Decision a riposte to "scatter-gun approach"

Clarke v Devon County Council (Court of Appeal - 17 March 2005) The claimant, who was dyslexic and ...

Clarke v Devon County Council (Court of Appeal - 17 March 2005)

The claimant, who was dyslexic and dyspraxic, brought a successful negligence claim against an educational psychologist employed by the defendant local authority, based on inappropriate findings in respect of his special educational needs.

He failed in or withdrew claims against two other psychologists and two school heads, who were all employed by the defendant.

In relation to the successful claim, damages of £10,000 (general) and £25,000 (loss of earnings) were awarded for the impairment of his educational progress by reason of the negligence. He was awarded all of his costs.

The defendant appealed the findings on causation, quantification of loss and the award of costs. The Court of Appeal, declining the first two, rejected a causation test of 'measurable difference' in favour of 'real difference', which does not require a precise measurement of the impact of the negligence.

The Court of Appeal also upheld the broad-brush, lump-sum approach to quantification in such circumstances, noting that precise quantification is typically difficult to establish in such claims.

However, it reduced the claimant's costs entitlement to 70%. This recognised the failure against all but one psychologist, while acknowledging that this did not necessarily mean that evidence would not have been needed from the other professionals.

The court specifically rejected the claimant's contention that such a claim was a single one for a failed education over time, rather than a series of discrete claims against individual professionals.

COMMENT: The case underlines the somewhat imprecise approach adopted to causation and quantum in this field. For insurers, it emphasises that it is on breach of duty that these claims are most soundly resisted, if they can be. The decision on costs is a helpful, if limited, riposte to the scatter-gun approach still depressingly common in such litigation.

Richard Wilkins, BLM London

These law reports are contributed by insurance law firm Berrymans Lace Mawer (http://www.blm-law.com).

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