Palmer v Tees Health Authority and Another
| Jurisdiction | England & Wales |
| Judgment Date | 02 July 1999 |
| Date | 02 July 1999 |
| Court | Court of Appeal (Civil Division) |
Court and Reference:Court of Appeal ; QBENI 98/0577/1
Stuart-Smith, Pill and Thorpe LJJ
Appearances: RL Sherman (instructed by Cunningham John & Co) for P; A Moon (instructed by Eversheds) for the Respondents.
Whether there was a duty of care towards the family of a child killed by a mentally disordered man being seen as an out-patient but not detained.
On 30 June 1994, A assaulted and murdered RP, who was aged 4 and lived in the same street; her body was found in A's house on 3 July 1994 and seen by BP on 6 July. A apparently had suffered abuse and neglect in his childhood; he was diagnosed as very disturbed, but the authorities did not intervene. In the early 1990s, he made various attempts at suicide; and during a hospital admission in June 1993 admitted that he had sexual feelings towards children and would murder a child. He was discharged from hospital and seen only as an outpatient. RP's mother, BP, alleged that those responsible for A negligently failed to diagnose the danger he presented and so failed to take steps to reduce that danger. She claimed damages against them for damages for bereavement, funeral expenses, and her post-traumatic stress disorder and pathological grief reaction to the death of her daughter. The Defendants argued that there was no duty of care, and that the BP could not bring herself within the law's limitations as to recovery for psychiatric injury; and that consequently the claim should be struck out.
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 5 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 2 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.
Proximity
The Appellant's Submissions
9. First, Mr Sherman submits that the recent decision of the House of Lords in Barrett v LB Enfield [1999] 3 WLR 79 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 3 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.
The Effect of the Barrett Decision
11. 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 2 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...
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