It does not follow that the local authority can never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants or agents. This House decided in Barrett v Enfield London Borough Council [2001] 2 AC 550 that the fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them. It is only where what is done has involved the weighing of competing public interests or has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion. In Pamela’s case there is no such ground for holding that her claim is non-justiciable and therefore the question to be determined is whether the damage relied on is foreseeable and proximate and whether it is just and reasonable to recognise a duty of care: Caparo Industries plc v Dickman [1990] 2 AC 605, 617–618. If a duty of care would exist where advice was given other than pursuant to the exercise of statutory powers, such duty of care is not excluded because the advice is given pursuant to the exercise of statutory powers. This is particularly important where other remedies laid down by the statute (e g an appeals review procedure) do not in themselves provide sufficient redress for loss which has already been caused.

Where, as in Pamela’s case, a person is employed by a local education authority to carry out professional services as part of the fulfilment of the authority’s statutory duty, it has to be asked whether there is any overriding reason in principle why (a) that person should not owe a duty of care (the first question) and (b) why, if the duty of care is broken by that person, the authority as employer or principal should not be vicariously liable (the second question).

I accept that, as was said in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, there may be cases where to recognise such a vicarious liability on the part of the authority may so interfere with the performance of the local education authority’s duties that it would be wrong to recognise any liability on the part of the authority. It must, however, be for the local authority to establish that: it is not to be presumed and I anticipate that the circumstances where it could be established would be exceptional.

As to the first question, it is long and well-established, now elementary, that persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised, and if injury or damage can be shown to have been caused by the lack of care. Such duty does not depend on the existence of any contractual relationship between the person causing and the person suffering the damage. A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist and a teacher including a teacher in a specialised area, such as a teacher concerned with children having special educational needs. So may be an education officer performing the functions of a local education authority in regard to children with special educational needs. There is no more justification for a blanket immunity in their cases than there was in Capital and Counties plc v Hampshire County Council [1997] QB 1004.

I fully agree with what was said by Lord Browne-Wilkinson in the X (Minors) case [1995] 2 AC 633, 766 that a head teacher owes ‘a duty of care to exercise the reasonable skills of a headmaster in relation to such [sc. a child’s] educational needs’ and a special advisory teacher brought in to advise on the educational needs of a specific pupil, particularly if he knows that his advice will be communicated to the pupil’s parents, ‘owes a duty to the child to exercise the skill and care of a reasonable advisory teacher.’ A similar duty on specific facts may arise for others engaged in the educational process, eg an educational psychologist being part of the local authority’s team to provide the necessary services. The fact that the educational psychologist owes a duty to the authority to exercise skill and care in the performance of his contract of employment does not mean that no duty of care can be or is owed to the child. Nor does the fact that the educational psychologist is called in in pursuance of the performance of the local authority’s statutory duties mean that no duty of care is owed by him, if in exercising his profession he would otherwise have a duty of care.

That, however, is only the beginning of the inquiry. It must still be shown that the educational psychologist is acting in relation to a particular child in a situation where the law recognises a duty of care. A casual remark, an isolated act may occur in a situation where there is no sufficient nexus between the two persons for a duty of care to exist. But where an educational psychologist is specifically called in to advise in relation to the assessment and future provision for a specific child, and it is clear that the parents acting for the child and the teachers will follow that advice, prima facie a duty of care arises. It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. It is, however, clear that the test is an objective one: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, 181. The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law.

The question is thus whether in the particular circumstances the necessary nexus has been shown.

The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can be no doubt that if foreseeability and causation are established, psychological injury may constitute damage for the purpose of the common law. But so in my view 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. Questions as to causation and as to the quantum of damage, particularly if actions are brought long after the event, may be very difficult, but there is no reason in principle to rule out such claims.

As to the second question, if a breach of the duty of care to the child by such an employee is established, prima facie a local education authority is vicariously liable for the negligence of its employee. If the educational psychologist does have a duty of care on the facts is it to be held that it is not just and reasonable that the local education authority should be vicariously liable if there is a breach of that duty? Are there reasons of public policy why the courts should not recognise such a liability? I am very conscious of the need to be cautious in recognising such a duty of care where so much is discretionary in these as in other areas of social policy. As has been said, it is obviously important that those engaged in the provision of educational services under the statutes should not be hampered by the imposition of such a vicarious liability. I do not, however, see that to recognise the existence of the duties necessarily leads or is likely to lead to that result. The recognition of the duty of care does not of itself impose unreasonably high standards. The courts have long recognised that there is no negligence if a doctor ‘exercises the ordinary skill of an ordinary competent man exercising that particular art’:

‘[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view’: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 586–587, per McNair J.

The difficulties of the tasks involved and of the circumstances under which people have to work in this area must also be borne fully in mind. The professionalism, dedication and standards of those engaged in the provision of educational services are such that cases of liability for negligence will be exceptional. But though claims should not be encouraged and the courts should not find negligence too readily, the fact that some claims may be without foundation or exaggerated does not mean that valid claims should necessarily be excluded.