Palmer v Tees Health Authority & Anor

On a strike-out application, proximity remains a threshold requirement in negligence. The court may decide that issue on the pleaded facts where they do not arguably establish the necessary relationship between claimant and defendant. Foreseeability alone does not ordinarily create proximity where a conscious and voluntary act by a third party intervenes. In such cases, the victim’s identification or membership of a special and distinctive risk category is an important consideration. The gravity of alleged negligence does not create a separate standard of gross negligence or justify extending established proximity principles by proportionality. A secondary victim must show a recognised psychiatric illness caused by a sudden appreciation through sight or sound of a horrifying event, with sufficient temporal or spatial proximity. Imagination of an event, later confirmed, is insufficient.

The claimant appealed against the dismissal of her claim and the striking out of her statement of claim. Her four-year-old daughter had been murdered by a psychiatric patient who had previously been treated by the defendants. The claim alleged negligent assessment, treatment and discharge of the patient, and sought damages for the child’s death and for the claimant’s psychiatric injury.

Gage J upheld the master’s order under RSC Order 18, rule 19, holding that there was insufficient proximity and that it was not fair, just and reasonable to impose a duty of care. The appeal concerned whether Barrett v London Borough of Enfield prevented determination of proximity on a strike-out application, whether proximity existed between the defendants and the child, and whether the claimant qualified as a secondary victim.

1. Appeal dismissed. The order striking out the claim was upheld, with costs. Permission to appeal to the House of Lords was refused.
2. Stuart-Smith LJ held that Barrett v London Borough of Enfield concerned policy or operational negligence and did not prevent the court deciding proximity on assumed facts. The third limb of the Caparo Industries plc v Dickman test could not support strike-out in the light of Osman v United Kingdom, but proximity remained a threshold requirement which could be determined summarily.
3. Where harm is caused through the conscious and voluntary act of a third party, reasonable foreseeability alone is insufficient. The authorities required a relationship exposing the claimant to a special or distinctive risk, rather than the general risk shared by the public. The identity or identifiability of the victim was an important factor. The pleaded facts did not establish proximity between the defendants and the child. Holgate v Lancashire Mental Hospital Board could not be reconciled with Hill v Chief Constable of West Yorkshire.
4. The alleged seriousness of the negligence did not justify a proportionality-based extension of proximity. English tort law did not recognise gradations of negligence, although culpability and causal potency might matter for contribution or contributory negligence.
5. The claimant was a secondary, not a primary, victim. Although psychiatric illness, foreseeability and the close relationship with the child were arguable or established, the claimant had not experienced the necessary sudden appreciation by sight or sound of the horrifying event. Her condition began when she realised that the child was missing and imagined what had happened. Later confirmation did not satisfy the requirement.
6. Pill LJ agreed that proximity could be assessed with regard to fairness, justice and reasonableness, while remaining a threshold issue capable of strike-out. He nevertheless agreed that the pleaded facts failed to establish the necessary relationship and that the psychiatric-injury claim also failed. Thorpe LJ agreed with Stuart-Smith LJ.

• Court of Appeal (Civil Division): appeal from the decision of Gage J dated 8 April 1998, which upheld the master’s order striking out the claim under RSC Order 18, rule 19. Appeal dismissed with costs.