|Judgment -House of Lords - Commissioners of Police for the Metropolis v. Reeves (A.P.) (Joint Administratix of the Estate of Martin Lynch, Deceased) continued
It is important to notice that these remarks were made before the Act of 1945 was passed. It is not surprising that judges, faced with an all or nothing decision between the policy of the Factories Acts and the common law rule which made contributory negligence a complete defence, should have given priority to the legislative policy even if in practice it often meant overriding the common law rule. But Goddard L.J. did not say that contributory negligence could not in principle be a defence and it has always been recognised as such. Buxton L.J., at p. 182 also quoted an observation of Lord Tucker in Staveley Iron & Chemical Co. Ltd. v. Jones  A.C. 627, 648 after the Act of 1945 had come into effect:
This citation performs the valuable function of reminding us that what section 1 requires the court to apportion is not merely degrees of carelessness but "responsibility" and that an assessment of responsibility must take into account the policy of the rule, such as the Factories Acts, by which liability is imposed. A person may be responsible although he has not been careless at all, as in the case of breach of an absolute statutory duty. And he may have been careless without being responsible, as in the case of "acts of inattention" by workmen. I shall return to this point when I consider the proper apportionment of responsibility in this case. But the two citations do not support the view that contributory negligence can in principle have no application when the plaintiff's carelessness is something which the defendant had a duty to guard against. It is commonly the case that people are held liable in negligence for not taking precautions against the possibility that someone may do something careless and hurt themselves, like diving into a shallow swimming pool, but I do not think it has been suggested that in such cases damages can never be reduced on account of the plaintiff's contributory negligence.
Fourthly, at p. 183 Buxton L.J. referred to cases in which a defence of contributory negligence failed against child plaintiffs who had injured themselves by taking opportunities to play with dangerous things which the defendant had carelessly given them or left unguarded. He treated these as cases in which the defence failed because the child had done the very thing which it was the defendant's duty to take reasonable care to prevent. In my opinion, however, they have a different explanation. It is because the plaintiffs were children, without full understanding of the dangers they were running, that it would not have been just and equitable to attribute responsibility to them. This may be equally true in the case of a prisoner of unsound mind who commits suicide. In Kirkham v. Chief Constable of the Greater Manchester Police  3 All E.R. 882, where a prisoner suffering from clinical depression committed suicide in his cell, Tudor Evans J. decided that no share of responsibility for his death should be attributed to him under the Act of 1945. There appears to have been no appeal against this finding: see  2 Q.B. 283. But it does not follow that no prisoner committing suicide in consequence of a breach of duty by the police or prison officers can ever be treated as sharing the responsibility for his own death.
In my view it would therefore have been right to apportion responsibility between the Commissioner and Mr. Lynch in accordance with the Act of 1945. The judge and Morritt L.J. would have apportioned 100 per cent. to Mr. Lynch. But I think that this conclusion was heavily influenced by their view, expressed in connection with the question of causation, that Mr. Lynch, as a person of sound mind, bore full responsibility for taking his own life. This is of course a tenable moral view, which was powerfully advocated by the late Lord Denning M.R. in 1981 in the case of Hyde v. Thameside Area Health Authority reported in  P.N. 26. But whatever views one may have about suicide in general, a 100 per cent. apportionment of responsibility to Mr. Lynch gives no weight at all to the policy of the law in imposing a duty of care upon the police. It is another different way of saying that the police should not have owed Mr. Lynch a duty of care. The law of torts is not just a matter of simple morality but contains many strands of policy, not all of them consistent with each other, which reflect the complexity of life. An apportionment of responsibility "as the court thinks just and equitable" will sometimes require a balancing of different goals. It is at this point that I think that Buxton L.J.'s reference to the cases on the Factories Acts is very pertinent. The apportionment must recognise that a purpose of the duty accepted by the Commissioner in this case is to demonstrate publicly that the police do have a responsibility for taking reasonable care to prevent prisoners from committing suicide. On the other hand, respect must be paid to the finding of fact that Mr. Lynch was "of sound mind." I confess to my unease about this finding, based on a seven minute interview with a doctor of unstated qualifications, but there was no other evidence and the judge was entitled to come to the conclusion which he did. I therefore think it would be wrong to attribute no responsibility to Mr. Lynch and compensate the plaintiff as if the police had simply killed him. In these circumstances, I think that the right answer is that which was favoured by the Lord Chief Justice, namely to apportion responsibility equally. I would therefore allow the appeal and substitute a judgment for the plaintiff in the sum of £4,345 with interest.
LORD MACKAY OF CLASHFERN
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hoffmann. For the reasons they have given I too would allow the appeal and make the same order as that which has been proposed.
LORD JAUNCEY OF TULLICHETTLE
This appeal arises out of the death by suicide of Martin Lynch while in police custody. The deceased was brought to the police station shortly after midday on 23 March 1990 having already tried to kill himself in a cell at the Magistrates' Court earlier in the day. Police officers at the station were made aware of this attempt and as a result the deceased was examined by a doctor at about 1.40 p.m. who found no evidence of schizophrenia, clinical depression or other mental disturbance but considered him to be a suicide risk and left instructions that he should be frequently observed. He was thereafter taken back to a cell whose door contained a flap which opened outwards and a spy hole which should have contained but was in fact devoid of glass. At 1.57 p.m. he was observed through the open flap to be sitting awake on his bed but at eight minutes later at 2.05 p.m. he was discovered with his shirt tied around his neck beside the door. He had tied his shirt through the open flap and spy hole and thereby hung himself. Attempts to resuscitate him failed and he died on 1 April 1990. His administratrix raised the present action of damages against the commissioner on the ground of negligence. The trial judge accepted the plaintiff's contention that it was negligent not to shut the flap after the deceased had been placed in the cell but concluded that the defence of volenti non fit injuria had been made out and the claim therefore failed. In the Court of Appeal  Q.B. 169 Buxton L.J. concluded that none of the three defences advanced by the commissioner namely "novus actus interveniens," "volenti non fit injuria" and contributory negligence were made out and that the appeal should be allowed. Morritt L.J. considered that both the defences of novus actus interveniens and volenti non fit injuria were made out and that the appeal should be dismissed. He went on to express the view that if contributory negligence fell to be considered he would uphold the judge's apportionment of 100 per cent blame to the deceased. Lord Bingham of Cornhill L.C.J. rejected the defences of novus actus interveniens and volenti non fit injuria but expressed the view that had he been sitting alone he would have concluded that the deceased was 50 per cent. to blame for the fatal outcome. In the event, however, because of the divergent view of the three judges he thought it right to allow the appeal and award the plaintiff full damages.
In opening the commissioner's appeal to this House Mr. Pannick Q.C. accepted:- (1) that because they were aware that he was a suicide risk there was a duty on the part of the officers at the station to take reasonable care to prevent the deceased from committing suicide, and (2) that they were in breach of this duty by failing to close the flap. There were, he submitted, three issues for your Lordships' consideration namely:- (i) novus actus interveniens, (ii) volenti non fit injuria, and (iii) contributory negligence. I shall deal with these issues in that order.
Novus actus interveniens
Mr. Pannick submitted that the deceased's death was caused not by the negligence of the police officers but by the voluntary act of the deceased while of sound mind. This act broke the chain of causation between the Commissioner's breach of duty and the death. He referred to Kirkham v. Chief Constable of Greater Manchester Police [1990 ] 2 Q.B. 283 and in particular to the following observations of Lloyd L.J. at p. 290B:
Lloyd L.J. then pointed out that the plaintiff was not of sound mind. Mr. Pannick went on to develop his argument by referring to the fundamental principle of the autonomy of each individual and his or her right of self determination as expounded in St. George's Healthcare N.H.S. Trust v. S.  2 W.L.R. 936, 950H. If it is unlawful forcibly to administer food or medicine to a patient against his will because of his right of self determination it must follow that an adult of sound mind who chooses to take his own life must bear the whole responsibility for his act.
My Lords, I consider that this argument is flawed. Professor Glanville Williams in his Joint Torts and Contributory Negligence (1951) stated at para. 2-24 that:
He went on to state that the novus actus interveniens "must constitute an event of such impact that it rightly obliterates the wrongdoing of the defendant." The reference to an independent act superseding the effect of the tortious conduct must, in my view, relate to an act which was outwith the contemplated scope of events to which the duty of care was directed. Where such a duty is specifically directed at the prevention of the occurrence of a certain event I cannot see how it can be said that the occurrence of that event amounts to an independent act breaking the chain of causation from the breach of duty, even although it may be unusual for one person to come under a duty to prevent another person deliberately inflicting harm on himself. It is the very thing at which the duty was directed see: Stansbie v. Troman  2 K.B. 48, Tucker L.J. at pp. 51-52. In Kirkham v. Chief Constable of Manchester  2 Q.B. 283, 295C Farquharson L.J. at 295C rejected the defence of volenti non fit injuria as "inappropriate where the act of the deceased relied on is the very act which the duty cast upon the defendant required him to prevent." These observations are equally apposite to the defence of novus actus interveniens in the present case. In Pallister v. Waikato Hospital  2 N.Z.L.R. 725, Woodhouse J. in a dissenting judgment at p. 742 put the matter most succinctly, "The concept of a novus actus interveniens does not embrace foreseeable acts in respect of which the duty of care has specifically arisen." It follows that the observations of Lloyd L.J. in Kirkham v. The Chief Constable of Manchester at p. 290B cannot apply to a case in which there exists a duty of care on a custodier to prevent a man with known suicidal tendencies from committing suicide.
The individual's right of self determination is irrelevant here for two reasons. In the first place it is not a defence to a breach of duty but rather an argument against the existence of a duty at all. If an individual can do to his own body what he wills, whether by positive act or neglect then there can be no duty on anyone else to prevent his so doing. In this case, however, it is accepted that the commissioner owed a duty of care to the deceased. In the second place the cases in which the principle has been recognised and to which your Lordships have been referred were cases in which prevention of injury to health or death would have involved an unlawful physical invasion of the individual's rights. In this case performance of the duty of care by closing the flap would have involved no invasion of any rights of the deceased.
Mr. Pannick, with his customary fairness, drew the attention of your Lordships to a number of authorities from other common law jurisdictions which he accepted did not support his contention. In the U.S.A. the position appears to be that although as a general rule the act of suicide is viewed as an intentional intervening act which relieves the tortfeasor of liability, where a person with known suicidal tendencies is placed in the care of a jailer or other custodian the failure of such person to take reasonable care to prevent the suicide may be a direct and proximate cause of the death. (Sudderth v. White (1981) Ky. App. 621 S.W. 2d. 33 Court of Appeals of Kentucky McLaughlin v. Sullivan (1983) 461 A. 2d. 123 Supreme Court of New Hampshire and Watters v. T.S.R. Inc. (1990) 904 F. 2d. 378 U.S. Court of Appeals, Sixth Circuit).
In New Zealand, Richmond J. in Pallister v. Waikato Hospital Board  2 N.Z.L.R. 725, 736 expressed the view that had there been a failure by the hospital board to use reasonable care to guard the deceased against his known suicidal tendencies that failure would have been an effective or substantial cause of his death.
It appears from the decision of the British Columbia Court of Appeal in Funk v. Clapp (1986) 68 D.L.R. (4th) 229 that in Canada the doctrine of novus actus interveniens does not necessarily break the chain of causation between a jailer's failure in duty of care and the suicide of a prisoner in his charge.
My Lords, I have no doubt that given the admitted breach of duty of care the defence of novus actus interveniens cannot assist the commissioner. The deceased's suicide was the precise event to which the duty was directed and as an actus it was accordingly neither novus nor interveniens.
Volenti non fit injuria
Mr. Pannick conceded that if his argument on novus actus interveniens failed so must his argument on volenti non fit injuria. I consider that this concession was rightly made. If the defence were available in circumstances such as the present where a deceased was known to have suicidal tendencies it would effectively negative the effect of any duty of care in respect of such suicide as Farquharson L.J. pointed out in Kirkham v. Chief Constable of Manchester  2 Q.B. 283, 295C in the passage to which I have already referred.
Mr. Blake Q.C. for the plaintiff submitted that the act of suicide could not amount to contributory negligence on the part of the deceased inasmuch as it did not amount to fault by him within the meaning of section 4 of the Law Reform (Contributory Negligence) Act 1945. Section 1(1) of that Act provides that where A suffers damage "as the result partly of his own fault and partly of the fault" of B, the damages recoverable may be reduced "having regard to the claimant's share in the responsibility for the damage." Fault is defined in section 4 as meaning "negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence." Mr. Blake contended that since an act which was intentional not only as to its performance but also as to its consequences would not have amounted to contributory negligence at common law it followed that the deceased's act of suicide was not "fault" within the meaning of section 4. He referred to a number of English cases which did not appear to me to bear upon the issue or to advance his argument. In Pallister v. Waikato Hospital Board  2 N.Z.L.R. 725, 736, Richmond J. referred to the possibility of the act of the deceased in jumping from the window amounting to "fault" within the meaning of the Contributory Negligence Act 1947. Mr. Blake also referred to three United States cases, two from State Court of Appeals and one from a Federal Court of Appeals which ruled that a plaintiff's suicide did not amount to contributory negligence. In Cole v. Multomah County (1979) Or. App. 592 P. 2d. 221 the Court of Appeals of Oregon ruled that acts which a plaintiff's mental illness caused him to commit were the same acts which the defendants had a duty to prevent and therefore could not constitute contributory negligence. In Alvarado v. Brownsville (1993) 865 S.W. 2d. 148 the State Court of Appeals ruled that the Texas Civil Practices and Remedies Code prohibited the use of a plaintiff's suicide as a defence if the suicide was caused in whole or in part by a defendant's breach of duty. In Myers v. County of Lake Indiana (1994) 30 F. 3d. 847 the United States Court of Appeals Seventh Circuit opined that Indiana law would probably not recognise intentional effects to commit suicide as defences to the tort of negligently failing to prevent suicide attempts. However, this opinion was expressed in the context of a defence which appeared to equiparate contributory negligence to novus actus interveniens and volenti non fit injuria as a complete defence rather than one resulting in reduced quantum of damages. I do not therefore consider that it advances Mr. Blake's argument.
On the other hand Mr. Pannick referred to three United States cases one from a Federal Court of Appeals and two from States Supreme Courts in which suicide had been treated as amounting to contributory negligence. In Hickey v. Zezulka (1992) 487 N.W. 2d. 106 the majority of the Supreme Court of Michigan held that the contributory negligence of a prisoner who committed suicide could be taken into account in assessing damages for the jailer's breach of duty. In Molton v. City of Cleveland 839 F. 2d. 240 (1998) the United States Court of Appeals, Sixth Circuit, refused to disturb the decision of a jury as to the degree of contributory negligence found on the part of a prisoner who committed suicide. In Champagne v. United States of America (1994) 513 N.W. 2d. 75 the Supreme Court of North Dakota rejected an argument that the contributory negligence of the victim is never to be considered where suicide is a foreseeable result of a medical provider's failure to take reasonable steps to prevent it and held that where the patient was responsible for his own care allocation of fault was in order. Although I have referred to the circumstances of each of the six United States cases cited by counsel in relation to contributory negligence the only significant conclusion which I draw from them is that in the United States a deliberate act of suicide by someone in command of his senses does not necessarily bar a plea of contributory negligence in reduction of damages.
My Lords, no United Kingdom authority has been cited in support of Mr. Blake's contention so far as the period before 1945 is concerned. This is perhaps not altogether surprising in view of the fact that the effect of contributory negligence at that time was identical to that of the defence of volenti non fit injuria. The authorities from New Zealand and the United States do not suggest that an act intentional both as to performance and consequences can never amount to contributory negligence. If the law is to retain the respect of the public it should where possible walk hand in hand with common sense. There are, of course, occasions where legislation both domestic and European appear to make this impossible but where there is no such legislative inhibition the law should be interpreted and applied so far as possible to produce a result which accords with common sense. To take an example A working beside a tank of boiling liquid which is inadequately guarded negligently allows his hand to come in contact with the liquid and suffers damage; B for a dare plunges his hand into the same liquid to see how long he can stand the heat. It would be bordering on the absurd if A's entitlement to damages were reduced but B could recover in full for his own folly. B's responsibility for the damage which he suffered is undeniable. I see no reason to construe section 4 of the Act of 1945 to produce such a result and I agree with the Lord Chief Justice that the word "fault" in that section is wide enough to cover acts deliberate as to both performance and consequences. An individual of sound mind is no less responsible for such acts than he is for negligent acts and it is his share of responsibility for the damage which reduces the damages recoverable.
In this case the open flap was not a danger to an occupant of the cell acting normally with reasonable regard for his own safety. It only became a danger when it was deliberately used by the deceased as part of the mechanism whereby he strangled himself. The act of the deceased was accordingly a substantial cause of his own demise and any damages recoverable by the plaintiff should be reduced to reflect this.
Were I sitting alone I would have apportioned the blame as to one third to the commissioner and as to two thirds to the deceased. However, I understand that the majority of your Lordships favour a 50/50 division of responsibility and I do not feel inclined to dissent from that view.
In all the circumstances I would allow the appeal and make the same order as that proposed by my noble and learned friend Lord Hoffmann.
LORD HOPE OF CRAIGHEAD
The problem with which this case is concerned is, sadly, all too familiar both to the police and to the prison authorities. It is well known that people are more likely to commit suicide when they are in prison or in a police cell than when they are at liberty. Research has shown that some prisoners are more at risk than others would be when detained in custody. Those who are mentally disordered, young persons on remand and those who are serving very long sentences are thought to be particularly vulnerable. In some cases the prison regime may be a contributory factor in a prisoner's decision to end his own life. In others there may be no such contributory factor. The act of suicide may be both unforeseen and unforeseeable. But in the present case the act was foreseeable, and it would not have occurred if reasonable care had been taken to prevent it.
The deceased, who was then aged 29, died on 1 April 1990 as a result of having hanged himself on 23 March 1990 while he was in custody in Kentish Town Police Station. The judge said that, on the evidence, he was unable to conclude other than that the deceased was of sound mind at the time. He was not suffering from any marked medical or psychiatric condition. A doctor who had seen him earlier that day said that she had found no evidence of any psychiatric disorder or clinical depression and that he was calm and rational. There is no suggestion that there was anything in the conditions in which he was being held which might have prompted a rational person to wish to take his own life. On the other hand he had tried about three months previously to throttle himself with a belt when he was in a cell at Clerkenwell Magistrates' Court, having just been remanded in custody. In the light of this incident, which occurred on 29 December 1989, the court jailer completed a form which notified the prison authorities that he presented a special risk because he might have suicidal tendencies.
After about ten days he was released from custody without further incident. But on 21 March 1990 he was arrested again following further police investigations into his activities. He was kept overnight at West Hampstead Police Station and transferred the next day to Willesden Police Station, where he was charged and kept overnight to appear at Brent Magistrates' Court on 23 March 1990. By the time when he arrived at the magistrates' court he had been identified as a suicide risk. He was placed in a cell on his own under close observation. Within five minutes he was seen to be on the floor attempting once again to throttle himself with a belt. As he was uninjured, he duly appeared before the magistrates who remanded him in custody. He was then transferred to Kentish Town Police Station, where all the responsible officers were alerted to the fact that he was a suicide risk as he had made an attempt at suicide that morning.
He was examined by the doctor soon after his arrival at the police station. At 1.50 p.m. he was returned to his cell. Seven minutes later, at 1.57 p.m., he was checked by a police officer who saw him on his bed. Minutes later, no later than 2.05 p.m., when his cell was again checked he was found in a semi-crouched position by the door with his shirt tail round his neck, having strangled himself. He was cut down and artificial respiration was applied, but he died from his injuries a week later in hospital.