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|Judgments -- Commissioners of Police for the Metropolis v. Reeves (A.P.) (Joint Administratix of the Estate of Martin Lynch, Deceased)
Lord Hope of Craighead Lord Hobhouse of Wood-borough
(JOINT ADMINISTRATIX OF THE ESTATE OF MARTIN LYNCH, DECEASED)
On 23 March 1990 Martin Lynch hanged himself in his cell in Kentish Town Police Station. He had been remanded in custody on charges of credit fraud and was also under investigation for handling stolen vehicles. He had made two previous attempts at suicide. One had been in a cell at Clerkenwell Magistrates' Court three months earlier. The second was in a cell at Brent Magistrates' Court that very morning. On each occasion he had tried to strangle himself with his belt. After the first incident, the police noted on his record that he was a suicide risk. When he was brought back to Kentish Town Police Station after the second incident, he was seen by a doctor. She found no other evidence of mental disturbance but gave instructions that, as a suicide risk, he should be frequently observed. An hour later, at 1.57 p.m., a policeman looked through the open wicket hatch in his cell door and saw that he was lying on his bed. A few minutes later he used his shirt as a ligature to hang himself by pushing it through the wicket hatch and securing it to the door. He was found by another policeman at 2.05 pm. Despite attempts at resuscitation, he died a week later.
The police and prison service have long been aware that prisoners are more than usually likely to attempt suicide or self-injury. In 1994 the Director of Prisons issued an Instruction to Governors (IG 1/1994) which said: "The care of prisoners who are at risk of suicide and self-harm is one of the Prison Service's most vital tasks." The risk of suicide is particularly high among prisoners on remand facing a new environment and an uncertain future. Between 1972 and 1982, 45 per cent. of suicides in prisons were remand prisoners, although they made up only 10-15 per cent. of the prison population (Report by Helen Grindrod Q.C. and Gabriel Black, "Suicides at Leeds Prison : An enquiry into the deaths of five teenagers during 1988/89" ISBN 0903683113 (Howard League for Penal Reform, (1989), p. 5.) As long ago as 1968 the Home Office sent a circular to Chief Constables drawing attention to the need to ensure that fittings in cells should not provide an opportunity for the prisoner to do himself injury. Paragraph 4 said:
The plaintiff in this action is Mrs. Sheila Reeves, who had lived with Mr. Lynch for some years and had a child by him. She sues the Metropolitan Police Commissioner under the Fatal Accidents Act 1976 for negligently causing Mr. Lynch's death. The trial judge (Judge White) found that having regard to the fact that the police knew that Mr. Lynch was a suicide risk, they owed him a duty to take reasonable care to prevent him from committing suicide while being held in custody. He also found that the police had been negligent and in breach of this duty by failing to shut the wicket hatch after he had been put in the cell. There has been no appeal against these two findings.
The judge found, however, that the breach of duty by the police did not cause Mr. Lynch's death. He was of sound mind and his judgment was not impaired. The sole cause of his death was therefore his deliberate act in killing himself. The judge thought that this result could be expressed in Latin either by the maxim volenti non fit injuria (Mr. Lynch had consented to the injury he received) or by saying that his suicide was a novus actus interveniens. He also gave the Commissioner leave to amend the defence to raise an alternative plea of contributory negligence. On the assumption that the death had been caused partly by the fault of the Commissioner and partly by the fault of Mr. Lynch, he assessed the responsibility of Mr. Lynch in accordance with section 1(1) of the Law Reform (Contributory Negligence) Act 1945 at 100 per cent. The judge was also inclined, without deciding the point, to think that the plaintiff's claim should fail on grounds of public policy in accordance with the maxim ex turpi causa non oritur actio. He held that if the action had succeeded, he would have assessed the damages at £8,690.
Mrs. Reeves appealed to the Court of Appeal  Q.B. 169. By a majority, the appeal was allowed. Lord Bingham of Cornhill, C.J. and Buxton L.J. said that, as the police did not deny that they owed Mr. Lynch a duty to take reasonable care to prevent him from committing suicide or that their breach of duty had enabled him to commit suicide, they could not say that their breach of duty was not a cause of his death. "So to hold," said the Lord Chief Justice, at p. 196 "would be to deprive the duty of meaningful content." Morritt L.J. dissented, saying that a deliberate act of suicide by a person of sound mind must negative the causal connection between acts which merely created the opportunity and the subsequent death.
On contributory negligence, there was no clear majority view. Buxton L.J., for reasons to which I shall return, thought that the concept really had no application. The Lord Chief Justice said it did, and would have held the Commissioner and Mr. Lynch responsible in equal shares. Morritt L.J. agreed in principle that contributory negligence could apply but said that the judge was right to assess Mr. Lynch's responsibility at 100 per cent. In order to have some majority judgment on the point, the Lord Chief Justice, while adhering to the view that Mr. Lynch's fault contributed to his death, agreed to assess his share of responsibility at 0 per cent. So the plaintiff recovered the damages in the full amount of £8,690 assessed by the judge.
The Commissioner appeals to your Lordships' House. Mr. Pannick argued two points on his behalf. The first was the question of causation: was the breach of duty by the police a cause of Mr. Lynch's death? The way he put the answer was to say that the deliberate act of suicide, while of sound mind, was a novus actus interveniens which negatived the causal connection between the breach of duty and the death. He said at first that he was going to argue the application of the maxim volenti non fit injuria as a separate point. But when it came down to it, he accepted that if the breach of duty was a cause of the death, he could not succeed on volenti non fit injuria. I think that is right. In the present case, volenti non fit injuria can only mean that Mr. Lynch voluntarily caused his own death to the exclusion of any causal effect on the part of what was done by the police. So I think it all comes to the same thing: was the breach of duty by the police a cause of the death?
The other point argued by Mr. Pannick was contributory negligence. The question of public policy or ex turpi causa non oritur actio, which had not found favour with any member of the Court of Appeal, was not pursued.
On the first question, Mr. Pannick relied upon the general principle stated in Hart and Honoré, Causation in the Law 2nd ed. (1985), at p. 136:
However, as Hart and Honoré also point out, (at pp. 194-204) there is an exception to this undoubted rule in the case in which the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being. It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss. This principle has been recently considered by your Lordships' House in Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd.  2 W.L.R. 350. In that case, examples are given of cases in which liability has been imposed for causing events which were the immediate consequence of the deliberate acts of third parties but which the defendant had a duty to prevent or take reasonable care to prevent.
Mr. Pannick accepted this principle when the deliberate act was that of a third party. But he said that it was different when it was the act of the plaintiff himself. Deliberately inflicting damage on oneself had to be an act which negatived causal connection with anything which had gone before.
This argument is based upon the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself.
Morritt L.J. drew a distinction between a prisoner who was of sound mind and one who was not. He said, at p. 190 that when a prisoner was of sound mind, "I find it hard to see how there is any material increase in the risk in any causative sense." In Kirkham v. Chief Constable of the Greater Manchester Police  2 Q.B. 283, 289-90, Lloyd L.J. said much the same. It seems to me, however, they were really saying that the police should not owe a person of sound mind a duty to take reasonable care to prevent him from committing suicide. If he wants to take his life, that is his business. He is a responsible human being and should accept the intended consequences of his acts without blaming anyone else. Volenti non fit injuria. The police might owe a general moral duty not to provide any prisoner with the means of committing suicide, whether he is sound mind or not. Such a duty might even be enforceable by disciplinary measures. But the police did not owe Mr. Lynch, a person of sound mind, a duty of care so as to enable him or his widow to bring an action in damages for its breach.
My Lords, I can understand this argument, although I do not agree with it. It is not, however, the position taken by the Commissioner. He accepts that he owed a duty of care to Mr. Lynch to take reasonable care to prevent him from committing suicide. Mr. Lynch could not rely on a duty owed to some other hypothetical prisoner who was of unsound mind. The Commissioner does not seek to withdraw this concession on the ground that Mr. Lynch has been found to have been of sound mind. For my part, I think that the Commissioner is right not to make this distinction. The difference between being of sound and unsound mind, while appealing to lawyers who like clear-cut rules, seems to me inadequate to deal with the complexities of human psychology in the context of the stresses caused by imprisonment. The duty, as I have said, is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives.
Mr. Pannick also suggested that the principle of human autonomy might be infringed by holding the Commissioner liable. Autonomy means that every individual is sovereign over himself and cannot be denied the right to certain kinds of behaviour, even if intended to cause his own death. On this principle, if Mr. Lynch had decided to go on hunger strike, the police would not have been entitled to administer forcible feeding. But autonomy does not mean that he would have been entitled to demand to be given poison, or that the police would not have been entitled to control his environment in non-invasive ways calculated to make suicide more difficult. If this would not infringe the principle of autonomy, it cannot be infringed by the police being under a duty to take such steps. In any case, this argument really goes to the existence of the duty which the Commissioner admits rather than to the question of causation.
The decision of the majority of the Court of Appeal is supported by the Commonwealth and United States authority to which we were referred. See in particular, Pallister v. Waikato Hospital  2 N.Z.L.R. 725 (Court of Appeal of New Zealand), Funk v. Clapp  68 D.L.R. (4th) 229 (British Columbia Court of Appeal) and Hickey v. Zezulka 487 N.W. 2nd 106 (Mich. 1992) (Supreme Court of Michigan).
This brings me to the question of contributory negligence. Section 1(1) of the Act of 1945 provides as follows:
Section 4 defined "fault" as:
Plainly Mr. Lynch's act in committing suicide would not have given rise to liability in tort. That part of the definition is concerned with fault on the part of the defendant. The question is whether, apart from the Act, it would have given rise to a defence of contributory negligence. I recognise, of course, that it is odd to describe Mr. Lynch as having been negligent. He acted intentionally and intention is a different state of mind from negligence. On the other hand, the "defence of contributory negligence" at common law was based upon the view that a plaintiff whose failure to take care for his own safety was a cause of his injury could not sue. One would therefore have thought that the defence applied a fortiori to a plaintiff who intended to injure himself. The late Professor Glanville Williams, in his book Joint Torts and Contributory Negligence (1951) (at p. 199) expressed the view that "contributory intention should be a defence." It is not surprising that there is little authority on the point, because the plaintiff's act in deliberately causing injury to himself is almost invariably regarded as negativing causal connection between any prior breach of duty by the defendant and the damage suffered by the plaintiff. The question can arise only in the rare case, such as the present, in which someone owes a duty to prevent, or take reasonable care to prevent, the plaintiff from deliberately causing injury to himself. Logically, it seems to me that Professor Glanville Williams is right.
Buxton L.J. took a different view and I must examine the reasons which he gave. First, he said, at p. 182 that there was no authority that the intentional act of the plaintiff could be "fault" within the meaning of section 4 of the Act of 1945. This, as I have said, is true but, logically, I think it can be.
Secondly, he said that the conclusion that Mr. Lynch's act did not prevent the negligence of the police from being a cause of his death meant that his death could not have been partly as a result of his own fault and partly as a result of the fault of the police. The way he put it, at p. 182 was as follows:
This reasoning seems to me fallacious. It is saying that because Mr. Lynch's own act did not negative the causal connection between the negligence of the police and his death, it would be inconsistent to say that he caused his own death at all. Neither logic nor common sense requires such a conclusion. Mr. Lynch's suicide did not prevent the breach of duty by the police from being a cause of his death but that does not mean that his suicide was not also a cause of his death. As I said in Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd.  2 W.L.R. 350, 358, "one cannot give a common sense answer to a question of causation for the purposes of attributing responsibility without knowing the purpose and scope of the rule." Because the police were under a duty to take reasonable care not to give Mr. Lynch the opportunity to kill himself, the common sense answer to the question whether their carelessness caused his death is yes. Because Mr. Lynch also had responsibility for his own life, the common sense answer to the question whether he caused his own death is yes. Therefore both causes contributed to his death and the Act of 1945 provides the means of reflecting this division of responsibility in the award of damages: see the majority judgment of Riley J. in Hickey v. Zuzulka 487 N.W. 2nd 106, 123 (Mich. 1992) and the view of Richmond J. in Pallister v. Waikato Hospital  2 N.Z.L.R. 725, 736.)
Thirdly, Buxton L.J. referred to cases under the Factories Acts, in which appellate judges have warned against allowing the legislative policy in imposing an absolute duty on the employer to be undermined by too readily allowing a defence of contributory negligence. He quoted Goddard L.J.'s remarks in Hutchinson v. London and North Eastern Railway Co.  K.B. 481, 488: