|Judgment -House of Lords - Commissioners of Police for the Metropolis v. Reeves (A.P.) (Joint Administratix of the Estate of Martin Lynch, Deceased) continued|
The simplest way in which to express the relevant principles, both the basic principle of autonomy and the qualification, is in terms of causation. Both as a matter of the ordinary use of language and as a matter of law it is correct to say that the plaintiff's voluntary choice was the cause of his loss. Another partial expression of this principle is the maxim volenti non fit injuria. This maxim, originating from a rather different Roman law context, is a notorious source of confusion. (Dann v. Hamilton  1 K.B. 509) In intentional torts it means consent by the plaintiff to the act which would otherwise be the tort. In the law of negligence it means the acceptance variously of the risk created by the defendant's negligence or of the risk of the defendant's negligence. In such cases it is probably best confined to cases where it can be said that the plaintiff has expressly or impliedly agreed to exempt the defendant from the duty of care which he would otherwise have owed (Nettleship v. Weston  2 Q.B. 691), a formulation which, it will be appreciated, immediately brings the maxim into potential conflict with s. 2 of the Unfair Contract Terms Act 1977. It will also be appreciated that so interpreted the maxim would only have an artificial application to the facts of the present case. The suggestion that Mr Lynch was agreeing to exempt the Police Authority from anything is both objectionable and wholly unrealistic. (It may be that this consideration understandably coloured counsel's presentation of the defendant's case.)
But, my Lords, if the question raised by Mr Lynch's conduct is seen as a question of causation, these artificialities fall away. If Mr Lynch, knowing that the police officers had put him in a cell with a defective door and had failed to close the hatch, then voluntarily and deliberately, in full possession of his faculties, made the rational choice to commit suicide, principle and language say that it was his choice which was the cause of his subsequent death. He was not, on the judge's findings, acting under any disability or compulsion. He made a free choice: he is responsible for the consequence of that choice.
I would allow the appeal and direct judgment to be entered for the defendant. The argument of the plaintiff and the decision of the majority of the Court of Appeal disclose errors of law. They fail to have adequate regard to the fact that the action is to be decided as if Mr Lynch was the plaintiff. They treat remoteness as the sole criterion of recovery. They do not recognise the principle that a plaintiff who by his own voluntary choice deliberately chooses to cause the loss which he seeks to recover from the defendant cannot thereafter say that his choice was not the sole cause of his loss. The decision of the Court of Appeal is also worrying since it fails to provide any dividing line between cases where the plaintiff can recover and those where he cannot and, in view of the findings of fact that were made in the present case, leaves it open for any suicide to recover once some negligence on the part of the prison or police authorities has been shown. I do not consider that this is the law.
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