Rowe v Kingston upon Hull City Council & anor (25 July 2003) (CA) (unreported)

Negligence – dyslexia – limitation period – education

 

R attended schools for which the two defendant local education authorities were responsible between 1979 and 1991. In March 1991 he was diagnosed with dyslexia by a private educational psychologist. R was 18 on the 2nd October 1992. Limitation therefore ran from that date. R claimed that he suffered a personal injury as a result of the local education authorities’ alleged failure to take remedial action to educate him in a manner appropriate for someone with his medical condition. However, R did not bring his claim until 1998, after the High Court’s decision in Phelps v Hillingdon London Borough Council had been handed down.

 

R argued that although he knew before he was 18 years old that he was dyslexic and that he had not received help from the education authorities to ameliorate the situation, he did not know he had suffered significant injury by the date of his eighteenth birthday and could only have known this following the House of Lord’s decision in Phelps v Hillingdon London Borough Council in 2000. That case established that a local education authority could be vicariously liable for the negligent acts and omissions of its employees, including educational psychologists and teachers, that caused loss, injury or damage to their students. It also established that failure to diagnose dyslexia might cause psychological stress and injury. R contended that prior to Phelps case, a reasonable person would not have regarded dyslexia as an injury for everyday purposes; and that s14(1) of the 1980 Act should be interpreted so that the limitation period did not begin to run until the law first recognised such a claim – otherwise R’s access to the courts was impaired, which was a breach of art 6 European Convention of Human Rights.The local education authorities argued that all R had to know was that he had suffered an injury in fact for the purposes of s14(1), not in law; that since R knew before he was 18 that he was dyslexic and had received no help, then s14(1)(a) was satisfied; and that all that R did not know at that time was that he had a potential cause of action and that was irrelevant.

 

Overturning the High Court’s decision, the Court of Appeal held that the claim was statute barred. Under s14(1)(a) it was important to identify the injury which was not easy when it was a congenital condition not actually caused by the defendant LEAs. In Phelps it was held that an injury could include a failure to mitigate adverse consequences. However, by the time R was 18 years old he knew he was dyslexic and knew he could have been helped but was not. That was the injury regardless of whether R knew it could be called an injury or not. All Phelps showed was that R could bring a claim against the local authority and approaching s14 in that way caused no breach of art 6 of the Convention. A right of access to the courts was not absolute and could be legitimately restricted by the state. The Act pursued a legitimate aim. The three year limitation period ran from the date of knowledge and that showed that restrictions were carefully considered. The mere fact that R did not realise he had a claim in law until clarification in Phelps did not mean that the Act could be interpreted in a different way. It was open to R to have brought an action regardless of the Phelps decision. In considering whether to exercise its discretion under s33 Limitation Act 1980 to extend the limitation period the Court took into consideration the fact that the defendant LEAs would face great difficulties tracing teachers who could remember R. It was irrelevant that they would have faced those difficulties if the action had been brought within the primary limitation period. There was little chance of a fair trial being achieved. R had failed to discharge the burden under s33 and the Court would therefore not exercise a discretion to disapply the time limit.

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