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Session 2007 - 08 Publications on the Internet Judgments PDF Print Version 
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| Judgments - Corr (Administratix of The Estate of Thomas Corr (Deceased)) v Ibc Vehicles Limited, Appellate Committee
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HOUSE OF LORDS SESSION 2007-08 [2008] UKHL 13 on appeal from: [2007] EWCA Civ 601
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Corr (administratix of the estate of Thomas Corr (deceased)) (Respondent) v IBC Vehicles Limited (Appellants) Appellate Committee Lord Bingham of Cornhill Lord Scott of Foscote Lord Walker of Gestingthorpe Lord Mance Lord Neuberger of Abbotsbury Counsel Appellants: Jeremy Cousins QC John Brennan Justin Kitson (Instructed by Moran & Co) Respondents: John Foy QC Andrew Ritchie Robert McAllister (Instructed by Rowley Ashworth) Hearing date: 3-5 DECEMBER 2007 ON WEDNESDAY 27 FEBRUARY 2008 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Corr (administratix of the estate of Thomas Corr (deceased)) (Respondent) v IBC Vehicles Limited (Appellants) [2008] UKHL 13 LORD BINGHAM OF CORNHILL My Lords, 1. The issue in this appeal is whether loss attributable to the death by suicide of the late Mr Thomas Corr is recoverable by his dependent widow under section 1 of the Fatal Accidents Act 1976 in this action against his former employer. 2. Mr Corr was employed as a maintenance engineer by the appellant company (“the employer”), a manufacturer of light commercial vehicles. On 22 June 1996, then aged almost 31, he was working on a prototype line of presses which produced panels for Vauxhall vehicles. He was working, with another, to remedy a fault on an automated arm with a sucker for lifting panels. The machine picked up a metal panel from the press, without warning, and moved it forcibly in Mr Corr’s direction. He would have been decapitated had he not instinctively moved his head. He was struck to the right side of his head and most of his right ear was severed. 3. As a result of this accident, Mr Corr underwent long and painful reconstructive surgery. He remained disfigured, suffered persistently from unsteadiness, mild tinnitus and severe headaches, and had difficulty in sleeping. He also suffered from post traumatic stress disorder. He experienced severe flashbacks which caused his body to jolt, and suffered from nightmares. He drank more alcohol than before the accident and became bad-tempered. 4. Also as a result of the accident, Mr Corr became depressed, a condition which worsened with the passage of time. He was referred to hospital for treatment for depression on 6 February 2002, and was admitted to hospital after taking an overdose of drugs on 18 February. He was assessed as being a significant suicide risk on 2 March 2002, and on 9 March it was noted that he had recurring thoughts of jumping from a high building. He was treated with electro-convulsive therapy. It was noted in his NHS care plan on 15 April that he felt life was not worth living and that he felt he was a burden to his family. On 20 May 2002 Mr Corr was examined by a clinical psychologist who noted that Mr Corr felt helpless and admitted to suicidal ideation. The psychologist diagnosed his condition as one of “severe anxiety and depression". On 23 May 2002, while suffering from an episode of severe depression, Mr Corr committed suicide by jumping from the top of a multi-storey car park in which he had parked his car some hours earlier. A note which he left behind graphically illustrates the depth of desperation to which he had been reduced. Nearly six years had passed since the accident. 5. The facts summarised above are agreed between the parties, as are the facts of Mr Corr’s mental and psychological condition at the time of his death. On the one hand, he had the capacity to manage his own affairs. His intellectual abilities were not affected. His appreciation of danger was not lessened. He was aware of the likely consequences of jumping from a high building. He acted deliberately with the intention of killing himself. He had from time to time since the accident thought of taking his own life but had hesitated because of the effect on his family. He understood the difference between right and wrong. He knew the nature and quality of his acts. He did not suffer from hallucinations. It would seem clear, had the question arisen, that his mental condition would not have met the M'Naghten test of insanity. On the other hand, at the time of his death Mr Corr was severely depressed. His depression had caused him to experience feelings of hopelessness. These became increasingly difficult to resist. A critical change took place in the balance of his thinking, when he stopped recognising these feelings of hopelessness as symptoms of his depressive illness, and instead they came to determine his reality. At the time of his suicide Mr Corr was suffering from a disabling mental condition, namely a severe depressive episode which impaired his capacity to make reasoned and informed judgments about his future. It was well known that between one in six and one in ten sufferers from severe depression kill themselves. 6. These proceedings were begun by Mr Corr in June 1999, shortly before expiry of the three year limitation period, claiming damages for the physical and psychological injuries which he had suffered. The proceedings were amended after his death to substitute his widow and personal representative as claimant. She claims for the benefit of Mr Corr’s estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and also for herself as a dependant of the deceased under the 1976 Act. The first of these claims has not been contentious. The second is a claim to recover the financial loss attributable to Mr Corr’s suicide, and that alone is in issue in this appeal. 7. Before turning to the issue which divides the parties, I think it helpful to record and recapitulate the significant points which are common ground between them. First, the employer accepts that it owed a duty to Mr Corr as its employee to take reasonable care to avoid causing him personal injury. Personal injury must be understood as embracing both physical and psychological injury. That is the effect of the decision of the House in Page v Smith [1996] AC 155, which neither party criticises or invites the House to review. (The case is not of course authority for the medical premises on which it rests). It is common ground, secondly, that the employer was in breach of its duty to Mr Corr and that this breach caused the accident on 22 June 1996. So much was admitted on the pleadings. It is common ground, thirdly, that as a consequence of this breach Mr Corr suffered severe physical injuries and mental and psychological injury for which, up to the date of his death, he could have recovered damages had he survived, and for which his personal representative is entitled to recover damages for his estate. It is agreed, fourthly, that the depressive illness from which Mr Corr suffered before and at the time of his death was caused by the accident. There was nothing in his background or history to suggest that he suffered in this way before his accident. Finally, it is common ground, as already noted, that it was his depressive illness which drove Mr Corr to take his own life. 8. Analysed in terms of section 1(1) of the 1976 Act, the question to be decided is whether Mr Corr’s death was caused by a wrongful act, namely the employer’s breach of duty. In the context of what is agreed, however, the real issue dividing the parties in this case, compendiously expressed, is whether, for one reason or another, the damages claimed by Mrs Corr under the 1976 Act are too remote. In this context both parties relied on Lord Rodger of Earlsferry’s recent summary of principle in Simmons v British Steel plc [2004] UKHL 20, [2004] ICR 585, para 67, a summary which neither side questioned although they laid emphasis on different propositions. That opinion was given in an appeal from Scotland, but it was not suggested that the law in the two jurisdictions is now different in any relevant respect. The summary reads: “67 These authorities suggest that, once liability is established, any question of the remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid; Bourhill v Young [1943] AC 92, 101 per Lord Russell of Killowen; Allan v Barclay 2 M 873, 874 per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: McKew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid: Lamb v Camden London Borough Council [1981] QB 625; but see Ward v Cannock Chase District Council [1986] Ch 546. (3) Subject to the qualification in (2), if the pursuer’s injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate [1963] AC 837, 847 per Lord Reid. (4) The defender must take his victim as he finds him: Bourhill v Young [1943] AC 92, 109-110 per Lord Wright; McKillen v Barclay Curle & Co Ltd 1967 SLT 41, 42, per Lord President Clyde. (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: Page v Smith [1996] AC 155, 197F-H per Lord Lloyd.” Lord Rodger’s summary conveniently introduces the submissions advanced and skilfully developed by Mr Cousins QC for the employer, which were that Mr Corr’s suicide (1) fell outside the duty of care owed to him by the employer (“the scope of duty issue”); (2) was not an act which was reasonably foreseeable and therefore not one for which the employer should be held liable (“the foreseeability issue”); (3) broke the chain of causation and constituted a novus actus interveniens (“the novus actus issue”); (4) was an unreasonable act which broke the chain of causation (“the unreasonable act issue”); (5) was the voluntary act of the deceased, and so precluded by the principle volenti non fit injuria (“the volenti issue”); (6) amounted to contributory negligence (“the contributory negligence issue”). I shall consider these submissions in turn. (1) The scope of duty issue 9. Mr Cousins adopted and applied to this case the pithy statement of Spigelman CJ in AMP General Insurance Ltd v Roads & Traffic Authority of New South Wales [2001] NSWCA 186, [2001] Aust Torts Reports 81-619, para 9: “There was no duty upon the employer…to protect the deceased from self harm". Mr Cousins pointed out that different duties arise in different situations but that, as Lord Hope of Craighead observed in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, 379, “It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately". Mr Cousins invoked the important principle of personal autonomy, illustrated by St George’s Healthcare NHS Trust v S [1999] Fam 26 and recently upheld by the House in the criminal field in R v Kennedy (No 2) [2007] UKHL 38, [2007] 3 WLR 612, to submit that if an adult of sound mind chooses, for whatever reason, to inflict injury upon himself, that is an act for which responsibility cannot be laid on another. 10. I would agree with the broad thrust of this submission. The law does not generally treat us as our brother’s keeper, responsible for what he may choose to do to his own disadvantage. It is his choice. But I do not think that the submission addresses the particular features of this case. The employer owed the deceased the duty already noted, embracing psychological as well as physical injury. Its breach caused him injury of both kinds. While he was not, at the time of his death, insane in M'Naghten‘s terms, nor was he fully responsible. He acted in a way which he would not have done but for the injury from which the employer’s breach caused him to suffer. This being so, I do not think his conduct in taking his own life can be said to fall outside the scope of the duty which his employer owed him. (2) The foreseeability issue 11. As Lord Rodger’s summary quoted above makes clear, and despite the differences of opinion which formerly prevailed, it is now accepted that there can be no recovery for damage which was not reasonably foreseeable. This appeal does not invite consideration of the corollary that damage may be irrecoverable although reasonably foreseeable. It is accepted for present purposes that foreseeability is to be judged by the standards of the reasonable employer, as of the date of the accident and with reference to the very accident which occurred, but with reference not to the actual victim but to a hypothetical employee. In this way effect is given to the principle that the tortfeasor must take his victim as he finds him. Mr Cousins submits that while psychological trauma and depression were a foreseeable result of the accident (and thus of the employer’s breach), Mr Corr’s conduct in taking his own life was not. 12. This submission was accepted by the deputy judge (Mr Nigel Baker QC) at first instance. He held that reasonable foreseeability of the suicide must be established both in respect of the duty and the recovery of damages: the suicide fell outside the employer’s duty and was not reasonably foreseeable (judgment, paras 33, 34 (ii) and (iii)). Dissenting in the employer’s favour in the Court of Appeal [2006] EWCA Civ 331, [2007] QB 46, Ward LJ drew a distinction (para 57) between what was logically foreseeable and what was reasonably foreseeable, and concluded (para 64) that the suicide was not reasonably foreseeable. Both the deputy judge and Ward LJ attached significance in reaching this conclusion, as I think mistakenly, to the personal qualities of the deceased. The majority in the Court of Appeal reached a different conclusion. Sedley LJ (para 66) referred to the admitted fact that depression was a foreseeable consequence of the employer’s negligence and to the uncontroverted evidence that suicide was a not uncommon sequel of severe depression. He described it (para 67) as correct but irrelevant that the employer’s duty did not extend to anticipating and preventing suicide. It was not the claimant’s case that it did. But the law drew no distinction, for purposes of foreseeability and causation, between physical and psychological injury, and on the evidence (para 68) the suicide of Mr Corr was grounded in post-traumatic depression and nothing else. Wilson LJ observed that the claimant did not have (para 98) to establish that, at the date of the accident, the deceased’s suicide was reasonably foreseeable. He did not accept (para 98) the view of Spigelman CJ in the AMP case, above, that suicide was a kind of damage separate from psychiatric and personal injury, and therefore having to be separately foreseeable. 13. I have some sympathy with the feeling, expressed by Ward LJ in paragraph 61 of his judgment, that “suicide does make a difference". It is a feeling which perhaps derives from recognition of the finality and irrevocability of suicide, possibly fortified by religious prohibition of self-slaughter and recognition that suicide was, until relatively recently, a crime. But a feeling of this kind cannot absolve the court from the duty of applying established principles to the facts of the case before it. Here, the inescapable fact is that depression, possibly severe, possibly very severe, was a foreseeable consequence of this breach. The Court of Appeal majority were right to uphold the claimant’s submission that it was not incumbent on her to show that suicide itself was foreseeable. But, as Lord Pearce observed in Hughes v Lord Advocate [1963] AC 837, 857, “to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable". That was factually a very different case from the present, but the principle that a tortfeasor who reasonably foresees the occurrence of some damage need not foresee the precise form which the damage may take in my view applies. I can readily accept that some manifestations of severe depression could properly be held to be so unusual and unpredictable as to be outside the bounds of what is reasonably foreseeable, but suicide cannot be so regarded. While it is not, happily, a usual manifestation, it is one that, as Sedley LJ put it, is not uncommon. That is enough for the claimant to succeed. But if it were necessary for the claimant in this case to have established the reasonable foreseeability by the employer of suicide, I think the employer would have had difficulty escaping an adverse finding: considering the possible effect of this accident on a hypothetical employee, a reasonable employer would, I think, have recognised the possibility not only of acute depression but also of such depression culminating in a way in which, in a significant minority of cases, it unhappily does. (3) The novus actus issue 14. The deputy judge made no express finding on this question. But Ward LJ, having reviewed a number of authorities, concluded (para 49) that the chain of causation was not broken by the suicide of the deceased. This was an opinion which Sedley LJ shared. In paragraph 76 of his judgment he said: “But once the law accepts, as it does, the foreseeability of psychological harm as a concomitant of foreseeable physical harm, it is only if a break dictated by logic or policy - or, of course, by evidence - intervenes that it is possible today to exclude death by suicide from the compensable damage where that is what the depression leads to.” He expressed his conclusions in paragraphs 82-83: “82 To cut the chain of causation here and treat Mr Corr as responsible for his own death would be to make an unjustified exception to contemporary principles of causation. It would take the law back half a century to a time when the legal and moral opprobrium attaching to suicide placed damages for being driven to it on a par with rewarding a person for his own crime. Today we are able to accept that people to whom this happens do not forfeit the regard of society or the ordinary protections of the law. 83 Once it is accepted that suicide by itself does not place a clinically depressed individual beyond the pale of the law of negligence, the relationship of his eventual suicide to his depression becomes a pure question of fact. It is not a question which falls to be determined, as the deputy judge in significant measure determined it, by analogy with the duty of care resting on a custodian. Once liability has been established for the depression, the question in each case is whether it has been shown that it was the depression which drove the deceased to take his own life. On the evidence in the present case, it clearly was.” Wilson LJ (para 100) agreed with Ward and Sedley LJJ. 15. The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not the less so where the independent, supervening cause is a voluntary, informed decision taken by the victim as an adult of sound mind making and giving effect to a personal decision about his own future. Thus I respectfully think that the British Columbia Court of Appeal (McEachern CJBC, Legg and Hollinrake JJA) were right to hold that the suicide of a road accident victim was a novus actus in the light of its conclusion that when the victim took her life “she made a conscious decision, there being no evidence of disabling mental illness to lead to the conclusion that she had an incapacity in her faculty of volition": Wright v Davidson (1992) 88 DLR (4th) 698, 705. In such circumstances it is usual to describe the chain of causation being broken but it is perhaps equally accurate to say that the victim’s independent act forms no part of a chain of causation beginning with the tortfeasor’s breach of duty. 16. In the present case Mr Corr’s suicide was not a voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future. It was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being, as is accepted, a consequence of the employer’s tort. It is in no way unfair to hold the employer responsible for this dire consequence of its breach of duty, although it could well be thought unfair to the victim not to do so. Mr Cousins submitted that on the agreed findings Mr Corr was not, in M'Naghten terms, insane, and it is true that in some of the older authorities a finding of insanity was regarded as necessary if a claimant were to recover for loss attributable to suicide: see, for example, Murdoch v British Israel World Federation (New Zealand) Inc [1942] NZLR 600, following McFarland v Stewart (1900) 19 NZLR 22. I do not for my part find these cases persuasive, for two main reasons. First, so long as suicide remained a crime the courts were naturally reluctant to award damages for the consequences of criminal conduct. Thus a finding of insanity, which exculpated the deceased from criminal responsibility, removed this obstacle. Modern changes in the law overcome the problem: there is now no question of rewarding the consequences of criminal conduct, although it remains true that the more unsound the mind of the victim the less likely it is that his suicide will be seen as a novus actus. The second reason is that whatever the merits or demerits of the M'Naghten rules in the field of crime, and they are much debated, there is perceived in that field to be a need for a clear dividing line between conduct for which a defendant may be held criminally responsible and conduct for which he may not. In the civil field of tort there is no need for so blunt an instrument. “Insane” is not a term of medical art even though, in criminal cases, psychiatrists are obliged to use it. In cases such as this, evidence may be called, as it was, to enable the court to decide on whether the deceased was responsible and, if so, to what extent. I agree with Sedley LJ that it would be retrograde to bar recovery by the claimant because the deceased was not, in M'Naghten terms, insane. (4) The unreasonable act issue 17. In his summary of principle quoted above, Lord Rodger refers to both a novus actus interveniens and unreasonable conduct on the part of the pursuer as potentially breaking the chain of causation. No doubt there is room for a theoretical distinction between the two. But having regard to the reasons I have given for holding the suicide of the deceased not to be a novus actus I would find it impossible to hold that the damages attributable to the death were rendered too remote because the deceased’s conduct was unreasonable. It is of course true that, judged objectively, it is unreasonable in almost any situation to take one’s own life. But once it is accepted, as it must be, that the deceased’s unreasonable conduct was induced by the breach of duty of which the claimant complains, the argument ceases in my judgment to have any independent validity. (5) The volenti issue 18. It is a salutary and fair principle that a tortfeasor cannot be held responsible for injury or damage to which a victim, voluntarily and with his eyes open, consents. But it is not suggested that Mr Corr consented in any way to the accident and injury which befell him on 22 June. It is an argument addressed only to his suicide. But that was not something to which Mr Corr consented voluntarily and with his eyes open but an act performed because of the psychological condition which the employer’s breach of duty had induced. I conclude, again, that this is an argument which has no independent validity. (6) The contributory negligence issue |
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