(c) Jordan Publishing Limited 2000 CFam 12.1(31)
(c) Jordan Publishing Limited 2000
CHILD AND FAMILY LAW QUARTERLY
LENGTH: 8504 words
TOPIC: CHILDREN AND YOUNG PERSONS
TITLE: A tort remedy for the untaught? — liability for educational malpractice in English law
AUTHOR: Duncan Fairgrieve
Laming Junior Fellow, The Queen’s College, Oxford
Director, Centre of European Law, King’s College, London
CASES REFERRED TO:
X (Minors) v Bedfordshire County Council; M (A Minor) v Newham London Borough Council; E (A Minor) v Dorset County Council; Christmas v Hampshire County Council; Keating v Bromley County Council; Phelps v Hillingdon London Borough Council; Jarvis v Hampshire County Council; Gower v London Borough of Bromley; Caparo Industries plc v Dickman;  2 AC 633; Barrett v Enfield London Borough Council;  3 All ER 193; Stovin v Wise and Norfolk County Council;  AC 923; Lam v Brennan and Torbay Borough Council;  PIQR P488; Tidman v Reading Borough Council;  3 PLR 72; Haddow v Secretary of State for the Environment, Transport and the Regions;  NPC 10; Haddow v Tendring District Council; Philcox v Civil Aviation Authority; (1995) 139 SJLB 146; Reeman v Department of Transport;  2 Lloyd’s Rep 648; Harris v Evans;  1 WLR 1285; Yuen Kun Yeu v Attorney General of Hong Kong;  AC 175; Minories Finance Ltd v Arthur Young; Minories Finance Ltd v Arthur Young (a firm) and Bank of England;  2 All ER 105; Davis v Radcliffe;  1 WLR 821; Three Rivers District Council v Bank of England;  EuLR 211; Hill v Chief Constable of West Yorkshire;  AC 53; Chief Constable of Northumbria v Costello;  1 All ER 550; Swinney v Chief Constable of Northumbria Police (No 2); Capital and Counties plc v Hampshire County Council; John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority; Church of Jesus Christ of Latter Day Saints (Great Britain) v West Yorkshire Fire and Civil Defence Authority; Digital Equipment Co Ltd v Hampshire County Council;  QB 1004; Kent v London Ambulance Service;  Lloyd’s Rep Med 58; OLL Ltd v Secretary of State for the Home Department;  3 All ER 897; R v Secretary of State for Transport ex parte Factortame Limited and Others;  3 WLR 1062;  1 All ER 421;  ELR 36;  ELR 356; R v Inner London Education Authority ex parte Ali;  COD 317; Holtom v London Borough of Barnet;  ELR 255; Phelps v London Borough of Hillingdon;  ELR 38;  ELR 1; Osman v UK;  1 FLR 193; Farah v British Airways;  1 INLR; Brindle v Commissioner of Police for the Metropolis; Holtom v Barnet London Borough Council;  ELR 254; (1998) 5 BHRC 293; Keating v Bromley London Borough Council; Anderton v Clwyd County Council;  ELR 1; Hedley Byrne & Co v Heller & Partners Ltd;  AC 465; Henderson v Merrett Syndicates Ltd; Hallam-Eames v Merrett Syndicates; Hughes v Merrett Syndicates; Arbuthnott v Fagan and Feltrim Underwriting Agencies; Deeny v Gooda Walker;  2 AC 145; Murphy v Brentwood District Council;  1 AC 398; Arkless v Leicestershire Health Authority; Moeliker v A. Reyrolle & Co;  1 WLR 132; Hotson v East Berkshire Area Health Authority;  AC 750; Allied Maples Group Ltd v Simmons & Simmons;  1 WLR 1602; Davies v Taylor (No 2);  AC 225; Hicks v Chief Constable of South Yorkshire;  2 All ER 65; Page v Smith;  AC 155; White v Chief Constable of the South Yorkshire Police;  1 All ER 1; Bolam v Friern Hospital Management Committee;  1 WLR 582
LEGISLATION REFERRED TO:
European Convention for the Protection of Human Rights and Fundamental Freedoms; European Convention on Human Rights; Rules of the Supreme Court; Human Rights Act 1998
The tort liability of public authorities continues to create debate, prompted by several recent judgments. Claims have been brought for the alleged wrongful acts of public bodies in spheres as diverse as social welfare, 1 highway maintenance, 2 planning, 3 health and safety regulation, 4 supervision of financial institutions, 5 policing, 6 the emergency services, 7 and the registration of fishing boats. 8 Educational underachievers have also sought financial remedies. Recent cases have given diverse interpretations of such claims. The House of Lords’ decision in the case of X (Minors) v Bedfordshire County Council; M (A Minor) v Newham London Borough Council; E (A Minor) v Dorset County Council; Christmas v Hampshire County Council; Keating v Bromley County Council 9 was restrictively interpreted in Phelps v Hillingdon London Borough Council 10 and in Jarvis v Hampshire County Council. 11 In contrast, the Court of Appeal gave more encouragement to claimants in the recent case of Gower v London Borough of Bromley. 12
The aim of this article is to analyse the case-law on educational malpractice and try to bring together the seemingly competing strands of argument. 13 It will be structured as follows: first the main appellate cases will be presented. The duty of care of educators 14 will then be examined and an attempt will be made to reconcile the different decisions on this point. We will subsequently focus upon the outstanding elements of negligence actions, the notions of loss, causation and breach.
It is argued that a duty to take reasonable care in teaching as asserted in Gower should be supported. The fear of an opening of the floodgates, or a radical proliferation of claims, is not justified. There are other control mechanisms in place. However, some rise in litigation with accompanying costs may be a price that will have to be paid in the interest of setting wrongs right.
FOUR IMPORTANT CASES FOR EDUCATIONAL MALPRACTICE
Education claims are now being predominantly fought on the field of negligence. Damages claims for breach of statutory duty have been sidelined in the education sphere, 15 and the conditions of misfeasance in public office do not make it an attractive proposition for claimants. 16 An overview will initially be given of the important judgments concerning the negligent provision of education.
X (Minors) and education claims
The factual background of X (Minors) has been traced on many occasions and does not need repeating here. 17 It will be recalled that two of the joined appeals concerned the manner in which local authorities dealt with child abuse. Three other appeals were grounded in maleducation. They concerned the alleged failures of local education authorities (LEAs) to provide suitable education for children with special needs. These education claims can be categorised as follows. On the one hand, the local authority was alleged to be under a direct duty of care to the claimants. 18 On the other hand, it was argued that the local authority was vicariously liable for its servants’ negligence. 19
The direct duty of local education authorities was framed in two ways. It was first argued that the local authority owed a duty of care in the exercise of its statutory function to provide suitable education under the various Education Acts. This was ruled out on the basis of policy concerns. It was not just, fair and reasonable to impose a duty of care. 20 Parents already participated in the decision-making process concerning the education of their child, and had rights of appeal against the authority’s decisions. A direct duty of care would expose local authorities to financial risk from a plethora of hopeless damages claims. In any case, an alternative damages remedy would often arise on the basis of the vicarious liability of the local authority for the acts of its servants. Secondly, a claim was made against the psychology service provided by the local authority. The legal position was ‘wholly different’ here to that of the first allegation. 21 Lord Browne-Wilkinson underlined that in these circumstances the local authority was ‘in general in the same position as any private individual or organisation holding itself out as offering such a service’. 22 The claim would thus be based upon the conditions for the recognition of a duty of care as laid down in Caparo Industries plc v Dickman. 23 On a prima facie view, it was unnecessary to examine issues of justiciability or to apply the Wednesbury test. These issues would only be relevant if it transpired at trial that the psychology service was ‘part and parcel of the system established by the defendant authority for the discharge of its statutory duties under the Act of 1981’. 24
As for the vicarious liability of the local authority, claims were brought on the basis of alleged negligence by educational psychologists, teachers and education advisers in the assessment and determination of the claimants’ educational needs. Lord Browne-Wilkinson held that it was possible for such a duty of care to arise, and that local authorities could be vicariously liable for the torts of their servants. 25 The position of the teachers and psychologists in the education cases was distinguished from the doctor and social workers in the child abuse cases. 26 Unlike the latter cases, no potential conflict arose in the twin duties owed by the educational psychologist to the claimant and to the education authority. Likewise, the imposition of a duty of care to the claimants would not obviously conflict with the discharge of the psychologist’s statutory duties owed to the local authority.
The Phelps case
The principles expounded in X (Minors) were applied to evidence gained at trial in the case of Phelps. 27 Ms Phelps brought an action in damages for the negligent failure of an educational psychologist employed by the local authority to diagnose her as suffering from dyslexia. At trial, the defendant local authority was found to be vicariously liable for the educational psychologist’s negligence. 28 The Court of Appeal took a different view. In the leading judgment, Stuart-Smith LJ overturned the lower court’s decision, making remarkable comments on all the elements of an action in negligence. In terms of the duty of care, it was held that the psychologist was primarily employed to advise the school and the local authority. She had not assumed a personal responsibility to the claimant. 29 Policy reasons also militated against a duty of care. 30 It should be mentioned at this juncture that some judicial support has been given to this conclusion in the recent House of Lords case of Barrett. Lord Browne-Wilkinson opined that it was correct to have denied a duty of care, as the education psychology service was designed primarily to advise the LEA. 31
The Gower case
In Gower v London Borough of Bromley, another educational malpractice claim came before the Court of Appeal, this time on a strike out application. 32 The claimant suffered from muscular dystrophy and was transferred to a special school for the physically disabled at the age of nine. He complained that the school’s staff had failed in their educational duty to him. In general terms, it was alleged that he was not given an appropriate education by suitably trained staff in order to help him cope with his special needs. In particular, the computer technology and specialist training which was stipulated in his statutory statement of special educational needs did not transpire. It was alleged that this educational failure resulted in a variety of damage, including lack of educational progress, psychiatric injury and financial expenditure. Two duties of care were pleaded. The first was that the defendant local education authority was under a duty in loco parentis to take reasonable care for the health and safety of the pupil. This was rejected on the basis that the breaches of duty related to the teaching staff’s behaviour in their teaching role. The second alleged duty was more successful. The court held that teachers are under a duty to exercise reasonable skill in responding to the educational needs of their pupils. The authority could be vicariously liable for its teachers’ breach of duty to take reasonable care in the provision of education to the claimant. It was held that public policy considerations weigh differently in respect of a claim based on the vicarious liability of a public body than in the context of a direct claim on the basis of the exercise of a statutory discretion. In such circumstances, and given the reluctance of the courts to decide claims in this area of the law without full consideration of the evidence at trial, it was not appropriate to strike out the claim.
The Jarvis case
Finally, in the case of Jarvis the Court of Appeal heard a claim based upon the failure of a local education authority to provide a dyslexic young man, Marcus Jarvis, with an adequate education. During his education, Jarvis attended a number of schools in generally unsuccessful attempts to find a placement which could deal with his educational needs. The educational psychologist employed by the county council conceded that the claimant had received ‘a catastrophe of an education’. Ultimately, the claimant was excluded from secondary school and remained away from school thereafter. He subsequently committed a number of serious criminal offences resulting in imprisonment.
The claimant sued the education authorities in negligence and misfeasance in public office, claiming compensation for the cost of remedial tuition and the loss of prospective future earnings. In respect of the negligence claim, it was argued that an educational psychologist and other local government officers who had taken part in the process of finding an appropriate school for the claimant had been in breach of a duty to take reasonable care in the provision of educational advice. It was also claimed that the defendant local educational authority was both vicariously liable for the acts of these employees, and was itself under a direct duty of care to the claimant for the manner in which it had operated the educational psychology service which had provided advice as to the appropriate education of the claimant.
At first instance, the trial judge struck out the misfeasance in public office claim, but refused to strike out the action in negligence. In the Court of Appeal both claims were struck out. In respect of the negligence claim, it was held that the local authority was not under a direct duty of care in respect of the plaintiff for the acts of the educational psychology service. In the leading judgment given by Morritt LJ, it was decided that the service existed merely for the purpose of advising the local education authority as to how to exercise its statutory powers. It was also held that similar considerations applied to the allegations against the local authority employees. It was held that despite the direct contact between these people and the claimant’s mother, there was no assumption of responsibility necessary for the imposition of a duty of care (and therefore no vicarious liability for the local authority).
CONFLICTING CONCEPTIONS OF EDUCATORS’ DUTIES – AN ATTEMPT AT A SYNTHESIS
Diverse interpretations of educational malpractice claims would seem to prevail. To some extent, the judicial authorities are conflicting. These strands of argument will have to be reconciled. Our view is expressed in this section.
Elements of conflict
Many of the thorny issues in tort have been examined under the rubric of the duty of care in negligence. Educational malpractice is no exception. The most difficult element to reconcile in the appellate cases is that of duty. Leaving aside the validity of the distinction drawn between vicarious and direct duties in public law liability cases, 33 an important problem emerges from the interplay of these two duties in maleducation cases. An underlying theme of Stuart-Smith LJ’s judgment in Phelps was that allowing vicarious liability of the local education authority for the acts of its educators would circumvent its immunity from direct actions in negligence as established in X (Minors). 34 This would amount to the courts allowing liability of LEAs by the ‘back door’ of vicarious liability. 35 It was argued that this had not been intended by the court in X (Minors).
This conclusion is both significant and problematic. It is significant because, if accepted, it would in effect close the door on education claims. The claimed immunity on direct actions against LEAs would extend to a bar on vicarious claims. That it is problematic becomes apparent when one takes a closer look at X (Minors). It is stretching logic to argue that X (Minors) was based upon the premise of immunity for direct duties of care of the local authority: Lord Browne-Wilkinson asserted that a direct duty of care could arise from the provision of the psychology service. 36 Moreover, recent case-law developments militate against broad exclusions of duties owed by public authorities. First, the European Court of Human Rights (ECHR) in Osman held that the public policy exclusion on negligence actions against the police for the investigation and suppression of crime was contrary to the right of access to court enshrined in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 37 The exclusionary rule was disproportionate to the declared policy aims of maintaining the effectiveness of the police. A plaintiff should be able to go to trial to argue on the merits that account should be taken of other policy considerations, such as the seriousness of the injury sustained and the gravity of the defendant’s fault. The Osman judgment has already been noted both judicially 38 and extra-judicially 39 and has undoubtedly had an impact. Secondly, in the context of social welfare provision, the House of Lords in the recent case of Barrett recognised the existence of a direct duty on local authorities. Are there cogent reasons why a direct duty should arise for children in care, but not for children in school? Indeed, these categories can overlap. An authority may be responsible for the child both as an LEA and in loco parentis under a care order. 40
Returning to a critique of the reasoning in Phelps, there is another objection to the circumvention argument. The vicarious liability of LEAs for the acts of educators was clearly contemplated by Lord Browne-Wilkinson in X (Minors). 41 Indeed, looking closer at Lord Browne-Wilkinson’s ‘powerful policy reasons’, it is clear that the limited immunity granted for direct duties of care is qualified by the assurance that ‘in almost every case which could give rise to a claim for the negligent exercise of the statutory discretions, it is probable that, as in the present case, there will be an alternative remedy by way of a claim against the authority on the grounds of its vicarious liability for the negligent advice on the basis of which it exercises its discretion’. 42 Lord Browne-Wilkinson thus explicitly foresaw the circumvention of direct immunity by vicarious liability which was feared in Phelps. This possibility of vicarious liability was actually a sine qua non of the restrictions on direct liability.In Phelps, much emphasis was placed upon the fact that X (Minors) was a strike-out application, and so the factual basis of the decision was restricted to the facts as stated in the plaintiff’s statement of claim. 43 This was contrasted with the position in Phelps, where the court had had the chance to evaluate all the evidence. 44 It was argued that the clarification provided by the fuller evidence justified the departure from X (Minors). And yet, as we have seen, many of the differences in the two cases relate to points of principle rather than factual distinctions; in particular on the duty issue it is difficult to square the approach in Phelps with X (Minors).
Some steps towards clarification were made in Gower. In terms of duty, the ratio of Phelps was ascribed to, and inherently limited to, the issue of proximity – namely that the psychology service was put in place to advise the education provider and not the education consumer. It was underlined in Gower that LEAs could indeed be vicariously liable for the acts of their educators in failing to provide proper teaching. No paradox was found in the circumvention of the LEAs’ immunity.
In the case of Jarvis, it was similarly indicated in the leading judgment of Morritt LJ that the impact of Phelps was that a local authority generally did not assume responsibility through its educational psychology service in respect of children with special educational needs. The service existed merely for the purpose of advising the local education authority as to how to exercise its statutory powers. But the court in Jarvis went further than this. Morritt LJ argued that there was no inconsistency between Phelps and X (Minors) in the formulation of duties of care owed by educators. Morritt LJ recognised that the main argument over inconsistency lay in the approach of the courts to vicarious liability. His Lordship argued that the Phelps decision was not inconsistent with X (Minors) on this point: the possibility of vicarious liability was not challenged by the Court of Appeal in Phelps. 45 It is submitted that this is a rather generous interpretation of Stuart-Smith LJ’s judgment in Phelps. Whilst Stuart-Smith LJ may not have explicitly ruled out vicarious liability in Phelps, the thrust of the circumvention argument and the litany of policy considerations essentially meant just that. Stuart-Smith LJ asserted plainly that it was not fair, just or reasonable to impose a duty of care upon the educational psychologist.
The litany of policy concerns invoked by Stuart-Smith LJ in Phelps 46 as militating against a duty of care, may need to be re-appraised. Indeed, it was held in Gower that these policy issues, ‘should now be read in the light of Barrett’. In Barrett, the House of Lords expressed unease with similar policy concerns to those invoked in Phelps: 47 the existence of alternative remedies through statutory appeals and judicial review are not a suitable substitute for an action in damages; 48 arguments of defensive behaviour or overkill are not always persuasive. 49 Other policy concerns invoked in Phelps are equally unappealing as a justification for denying a duty of care. It is hard to see why the multidisciplinary nature of decision making in the public sphere should preclude a duty of care: potential liability is not about creating scapegoats but rather about ensuring accountability of decision makers. The comparative law perspective presented in Phelps was limited to one jurisdiction and in any case failed to give the full picture of educational malpractice case-law. 50
A final point of tension in these cases is the approach to striking out claims. In the case of Barrett, their Lordships expressed a reluctance for allowing strike out applications in this area of the law. 51 Lord Browne-Wilkinson indicated that in the uncertain and evolving law of negligence in the exercise of a statutory power or duty ‘it is not normally appropriate to strike out’. 52 These words of caution have indeed been heeded in some cases. 53 In other cases, less account has been taken of these considerations. In Jarvis, the court held that it was appropriate to strike out the claim in negligence against the educational psychologist. Morritt LJ argued that the Court of Appeal in Phelps had ruled on this question, and that the position was ‘clear and obvious’. There was some discussion of the ECHR case of Osman, with particularly robust comments from Morritt LJ expressing doubts about the impact of this case on domestic law. 54 This aspect of the Osman case has been discussed in detail elsewhere, 55 and limits on space preclude further analysis here. None the less, it is still rather surprising that the Court of Appeal felt able to strike out the claim in Jarvis. Whereas the legal status of ECHR judgments in domestic law means that the courts are not bound to follow the judgment in Osman, 56 the court is evidently bound by House of Lords’ judgments. We have seen above that in Barrett it was said that it was not normally appropriate to allow strike-out applications in this uncertain area of the law. Although the court in Jarvis felt that the law was clear on the issue which it addressed, this was evidently not shared by the panel of the House of Lords which gave leave to appeal in the case of Phelps, the very decision which the court in Jarvis thought had clarified the law.
Attempt at a synthesis
So, what is the status quo for education claimants? In a sense, this depends upon whose act is claimed to be at the root of the educational under-achievement. The combined authority of X (Minors) and Gower makes it clear that a duty is owed by headteachers and teachers to their students to take reasonable care in the exercise of their teaching skills. Here, the control mechanisms will predominantly appear at the level of causation and damage, of which more is said below. Those involved in the educational psychology service would still seem to be afforded the shelter of Phelps. This approach to educational malpractice has been subject to critique elsewhere. 57 Suffice it to observe that the description of the educational psychologist in Phelps as merely advising the LEA is not borne out by the professional literature in which many argue that the child is the primary client of psychologists, 58 and all recognise that educational psychologists have an important commitment to the child, particularly in clinical work. 59
In any case, a dichotomy seems now to have been made between the two categories of educators. Those in a direct relationship with children, such as teachers, will satisfy the condition of proximity and owe a duty to exercise reasonable care in teaching. Educational psychologists and other educators working as part of an advisory service will generally not owe a duty of care to pupils and their parents. 60 Two objections to this dichotomy will be made: one lies in principle; the other in practice. In principle, it seems wrong to make such a radical distinction between those involved in similar and complementary activities: furthering children’s education. One category of educators is subject to the rigours of a duty of care, the other is not. This distinction in education cases may well be eroded in practice when it transpires that not only do educational psychologists often play a direct role in advising a child as to his or her educational needs, but that teachers can play a role in educational advice services. Maintaining such a distinction will itself put strains on the teacher-advisory service relationship as the former refer more children to the latter in order to avoid liability.
n1 X (Minors) v Bedfordshire County Council; M (A Minor) v Newham London Borough Council; E (A Minor) v Dorset County Council; Christmas v Hampshire County Council; Keating v Bromley County Council  2 AC 633 (hereafter X (Minors)); Barrett v Enfield London Borough Council  3 All ER 193.
n3 Lam v Brennan and Torbay Borough Council  PIQR P488; Tidman v Reading Borough Council  3 PLR 72; Haddow v Secretary of State for the Environment, Transport and the Regions  NPC 10; Haddow v Tendring District Council (1998) 9 July (unreported), CA.
n5 Yuen Kun Yeu v Attorney General of Hong Kong  AC 175; Minories Finance Ltd v Arthur Young; Minories Finance Ltd v Arthur Young (a firm) and Bank of England  2 All ER 105; Davis v Radcliffe  1 WLR 821; Three Rivers District Council v Bank of England  EuLR 211.
n6 A brief selection: Hill v Chief Constable of West Yorkshire  AC 53; Chief Constable of Northumbria v Costello  1 All ER 550; Swinney v Chief Constable of Northumbria Police (No 2) (1999) The Times, May 25.
n7 Capital and Counties plc v Hampshire County Council; John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority; Church of Jesus Christ of Latter Day Saints (Great Britain) v West Yorkshire Fire and Civil Defence Authority; Digital Equipment Co Ltd v Hampshire County Council  QB 1004, Kent v London Ambulance Service  Lloyd’s Rep Med 58, OLL Ltd v Secretary of State for the Home Department  3 All ER 897.
n13 We do not cover the duty of educators in respect of the physical safety of their pupils. For discussion of this see J. Morrell and R. Foster, Local Authority Liability (Jordan Publishing Limited, 1998), at chapter 3.
n14 ‘Educator’ is used in this article to cover all those involved in the provision of education, including advisers and educational psychologists working as part of an educational psychology service.
n17 For discussion of this case, see P. Cane, ‘Suing Public Authorities in Tort’ (1996) 112 LQR 13; J. Wright, ‘Local Authorities, the Duty of Care and the European Convention on Human Rights’ (1998) 18 OJLS 1; P. Craig and D. Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ (1999) Public Law 626; K. Standley, ‘No duty of care to children in care’  CFLQ 409; R. Bailey-Harris and M. Harris, ‘The immunity of local authorities in child protection functions – Is the door now ajar?’  CFLQ 227.
n37 Osman v UK  1 FLR 193. The relevant portion of Art 6(1) of the ECHR is: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.
n38 Farah v British Airways  1 INLR (forthcoming); Brindle v Commissioner of Police for the Metropolis (1999) 29 March (unreported), CA; Swinney v Chief Constable of Northumbria Police (No 2) (1999) The Times, May 25; Gower v London Borough of Bromley  ELR 356.
n39 Lord Hoffmann, ‘Human Rights and the House of Lords’ (1999) 62 MLR 159. For academic analysis see P. Craig and D. Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ (1999) Public Law 626; P. Craig, Administrative Law (Sweet & Maxwell, 4th edn, 1999), at pp 869-872; and T. Weir, ‘Down Hill – All The Way?’  CLJ 4.
n46 Contrary to Stuart-Smith LJ’s view as to the liability of firefighters: Capital and Counties plc v Hampshire County Council; John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority; Church of Jesus Christ of Latter Day Saints (Great Britain) v West Yorkshire Fire and Civil Defence Authority; Digital Equipment Co Ltd v Hampshire County Council  QB 1004, at p 1044.
n47 Such policy concerns have attracted academic criticism: see P. Craig and D. Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ (1999) Public Law 626, at p 636; R. Bagshaw, ‘The Duties of Care of Emergency Service Providers’ (1999) LMCLQ 71, at p 85 et seq; and J. Wright, ‘Local Authorities, the Duty of Care and the European Convention on Human Rights’ (1998) 18 OJLS 1.
n55 See L. Hoyano, ‘Policing Flawed Police Investigations: Unravelling the Blanket’ (1999) 62 MLR 912; P. Craig and D. Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ (1999) Public Law 626; and B. Markesinis, J-B. Auby, D. Coester-Waltjen and S. Deakin, Tortious Liability of Statutory Bodies: A Comparative and Economic Analysis of Five English Cases (Hart, 1999).
n57 S. Hedley, ‘Negligence – Diagnosis of Dyslexia’  CLJ 270; S. Simblet, ‘Dyslexia and Negligence’ (1999) 143 (20) Solicitors Journal 484; D. Fairgrieve and M. Andenas, ‘Tort Liability For Educational Malpractice: the Phelps case’ (1999) 10 KCLJ 229; and P. Craig and D. Fairgrieve, ‘Barrett, Negligence and Discretionary Powers’ (1999) Public Law 626, at pp 642-643.
n58 G. Lindsay, ‘Sheffield Psychological Service’ (1995) 39 Educational Psychology in Practice 40. See also references made by A. Imich, ‘Delivering Educational Psychology’ (1999) 57 Educational Psychology in Practice 58.
n60 The very restricted circumstances in which a duty may be owed is when these psychology services are provided to the public in a medical adviser-patient relationship: Jarvis v Hampshire County Council  ELR 36.