CORR (ADMINISTRATRIX OF THE ESTATE OF THOMAS CORR DECEASED) V IBC VEHICLES  EWCA Civ 331
The deceased, Thomas Corr committed suicide on the 23rd May 2002 leaving a widow and two children. His death occurred nearly six years after he had been badly injured in a factory accident on the Defendant’s premises. Negligence and/or breach of statutory duty were admitted. He had been struck on the right hand side of his head, and most of his ear had been severed. He was disfigured, suffered persistent unsteadiness, mild tinnitus, severe headaches and difficulty in sleeping.
Following the accident, the Claimant became bad tempered and drank more than he had following the accident. He felt bitter towards his employers and it was not until February 2001 that he received a formal apology. He lapsed into depression and was referred for electro convulsive therapy. He was diagnosed as suffering from severe anxiety and depression and shortly after that diagnosis, he killed himself.
His widow had been awarded £85,000 on behalf of his estate but her claim under the Fatal Accident Act 1976 was dismissed on the 26th April 2005 at first instance. The trial judge said that this part of her loss was not foreseeable. She appealed to the Court of Appeal.
Lord Justice Ward commented that a chartered clinical psychologist had said that the deceased would benefit from an apology from his employer, and he wished that “Sorry” was a word which more frequently found its place in a defendant’s or their insurer’s lexicon.
Ward LJ then turned to the five requirements for negligence (1) duty (2) breach (3) damage (4) causation (5) the particular kind of damage not being too remote.
The Defendant had a defence to the effect that the deceased had voluntarily assumed the risk of injury, but the Defendant did not rely on that here. The Claimant’s damages would be reduced if he was guilty of contributory negligence, but that had not been the subject of much argument for the purposes of appeal.
There could be no question but the Defendant owed the Claimant a duty of care. It was not disputed that once it was established that the Defendant was under a duty of care to avoid causing personal injury to the Claimant, then it mattered not whether the injury in fact sustained was physical or psychiatric or both. That was settled law since Page v Smith  1 AC 155.
However there was a dispute about the existence of the duty of care and the scope of that duty. The Defendant’s counsel contended that the duty did not extend to a duty to protect the deceased from self harm. The Claimant’s counsel contended that the only issue was whether the employer should have foreseen the injury.
Ward LJ addressed the issue of whether there was a duty to protect the deceased from self harm. He referred to the cases of Reeves v Commissioner of Police of the Metropolis  1 AC 360, Kirkham v Chief Constable of Greater Manchester Police  2 QB 283 and Orange v Chief Constable of West Yorkshire Police  EWCA Civ 611. The case of Reeves concerned a man who was a known suicide risk, and who had hanged himself whilst in police custody. The House of Lords had commented that the imposition of a duty of care to protect a person of full understanding from causing harm to himself was very rare indeed.
Ward LJ said that the duty here arose out of an employer/employee relationship, which was very different from the facts in the above cases. It suited his taste to approach the matter on the basis that there was no specific duty on an employer to protect the employee from self harm. However that did not necessarily lead automatically to exculpating the employer from responsibility for the suicide, if the suicide was a consequence of his wrongdoing for which he might be justly held responsible.
Ward LJ also referred to an article by Jane Stapleton “Cause-In-Fact and the Scope for Consequence”, (2003) 119 LQR 388 which stated that the duty of care should not be framed as being a duty only with respect to particular kinds of consequence. Where duty was owed, the scope of the duty was simply to act reasonably in the circumstances. The breach analysis considered what reasonableness entailed and cause-in-fact provided the link between the breach and the actionable damage. Finally scope of liability considered which of the consequences of the Defendant’s tort should be judged to be within the Defendant’s liability.
There was admitted breach of duty here. In relation to causation, there were three considerations:-
- Causation as a matter of fact – “factual causation”
- Whether the act of self harm broke the chain of causation
- Whether the damage was too remote
The first test here was the “but for” test, but this was not conclusive. It only excluded irrelevant cases. The second test was “material contribution”. The Defendant’s breach had to make a material contribution even if it was not the sole or even the main cause of the Claimant’s damage. Ward LJ reviewed the medical evidence and said that there was a clear causal link between the breach of duty by the Defendant and the deceased’s decision to take his own life.
Was the suicide a novus actus interveniens?
Ward LJ referred to a number of cases on this issue. The first was Cavanagh v London Transport Executives (reported in the Times, 23rd October 1956), where the Claimant suffered a fractured skull in an accident and sixteen months after the accident committed suicide. The court held that the accident was the cause of his accident.
In Pigney v Pointers Transport Services Ltd  1 WLR 1121 there were similar facts. The court held that the deceased had committed suicide when he was not insane under the M’Naughten Rules and that this was as a consequence of the accident. The chain of causation was not broken.
The third case was McKew v Holland & Hannan & Cubitts  3 All ER 1621 where the Claimant injured his leg in an accident, which later gave way beneath him as was descending the stairs. The court said that if a man is injured in such a way that his leg may give way at any moment, he must act reasonably and carefully. If the Claimant acted unreasonably, he could not hold the Defendant liable for injury caused by his unreasonable conduct. That unreasonable conduct was novus actus interveniens.
In the case of Reeves v Commissioner of Police of the Metropolis  1 AC 360 (see above) the causal link was not broken because the suicide was the very thing at which the duty to prevent it was directed. In that case, the Defendant’s counsel had relied upon a general principle stated in Hart and Honore, Causation in the Law, 2nd ed. (1985) p.136 to the effect that the “free, deliberate and informed act or omission of a human being” which is intended to exploit the situation created by a Defendant negatives causal connection. However Lord Hoffman had said that the exception to that rule was the very act which the duty ought to have prevented.
In Church v Dugdale and Adams Limited (1929) 22 BWCC 444 the court said that it was enough to find that at the time of suicide, there was some depression and delusions. The condition of the suicide must have disabled him from exercising a judgment and in that sense caused the accident. That line of reasoning was supported by Holdlen Pty Ltd v Walsh  NSWCA 87 where the court said that the test did not necessarily turn on insanity, but on a situation where the will was overborne or subjected to such influences that, although the act was deliberate, it was not regarded as the actor’s intentional act.
Ward LJ referred to other cases. In Murdoch v British Israel World Federation  NZR 600 the court had found for the Claimant on the basis that her husband was so insane at the time of his suicide so as to be criminally responsible for his act. That case suggested that only insanity would suffice, but it was countered by obiter comments in Pallister v Walkato Hospital Board  2 NZLR 725.
There was also an American authority, Water v TSR, Inc 904 F.2d 378 United States Court of Appeals, 6th Circuit where a player of “Dungeons and Dragons” became so absorbed in the game that he had committed suicide. The court in that case had said that generally the act of suicide was an independent intervening act, save where the suicide was delirious or insane.
In Canada there was the case of Wright v Davidson  88 DLR (4th) 698 where the court said that there was no evidence of disabling mental illness to lead to the conclusion that the suicide had an incapacity in her faculty of volition.
In Australia there were two authorities. In Lisle v Brice  QCA 271 the deceased suffered minor injuries in a road traffic accident, and more than three years later he committed suicide. The court found that there was a clear link from the accident to his suicide.
In the second case, AMP General Insurance Limited v Roads and Traffic Authority of NSW  Australian Torts Reports 81-619 the Claimant was injured in an accident and commenced his action out of time. When his application for an extension was heard, he was cross examined and suffered stress. He then developed depression and committed suicide eight days after the hearing. The court held that the cross examination that brought on the suicide was a novus actus interveniens.
Ward LJ set out his analysis and conclusions. Suicide was no longer a crime. To require criminal insanity in the M’Naughten sense was artificial and out of date. The real question was whether what the suicide does is the product of full free and informed thought, and in this case the medical evidence had established quite clearly that the Claimant’s husband sense of hopelessness was so strong and powerful that it dominated his decision-making and that hopelessness was the ultimate cause of his suicide. This was not the act of a “free, deliberate and informed act or omission of a human being” as set out by Lord Hoffman in the case of Reeves (see above).
There was also the issue of volenti not fit iniuria. That defence had been rejected by the court in Kirkham v Chief Constable of Greater Manchester Police  2 QB 283 which said that the suicide’s conduct was not truly volens. The same would apply to this case.
So the chain of causation was not broken.
Remoteness of damage
The question remained whether self-harm was a kind of harm, which was not reasonably foreseeable. Ward LJ said that the case of Pigney v Pointers Transport Services Ltd  1 WLR 1121 (see above) was no longer good law.
Ward LJ referred to a number of cases on this issue, including Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co. Limited (The Wagon Mounds No.1)  AC 388 and Simmonds v British Steel plc  ICR 585.
The true legal question was whether a certain kind of damage was reasonably foreseeable. It seemed to Ward LJ that death caused by suicide after a lapse of time from the original accident and after the intervention of depression, was a different kind of damage from death by decapitation which immediately follows the cause of the injury. Suicide did not occur spontaneously like a heart attack or miscarriage produced by shock. The victim had to do something to bring it about.
The next question was whether that particular kind of injury is reasonably foreseeable. This imported a value judgment, i.e. whether it was fair, just and reasonable to hold the Defendant responsible for the Claimant’s husband’s death. It was a policy decision.
Ward LJ referred to an article “State of Fear: Britain’s Compensation Culture Reviewed” (2005) 25 Legal Studies 499 by Kevin Williams which concluded that although the overall cost of compensation settlements had gone up, there was no reliable evidence about bogus or exaggerated claims. Ward LJ also referred to a warning given in Gorringe v Calderdale Metropolitan Borough Council  UKHL 15 to the effect that the court should not contribute to the creation of a society bent on litigation, premised on the illusion that for every misfortune, there is a remedy.
Ward LJ concluded that although one could see the inexorable progression from foresight of personal injury, to foresight of psychiatric injury and then from depression to suicide, the real question remained – whether suicide was reasonable foreseeable at the time. Ward LJ said that he was driven to the conclusion that it could not reasonably have been foreseen that the Defendant’s employee would lapse into such a state of depression that he would many years later, kill himself. Therefore the appeal would be dismissed.
Lord Justice Sedley differed from Ward LJ’s conclusion. In action for damages founded on negligence, the question was not whether the particular outcome was foreseeable, but whether the kind of harm for which damages are sought was foreseeable, and if it was, whether the eventual harm was nevertheless to be regarded on grounds of policy or of fact, as too remote. The evidence showed that suicide is a not uncommon sequela of severe depression.
It was correct but irrelevant to this case that the employer’s duty of care did not extend to anticipating and preventing suicide. That was not the Claimant’s case – she was not saying that the employer had to take active duties to protect her husband from self harm, as might be the case if they were a custodian.
There would be difficult cases in which the origins of the suicide were complex, throwing up questions of fragile personality and dominant cause. That was not the case here.
There were serious issues of legal policy, and the law had a longstanding condemnation of the act of self destruction. Therefore M’Naughten insanity had been considered the only way around it. However the decriminalisation of suicide meant that there should no longer be a policy break in an otherwise established chain of causation.
Considerations and policy judgments necessarily enter into the assessment of causation. If it were otherwise, causation would travel ever onwards. The Defendant’s counsel had referred to the case of Clunis v Camden and Islington HA  QB 978. Sedley LJ said that this case exemplified the doctrine that a Claimant may not profit from his own crime, and suicide was no longer a crime.
If psychological injury had to be distinctly predictable before any liability fell upon a tortfeasor in respect of it, the policy of the law would have drawn its line at a point which shut out any damages for the deceased’s post-accident depression.
If a case of suicide was to be excluded, it had to be because the evidence had failed to establish that the judgment and volition of the deceased were overwhelmed by depression consequent on the injury.
Sedley LJ would allow the appeal.
Lord Justice Wilson said that there were two main questions here:-
- Did the Claimant need to establish that, at the time of the accident, the deceased’s suicide was reasonably foreseeable?
- Did the suicide break the chain of causation between the Defendant’s negligence and the consequences of the suicide?
Wilson LJ examined the various authorities. In relation to the first question, he did not agree that the Claimant needed to establish that, at the relevant time, namely the time of the accident, the deceased’s suicide was reasonably foreseeable. Suicide was not a kind of damage that was separate from psychiatric and personal injury, and so therefore needed to be separately foreseeable.
In relation to the second question, the correct approach to the causative significance of suicide was to ask whether the suicide was the product of a will so overborne or influenced by the relevant circumstances, that it should not be regarded as an intentional act breaking the chain of causation. Insanity was not a necessary step to this result.
Wilson LJ said that the case of Pigney v Pointers Transport Services Ltd  1 WLR 1121 should be taken to be correct, albeit reached by a route which was incorrect in that it was unrelated to any foreseeability criterion at all.
Wilson LJ would allow the appeal.