England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 98/0577/1

IN THE COURT OF APPEAL (CIVIL DIVISION )

(MR JUSTICE GAGE )

Royal Courts of Justice

Strand, London W2A 2LL

Friday 2nd June 1999

B e f o r e

BEVERLEY PALMER Appellant

(Administratrix of the estate of

Rose Frances Palmer)

v.

(1) TEES HEALTH AUTHORITY

(2) HARTLEPOOL AND EAST DURHAM NHS TRUST

Respondents

(Transcript of the handed down judgment

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 421 4040 Fax: 404 1424

Official Shorthand Writers to the Court)

MR ROBERT L. SHERMAN (instructed by Messrs Cunningham, John & Co, Thetford, Norfolk) appeared on behalf of the Appellant (Claimant).

MR ANGUS MOON (instructed by Messrs Eversheds, Newcastle upon Tyne) appeared on behalf of the Respondents (Defendants).

(As approved by the court)

1. This is an appeal from a judgment of Gage J. given on 8 April 1998 in which he dismissed an appeal from an order of Master Hodgson striking out the Claimant’s claim as disclosing no cause of action pursuant to RSC Order 18, Rule 19. The action is brought on the Claimant’s own behalf and as executrix of her daughter Rosie Palmer (‘Rosie’).

2. The facts pleaded in the Statement of Claim which, for the purpose of the application to strike out and this appeal, must be taken to be true, are these: On 30 June 1994 a man called Armstrong abducted, sexually assaulted and murdered Rosie who was aged 4. After he had murdered her he mutilated her body. The Claimant alleged that Armstrong was a man with a history of childhood sexual abuse by his mother and neglect by the authorities charged with his protection and care. At the age of 16 he had come to the attention of various authorities and had been diagnosed as a very disturbed boy. However, no action had been taken by these authorities to address his problems.

3. It is said that between 1992 and June 1993 Armstrong had attempted suicide on five occasions. He was accused of sexual abuse and had a drink and drugs problem. He 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.

4. The Defendants and their predecessors were responsible for the administration and management of Hartlepool General Hospital (‘the Hospital’) and for the provision of medical and nursing services, including psychiatric care and care in the community. It is alleged that between March 1992 when the Defendants became involved with him for the first time, and July 1994, Armstrong was under the care of the Defendants’ medical and nursing staff and was variously diagnosed or recorded as suffering from personality disorder or psychopathic personality. In Further and Better Particulars it is said that he was last admitted to the Hospital as an in-patient in June 1993. He was discharged on 21 June 1993 but remained an out-patient. He was last seen in out-patients on 3 February 1994, with a further appointment for 5 May which he failed to attend.

5. It is alleged that the Defendants ‘failed to diagnose that there was a real, substantial and foreseeable risk of Armstrong committing serious sexual offences against children and of causing serious bodily injury to any child victims’. As a consequence, they ‘failed to provide any adequate treatment for Armstrong to reduce the risk of him committing such offences, and/or to prevent him from being released from the Hospital or some other appropriate institution whilst he was at risk of committing such offences’.

6. The offences committed by Armstrong are said to have been caused by the negligence of the Defendants. A large number of particulars of negligence are alleged. It is sufficient to summarise them. It is said that the Defendants failed to take a proper history from Armstrong, to pay regard to the fact that on his first admission he said that he had been involved in two incidents of violence, to verify his history with the police or social services, to have regard to the fact that he was the product of incest and subjected to sexual abuse, to carry out a proper assessment of his mental condition on his various admissions to hospital, to keep proper records, including matters Armstrong was said to have told student nurses. It is said that they caused or permitted him to be discharged from Hospital when they should not have done. Paragraph 5(K) of the Statement of Claim alleges comprehensively:

"In the premises, failing to carry out any or any adequate assessment of Armstrong’s mental condition throughout his various admissions and/or to record and obtain relevant details and information necessary to enable a proper diagnosis of his mental condition to be made and/or to provide any or any adequate treatment and/or to make any or any adequate evaluation of the risk that Armstrong posed to others."

7. The claim in respect of Rosie is for damages for bereavement and funeral expenses. So far as the Claimant’s personal claim is concerned, it is said that she suffers a severe post-traumatic stress disorder and pathological grief reaction. I shall have to refer in more detail to the facts pleaded in relation to this claim when I consider whether, even if there was a duty of care owed to Armstrong’s primary victim Rosie, the Claimant’s condition is one in respect of which the law awards damages.

8. The Defendants applied to strike out the Statement of Claim as disclosing no cause of action. They contended that they owed no duty of care either to Rosie or the Claimant; and that even if they owed a duty of care to Rosie on the pleaded facts, the Claimant could not bring herself within the limits of secondary victim suffering psychiatric injury which the law regards as compensatable. The judge acceded to both these submissions. It was not disputed that the injuries to Rosie and the Claimant were arguably foreseeable; but the judge held that there was no sufficient proximity between the Defendants and Rosie or the Claimant, and that it was not fair, just and reasonable to impose a duty of care upon the Defendants. Accordingly the second and third requirements for the existence of a duty laid down in Caparo Industries plc v Dickman [1990] 2 AC 605 were not satisfied.

9. The Appellant’s Submissions

First, Mr Sherman submits that the recent decision of the House of Lords in Barrett v London Borough of Enfield (unreported transcript 17 June 1999) has effected a sea-change in the Court’s approach to striking out claims on the basis that the facts pleaded do not give rise to a duty of care owed by the Defendant to the Claimant. He submits that the three Caparo requirements of foreseeability, proximity and the need for it to be fair, just and reasonable to impose a duty of care, are all facets of the same thing. The Barrett decision has effectively made it impossible for courts to hold as a matter of law that the requirement of proximity is not established on the pleaded facts. The requirement of proportionality must, he says, be considered; and if the alleged negligence is very gross then this affects the question of proximity. Therefore he submits, following Barrett, the Court should wait until the facts are found by the trial judge so that the appropriate balancing act can be achieved. He also submitted that the second ground upon which the judge struck out the action, namely that it was not just, fair and reasonable to impose a duty of care on the Defendants cannot now be decided on a strike out application.

10. Secondly, Mr Sherman submits that in cases of personal injury as opposed to economic loss, the question of proximity is satisfied if there is reasonable foreseeability, accordingly it is not necessary to have an identified or identifiable victim. It is sufficient that the injury of the type sustained was reasonably foreseeable.

11. The effect of the Barrett decision

The Claimant, who had been in the care of the Defendant local authority for many years, claimed damages for personal injury arising out of the negligence of the authority. He claimed that the authority had failed to exercise proper care to protect him from physical, emotional, psychiatric or psychological injury, to provide him with an education and home where his safety would be secured and monitored. He alleged that social workers who looked after him were under a similar duty. He alleged breaches of duty with the result that he suffered deep-seated psychological and psychiatric problems. The Court of Appeal struck out the claim on two grounds. The first was that although social workers could be operationally negligent towards a child in their care, and a local authority could then be held vicariously liable for their actions, it would not be possible to attribute the Plaintiff’s psychological and psychiatric problems to any single incident while he was in care and that therefore the Plaintiff had to rely on the general course of conduct of the local authority and its social worker in exercising the discretion granted to them by statute which would not be actionable. Secondly, it would not be fair, just and reasonable to impose a duty of care on an authority or its social workers when exercising their discretion in making their decisions. Accordingly, there was no arguable prospect of success and the action should be struck out.

12. The House of Lords reversed the decision on both grounds. As to the first ground, the House held that it was necessary first to establish the facts and determine whether any breach fell into the area of policy/discretion which would not be justiciable or whether it was operational negligence in the discharge of their duties to the Claimant. The latter would be actionable. It would then be a question of causation, which is a question of fact, whether those breaches caused or materially contributed to the Appellant’s condition.

13. In my judgment this ground has no bearing on the present appeal. There is no question in the present case of the Defendants relying on the policy/discretion argument to say that they are not under a duty breach of which is actionable. I regret that I have not followed Mr Sherman’s argument that somehow this basis of the decision affects the argument on proximity so that the Court cannot decide this point on the assumed and pleaded facts without the matter going to trial. Moreover, in Barrett’s case there was no issue on proximity; the Appellant was in the Defendant’s care.

14. In allowing the appeal on the second ground the House of Lords gave effect to the decision of the European Court of Human Rights in Osman v United Kingdom (28 October 1998). I respectfully agree with Lord Browne-Wilkinson that it is not easy to understand the decision of the Strasbourg Court in the context of the English law of negligence. The effect of the decision is summarised by Lord Browne-Wilkinson at p5 as follows:

"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."

And at p6 he said:

"In view of the decision in Osman it is now difficult to foretell what would be the result in the present case if we were to uphold the striking out order. It seems to me 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."

15. Mr Moon, on behalf of the Defendants, accepts that this part of their Lordships’ decision in Barrett makes it impossible to sustain the second ground of Gage J’s decision in the present case, namely that it is not fair, just and reasonable to impose a duty of care. This will have to be decided once the facts are established, if the case gets that far. The situation can only be regarded as less than satisfactory, because on a strike out application the Court is required to accept the facts as pleaded, and it is therefore difficult to see how they can be any better from the Claimant’s point of view. Moreover, the Court can only strike out in a clear and obvious case. Other than this Mr Moon submits that the decision in Barrett and Osman have no bearing on the issue in the present appeal, namely the question of proximity. In neither of those cases did any question of proximity arise.

16. Mr Sherman submitted that since the three stages in the Caparo approach have sometimes been described as ‘facets of the same thing’ and that there may be overlaps between them, the same approach as the House of Lords adopted in Barrett to the third requirement should also be adopted to the question of proximity. In Caparo Lord Oliver, after referring to the cases of Donoghue v Stevenson [1932] AC 562 and Hedley Byrne v Heller [1964] AC 465, said at p633:

"Thus the postulate of a simple duty to avoid any harm that is with hindsight, reasonably capable of being foreseen becomes untenable without the imposition of some intelligible limits to keep the law of negligence within the bounds of common sense and practicality. Those limits have been found by the requirement of what has been called a “relationship of proximity” between plaintiff and defendant and by the imposition of a further requirement that the attachment of liability for harm which has occurred be “just and reasonable”. But although the cases in which the courts have imposed or withheld liability are capable of an approximate categorisation, one looks in vain for some common denominator by which the existence of the essential relationship can be tested. Indeed it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible. “Proximity” is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists."

17. In Marc Rich v Bishop Rock Ltd [1996] 1 AC 211 at p235, Lord Steyn cited with approval what was said by Saville LJ:

“whatever the nature of the harm sustained by the plaintiff, it is necessary to consider the matter not only by inquiring about foreseeability but also by considering the nature of the relationship between the parties; and to be satisfied that in all the circumstances it is fair, just and reasonable to impose a duty of care. Of course...these three matters overlap with each other and are really facets of the same thing. For example, the relationship between the parties may be such that it is obvious that a lack of care will create a risk of harm and that as a matter of common sense and justice a duty should be imposed...Again in most cases of the direct infliction of physical loss or injury through carelessness, it is self-evident that a civilised system of law should hold that a duty of care has been broken, whereas the infliction of financial harm may well pose a more difficult problem. Thus the three so-called requirements for a duty of care are not to be treated as wholly separate and distinct requirements but rather as convenient and helpful approaches to the pragmatic question whether a duty should be imposed in any given case. In the end whether the law does impose a duty in any particular circumstances depends upon those circumstances..."

18. Mr Sherman also relied on dicta from Dorset Yacht Co v Home Office [1970] AC 1004. Thus Lord Reid at p1032F said:

"Finally I must deal with public policy. It is argued that it would be contrary to public policy to hold the Home Office or its officers liable to a member of the public for this carelessness - or, indeed, any failure of duty on their part. The basic question is: who shall bear the loss caused by that carelessness - the innocent respondents or the Home Office, who are vicariously liable for the conduct of their careless officers?"

And Lord Morris of Borth-y-Gest at p1039B said:

"Apart from this I would conclude that, in the situation stipulated in the present case, it would not only be fair and reasonable that a duty of care should exist but that it would be contrary to the fitness of things were it not so. I doubt whether it is necessary to say, in cases where the court is asked whether in a particular situation a duty existed, that the court is called upon to make a decision as to policy. Policy need not be invoked where reason and good sense will at once point the way. If the test as to whether in some particular situation a duty of care arises may in some cases have to be whether it is fair and reasonable that it should so arise, the court must not shrink from being the arbiter."

In my judgment these passages, as Lord Morris really makes clear, are relevant to the consideration of whether it is fair, just and reasonable to impose the duty, not to questions of proximity. The three stage test adopted by the House of Lords in Caparo had not been articulated until that case.

19. Mr Sherman also cited from the case of Lamb v Camden Council [1981] 1 QB 625. At p636 Lord Denning MR said:

"The truth is that all these three - duty, remoteness and causation - are all devices by which the courts limit the range of liability for negligence or nuisance. As I said recently, in Compania Financiera “Soleada” SA v Hamoor Tanker Corporation Inc . [1981] I WLR 274, 281E-F. “...it is not every consequence of a wrongful act which is the subject of compensation. The law has to draw a line somewhere.” Sometimes it is done by limiting the range of the persons to whom duty is owed. Sometimes it is done by saying that there is a break in the chain of causation. At other times it is done by saying that the consequence is too remote to be a head of damage. All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide."

No doubt the rules that govern liability, whether they are decided by Parliament or judicial precedent, are influenced by policy. But once rules are established, it is not open to the courts to extend the accepted principles of proximity simply because the facts of a given case are particularly horrifying or heart-rending. Nor in my view is Mr Sherman correct in submitting that those principles can be extended by some notion of proportionality based on the gravity of the negligence alleged or proved. In establishing liability in tort there are no gradations of negligence and the notion of gross negligence is not recognised; though culpability and causal potency are relevant in assessing apportionment for contributory negligence or between tortfeasors.

20. In my judgment it is implicit in the judgment of the Strasbourg Court in Osman that it is appropriate to strike out actions on the grounds that in law proximity is not established. At paragraph 142 the Court refers to the applicant’s submission:

"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."

This submission was accepted. At paragraph 157 the Court said:

"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."

This appears to me to be an endorsement of the decision in Hill v Chief Constable of West Yorkshire [1989] AC 53 in so far as it was based on absence of proximity.

21. For these reasons I reject Mr Sherman’s first submission that Barrett’s case has the effect of requiring the issue of proximity to be tried.

22. Was the judge right to hold that on the facts there was no proximity between the Defendants and Rosie or the Claimant? Basing himself on the Dorset Yacht case and Hill’s case the judge held that:

"in cases where it is alleged that a defendant by his negligence is responsible for the actions of a third party it must be shown that the victim or injured person was one who came into a special or exceptional or distinctive category of risk from the activities of the third party. It is not sufficient to show that the victim or injured party was one of a wide category of members of the general public."

He held that the potential victim was not identified or identifiable.

23. In the Court below Mr Sherman argued that the fact that Rosie and the Claimant lived in the same street as Armstrong was sufficient to establish proximity. But he did not rely on this argument before us. Instead he challenged the judge’s conclusion stated in the last paragraph. He submitted that in cases of personal injury, it was sufficient that the injury was foreseeable. He relied upon the two passages already cited in paragraphs 16 and 17 above from Lord Oliver’s speech in Caparo and Lord Steyn’s speech in Marc Rich approving Saville LJ. But in my opinion the judges, in making those statements, did not have in mind the situation which exists here where there is the interposition of the conscious and voluntary act of a third party.

24. Mr Sherman posed the example of a car mechanic who negligently failed to adjust the brakes of his customer’s car, so that it went out of control and killed a psychiatrist’s child. Liability would be established because there is sufficient proximity, even though the child was unidentified or unidentifiable, and is merely one of a large class of potential victims. If the psychiatrist negligently failed to diagnose, treat or restrain a psychopathic murderer who killed the mechanic’s child why, asks Mr Sherman, should the psychiatrist not be equally liable?

25. The answer to Mr Sherman’s question is that a defective machine or mechanical device will behave in a predictable way depending on the laws of physics and mechanics. But a human being will not, save in readily predictable circumstances. Lord Reid said in Dorset Yacht at p1030A:

"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."

This passage must be read in the context of the facts in that case that the plaintiff was one of a small readily identifiable class of yacht owners whose vessels were moored close by the borstal boys’ camp. The boys had a record of escaping and any escape from the island inevitably required the use of a boat. The plaintiff’s boat was readily to hand.

26. Lord Diplock said at p1070-1071 in the Dorset Yacht case:

"The risk of sustaining damage from the tortious acts of criminals is shared by the public at large. It has never been recognised at common law as giving rise to any cause of action against anyone but the criminal himself. It would seem arbitrary and therefore unjust to single out for the special privilege of being able to recover compensation from the authorities responsible for the prevention of crime a person whose property was damaged by the tortious act of a criminal merely because the damage to him happened to be caused by a criminal who had escaped from custody before completion of his sentence instead of by one who had been lawfully released or who had been put on probation or given a suspended sentence or who had never been previously apprehended at all. To give rise to a duty on the part of the custodian owed to a member of the public to take reasonable care to prevent a Borstal trainee from escaping from his custody before completion of the trainee’s sentence there should be some relationship between the custodian and the person to whom the duty is owed which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts of others which he shares with all members of the public.

What distinguishes a Borstal trainee who has escaped from one who has been duly released from custody is his liability to recapture, and the distinctive added risk which is a reasonably foreseeable consequence of a failure to exercise due care in preventing him from escaping is the likelihood that in order to elude pursuit immediately upon the discovery of his absence the escaping trainee may steal or appropriate and damage property which is situated in the vicinity of the place of detention from which he has escaped.

So long as Parliament is content to leave the general risk of damage from criminal acts to lie where it falls without any remedy except against the criminal himself the courts would be exceeding their limited function in developing the common law to meet changing conditions if they were to recognise a duty of care to prevent criminals escaping from penal custody owed to a wider category of members of the public than those whose property was exposed to an exceptional added risk by the adoption of a custodial system for young offenders which increased the likelihood of their escape unless due care was taken by those responsible for their custody.

I should therefore hold that any duty of a Borstal officer to use reasonable care to prevent a Borstal trainee from escaping from his custody was owed to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture. Whether or not any person fell within this category would depend upon the facts of the particular case including the previous criminal and escaping record of the individual trainee concerned and the nature of the place from which he escaped."

It should be noted that in this passage Lord Diplock draws a distinction between an escaped prisoner and one who is released. In the present case the allegation is one of release or failure to detain.

27. But the critical decision is that of Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 which is a case concerned with personal injury. Lord Keith of Kinkel, with whose speech the other members of the House agreed, after citing the passage of Lord Diplock’s speech just referred to said:

"The Dorset Yacht case was concerned with the special characteristics or ingredients beyond reasonable foreseeability of likely harm which may result in civil liability for failure to control another man to prevent his doing harm to a third. The present case falls broadly into the same category. It is plain that vital characteristics which were present in the Dorset Yacht case and which led to the imposition of liability are here lacking. Sutcliffe was never in the custody of the police force. 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. It appears from the passage quoted from the speech of Lord Diplock in the Dorset Yacht case that in his view no liability would rest upon a prison authority, which carelessly allowed the escape of an habitual criminal, for damage which he subsequently caused, not in the course of attempting to make good his getaway to persons at special risk, but in further pursuance of his general criminal career to the person or property of members of the general public. The same rule must apply as regards failure to recapture the criminal before he had time to resume his career. In the case of an escaped criminal his identity and description are known. In the instant case the identity of the wanted criminal was at the material time unknown and it is not averred that any full or clear description of him was ever available. The alleged negligence of the police consists in a failure to discover his identity. But if there is no general duty of care owed to individual members of the public by the responsible authorities to prevent the escape of a known criminal or to recapture him, there cannot reasonably be imposed upon any police force a duty of care similarly owed to identify and apprehend an unknown one. Miss Hill cannot for this purpose be regarded as a person at special risk simply because she was young and female. Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of an habitual burglar, and all females those of an habitual rapist. 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."

While there are of course differences between Hill’s case and the present, that was a case of the police and not psychiatrists, and the identity of the offender was unknown, the crucial point is that there is no relationship between the Defendant and the victim.

28. Mr Sherman relied on the case of Holgate v Lancashire Mental Hospital Board [1937] 4 All ER 19. The facts bear a striking resemblance to those in the present case. L was a defective who had been convicted of serious crimes and sentenced to detention during His Majesty’s pleasure. In due course he was transferred to the defendant’s institution. He was allowed out on licence without any proper inquiry being made, and the licence was subsequently extended. During the period of his extended licence L visited the plaintiff’s house and savagely assaulted her. The action was tried by a jury and the report contains the summing-up of Lewis J. It appears to have been assumed that the Defendants owed a duty of care to the Plaintiff. The summing-up is concerned only with the issue of want of care. It can be said that this decision received some qualified support from Lord Morris in the Dorset Yacht case (see p1040-1041) and even more qualified support from Lord Reid (p1031H). But Lord Diplock reserved his opinion as to its correctness. The other two members of the House did not mention it. The case occurred at a time when the essential elements of a duty of care were much less clearly defined than is the position today. In my judgment the case cannot be reconciled with Hill on the question of proximity.

29. Mr Sherman referred to a number of American cases. In Peterson v State of Washington (1983) 671 Pacific Reports 2nd Series 230, the Supreme Court of Washington held in somewhat similar circumstances that a duty was owed to an unidentified and unidentifiable victim. But the case proceeds on the premise that it is sufficient that there is a special relationship between the defendant and either the third party or the foreseeable victims. In English law it is plainly not sufficient that this relationship exists only between the defendant and third party, Armstrong in this case. That case was followed in the same Court in Taggart v State of Washington (1992) 822 Pacific Reports 243.

30. But different conclusions were reached in the Supreme Court of California ( Tarasoff v Regents of University of California (1976) 551 P2d 334, where the court held that there was a duty to warn an identified victim, but by implication no duty to do so where the victim is unidentifiable. Thompson v County of Almeda 614 P2d 728) and the Federal Court of Appeals 10th Circuit ( Brady v Hopper 751 F2d 329). In these cases actions brought by unidentified or unidentifiable victims failed.

31. Mr Moon submitted that in order for there to be proximity there had to be an assumption of responsibility to the victim and there was clearly none in this case. He submitted that except in the conventional case of personal injury such as accidents involving traffic, employers or occupiers liability, the test of assumption of responsibility is the appropriate one for determining proximity. This test has undoubtedly been used not only in cases of economic loss, but also cases involving physical damage to property and personal injury, including cases of failure to diagnose and treat appropriately a congenital condition (see X (Minors) v Bedfordshire County Council [1995] AC 633 at p752-753 per Lord Browne-Wilkinson referring to a psychiatrist advising a local authority or doctor reporting to insurers; Capital and Counties plc v Hampshire CC [1997] QB 1004 (the Fire Brigade case) 1035-1036; Phelps v Hillingdon London Borough Council [1999] 1 WLR 500 at p514H, an educational psychologist advising a local education authority). But these are all cases where there is a direct contact between the claimant and defendant, but there is no assumption of responsibility or undertaking by the defendant to treat or advise the claimant. I would wish to reserve my opinion as to whether it would be an appropriate test if the victim in such a case as this was identified or identifiable, as for example a child in the household of the abuser.

32. An additional reason why in my judgment in this case it is at least necessary for the victim to be identifiable (though as I have indicated it may not be sufficient) to establish proximity, is that it seems to me that the most effective way of providing protection would be to give warning to the victim, his or her parents or social services so that some protective measure can be made. As Mr Moon pointed out, the ability to restrict and restrain a psychiatric patient is subject to considerable restriction under the Mental Health Act 1985 (see particularly s.3) and are not unlimited in time. Moreover treatment, especially drug treatment of the patient, depends on his or her co-operation when an out-patient, and is limited when an in-patient. It may be a somewhat novel approach to the question of proximity, but it seems to me to be a relevant consideration to ask what the defendant could have done to avoid the danger, if the suggested precautions i.e. committal under s.3 of the Mental Health Act or treatment are likely to be of doubtful effectiveness, and the most effective precaution cannot be taken because the defendant does not know who to warn. This consideration suggests to me that the Court would be unwise to hold that there is sufficient proximity.

33. For these reasons I would uphold the judge’s conclusion that there is no proximity between the Defendants and Rosie. The claim in respect of her injury and death must fail and so must the Claimant’s brought on her own behalf. It is not therefore strictly necessary to consider the second point, namely whether the Claimant can bring herself within the ambit of those who can recover damages for psychiatric injury. But since the judge decided the case against the Claimant on this ground as well and the matter has been fully argued, I will state my conclusions as shortly as possible.

34. Served with the Statement of Claim was a medical report from Doctor M. D. Beary, a consultant psychiatrist. It was his opinion that the Claimant was suffering from post-traumatic stress disorder and a pathological grief reaction. It is quite clear from his report that the onset of the condition started as soon as the Claimant realised that Rosie was missing, when she began to imagine what had happened to her. That was on 30 June 1994. She suffered from visions and nightmares almost immediately. Rosie’s body was found in Armstrong’s house on 3 July. Mrs Palmer was not allowed to see the body being removed from the house, but she evidently knew that it had been discovered there. She attended the mortuary on 6 or 7 July to identify the body. There is no doubt that Rosie’s death has had a devastating effect on Mrs Palmer, so much so that when this appeal was first due to be heard, the Court had to make an order for the Official Solicitor to carry on the appeal, as Mrs Palmer was not capable of managing her affairs. Fortunately her condition has considerably improved and she is now able to carry on with the appeal.

35. Although at one stage Mr Sherman suggested that the Claimant was a primary victim, he did not seriously argue the point; in my judgment she clearly was not. In his skeleton argument Mr Sherman rightly enunciates the main requirements for establishing a claim for nervous shock by a secondary victim, namely that:

(a) the claimant suffered not merely grief, distress and sorrow but a recognised psychiatric illness; on the basis of Dr. Beary’s report this is satisfied;

(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;

(d) the injury was reasonably foreseeable; it is accepted for the purpose of this appeal by Mr Moon that is arguable;

(e) the relationship between the victim and the defendant is sufficiently proximate; I have held that it is not; and

(f) the relationship between the claimant and the victim is sufficiently close; this is obviously established.

The dispute relates to (b) and (c).

36. It was not until 6/7 July that Mrs Palmer saw the body and Mr Sherman accepts that this is outside the period in respect of which a claim for damages for nervous shock can succeed. But he submits that the fear was simultaneous with the realisation that Rosie was missing and Mrs Palmer instantly imagined that she had been abducted. Mr Sherman said that what is not seen, but is imagined, is as powerful as what is seen, if it is subsequently confirmed by what actually happened. I cannot however accept that what occurs in the imagination is the same thing as the sudden appreciation by sight or sound of the horrifying event. Lord Oliver of Aylmerton dealt with this problem in Alcock v Chief Constable of S. Yorkshire [1992] 1 AC 310 at p417. He said:

"..but in each case other than those of Brian Harrison and Robert Alcock, who were present at the ground, the plaintiff learned of the death of the victim at second-hand and many hours later. As I read the evidence, the shock in each case arose not from the original impact of the transmitted image which did not, as has been pointed out, depict the suffering of recognisable individuals. These images provided no doubt the matrix for imagined consequences giving rise to grave concern and worry, followed by a dawning consciousness over an extended period that the imagined consequence had occurred, finally confirmed by news of the death and, in some cases, subsequent visual identification of the victim. The trauma is created in part by such confirmation and in part by the linking in the mind of the plaintiff of that confirmation to the previously absorbed image. To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But, as I shall endeavour to show, the law in this area is not wholly logical and whilst having every sympathy with the plaintiffs, whose suffering is not in doubt and is not to be underrated, I cannot for my part see any pressing reason of policy for taking this further step along a road which must ultimately lead to virtually limitless liability.”

37. While therefore it is impossible not to have the deepest sympathy for Mrs Palmer for this truly appalling catastrophe, it seems to me that her appeal must fail on both grounds.

It is accepted on behalf of the defendants that the striking out of the present action upon the basis of the third part of the test propounded in Caparo Industries plc v Dickman & Ors [1990] 2 AC 605, namely that it is not fair, just and reasonable to impose a duty of care, cannot be sustained in the light of the decision of the House of Lords in Barrett v London Borough of Enfield (The Times, 18 June 1999). For the plaintiff, Mr Sherman submits that, because a determination of what is fair, just and reasonable is also necessary to determine whether proximity is established under the Caparo test, the application to strike out should fail on the same basis. Proximity did not arise as an issue in Barrett or in Osman v United Kingdom (28 October 1998), a decision of the European Court of Human Rights which weighed heavily upon the decision in Barrett.

The Caparo test, to be applied when considering whether a duty of care exists, was again approved in Barrett. The test was succinctly stated by Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 at 345:

“We must consider the ultimate question from three perspectives, namely (a) foreseeability of the harm that ensues, (b) the nature of the relationship between the parties, usually called the element of proximity, and (c) the question whether it is fair, just and reasonable that the law should impose a duty of care.”

Having considered the speech of Lord Atkin in Donoghue v Stevenson [1932] AC 562, Lord Bridge stated in Caparo (p 618B) that:

“it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.”

Lord Oliver referred (p 633A) to the need to impose “some intelligible limits to keep the law of negligence within the bounds of common sense and practicality”. Lord Oliver continued:

“Those limits have been found by the requirement of what has been called a ‘relationship of proximity’ between the plaintiff and defendant and by the imposition of a further requirement that the attachment of liability for harm which has occurred be ‘just and reasonable’. But although the cases in which the courts have imposed or withheld liability are capable of an approximate categorisation, one looks in vain for some common denominator by which the existence of the essential relationship can be tested. Indeed it is difficult to resist a conclusion that what have been treated as three separate requirements are, at least in most cases, in fact merely facets of the same thing, for in some cases the degree of foreseeability is such that it is from that alone that the requisite proximity can be deduced, whilst in others the absence of that essential relationship can most rationally be attributed simply to the court’s view that it would not be fair and reasonable to hold the defendant responsible. ‘Proximity’ is, no doubt, a convenient expression so long as it is realised that it is no more than a label which embraces not a definable concept but merely a description of circumstances from which, pragmatically, the courts conclude that a duty of care exists.”

I cannot escape the conclusion that, in deciding whether there is in a particular set of circumstances a relationship of proximity, considerations of fairness, justice and reasonableness do arise. Until the decision in Anns v Merton London Borough Council [1978] AC 728 that was assumed. It was in Anns that the concept was introduced, since decisively rejected, that policy may arise only after proximity had been decided. In Anns, Lord Wilberforce stated, at p 751H:

“The question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damages to which breach of it may give rise.”

That approach survives to the extent that general considerations of public policy may arise as a third question ( Hill v Chief Constable of West Yorkshire [1989] AC 53) but what in my judgment has been rejected is the notion that the question whether there is a relationship of proximity can be decided by rote without an assessment of what is fair and reasonable. When, in Caparo, Lord Bridge referred to “convenient labels”, and Lord Oliver to the three separate requirements being “merely facets of the same thing”, they were rejecting the notion that what is fair, just and reasonable can be divorced from a consideration of proximity.

The decision in Hill, on which the respondents rely, does not keep alive a principle that proximity can be decided without regard to what is fair, just and reasonable. Stuart-Smith LJ has set out in his judgment that part of the speech of Lord Keith of Kinkel in which proximity is considered. Lord Keith referred to the “vital characteristics”, which had been present in the Dorset Yacht case ([1970] AC 1004) which were lacking in Hill. The distinction involved consideration of the number of people at risk and whether there was a special distinctive risk. A distinction is also made between an escaped criminal and someone never in the custody of the police. Lord Keith concluded that the circumstances of the case were not capable of establishing a duty of care to the victim. These are evaluations of the circumstances. The circumstances were such, Lord Keith held, that the law should not hold that the relationship of proximity existed.

Lord Keith went on to consider public policy as a separate reason why an action for damages in negligence should not lie. That was a “separate and independent ground for holding that the existence of liability in negligence should not be entertained”. Under that head, Lord Keith referred to a “variety of decisions to be made on matters of policy and discretion” and to the proper use of police manpower and resources. However, the fact that there is a more general head of public policy to be considered, does not remove from a consideration of proximity the need to decide whether it is just, fair and reasonable to find proximity in a particular relationship.

I find the same approach to the question of proximity in Lord Diplock’s speech in the Dorset Yacht case, cited by Stuart-Smith LJ. In considering the limits of “what may be called duty situations”, in that case, Lord Morris, at p 1038 cited the speech of Lord Atkin in Donoghue v Stevenson [1932] AC 562, 580:

“At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of ‘culpa’ is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complaints and the extent of their remedy.”

Lord Morris went on to hold that there was a “special relation” in Dorset Yacht . He stated:

“Apart from this I would conclude that, in the situation stipulated in the present case, it would not only be fair and reasonable that a duty of care should exist but that it would be contrary to the fitness of things were it not so. I doubt whether it is necessary to say, in cases where the court is asked whether in a particular situation a duty existed, that the court is called upon to make a decision as to policy. Policy need not be invoked where reason and good sense will at once point the way. If the test as to whether in some particular situation a duty of care arises may in some cases have to be whether it is fair and reasonable that it should so arise, the court must not shrink from being the arbiter.”

While that passage may have paved the way for the now abandoned formulation in Anns already cited, I do not read it as excluding an assessment of what it fair and reasonable when proximity is considered. Indeed, on the contrary, the formulation is entirely consistent with the Caparo test. Policy may be invoked in appropriate cases but “the fitness of things” and what is “fair and reasonable” is relevant when assessing the nature of the relationship and vice versa.

Lord Nicholls considered the relevance of proximity in Stovin v Wise [1996] AC 923. Lord Nicholls was in the minority in the result in Stovin but his difference from the majority did not turn upon his view as to the meaning of proximity:

“The Caparo tripartite test elevates proximity to the dignity of a separate heading. This formulation tends to suggest that proximity is a separate ingredient, distinct from fairness and reasonableness, and capable of being identified by some other criteria. This is not so. Proximity is a slippery word. Proximity is not legal shorthand for a concept with its own, objectively identifiable characteristics. Proximity is convenient shorthand for a relationship between two parties which makes it fair and reasonable one should owe the other a duty of care. This is only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship of the parties.”

Proximity did not arise as an issue in Barrett, Lord Browne-Wilkinson stating that the requirements of foreseeability and proximity were plainly satisfied on the facts alleged. Nothing in Barrett affects the approach to a decision on proximity which emerges from the earlier cases. Mr Sherman is correct in his submission that what is fair, just and reasonable is relevant to an assessment of proximity but Barrett does not require the transposition of the “blanket exclusionary rule”, condemned in Osman, to the assessment of proximity. Adopting the language of Lord Browne-Wilkinson in Barrett, the Court is not depriving 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”. That overall balance arises when proximity is established and the Court remains the arbiter of whether it is established. The Court may strike out an action if, the facts submitted to it by a plaintiff, do not arguably establish the necessary proximity between the defendant and the plaintiff. In the passages from its judgment which Stuart-Smith LJ has set out, the ECHR has acknowledged that 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.” (Paragraph 157 of judgment).

I respectfully agree with Lord Browne-Wilkinson and Stuart-Smith LJ that the present state of affairs is unsatisfactory. The Strasbourg jurisprudence permits an English court to treat proximity as a threshold requirement, however, and an English court may strike out an action if, applying its judgment to the facts presented by the plaintiff, it concludes that the necessary relationship between the parties is not established. Moreover, while accepting that in most cases the three separate requirements (foreseeability, proximity, policy) are “merely facets of the same thing”, there is a difference between assessing in accordance with principles of fairness and reasonableness whether a special relationship exists, and assessing the more general public policy requirements identified in Hill and expressed by Lord Browne-Wilkinson as the balance between “the hardship suffered by [the plaintiff] and the damage to be done to the public interest”.

Stress has been placed upon the fact that, as in Dorset Yacht , Hill and Osman, the actions of a third party are interposed between those of the defendant and the impact on the victim. For this purpose, the victim Rosie may be treated as the victim though the further question does arise as to the position of her mother, the plaintiff. Mr Moon fairly includes amongst the facts relevant to proximity the fact that the defendants were aware that Armstrong had said that a child would be murdered after he was discharged from hospital. That being so, Mr Sherman draws attention to the injustice which arises if there is a duty of care to an identified victim (or identified by narrow category as in Dorset Yacht ) but no duty of care when threats, even very serious ones, are made against an unidentified person or group.

The duty upon the defendant ought not to depend, it is submitted, upon whether a victim is identified. In Thompson v County of Alameda 614 P. 2d 728, Tobriner J in his dissenting judgment in the Supreme Court of California, put it this way:

“If the victim can be identified in advance, a warning to him may discharge that duty: if he cannot be identified, reasonable care may require other action. But the absence of an identifiable victim does not postulate the absence of a duty of reasonable care.”

In Caparo, Lord Oliver cited Lord Atkin’s definition of proximity in Donoghue v Stevenson [1932] AC 452, 581:

“Such close and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know would be directly affected by his careless act.”

Lord Oliver continued:

“It must be remembered, however, that Lord Atkin was using his words in the context of loss caused by physical damage where the existence of the nexus between the careless defendant and the injured plaintiff can rarely give rise to any difficulty. To adopt the words of Bingham LJ in the instant case [1989] QB 653, 686:

‘It is enough that the plaintiff chances to be (out of the whole world) the person with whom the defendant collided or who purchased the offending ginger beer.’”

In Caparo, following the passage from his judgment cited by Lord Oliver, Bingham LJ in the Court of Appeal went on to say that “where careless words causing economic loss are complained of, more is required to establish proximity than the fortuity of suffering damage”. It might appear to follow from the statement of Bingham LJ that, where physical damage has been caused, the fortuity of suffering damage is sufficient to establish proximity. The reluctance of the law to expose a defendant in other situations to a liability in “an indeterminate amount for an indeterminate time to an indeterminate class” (Cardozo CJ in Ultramaris Corporation v Touche 174 NE 441, 444) may not apply.

Upon authority, however, this is one of the cases of physical damage, described by Lord Oliver as rare, where the existence of the nexus does give rise to difficulty. There is an intervening third party. I see force in the submission that the question whether the identity of a victim is known ought not to determine whether the proximity test is passed. It is forcefully argued that the difference between the threat “I will kill X” and the threat “I will kill the first bald-headed man I meet” ought not to determine whether a duty is placed upon a defendant, though it would obviously go to the extent of the duty and the measures necessary to discharge it. The point does not arise starkly on the present facts because of the passage of time and distance between Armstrong’s release and Rosie’s murder.

Dorset Yacht and Hill are in my judgment binding authority for the proposition that, in circumstances such as the present, the identity of the victim is an important factor in deciding whether the foreseeability test is passed. That being so, I agree with Stuart-Smith LJ that, upon the facts of this case, Rosie does not pass the threshold requirement of the proximity test necessary to establish a duty of care and that the decision to strike out on that ground was correct. The obvious differences between the functions of the police and those of the defendants do not materially affect the decision on that point in the circumstances. I also agree that the decision in Holgate v Lancaster Mental Hospital Board ([1937] 4 All ER 19) cannot be relied upon to establish an arguable case.

In relation to the claim by the plaintiff, I agree with Stuart-Smith LJ that the plaintiff cannot bring herself within the ambit of those who can recover damages for psychiatric injury.

LORD JUSTICE THORPE: I have had the advantage of reading the judgment in draft of Stuart-Smith LJ and I agree with it.

Order: Appeal dismissed with costs; order nisi against

legal aid fund with nil contribution; application

for permission to appeal to the House of Lords refused.