Russell v Aberdeenshire Council - Aberdeen Sheriff Court,
13 February 2007
This was a preliminary proof in which Aberdeenshire Council
sought dismissal on the grounds that the action was time barred.
Separately, the Council opposed the proposition that the court
should exercise its equitable jurisdiction to allow the claim to
proceed even if it was time barred.
The case concerned a 34 year old married woman who was seeking
damages against the local authority in relation to a failure on
their part to recognise that she was dyslexic. She had attended
Daviot Primary School between 1978 and 1983 and Inverurie Academy
from 1983 to 1988. She raised proceedings in November 2003.
The sheriff found that Ms Russell left the care of the Council
in October 1988. The sheriff held that she was unaware that she had
a congenital condition known as dyslexia until November 2000 but
that it would have been reasonably practicable for her to have
become aware of that condition prior to that date.
Ms Russell's secondary submission was based on the provisions
entitling the court to allow an action to proceed, even if it is
caught by the time bar provisions of Section 17 "if it seems to
it equitable to do so."
Ms Russell said that a failure by the school authority to
diagnose her dyslexia and treat it, created an impairment of her
physical and mental condition and created an "upset to her
health."
The injury was not the existence of dyslexia it was the
distress, the inducement of feelings of stupidity and loss of
self-esteem and failing to achieve which was a result, not of the
dyslexia, but of the failure to diagnose and treat dyslexia while
at school.
The sheriff found that was not the subject matter of the
preliminary proof on time bar.
The court required to determine whether Ms Russell was aware and
then on the date on which she became aware of the crucial facts.
The trouble with someone suffering from dyslexia is that it is very
difficult to see how they could be aware of the facts without a
diagnosis. It is only when there is a diagnosis that a claimant can
begin to seek potential defenders.
While the sherif f felt that it was not reasonably practicable
for Ms Russell to have become aware of the factors relevant to make
a claim prior to diagnosis, the crucial issue in this case was when
it became reasonably practicable for her to have become aware that
she had the condition known as dyslexia.
The Council argued that Ms Russell failed to seek appropriate
professional help. The sheriff placed considerable weight on the
proven determination of Ms Russell to succeed in whatever she
turned her hand to do and so it was difficult to understand why she
did not seek appropriate professional help. The sheriff took the
view that it was reasonably practicable for her to become aware of
the characteristics of dyslexia as affecting her before there was a
formal diagnosis. If she was aware of the factual characteristics
then she would be in a position to assess and be aware of the
injury's consequences to her. The sheriff thought that she should
have obtained a diagnosis much earlier. She knew of the existence
of a distinguishing condition. Her family had a connection with the
condition. Her younger brother had been diagnosed as suffering from
it. She had access to sources of information and she was a
compulsive answer seeker. There was no satisfactory explanation as
to why she did not seek out a diagnosis for her condition until she
did as a part-time mature student at Caledonia University years
later. If it was reasonably practicable for her to have become
aware of the varied nature and character of dyslexia then she would
have become aware of all three of the crucial facts. In the
circumstances there was no basis for exercising the equitable
jurisdiction and the claim was struck out.
Time bar arguments are relatively common in disease cases. There
are often arguments presented for claimants that, despite the
condition arising or the (for example) abuse being caused many
years before the action was raised, there are good reasons to allow
it to proceed. So far, a number of helpful decisions, including
this one, illustrate that courts are slow in these circumstances to
agree.