Judgments - Corr (Administratix of The Estate of Thomas Corr (Deceased)) v Ibc Vehicles Limited, Appellate Committee

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43.  Mr Corr was not therefore deprived of his personal autonomy. It was his own decision to end his life, despite the love and support which he was given, after as well as before his accident, by his immediate family. He must have known that his death would cause them enormous pain, but in his severely depressed state he felt that he was an even greater burden to them alive. Suicide was his decision, but it came from his feelings of worthlessness and hopelessness, which were the result of his depression, which was in turn the result of his accident. Sedley LJ said in the Court of Appeal [2007] QB 46, para 76:

“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.”

I agree. Indeed, apart from its absence of any reference to contributory negligence, I agree with the whole of the judgment of Sedley LJ, which is, I think, very much in line with the opinion of Lord Bingham.

44.  Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides:

“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...”

In applying this test the Court has to have regard both to blameworthiness and to what is sometimes called causal potency (Stapley v Gypsum Mines Ltd [1953] AC 663, 682). These are not precise or mutually exclusive tests. I do not regard “blameworthy” as an appropriate term to describe Mr Corr’s conduct when, with his judgment impaired by severe depression, he decided to end his life by jumping off a high building. That was his own decision, but it was nevertheless a natural consequence of the physical and mental suffering which he had been enduring since the accident. For my part, in agreement with Lord Bingham, I would make no reduction in the damages to be awarded under the Fatal Accidents Act 1976.

LORD MANCE

My Lords,

45.  I have had the benefit of reading in draft the opinions of my noble and learned friends, Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury.

46.  On the question whether the appellants are liable to the respondent in respect of the suicide of the late Mr Corr, I agree that the appeal should be dismissed for the reasons given in the opinions of Lord Bingham of Cornhill and Lord Walker. I also agree with Lord Neuberger’s comments on Page v. Smith [1996] 1 AC 155, and its irrelevance on this appeal.

47.  On the issue of contributory fault, I agree that, in the light of the extreme brevity with which this issue has been treated at all stages in this case and on the basis of such material as is available, it is not appropriate to contemplate a deduction on that score in this House. But, I have considerable sympathy with the general approach taken by Lord Scott of Foscote in his opinion on this issue; and so, like Lord Neuberger, I prefer to leave open the possibility that such a deduction could be appropriate in circumstances of deliberate suicide committed in a state of depression induced by an accident. Lord Scott’s and Lord Neuberger’s observations in this respect are, I note, in accord with remarks made in the Supreme Court of Dakota in Champagne v. United States of America 513 N.W. 2d 75 and quoted with apparent approval by Lord Hope of Craighead in Reeves v. Commissioner of Police of the Metropolis [2000] 1 AC 360, 384G-385B.

48.  "Blameworthiness” and causal potency are factors to which attention has to be addressed in cases such as Stapley v. Gypsum Mines Ltd. [1953] AC 663, which are concerned with a defendant’s failure to take care. But Reeves v. Commissioner of Police of the Metropolis establishes that “fault” in s.1 of the Law Reform (Contributory Negligence) Act 1945 is wide enough to cover deliberate suicide. This was the view of Lord Bingham of Cornhill CJ in the Court of Appeal, [1999] QB 169, 198A-C, upheld by the majority of the House of Lords: see the passages from Lord Hoffmann’s opinion quoted by Lord Neuberger and also per Lord Jauncey of Tullichettle at p.377F and Lord Hope at pp.383E-F (pointing out that “one should not be unduly inhibited by the use of the word ‘negligence’ in the expression ‘contributory negligence’”) and 384C. Lord Mackay of Clashfern agreed at p.373-A with the reasoning of both Lord Hoffmann and Lord Hope.

49.  In Reeves the police’s duty of care was specifically related to the known risk that Mr Lynch would, although of “sound” mind, seek to commit suicide. But Mr Lynch’s decision to commit suicide was not induced by the police’s breach of duty, which merely enabled him to implement it. Comparing these two contributing factors, the House concluded, in common with Lord Bingham of Cornhill CJ, that an appropriate deduction would be 50%. In the present case, Mr Corr’s depression and suicide were both caused by and within the foreseeable range of consequences of the appellants’ negligence, and this puts the present respondent in a stronger position than the claimant in Reeves.

50.  Here, the coroner found that Mr Corr “underwent over time a psychological change resulting in depression and anxiety not previously experienced", while Dr Paul McLaren, the consultant psychiatrist instructed by Mrs Corr, said in his reports that “a critical change takes place in the balance of a sufferer’s thinking, when they stop seeing the hopeless thoughts as symptoms of an illness and the depressive thinking comes to determine their reality” and concluded that “Mr Corr’s capacity to make a reasoned and informed judgment on his future was impaired by a Severe Depressive Episode in the hours leading up to his death". In these circumstances, there was a considerable case for the full recovery which the Court of Appeal awarded; this is also highlighted by Lloyd LJ’s reasoning in Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 QB 283, 290C-E, although his remarks were directed simply to an issue of volenti non fit injuria and it is not apparent that the issue of contributory fault raised in the notice of appeal, p.285F-G, was actually pursued before the Court in that case.

51.  However, in my view, the existence of a causal link between an accident and depression leading to suicide, sufficient to make a defendant who is responsible for the accident liable for the suicide as one of its consequences, does not necessarily mean that such liability should involve a 100% recovery. The concept of impairment is itself one which could usefully be further explored in expert evidence in another case. On the one hand, a person suffering from depression may be perfectly capable of managing his or her affairs in certain respects, but be caught ineluctably in a downward spiral of depressive thinking with regard to their own worth and future. On the other hand, a conclusion that a person suffering from depressive illness has no responsibility at all for his or her own suicide, and is in effect acting as an automaton, may be open to question in law, at least when the person’s capacity to make a reasoned and informed judgment is described as “impaired” rather than eliminated. I agree with Lord Scott that, unless such a person could be described as an automaton, he or his estate could not expect to escape liability to a bystander injured by a suicide or suicide attempt. But this may not, I believe, by itself be conclusive on the issue whether such a person should bear part of any loss flowing from suicide or an attempt as against a person responsible causally for the depression leading to the suicide or attempt. It may be right, not only to consider more closely with the benefit of expert evidence what is involved in “impairment” but also, as Lord Hope suggested in Reeves at p.385A, to identify differing degrees of impairment and responsibility. It may also be relevant if other factors were also operating on the claimant, independently of the accident and the consequent depression - for example, impending exposure of lack of probity, financial ruin or matrimonial breakdown.

52.  The different strands of policy which exist in this area, and the balancing of different goals which is necessary, may therefore make it appropriate not only to hold liable a defendant who causes an accident which leads to depression and suicide, but also to attribute an element of responsibility, small though it may be, to a person who commits suicide, so recognising the element of choice which may be present even in the case of someone suffering from an impairment due to an accident.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

53.  I have had the opportunity of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Scott of Foscote and Lord Mance. I agree with Lord Bingham that this appeal should be dismissed for the reasons that he gives, subject to two points which I should like to address.

54.  The first point concerns the somewhat controversial decision of this House in Page v Smith [1996] AC 155. As Lord Bingham has explained, neither party has criticised that decision, let alone invited the House to review it. At least for my part, I understood that was the position of the employer because, even if we had been persuaded that Page was wrongly decided, that would not have ensured the success of this appeal. I agree. Accordingly, not least in the light of the trenchant observations of Lord Goff of Chieveley in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 at 473D to 480F, I would not want to appear to prejudge any decision as to the correctness of the majority view in Page, if it comes to be challenged before your Lordships’ House on another occasion.

55.  I should briefly explain why my conclusion that this appeal should be dismissed on the liability issue is not in any way based on the assumption that Page was correctly decided. It is common ground that Mr Corr’s depression was the direct and foreseeable consequence of the accident for which the employer accepts responsibility, and that Mr Corr’s suicide was the direct consequence of his depression. In these circumstances, it appears to me that the only issue on liability can be whether the fact that Mr Corr’s suicide was his own conscious act at a time when he was sane should defeat the claim under the 1976 Act. Although that is expressed as a single issue, it can be characterised in a number of different ways in law, all of which have been dealt with by my Lord in ways that I cannot improve on.

56.  It is accepted that Mr Corr’s severe depression satisfied the requirements of a valid claim with regard to causation, foreseeabilty and remoteness, and was not excluded for any of the policy reasons mentioned by Lord Rodger of Earlsferry in the passage quoted in para 8 of Lord Bingham’s opinion. In those circumstances, I have difficulty in seeing how it could be said that suicide was not a reasonably foreseeable result, or even a reasonably foreseeable symptom, of his severe depression. I accept that it can often be dangerous to deduce that, if each step in a chain was foreseeable from the immediately preceding step, then the final step must have been foreseeable from the start. Nonetheless, once it is accepted that Mr Corr’s severe depression is properly the liability of the employer, I find it hard to see why, subject to the specific arguments raised by the employer and disposed of by Lord Bingham, Mr Corr’s suicide should not equally be the liability of the employer. It is notorious that severely depressed people not infrequently try to kill themselves: indeed, the evidence before us suggests that the chances are higher than 10%. While I would not attribute to a reasonable defendant, such as the employer in the present case, the knowledge that the likelihood of suicide attempts among severe depressives is higher than 10%, I would expect him to appreciate that there was a substantial risk of a suicide attempt by someone who suffers from severe depression, and that suicide attempts often succeed.

57.  The second point which I wish to deal with is that of contributory negligence. I have reached the conclusion that, in this case, it would be inappropriate to reduce the damages awarded to Mr Corr on the basis of his contributory negligence. That is essentially because the point appears hardly to have been touched on in evidence or argument either at first instance or in the Court of Appeal. Accordingly, there is no satisfactory material available to your Lordships to enable an assessment to be made as to whether a deduction, and if so what deduction, in damages would be appropriate. Further, it seems to me that it would be unfair to the claimant if we were to make a deduction given that she will have had no real opportunity to deal with the arguments on the point.

58.  Having said that, I think it would be wrong not to record the fact that, in agreement with the reasoning of Lord Scott and Lord Mance, I consider that a defendant such as the employer in this case could, in principle, succeed in an argument for a reduction in damages based on contributory negligence. In that connection, guidance is available from the decision of your Lordships’ House in Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, a case involving the question of whether the dependant of a Mr Lynch could recover damages from the Police Commissioner, in circumstances where Mr Lynch had committed suicide when in police custody, and if so whether those damages should be reduced pursuant to the Law Reform (Contributory Negligence) Act 1945.

59.  Section 1(1) of the 1945 Act provides that where a person suffers damage “as the result partly of his own fault and partly of the fault of any other person” the damages he recovers from the other person “shall be reduced to such extent as to the court considers and equitable having regard to the claimant’s share in the responsibilities for the damage". Section 4 defines “fault” as: “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".

60.  In Reeves, at 369G to 372C, Lord Hoffmann considered the question of whether the fact that Mr Lynch had killed himself could be said to be his own “fault” within Section 1(1) of the 1945 Act. While recognising that it was “odd” to describe such a person “as having being negligent", Lord Hoffmann pointed out that “the ‘defence of contributory negligence’ at common law was based upon the view that a plaintiff whose failure to take care for his own safety was a cause of his injury could not sue. One would therefore have thought that the defence applied a fortiori to a plaintiff who intended to injure himself.” Lord Hoffmann then went on to examine and reject the arguments which had been put forward for questioning that conclusion.

61.  Mr Lynch was of sound mind, and, for that reason, Morritt LJ, in the Court of Appeal, had taken the view that he should be held to be 100% contributorily negligent. Lord Hoffmann disagreed at 372D, on the basis that this was effectively to hold that the Commissioner owed Mr Lynch no duty of care. He continued at 372E to H:

“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 sometime require a balancing of different goals…. 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….. 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 those circumstances, he concluded that it was appropriate to hold Mr Lynch 50% contributory negligent, a view which coincided with that of Lord Bingham in the Court of Appeal.

62.  In these circumstances, there is, I accept, a powerful case for saying that, where a defendant is tortiously liable under the 1976 Act for the suicide of a person, a degree of contributory negligence (which in the absence of special factors, might well be 50%) should be attributable to the deceased where he is of sound mind, but that it is inappropriate to attribute any contributory negligence to him where it can be said that he was not of sound mind. However, it seems to me that such an approach does not pay sufficient regard to what Lord Hoffmann referred to in the passage already quoted as “the complexity of life". Indeed, what Lord Hoffmann had to say earlier in his opinion at 368H to 369A appears to me to be even more directly in point:

“The difference between being of sound and unsound mind, while appealing to lawyers who like clear-cut rules, seems to me inadequate to deal with the complexities of human psychology in the context of the stresses caused by imprisonment.”

63.  In my view, although that remark was plainly directed to circumstances in prison, it is applicable much more generally. It is often necessary to have a clear-cut decision: either someone is sane enough to plead to a criminal charge, to bring civil proceedings, to enter into a contract, or to avoid being detained, or he is not. However, it is only realistic to accept that there are degrees to which a person has control over, or even appreciation of the effect and consequences of, his acts,. It also seems clear that there is no inconsistency between the notion that there is a spectrum of sanity, normalcy or autonomy, and the notion that a clear point has to be identified for some purposes at some specific place on the spectrum.

64.  In the present type of case, as I see it at least, a nuanced approach is appropriate, and the existence of a spectrum can and should be recognised. At one extreme is a case such as Reeves where (surprising though it might seem) the evidence was that Mr Lynch was of sound mind when he killed himself. In those circumstances, the suicide could be said to be a purely voluntary act, and one can see how the principle of personal autonomy could be invoked to justify the view reached by Morritt LJ. Nonetheless, your Lordships’ House decided that there were, in reality, two proximate causes of the death, namely the negligence of the police and Mr Lynch’s choice to kill himself and it was effectively impossible to say, at least on the facts of that case, that the suicide was more attributable to one cause than to the other.

65.  At the other extreme, in my view, would be a case where the deceased’s will and understanding were so overborne by his mental state, which had been caused by the defendant, that there could be no question of any real choice on his part at all, because he had effectively lost his personal autonomy altogether. In effect, in that type of case, the deceased does not really appreciate what he is doing when he kills himself, and he has no real control over his action. In such a case, as the deceased would have had no real choice, there would therefore be no real “fault” on his part for his suicide; consequently there would be no reduction for contributory negligence..

66.  In my judgment, there will be cases in the middle, where the deceased, while not of entirely sound mind, can be said to have a degree of control over his emotions and actions, and will appreciate what he is doing when he kills himself. In other words, there will be cases where a person will have lost a degree of his personal autonomy, but it will not by any means have been entirely lost. In one sense, of course, it can be said that anybody that kills himself has been driven to it, because his natural instinct for self-preservation has been overcome by an irresistible urge to die. However, if that analysis were correct, there would have been no contributory negligence in Reeves, because that argument would apply equally when the deceased’s mental state was entirely unimpaired.

67.  In the present case, Mr Corr’s depression led him to have “thoughts of hopelessness” which “became more difficult to resist” before the suicide and, at the time he committed suicide, he was suffering from a “disabling mental condition, namely a severe depressive episode, [which] impaired his capacity to make a reasoned and informed judgment on his future". This seems to me to render the employer’s case on contributory negligence plainly and significantly weaker than that of the Commissioner in Reeves. However, Mr Corr’s capacity was “impaired” rather than removed, a point emphasised by the fact that neither his intellectual abilities nor his appreciation of danger had been lessened from the norm, and that he appreciated the consequences of jumping from a building.

68.  In my judgment, in a case such as this, it would represent a failure to take into account the importance of personal autonomy, and would be inconsistent with the reasoning in Reeves, if we were to hold that, save where the deceased was of entirely sound mind at the relevant time, it would be inappropriate in principle to reduce the damages awarded under the 1976 Act on the grounds of contributory negligence, where the deceased had taken his own life. The mere facts that his mental state was impaired to some extent by a condition for which the defendant was responsible, and that he would not have killed himself but for that impairment, cannot, in my opinion, without more justify rejecting the contention that there could have been a degree of “fault” on his part.

69.  In the end, I consider that the question to be addressed is the extent to which the deceased’s personal autonomy has been overborne by the impairment to his mind attributable to the defendant. Where it has not been so overborne at all, the contribution, and hence the reduction in damages, may well be 50% (as in Reeves); where it has been effectively wholly overborne, there will be no reduction. In other cases, the answer will lie somewhere between those two extremes. In such cases, the question, while a relatively easy question to formulate, will, I strongly suspect, be a relatively difficult question to answer, at least in many circumstances.

70.  Almost any exercise which involves assessing the degree of contributory negligence must inevitably be somewhat rough and ready, and that is particularly so where one has to decide on the extent to which a person, whose mental capacity is impaired to a degree, is responsible for his own suicide. However, even bearing that in mind, and acknowledging the force of Lord Scott’s view to the contrary, I am in agreement with Lord Mance in that I do not consider it appropriate for your Lordships to determine the appropriate degree of responsibility (if any) to apportion to Mr Corr for his suicide in the present case. The question does not seem to have been the subject of significant evidence or argument at first instance, and it was hardly touched on in argument in the Court of Appeal. Not only do I doubt whether it is possible to answer that question on the basis of the evidence and limited argument before us, and in the absence of any finding in the courts below. It would also be unfair on the claimant to consider a reduction in her damages on this ground as, for essentially the same reasons, she has not had a proper opportunity to deal with the question. It is not as if it is inevitable that there would have been some discount on this ground: it would be for the defendant to establish any deduction on the basis of evidence and argument.

 
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