Jones [1995] 2 A.C. 207 allows the plaintiff to sue, yet with a strongly- argued dissent by Lord Mustill protesting that if the professional's primary duty is not owed to the plaintiff, the plaintiff cannot take advantage of it. In Phelps, the Mustill approach is in the ascendant.

STEVE HEDLEY

CONTRACT CONSTRUCTION AND RISK ALLOCATION

WHEN a judge needs to construe a contract, to what extent can he or she have regard to factors which are external to the agreement rather than adopt a literal interpretation? This was the crucial question for the Court of Appeal to answer in Bromarin A.B. and others v. I.M.D. Investments Ltd. [1999] S.T.C. 301.

The facts of the case were complex. The plaintiffs owned companies which had allowable capital lossses. These losses could be carried forward and set off against chargeable gains for the purposes of assessing tax liability, but it was not possible for the companies to use them because they had no capital gains. Consequently, the plaintiffs agreed to sell their shares in the companies to the defendant, which wished to make use of the losses by transferring assets pregnant with gains to the companies, which would then sell them and set the existing losses off against the gains. The consideration for the purchase of the companies took two forms. First, the defendant agreed to pay £10,000 to each plaintiff. Secondly, the defendant agreed to pay to the plaintiffs, after five years, a sum equivalent to half of the tax which had been saved. If the defendant had not used all of the capital losses after five years, there was a long-stop provision whereby it was required to pay a sum equivalent to half the amount of tax which it would have saved had all of the losses been used. The defendant was never able to use any of the capital losses because of a severe decline in its capital gains and, crucially, because three years after the agreement was made, the law was changed by the Finance Act 1993 so that it was prevented from using the losses because they had been incurred before the shares in the companies had been purchased. The dispute between the parties concerned whether the long-stop provision applied where the reason why the defendant was unable to make use of the losses was that the

into account, then the plaintiff can have no complaint. The difficult question is, what is to happen in the few cases where this is not so, where the professional's duty was fairly and squarely to benefit the plaintiff, and yet failed to do so? The majority in White v. Jones [1995] 2 A.C. 207 allows the plaintiff to sue, yet with a strongly- argued dissent by Lord Mustill protesting that if the professional's primary duty is not owed to the plaintiff, the plaintiff cannot take advantage of it. In Phelps, the Mustill approach is in the ascendant.

STEVE HEDLEY

CONTRACT CONSTRUCTION AND RISK ALLOCATION

WHEN a judge needs to construe a contract, to what extent can he or she have regard to factors which are external to the agreement rather than adopt a literal interpretation? This was the crucial question for the Court of Appeal to answer in Bromarin A.B. and others v. I.M.D. Investments Ltd. [1999] S.T.C. 301.

The facts of the case were complex. The plaintiffs owned companies which had allowable capital lossses. These losses could be carried forward and set off against chargeable gains for the purposes of assessing tax liability, but it was not possible for the companies to use them because they had no capital gains. Consequently, the plaintiffs agreed to sell their shares in the companies to the defendant, which wished to make use of the losses by transferring assets pregnant with gains to the companies, which would then sell them and set the existing losses off against the gains. The consideration for the purchase of the companies took two forms. First, the defendant agreed to pay £10,000 to each plaintiff. Secondly, the defendant agreed to pay to the plaintiffs, after five years, a sum equivalent to half of the tax which had been saved. If the defendant had not used all of the capital losses after five years, there was a long-stop provision whereby it was required to pay a sum equivalent to half the amount of tax which it would have saved had all of the losses been used. The defendant was never able to use any of the capital losses because of a severe decline in its capital gains and, crucially, because three years after the agreement was made, the law was changed by the Finance Act 1993 so that it was prevented from using the losses because they had been incurred before the shares in the companies had been purchased. The dispute between the parties concerned whether the long-stop provision applied where the reason why the defendant was unable to make use of the losses was that the

C.L.J. C.L.J. 273 273

This content downloaded from 194.29.185.22 on Wed, 11 Jun 2014 05:04:11 AMAll use subject to JSTOR Terms and Conditions