Palmer v Tees HA [1999] EWCA Civ 1533

A psychiatric patient, Armstrong, murdered four‑year‑old Rosie Palmer. Her mother sued health authorities, alleging negligent diagnosis, treatment and failure to detain him, and claiming for her own psychiatric injury. The Court of Appeal held there was no duty of care to unidentifiable victims and her secondary victim claim failed. Appeal dismissed.

Facts

The appellant, Beverley Palmer, brought proceedings on her own behalf and as administratrix of her daughter, Rose Frances (Rosie) Palmer. On 30 June 1994, Armstrong abducted, sexually assaulted, murdered and mutilated Rosie, then aged four.

Armstrong had a disturbed background, including childhood sexual abuse and neglect. By age 16 he had been diagnosed as very disturbed. Between 1992 and June 1993 he attempted suicide on several occasions, had drink and drug problems, and:

“had stated during his admission to hospital in June 1993 that he had sexual feelings towards children and that a child would be murdered after his discharge.”

The defendants (Tees Health Authority and Hartlepool and East Durham NHS Trust) were responsible for Hartlepool General Hospital and for providing psychiatric and community care. Armstrong was under their care between March 1992 and July 1994, diagnosed or recorded as suffering from personality disorder or psychopathic personality. He was last admitted as an in‑patient in June 1993, discharged on 21 June 1993, and remained an out‑patient until at least February 1994.

The claimant alleged that the defendants negligently failed to diagnose and respond to a real, substantial and foreseeable risk that Armstrong would commit serious sexual offences against children, and negligently allowed him to be discharged and remain in the community without adequate treatment or control. Particulars included failures to take adequate history, verify information with police and social services, assess mental condition properly, keep proper records, and adequately evaluate the risk Armstrong posed.

In respect of Rosie, damages were sought for bereavement and funeral expenses. Mrs Palmer claimed to suffer severe post‑traumatic stress disorder and pathological grief reaction. Her psychiatric injury began when she realised Rosie was missing, imagining what had happened, and was exacerbated by later identification of the body.

The defendants applied to strike out the action under RSC Order 18, rule 19 on the basis that no duty of care was owed either to Rosie or to Mrs Palmer, and that Mrs Palmer did not satisfy the legal requirements for recovery as a secondary victim.

Issues

1. Duty of care and proximity

The central issue was whether the defendant health authorities owed a duty of care in negligence to:

• Rosie, as a potential victim of Armstrong; and
• Mrs Palmer, deriving from any duty owed to Rosie.

This turned on whether there was sufficient proximity between the defendants and the victim, applying the tripartite Caparo test of foreseeability, proximity and whether it is fair, just and reasonable to impose a duty.

The claimant argued that:

• in personal injury cases, reasonable foreseeability of harm is sufficient to establish proximity and no identified or identifiable victim is required; and
• the recent House of Lords decision in Barrett v London Borough of Enfield, read in the light of Osman v United Kingdom, meant that questions of proximity and of what is fair, just and reasonable should not be decided on strike‑out but reserved for trial.

The defendants contended that:

• there was no proximity because Rosie was not an identified or identifiable member of a special, exceptional or distinctive category of persons at risk from Armstrong; she was merely one of the general public;
• cases such as Dorset Yacht and Hill establish that, where harm results from a third party’s criminal act, a duty arises only where there is a special relationship putting the claimant at particular risk, which was absent here; and
• any claim by Mrs Palmer as a secondary victim also failed for want of proximity and for not satisfying the established control mechanisms for psychiatric injury.

2. Effect of Barrett and Osman on strike‑out and policy

The Court had to consider the impact of Barrett v London Borough of Enfield and the Strasbourg decision in Osman v United Kingdom on the ability of domestic courts to strike out negligence claims based on the “fair, just and reasonable” limb of Caparo, and whether that reasoning also applied to the separate proximity requirement.

3. Psychiatric injury (nervous shock) to Mrs Palmer

If a duty to Rosie existed, the Court also had to decide whether Mrs Palmer, as a secondary victim, could recover for psychiatric injury, having regard to the requirements that:

• the claimant suffer a recognised psychiatric illness;
• caused by “shock” – a sudden appreciation by sight or sound of a horrifying event or its immediate aftermath;
• with sufficient proximity in time and space to the accident or its immediate aftermath; and
• a sufficiently close relationship to the primary victim.

Judgment

Effect of Barrett and Osman

Stuart‑Smith LJ explained that Barrett reversed the Court of Appeal’s earlier striking out of a negligence claim against a local authority caring for a child, particularly in light of Osman, which condemned “blanket immunity” that prevented access to court.

He quoted Lord Browne‑Wilkinson’s summary of the effect of Osman:

“The Strasbourg Court held that the English court had breached Article 6 by striking out the claim made by the Osmans against the police without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The Court said that the police had been granted a ‘blanket immunity’ which was disproportionate and therefore an unjustifiable restriction on the Osmans’ right of access to the Court.”

He further cited Lord Browne‑Wilkinson’s observation that:

“it is at least probable that the matter would then be taken to Strasbourg. That court, applying its decision in Osman if it considers it to be correct, would say that we had deprived the plaintiff of his right to have the balance struck between the hardship suffered by him and the damage to be done to the public interest in the present case if an order were to be made against the defendant council. In the present very unsatisfactory state of affairs, and bearing in mind that under the Human Rights Act 1998 Article 6 will shortly become part of English law, in such cases as these it is difficult to say that it is a clear and obvious case calling for striking out.”

Mr Moon, for the defendants, accepted that in light of Barrett they could no longer rely, at the strike‑out stage, on the argument that it was not fair, just and reasonable to impose a duty of care. That third limb of Caparo had to be determined on facts established at trial if the matter got that far.

However, the Court held that the decisions in Barrett and Osman did not affect the separate question of proximity. Neither case had involved an issue of proximity, and Osman in particular endorsed the use of a proximity test as a threshold requirement, distinct from blanket immunities.

Stuart‑Smith LJ noted the Strasbourg Court’s approval of the proximity test in the police context, citing paragraph 142 of the Osman judgment:

“Furthermore, the combined effect of the strict tests of proximity and foreseeability provided limitation enough to prevent untenable cases ever reaching a hearing and to confine liability to those cases where the police have caused serious loss through truly negligent actions.”

and paragraph 157:

“It is to be noted that in the instant case Lord Justice McCowan appeared to be satisfied that the applicants, unlike the plaintiff Hill, had complied with the proximity test, a threshold requirement which is in itself sufficiently rigid to narrow considerably the number of negligence cases against the police which can proceed to trial.”

Thus the Court rejected the submission that Barrett required issues of proximity to be left for trial: proximity remained a point of law which, in a clear case, could properly found a strike‑out.

Proximity between defendants and Rosie / Mrs Palmer

The judge below had held that where a defendant is alleged to be responsible, by negligence, for the actions of a third party, a duty arises only if the victim is within a “special or exceptional or distinctive category of risk” from that third party, and that it is not enough that the victim is one of a wide class of the general public.

On appeal, the Court upheld that approach, drawing heavily on Dorset Yacht Co v Home Office and Hill v Chief Constable of West Yorkshire.

Stuart‑Smith LJ contrasted mechanical causation with human intervention, explaining that human behaviour is not ordinarily predictable in the same way as a defective machine. He reproduced Lord Reid’s well‑known passage from Dorset Yacht on intervening human acts:

“These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the “very kind of thing” which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel were the very kind of thing that these Borstal officers ought to have seen to be likely.”

Critical reliance was placed on Hill, a personal injury case involving the “Yorkshire Ripper”. Lord Keith had observed that Miss Hill was:

“one of a vast number of the female general public who might be at risk from his activities but was at no special distinctive risk in relation to them, unlike the owners of yachts moored off Brownsea Island in relation to the foreseeable conduct of the Borstal boys.”

and concluded that:

“The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police.”

Applying these principles, the Court held that the crucial deficiency in Palmer’s case was the absence of any relationship between the defendants and Rosie (or her mother). Rosie was neither identified nor identifiable as being at particular risk from Armstrong, beyond being a child resident in the community. She therefore fell within the general class of potential victims rather than any special, distinctive category.

The Court distinguished or declined to follow Holgate v Lancashire Mental Hospital Board, noting that it was decided at a time when the elements of duty of care were less clearly defined and could not be reconciled with Hill on proximity.

Stuart‑Smith LJ added that, in the psychiatric context, effective preventive measures often revolve around warning potential victims or those responsible for them. If victims are unidentifiable, such warnings cannot be given, and statutory limits on detention and treatment under the Mental Health Act constrain what clinicians can do. These considerations reinforced the conclusion that it would be unwise to hold that sufficient proximity existed where only the broad public at large was at risk.

Accordingly, the Court upheld the judge’s finding that there was no proximity between the defendants and Rosie, and so no duty of care was owed to her. As Mrs Palmer’s personal claim depended on a duty owed to Rosie, her claim also failed on that basis.

Nervous shock (psychiatric injury) claim

Although not strictly necessary in light of the finding on proximity, the Court addressed Mrs Palmer’s nervous shock claim. A medical report from Dr M. D. Beary stated that she was suffering from post‑traumatic stress disorder and a pathological grief reaction. The onset of illness began when she realised Rosie was missing and imagined what had happened, continuing through to identification of the body at the mortuary some days later.

Stuart‑Smith LJ recorded that the main requirements for a secondary victim claim were accepted by the claimant, including the need for:

“(b) it resulted from shock, i.e. the sudden appreciation by sight or sound of a horrifying event or events;

(c) there was propinquity in time or space to the accident or its immediate aftermath;”

On the facts, Mrs Palmer did not witness the abduction, assault or discovery of the body. She saw Rosie’s body at the mortuary on 6 or 7 July, which her counsel accepted fell outside the permissible “immediate aftermath” period.

Mr Sherman argued that the shock arose when Mrs Palmer discovered Rosie was missing and imagined she had been abducted and harmed, contending that imagined events can be as powerful as seen events if later confirmed. The Court rejected this contention. Referring to Lord Oliver’s analysis in Alcock v Chief Constable of South Yorkshire, Stuart‑Smith LJ emphasised that the law requires “the sudden appreciation by sight or sound of the horrifying event” and not an elongated process of worry, imagination and later confirmation.

He therefore concluded that Mrs Palmer did not satisfy the control mechanisms for recovery as a secondary victim: her illness arose from a developing process of anxiety and grief rather than a qualifying shock within the necessary spatial and temporal proximity to the accident or its immediate aftermath.

Concurring judgments

Pill LJ delivered a substantial concurring judgment, analysing in depth the relationship between the three Caparo elements. He accepted that considerations of fairness, justice and reasonableness inform the assessment of proximity, but reaffirmed that proximity remains a threshold requirement capable of being decided on strike‑out:

“the proximity test is “a threshold requirement”. It is a “threshold requirement which is in itself sufficiently rigid to narrow considerably the number of negligence cases against the police which can proceed to trial.””

He regarded Dorset Yacht and Hill as binding authority that, where loss is caused by a third party’s criminal acts, the identity of the victim and their membership of a special class exposed to distinctive risk are important factors in satisfying proximity. On the facts, Rosie did not pass this threshold. Pill LJ agreed that Holgate could not sustain an arguable case and that Mrs Palmer could not bring herself within the ambit of those who can recover for psychiatric injury.

Thorpe LJ agreed with Stuart‑Smith LJ without adding separate reasoning.

Implications

This decision confirms and applies the Hill/Dorset Yacht line of authority in a healthcare context. Where negligence is alleged in the management of dangerous individuals, public authorities and clinicians will not ordinarily owe a duty of care to members of the public at large, even if serious harm to some unidentified person or class (e.g. children in general) is foreseeable. Proximity is not satisfied unless the victim is identified or falls within a narrow, distinctive class exposed to exceptional risk.

The Court also clarifies the interaction between Barrett, Osman and domestic negligence law. While Barrett undermines the use of broad policy-based strike‑outs under the “fair, just and reasonable” limb of Caparo, it does not prevent courts from striking out claims where, on assumed facts, the legal requirement of proximity is clearly not met. Proximity remains a threshold question of law.

On psychiatric injury, the case re‑affirms the strict control mechanisms for secondary victims laid down in Alcock. Grief, anxiety and imagined horrors, even when later confirmed, do not constitute the necessary “shock” unless tied to the sudden perception by sight or sound of the traumatic event or its immediate aftermath within a narrow temporal and spatial window.

Overall, Palmer v Tees Health Authority & Anor is significant for practitioners advising on potential liability of health authorities and others in respect of violent acts by third parties, and for those litigating secondary victim claims arising from such tragedies. It underlines the high hurdles posed by proximity and the nervous shock rules, notwithstanding powerful moral and emotional claims.

Verdict: Appeal dismissed; the claim was struck out for disclosing no cause of action, and permission to appeal to the House of Lords was refused.

Source: Palmer v Tees HA [1999] EWCA Civ 1533