Judgment -House of Lords - Commissioners of Police for the Metropolis v. Reeves (A.P.) (Joint Administratix of the Estate of Martin Lynch, Deceased)  continued

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    My Lords, in relation to the first feature, let me take two hypothetical situations, neither unduly fanciful. Suppose that the detainee is a political agitator whose primary motivation is to further a political cause. Such persons are liable to see self-destruction, in circumstances which they hope will attract as much publicity and media attention as possible, as an appropriate means of advancing their political cause. Can such a person, having taken advantage of a careless oversight by the police and carried out his purpose, vicariously bring an action against the police and recover damages from them? Or suppose a detainee who and whose family are in serious financial difficulties and who, knowing what the Court of Appeal decided in the present case, says to himself "the best way for me to help those I love is to commit suicide" and then carries out that purpose by taking advantage of the careless oversight. As Mr Pannick Q.C. said in argument, he might even leave a suicide note for his wife telling her this. In cases such as these it would be surprising if the courts were to say that, notwithstanding the determinative, rational and deliberate choice of the deceased, that choice had not become the only legally relevant cause of the death. It would also in my judgment be contrary to principle. It certainly would be contrary to principle to resort to the fiction of saying that he was guilty of 100% contributory negligence: if the responsibility for his death was his alone, the principled answer is to say that the sole legal cause was his own voluntary choice. Yet, if such a case were hereafter to come before a court, that court, on the basis of the majority decision of the Court of Appeal, would be bound to award the plaintiff damages.

    I give these examples to illustrate the need to identify a dividing line unless one is to say that even in such cases the deliberate voluntary choice of the deceased, the quasi-plaintiff, can never break the chain of causation. The view accepted by the majority of the Court of Appeal reduces all such questions to an examination of the scope of the duty of care or remoteness (which in the context of the law of negligence is effectively the same thing: Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound) [1961] A.C. 388). The reason why this is contrary to principle is that it is a basic rule of English law that a plaintiff cannot complain of the consequences of his own fully voluntary conduct--his own "free, deliberate and informed" act: see Hart and Honore: Causation in the Law, 2nd ed. (1985), p. 136. This principle, overlooked by the plaintiff, is to be found in a variety of guises in most branches of the law. In the law of tort it overlaps with other principles and invites recourse to expressions (usually Latin maxims) not all of which have a consistent usage.

    One such guise is that a party cannot rely upon his own unlawful or criminal conduct: the so-called ex turpi causa non oritur actio maxim. Until the passing of the Suicide Act 1961, suicide was a crime and accordingly a person who committed that crime could acquire no rights thereby. But it was always open to the interested party to say that the suicide was not criminally responsible because of insanity, usually temporary insanity. The insanity negatived both the criminal character of the conduct and its immorality. This principle is no longer relevant to the present type of case and has not been relied upon by the defendant before us. I agree with the unanimous rejection by the Court of Appeal of this defence. But it is necessary to mention it since the terminology of insanity has properly been used in cases in the past and has, since then, still tended confusingly to colour some of the judicial language. The contrast now is not between sane and insane behaviour but between conduct of the plaintiff which can and cannot be properly described as voluntary.

    Suicide is within the range of conduct lawfully open to a person: personal autonomy includes the right to choose conduct which will cause that person's death and the right to refuse to allow others to obstruct that choice. (Airedale N.H.S. Trust v. Bland [1993] A.C. 789, St. George's Healthcare Trust v. S. [1999] Fam. 26) Imprisonment does not deprive the prisoner of that autonomy. (Freeman v. Home Office (No. 2) [1984] 1 Q.B. 524) It would also be wrong to treat the principle of illegality or public policy as the answer to the illustrative hypothetical examples which I have given. Our culture has always regarded the willingness to sacrifice one's life for a cause or for the benefit of others as laudable not reprehensible.

    In the context of suicide, these points are illustrated by the classic decision of your Lordships' House, Beresford v. Royal Insurance Co. Ltd. [1938] A.C. 586. There the assured who was sane decided, in circumstances not dissimilar to those postulated by Mr Pannick in argument, that copious life insurance followed by deliberate suicide was the answer to the grave financial problems with which he and his family were faced. The assured's heir was unable to recover under the policies for two primary reasons. "No system of jurisprudence can with reason include among the rights which it enforces rights directly resulting to the person asserting them from the crime of that person" (at p. 596, quoting Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147, 156). The other was: "On ordinary principles of insurance law, an assured cannot by his own deliberate act cause the event upon which the insurance money is payable." (p. 595) The causation question is independent of the crime/public policy question and remains notwithstanding the removal of other.

    The legal problem in the present case arises because of the particular findings of fact which the trial judge made about the state of mind of Mr Lynch. Were it not for those findings, the case would have been indistinguishable from the decision in Kirkham; but, as it was, he rightly considered that he should follow the reasoning of the Court of Appeal in that case and dismiss the claim. Lord Bingham was clearly surprised by the findings which the trial judge had made. I can understand his reaction. It might be thought that any person locked up in a cell was almost certainly being subjected to abnormal stresses which would be liable to cause him to act in an irrational fashion and do things which he would not normally contemplate; he may suffer impulses which he would not normally suffer. He may be in all other respects a normal person. He may not be mentally ill or otherwise suffering from any disturbance of the mind. It is the general experience of those concerned with prison administration and the custody of persons in police stations that the risk of suicide or self-harm exists among those confined whether they be suffering from some frank mental condition or appear to be relatively undisturbed. Your Lordships have been referred to reports and statistics which support this and the risk is clearly recognised in the instructions and recommendations issued by the Police Authorities and the Home Department. The risk of suicide is a concern of those responsible for holding persons in custody and within their contemplation. But it was the trial judge who heard the evidence, including expert evidence, and made the findings, being fully aware of their significance, and his findings have not been challenged.

The Facts:

    Mr Lynch committed suicide whilst left in a police cell unobserved for a period of about 8 minutes between 1.57pm and 2.05pm. He had been identified as a suicide risk. He had however been put in a cell with a defective door. The glass spy-hole was broken and the glass missing. The flap on the door was also defective and could not be shut properly. In fact it was left open. This created what was a known opportunity for a prisoner to rig a ligature and strangle himself. It was this opportunity which Mr Lynch took.

    He was treated as a suicide risk because he had earlier that day whilst in a cell at the Magistrates Court attempted to throttle himself. At the police station he had been seen by a doctor between 1.40pm and 1.50pm who was able to observe mark upon his neck consistent with that having occurred. He claimed to be bored. The doctor's assessment was that he appeared calm and rational with no evidence of mental disturbance.

Judge White found:

     "In this case the deceased at the time he took his own life was not suffering from any marked medical or psychiatric condition. On the evidence, I am unable to conclude other than that he was, when he took the decision to end his life, of sound mind. . . .

     The risk of suicide covers not only that which can be attributed to the irrational and the impaired judgment, but also to the rational and conscious decision of persons of adequately sound mind. As the doctor pointed out, some people kill themselves when they are not depressed.

     The deceased here was of sound mind in that his judgment, in the difficult circumstances in which he found himself and had now to face, was not impaired." ()

(The "difficult circumstances" referred to were that Mr Lynch was facing a trial on serious criminal charges.)

    The character of the act in question has been well described by my noble and learned friend Lord Hope of Craighead: "the nature of an act of suicide by a person who is of sound mind . . . is a deliberate act of self- destruction by a person who intends to end his own life." Mr Lynch's act was deliberate and voluntary and no question of its being uninformed arises. Indeed it was because he knew of the defendant's oversight that he was in a position to take advantage of it.

Kirkham v. Chief Constable of the Greater Manchester Police:

    In this case the Court of Appeal held that a prisoner's wife was held entitled to recover damages in the tort of negligence for the suicide of her husband whilst in custody. But that case was specifically decided on basis that Mr Kirkham had at the material time been suffering from clinical depression. Lloyd L.J. said at p. 290:

     "So I would be inclined to hold that where a man of sound mind commits suicide, his estate would be unable to maintain an action against the hospital or prison authorities, as the case might be. Volenti non fit injuria would provide them with a complete defence. . . .

     But in the present case Mr Kirkham was not of sound mind. True, he was sane in the legal sense. His suicide was a conscious and deliberate act. But Dr Sayed, whose evidence the Judge accepted, said that Mr Kirkham was suffering from clinical depression. His judgment was impaired. . . . He was not truly volens . . . "

This decision was binding upon the Judge White in the present case. He followed what Lloyd L.J. said and concluded that volenti non fit injuria provided the defendant with a defence. (He was prepared to hold that the claim failed on other grounds as well.)

In the Court of Appeal:

    There was no appeal against Judge White's findings of fact. Only points of law were raised on appeal to the Court of Appeal (causation, volenti non fit injuria, novus actus interveniens, public policy/ex turpi causa, and contributory negligence). The Court of Appeal decided the appeal (as they were bound to) on the basis of the judge's findings of fact. The suicide was the deliberate act of a man of sound mind. The majority allowed the appeal because they held that as a matter of law, regardless of Mr Lynch's state of mind, the defences of lack of causation and volenti were not apt.

    I have already quoted from the judgment of Lord Bingham. The reasoning of Buxton L.J. was similar but went rather further. He gave a number of grounds for rejecting the causation/volens argument. He held that the defence was inconsistent with the duty which contemplated and was directed to the very act of suicide; he adopted the alternative ground of Farquharson L.J. in Kirkham at p. 295 -

     "the defence is inappropriate where the act of the deceased relied on is the very act which the duty cast upon the defendant required him to prevent."

This is a mistaken analysis. The act of the deceased relied upon as providing the defence is not the act of suicide: it is the voluntary choice which precedes the act of suicide. His second ground involves a similar error; he suggests that the claim could never succeed and the duty is owed to those who are of sound mind as well as to those who are not. The defence does not affect or negative the duty of care. It presupposes the existence of such a duty and that it has been broken in a factually relevant way. Where, as in Kirkham and the New Zealand case Pallister v. Waikato [1975] 2 N.Z.L.R. 725, the deceased was not of sound mind at the relevant time, the defence will fail. As every one accepts, the cases where the defence will succeed will be exceptional. But this is not a reason for denying the defence when exceptionally such a case occurs. Buxton L.J. and Lord Bingham argued that evidentially it was impractical to apply a rule which involved examining the deceased's state of mind and considering whether or not he had acted voluntarily. The difficulties are for the defendant. The burden of proof, either legal or evidential, is upon him. (Williams v. Birmingham Battery and Metal Co. [1899] 2 Q.B. 338) In the exceptional case where the defendant can satisfy the judge of fact, the finding should be acted upon. Similarly Buxton L.J. argued that the situation did not meet the technical features of the defence of volenti since it did not involve the element of acceptance of risk. There are two answers to these arguments. First, the deceased did voluntarily accept the consequence of the defendant's negligence; observing what had occurred, he voluntarily chose to take advantage of it. Secondly, even were the strict criteria of volenti not satisfied, there still remains the question of legal causation and the principle that a plaintiff cannot complain of the consequences of his own free and deliberate choice.

    The proposition of law facing the defendant on this appeal is that the scope of the duty of care which he owed to the deceased (and which he broke) precludes any scope for relying on the causation and volenti defences--that as a matter of law they are not apt and therefore cannot be entertained.

Causation:

    My Lords, causation as discussed in the authorities has been complicated both by conflicting statements about whether causation is a question of fact or of law or, even, 'common sense' and by the use of metaphor and Latin terminology, eg, causa sine qua non, causa causans, novus actus and volenti, which in themselves provide little enlightenment and are not consistently used.

    At one level causation is purely a question of fact. It is a question of fact whether event 'a' was a cause of event 'x'. To simplify, it is a factual question whether event 'x' would still have occurred if event 'a' had not. However facts are not that simple. Virtually every event will have a number of antecedent facts which satisfy such a factual test. The ordinary use of language then distinguishes between them, choosing some and discarding others. The presence of oxygen is a necessary cause of combustion yet it is not normally treated as being a cause. This is because it is part of the normal environment and therefore is disregarded when identifying the cause of some abnormal event. (In certain circumstances, oxygen is not or should not be part of the normal environment, eg in tanks used for the sea carriage of petroleum, in which case its presence would be identified as a cause.) The ordinary use of language makes a distinction, independent of any legal concept, between the normal and the abnormal in describing something as a cause.

    This use of language is most easily observed in relation to physical events but is also applied to human conduct. Reasonable human responses to situations are not treated as causative; they are a normal consequence of the antecedent event and it is that event which is described as the cause. Thus the reasonable response of a rescuer to an accident caused by the negligence of another would not without more be described as a cause of an injury suffered by the rescuer. Similarly, to act reasonably on the faith of some misinformation is normally described as a consequence not as a cause. Human conduct, which is not entirely reasonable, for example, where it is itself careless, but is within the range of human conduct that is foreseeable and normally contemplated as not unlikely, may add a further cause of the relevant subsequent event but would not normally mean that an earlier relevant event ceased also to be a cause of that later event. Careless conduct may ordinarily be regarded as being within the range of normal human conduct when reckless conduct ordinarily would not.

    Any disputed question of causation (factual or legal) will involve a number of factual events or conditions which satisfy the "but for" test. A process of evaluation and selection has then to take place. It may, for example, be necessary to distinguish between what factually are necessary and sufficient causes. It may be necessary to distinguish between those conditions or events which merely provide the occasion or opportunity for a given consequence and those which in the ordinary use of language would (independently of any imposed legal criterion) be said to have caused the relevant consequence. Thus certain causes will be discarded as insignificant and one cause may be selected as the cause. It is at this stage that legal concepts may enter in, either in a way that is analogous to the factual assessment--as for "proximate" cause in insurance law--or, in a more specifically legal manner, in the attribution of responsibility (bearing in mind that responsibility may not be exclusive). In the law of tort it is the attribution of responsibility to humans that is the relevant legal consideration.

    The attribution of human responsibility is often a complex exercise since it involves an examination of the legally relevant features of the consequence in question and the legally relevant features of the conduct complained of (eg The Empire Jamaica [1957] A.C. 386) in conjunction with or in contrast to other human conduct which may also be factually relevant. Legal criteria (maybe fact sensitive) have to be applied. At this level causation is a question of law. Now is not the time to enter upon an exhaustive examination of the legal criteria. For present purposes two categories are directly relevant.

    Before examining these two categories, however, I would stress three points. First, a distinction is drawn between natural and human phenomena. Save in theologically inspired language now long discarded, responsibility is not attached to natural events. The only consideration to which they give rise is remoteness. Secondly, human conduct in contrast can have a double relevance, both to remoteness and to attracting legal and moral responsibility. But, for most purposes in the law, and in particular in the law of tort, all a plaintiff need prove is that the defendant's tort was a cause of the loss in respect of which the plaintiff claims. If two or more tortfeasors have each contributed to causing the plaintiff's loss, each of them is severally liable for that loss. Remoteness is, again, the only relevant consideration. Unless the conduct of one tortfeasor has been such as to take the consequence out of the scope of another's tortious duty and render it too remote, the liability of one does not preclude the claim of the plaintiff against each.

    Thirdly and most importantly in the present context, there is a radical distinction between the conduct of the plaintiff and the conduct of third parties. To overlook this distinction will inevitably lead to error. At one level where it merely involves some lack of care or breach of duty it reduces but does not negative the plaintiff's right of recovery; this is the position (now) where there is contributory negligence. Failure to mitigate can be similarly analysed (though it can also be analysed pro tanto in terms of remoteness or causation). Where deliberate voluntary conduct of the plaintiff is involved in the knowledge of what the defendant has done, the plaintiff cannot disclaim responsibility for the consequence: he has caused his own loss. His conduct has a different impact to that of a third party.

Remoteness:

    The first category is the concept of remoteness. In the law of tort, the question is whether the consequence complained of, although factually caused by the defendant's act or omission, was legally too remote. This in turn, in relation to negligence, involves an inquiry into what was reasonably foreseeable by the defendant at the relevant time and what matters came within the scope of the duty of care which the defendant owed to the plaintiff. (The Wagon Mound [1961] A.C. 388, Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605.) Where other factually causative human conduct is concerned, the application of these tests provides the legal answer. Foreseeable human conduct which falls within the scope of the duty of care is not too remote, even if dishonest or criminal. A clear illustration of this is the well known case of Stansbie v. Troman [1948] 2 K.B. 48. A decorator was left in charge of the plaintiff's house. He went out to buy some more rolls of wall paper leaving the front door unlocked. As a result a burglar was able to enter and steal the plaintiff's diamond bracelet. The decorator was liable notwithstanding the intervening criminal act of the burglar. The burglar's act was both foreseeable and within the scope of the duty owed by the defendant to the plaintiff. (Of course this does not mean that the burglar was not also legally responsible.) The conclusion can be expressed in a number of ways: the defendant's negligence caused the plaintiff's loss; the plaintiff's loss was not too remote; the burglar's act was not a novus actus interveniens. As discussed in Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. [1998] 2 W.L.R. 350, [1998] 1 All E.R. 481, it is necessary to evaluate the subsequent human intervention in conjunction with the essential character of the fault of the defendant.

    This principle also extends to conduct of the plaintiff. Was the conduct of the plaintiff foreseeable? Was it within the scope of the duty of care owed by the defendant to the plaintiff? Where the plaintiff is a child, the predictable conduct of the child will not make the child's injury too remote; indeed it is usually the foundation of the defendant's liability to the child. (Yachuk v. Oliver Blais Co. Ltd. [1949] A.C. 386) Where the defendant's conduct has created a dangerous situation either for the plaintiff or another, the conduct of the plaintiff in response to that danger will not be too remote. (Scott v. Shepherd (1773) 3 Wils. 403; Haynes v. Harwood [1935] 1 K.B. 146) Where the defendant has set out to deceive the plaintiff, the success of that deception even though others might not have been deceived does not render the plaintiff's loss too remote; intended consequences are not too remote. Many other examples could be given. Where the conduct of the plaintiff has also been blameworthy, justice is achieved by applying the provisions of the Law Reform (Contributory Negligence) Act 1945. On the other hand, conduct, whether of the plaintiff or any other person, which is of such a character as to remove the relevant factual consequence from the scope of the relevant duty owed by the defendant to the plaintiff or take it outside the range of what was reasonably foreseeable, will by the same criteria make the consequence too remote for it to be said that it was caused by the relevant act or omission of the defendant.

    Thus far, my Lords, these legal principles present no obstacle to the plaintiff in the present case. The suicide of Mr Lynch was foreseeable; it was within the scope of the duty of care owed by the defendant to Mr Lynch. If the plaintiff or some other person had an independent cause of action of their own against the defendant, say for nervous shock, in connection with what occurred that day in Kentish Town Police Station, the conduct of Mr Lynch would not make the loss suffered by such a person too remote. The Court of Appeal and your Lordships have been right to reject the defence of novus actus. But where, in my judgment, the majority of the Court of Appeal went wrong was to stop there. They rejected wholly any relevance of the second category of legal principle. It would be wrong to be too critical since, as was illustrated by the argument in your Lordships' House, counsel too tended to make the same error.

The Responsibility of the Plaintiff:

    The second category of legal principle to which I must refer is that which relates to the responsibility of the plaintiff for that of which he complains. A number of principles are involved. First there is the fundamental principle of human autonomy. Where a natural person is not under any disability, that person has a right to choose his own fate. He is constrained in so far as his choice may affect others, society or the body politic. But, so far as he himself alone is concerned, he is entitled to choose. The choice to commit suicide is such a choice. A corollary of this principle is, subject to the important qualification to which I will refer, the principle that a person may not complain of the consequences of his own choices. This both reflects coherent legal principle and conforms to the accepted use of the word cause: the person's choice becomes, so far as he is concerned, the cause. The autonomy of the individual human confers the right and the responsibility.

    To qualify as an autonomous choice, the choice made must be free and unconstrained--ie, voluntary, deliberate and informed. If the plaintiff is under a disability, either through lack of mental capacity or lack or excess of age, the plaintiff will lack autonomy and will not have made a free and unconstrained choice. Child plaintiffs come into this category. Both as a matter of causation and the attribution of responsibility, their conduct does not (without more) remove the responsibility of the defendant or transfer the responsibility to the child plaintiff. (Yachuk sup.) Similarly, plaintiffs suffering from a temporary or a more serious loss of mental capacity (Kirkham; Pallister; Pigney v. Pointers' Transport Services Ltd. [1957] 1 W.L.R. 1121), will not have made the requisite free and unconstrained choice. Where the plaintiff's lack of mental capacity has been caused by the defendant's breach of duty, the entitlement to recover is all the stronger. On the same basis choices made under constraint of circumstances, such as those made by rescuers or persons placed in immediate danger, will not carry with them the consequence that the choice was the sole cause of the subsequent injury to the plaintiff nor will it result in his bearing the sole responsibility for his injury. (Haynes v. Harwood sup: cf Cutler v. United Dairies London Ltd. [1933] 2 K.B. 297) The same applies if the plaintiff's choice was vitiated by misinformation or lack of information. In the context of employment, the question of the reality of the employee's assent and his acceptance of risk has been the subject of many decisions; perhaps the most illuminating discussion for present purposes is to be found in Imperial Chemical Industries Ltd. v. Shatwell [1965] A.C. 656, particularly per Lord Hodson at pp. 680-681 where he stresses that the plaintiff's conduct cannot be described as voluntary unless he truly had a free choice. (The case also, like Stapely v. Gypsum Mines Ltd. [1953] A.C. 663, illustrates the distinction between lack of care for one's own safety and the true acceptance of risk.) These qualifications are fundamental and are the basis of the decisions where a plaintiff has been held entitled still to sue notwithstanding his having made a choice which led to the event of which he complains.

 
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