(back to preceding text)

19.  The employer pleaded contributory negligence in its defence, and it featured in Mr Cousins’ submissions to the trial judge. The judge, however, made no finding, which he may have thought unnecessary since he was dismissing the claim. In the Court of Appeal, Ward LJ referred to the defence of contributory negligence, observing (para 8) that it had rightly not been the subject of much argument in the appeal. It may be inferred that he considered the defence to have little substance whatever the outcome of the appeal, an impression fortified by the omission of Sedley and Wilson LJJ, both of whom allowed the claimant’s appeal and awarded her the additional damages claimed, to mention the point at all. In argument before the House, the issue was again raised, but addressed by both parties with extreme brevity.

20.  I very much question whether it is appropriate for the House to conduct what is in effect an independent enquiry into a matter on which the courts below have made no findings and on which, to the extent that it raises any question of law, we have heard no more than cursory argument. I would for my part decline to conduct that enquiry.

21.  If, however, my noble and learned friends are of a different opinion, we must pay attention to the terms of section 1(1) of the Law Reform (Contributory Negligence) Act 1945:

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage….”

Thus attention is directed to the fault of the deceased and to his causal contribution to the damage which ensued.

22.  For reasons already given, I do not think that any blame should be attributed to the deceased for the consequences of a situation which was of the employer’s making, not his. Consistently with my rejection of arguments based on novus actus and unreasonable conduct, I would similarly absolve the deceased from any causal responsibility for his own tragic death. I would accordingly assess his contributory negligence at 0%. That, in my opinion, reflects the responsibility of the deceased for his own loss (see Reeves v Commissioner of Police of the Metropolis [1999] QB 169, 198).

23.  For these reasons, largely those of the Court of Appeal majority, and also the reasons of my noble and learned friend Lord Walker of Gestingthorpe, which I have had the advantage of reading in draft, and with which I wholly agree, I would accordingly dismiss the employer’s appeal with costs.

LORD SCOTT OF FOSCOTE

My Lords,

24.  I have had the advantage of reading in advance the opinion prepared by my noble and learned friend Lord Bingham of Cornhill and gratefully adopt his exposition of the facts of this sad case.

25.  Mr Corr, the respondent’s husband, was injured at work by the negligence of the appellant company, his employers. The accident he suffered could easily have killed him but in the event inflicted on him serious and disfiguring injuries to his head but left him alive. It is easy to understand that the repercussions of an injury of that character may have an enduring effect on the mental state of the victim, continuing after the physical effects are spent. So it was with Mr Corr. He became clinically depressed, bad-tempered and suffered from nightmares. He was treated with electro-convulsive therapy. All of this was, it is accepted, a result of the accident. Mr Corr also began to entertain thoughts of suicide. This, it is accepted, was a symptom of his clinical depression. On 23 May 2002, nearly six years after the accident, Mr Corr did commit suicide. In doing so he acted deliberately, aware of the consequences and with the intention of killing himself. The action which has now reached your Lordships’ House is the action brought by his widow, Mrs Corr, under the Fatal Accidents Act 1976.

26.  Section 1 of the 1976 Act enables a dependant of the deceased to bring an action for damages

“ [if] death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof…”

The first question for decision, therefore, is whether Mr Corr’s death by suicide was “caused” by the act, neglect or default of his employer that had occasioned, or failed to prevent, the accident. Consideration of this question can easily become over-influenced by the cataclysmic nature and finality of an act of suicide and I have found it easier to consider the question by asking myself what the position would have been if Mr Corr’s attempt at suicide had not been successful but instead had caused him serious and additional physical injuries to those he suffered in the accident at work. If the answer is that he would have been entitled not only to recover for his original injuries but also for the additional injuries caused by his attempted suicide, there is no reason that I can see why Mrs Corr should not have a good Fatal Accidents Act claim; but if he would not have been entitled to recover damages for the additional injuries, then I would conclude that Mrs Corr would not be entitled to Fatal Accidents Act damages. The issue is whether his jumping from the top of the multi-storey car park was “caused” by his employer’s negligence.

27.  There is no doubt, on the facts of this case, that but for the employer’s negligence the accident at work would not have happened, that but for the accident at work and the physical damage he suffered Mr Corr would not have become clinically depressed and that but for that psychiatric feature he would not have entertained suicidal thoughts or have attempted suicide. On a “but for” test, his jump from the top of the multi-storey carpark can be said to have been “caused” by his employer’s negligence. But the developing case law has placed limits on the extent of the “but for” consequences of actionable negligence for which the negligent actor can be held liable. This case engages and questions the extent of those limits. As it is put in Clerk & Lindsell on Torts 19th Ed. at 2-78

“Where the defendant’s conduct forms part of a sequence of events leading to harm to the defendant, and the act of another person, without which the damage would not have occurred, intervenes between the defendant’s wrongful conduct and the damage, the court has to decide whether the defendant remains responsible or whether the act constitutes a novus actus interveniens i.e. whether it can be regarded as breaking the causal connection between the wrong and the damage”

After noting that a novus actus may take the form of conduct by the claimant (i.e. Mr Corr) himself, the text says that

“whatever its form the novus actus must constitute an event of such impact that it ‘obliterates’ the wrongdoing of the defendant.”

The question in this case, therefore, is whether Mr Corr’s deliberate act of jumping from a high building in order to kill himself, an apparent novus actus, albeit one that was causally connected, on a ‘but-for’ basis, to the original negligence, broke the claim of causative consequences for which Mr Corr’s negligent employers must accept responsibility.

28.  The answer to this question does not, in my opinion, require the application of a reasonable foreseeability test. To ask whether it was reasonably foreseeable that an accident of the sort that injured Mr Corr might have psychiatric as well as physical consequences and, if it did have psychiatric consequences, whether those consequences might include suicidal tendencies and an eventual suicide would be unlikely, on the facts of this case, to result in an affirmative answer. The possibility of those consequences is clear. On the other hand, the likelihood of their happening, if judged at the time of the accident, seems to me to be remote. The evidence was that between 1 in 10 and 1 in 6 persons suffering from clinical depression will commit suicide. There was, I think, no evidence as to the likelihood, in percentage terms, of persons suffering the sort of physical injuries that Mr Corr suffered developing as a consequence clinical depression, but I would be surprised if it were more than, say, 25 per cent. So my expectation would be that the percentage of cases in which an accident of the sort that befell Mr Corr would lead to clinical depression and suicide would lie in the range of 2 to 4 per cent. A statement that an outcome of this degree of likelihood was reasonably foreseeable would be to attribute to the adverb a less than helpful meaning. It would mean, I think, no more than that the outcome was foreseeable as a possibility and was one for which the negligent employer ought to be held responsible.

29.  Authority, however, discourages attempts to decide cases like the present by the application of a reasonable foreseeability test. The general rule is that in a case where foreseeable physical injuries have been caused to a claimant by the negligence of a defendant the defendant cannot limit his liability by contending that the extent of the physical injuries could not have been reasonably foreseen; the defendant must take his victim as he finds him. In Smith v Leech Brain & Co. Ltd [1962] 2 QB 405 Lord Parker CJ said at 415 that

“The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that [the victim] would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim.”

Smith v Leech Brain did not involve psychiatric consequences of a physical injury, but Page v Smith [1996] AC 155 did. In Page v Smith the House held that where physical injury was a reasonably foreseeable consequence of the negligence the defendant was liable for psychiatric damage caused by the negligence even though physical injury had not in the event been caused and whether or not psychiatric damage as a consequence of the negligence was foreseeable. As Lord Browne-Wilkinson put it at 182

“In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his M.E., was an ‘eggshell personality.’ But that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage. Once such duty of care is established, the defendant must take the plaintiff as he finds him”

And, per Lord Lloyd of Berwick at 189

“The negligent defendant…takes his victim as he finds him. The same should apply in the case of psychiatric injury. There is no difference in principle…between an eggshell skull and an eggshell personality.”

Page v Smith, therefore, extended the rule as stated in Smith v Leech Brain so as to include psychiatric injury. If a duty of care to avoid physical injury is broken and psychiatric injury is thereby caused, whether with or without any physical injury being caused, the negligent defendant must accept liability for the psychiatric injury. He must take his victim as he finds him. That this is so is a consequence of the House’s decision in Page v Smith. That decision has been the subject of some criticism but not in the present case. If Mr Corr’s psychiatric damage caused by the accident at work is damage for which his employers must accept liability, it is difficult to see on what basis they could escape liability for additional injury, self-inflicted but attributable to his psychiatric condition. If Mr Corr had not suffered from the clinical depression brought about by the accident, he would not have had the suicidal tendencies that led him eventually to kill himself. In my opinion, on the principles established by the authorities to which I have referred, the chain of causal consequences of the accident for which Mr Corr’s negligent employers are liable was not broken by his suicide. For tortious remoteness of damage purposes his jump from the multi-storey car park was not, in my opinion, a novus actus interveniens. Mrs Corr is entitled, in my opinion, to a Fatal Accidents Act claim against his employers.

30.  But that is not an end of the issues that arise in this case. Section 5 of the 1976 Act applies where the deceased whose death has entitled the dependant to a Fatal Accidents Act damages action has died “as the result partly of his own fault and partly of the fault of any other person". In that event the damages recoverable by the dependant are to be reduced to the same proportionate extent as damages brought for the benefit of the deceased’s estate would have been reduced under section 1(1) of the Law Reform (Contributory Negligence) Act 1945. Here, too, I find it easier to examine the issue by supposing that Mr Corr had not died from his jump but had merely, if that is the right word, added to his physical injuries. Would he have been entitled to recover in full for those additional injuries, or would there have been a proportionate reduction to reflect the fact that the jump had been his own deliberate decision?

31.  Section 1(1) of the 1945 Act provides for the reduction of damages recoverable in respect of the negligence “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage". This reduction does not come into operation unless there has been some “fault” on the part of the claimant or, in a Fatal Accidents Act case, the deceased that has been a contributory cause of the damage or the death, as the case may be. There is no doubt in the present case that both the employer’s negligence and Mr Corr’s act in jumping from a high building with the intention of killing himself were contributory causes of his death. The issue, to my mind, is whether Mr Corr’s act can be described as “fault” within the meaning of that word in section 5 of the 1976 Act. Mr Corr’s state of mind, his suicidal tendencies, had been brought about as a result of his employers’ negligence. But he was not an automaton. He remained an autonomous individual who retained the power of choice. The evidence that clinical depression leads often to suicidal tendencies and that between 1 in 10 and 1 in 6 persons succumb to those tendencies is evidence also that between 9 in 10 and 5 in 6 persons do not. Suppose, for example, that there had been people in the area on to which Mr Corr was likely to land if he jumped. If he had jumped in those circumstances and had in the process injured someone beneath, surely no court, faced with a claim by the injured person for damages, would have found any difficulty in attributing fault to his action. “Fault” in section 4 of the 1945 Act includes :

“…[any] 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”

and “fault” in section 5 of the 1976 Act must bear the same meaning. So if the act of jumping in disregard for the safety of others would have constituted fault for tort purposes, it is difficult to see why that same act of jumping with the deliberate intention of terminating his own life should not also be so regarded. If, in jumping, Mr Corr had both injured someone else and also himself, it would seem to me highly anomalous to hold him liable in negligence in an action by the third party but not guilty of fault for contributory negligence purposes so far as his own injuries were concerned.

32.  In my opinion, therefore, this is a case to which section 5 of the 1976 Act applies and the damages recoverable by Mrs Corr fall to be reduced accordingly. The percentage reduction is very much a matter of impression, dependent on the view taken of the degree of responsibility for Mr Corr’s death to be attributed to Mr Corr and his employers respectively. The written Case submitted to your Lordships on behalf of the employers has (at para.107) drawn attention for comparative purposes to Reeves v Metropolitan Police Commissioner [2000] 1 AC 360. That was a case where a person known to be a suicide risk was being held in police custody and while in that custody succeeded in a suicide attempt. The police were held liable in negligence for allowing this to happen and the issue of contributory negligence arose. The House held that responsibility for the death should be apportioned equally between the police and the deceased. The employers in their written Case submit that Mr Corr’s responsibility for his own death should be taken to be much greater than the 50 per cent responsibility attributed to the deceased in the Reeves case. My Lords, I do not take that view. Mr Corr’s suicidal tendencies which led him to take his own life were one of the psychiatric products of his employers’ negligence. As I read the evidence Mr Corr struggled against those tendencies, underwent extremely unpleasant therapy in an attempt, sadly unsuccessful, to be cured of them, but finally succumbed to them. I think, for the reasons I have given, that this is a case to which section 5 of the 1976 Act applies and that there must, therefore, be a proportionate reduction in the damages recoverable by Mrs Corr. But I do not regard the adjective ‘blameworthy’ as an apt description, other than in a strictly causal sense, of Mr Corr’s conduct in jumping to his death. I would attribute to him responsibility for his death of 20 per cent.

33.  For the reasons I have given I would dismiss this appeal on liability but support a direction that Mrs Corr’s damages be reduced by 20 per cent to reflect Mr Corr’s responsibility for his own death.

LORD WALKER OF GESTINGTHORPE

My Lords,

34.  I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. I am in full agreement with it, and for the reasons that Lord Bingham gives I would dismiss this appeal. But because of the importance of the issues raised I add some observations of my own.

35.  It is common ground that the issues raised are different from those in the so-called “custodian” cases - that is, where an individual known to be a suicide risk is in the care or custody of a hospital, a prison, or the police. In England the two most important custodian cases are (in chronological order) Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283 and Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360. In Kirkham the claimant’s husband hanged himself in Risley Remand Centre after the police had failed to warn the prison authorities that he was (as the police knew) a suicide risk. He was suffering from clinical depression and had previously attempted suicide more than once. The Court of Appeal upheld awards under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934, not reduced by an allegation of contributory negligence (an issue raised in the notice of appeal but not discussed at all in the judgments of the Court of Appeal).

36.  In Reeves the claimant was the administratrix of a man who had hanged himself while in custody in a police cell. He was known to be a suicide risk (having made two previous attempts) but a doctor who examined him at the police station a few hours before his death thought that he showed no signs of psychiatric disorder or clinical depression. This House upheld the majority of the Court of Appeal (Lord Bingham of Cornhill CJ and Buxton LJ, Morritt LJ dissenting) in holding the police liable but allowed the appeal on the issue of contributory negligence, directing a 50 per cent reduction in damages (whereas the Court of Appeal had directed no reduction). The majority was however achieved only by the process explained by Lord Bingham at [1999] QB 169, 198. In this House the issue of contributory negligence was discussed at some length in the opinions of Lord Hoffmann (at pp369-372), Lord Jauncey of Tullichettle (at pp367-377) and Lord Hope of Craighead (at pp382-385).

37.  This appeal differs from the custodian cases in two important respects. The late Mr Thomas Corr was not, before the dreadful accident on the press line, a suicide risk; he was a happy family man. The appellant, IBC Vehicles Limited (“IBC”) was not Mr Corr’s custodian but his employer. IBC owed him various contractual, tortious and statutory duties, of which the most important for present purposes was to take reasonable care that he did not sustain personal injuries in the course of his work. Mr Corr did not suffer from depression, suicidal ideation or any other psychological disorder. There was no question of IBC owing him any special duty, before the accident, on account of any such disability. His severe clinical depression and feelings of worthlessness and hopelessness came after, and as a result of, the very serious physical injuries which he received in the accident.

38.  Before the decision of this House in Page v Smith [1996] AC 155 there was much uncertainty as to the circumstances in which psychiatric injury was actionable on its own, unaccompanied by bodily injury. The appellant, Mr Page, had been in a car crash in which he was not physically injured. But he did as a result of the crash suffer a serious recurrence of myalgic encephalomyelitis (also known as ME), which although viral in origin seems to have been treated as on a par with what used to be called “nervous shock.” There is a much fuller discussion of the aetiology of ME in the judgments in the Court of Appeal [1994] 4 All ER 522, where Hoffmann LJ observed that the distinguishing feature of psychiatric damage was its causation rather than its symptoms; it would include a miscarriage caused by severe fright.

39.  Such fine distinctions are however unnecessary since Page v Smith, in which your Lordships’ House held that in the case of a primary victim foreseeability of the risk of physical injury is sufficient to establish liability, if there is a breach of duty, for personal injury of any sort, including psychiatric injury (either on its own or in conjunction with physical injury). Lord Lloyd of Berwick (delivering the leading speech in the majority) stated at p188:

“In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law.”

40.  The case has attracted adverse comment from some legal scholars, but it has not been challenged before your Lordships. It provides a much simpler test for judges trying personal injury cases, even if it sometimes results in compensation for damage in the form of psychiatric sequelae which might not, on their own, have been reasonably foreseeable by an employer.

41.  In this case the trial judge (Mr Nigel Baker QC) held that Mr Corr’s suicide was not reasonably foreseeable. But he had earlier quoted from the speech of Lord Browne-Wilkinson in Page v Smith at p182:

“I am therefore of opinion that any driver of a car should reasonably foresee that, if he drives carelessly, he will be liable to cause injury, either physical or psychiatric or both, to other users of the highway who become involved in an accident. Therefore he owes to such persons a duty of care to avoid such injury. In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his ME, was ‘an eggshell personality.’ But that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage. Once such a duty of care is established, the defendant must take the plaintiff as he finds him.”

But the judge then took his eye off the essential principle in Page v Smith, and misdirected himself by reference to earlier authority, some not concerned with personal injuries at all.

42.  It was not disputed by Mr Cousins QC (for IBC) that Mr Corr’s severe clinical depression was the result (and if it mattered, which it does not, the foreseeable result) of the severe physical injuries and shock which he sustained in the accident. His severe depression produced feelings of hopelessness which became increasingly strong; they came to determine his reality; by the time of his suicide he was suffering from a disabling mental condition which (as the agreed statement of facts and issues records) impaired his capacity to make reasoned and informed judgments. But (as is also in the agreed statement) Mr Corr still had the capacity to manage his affairs; his intellectual abilities were not affected; he did not come within the definition of insanity (at best obsolete and probably never scientifically sustainable) found in the judges’ answers to the second and third abstract questions put to them, without their hearing argument, in connection with M'Naghten’s case (1843) 10 Cl & F 200.