LORD JUSTICE LLOYD: On 10th January 1980 John Joseph Kirkham committed suicide while on remand at Risley Remand Centre. His widow brings an action against the police for the benefit of his estate under the Law Reform (Miscellaneous Provisions) Act 1934 and for the benefit of his dependants under the Fatal Accidents Act 1976. The learned judge, Tudor Evans J., has found in favour of the plaintiff. He has awarded a total of £6,717.00, made up as to 25,000.00 under the Fatal Accidents Act, and the balance under the Law Reform Act. The police, or more accurately Mr James Anderton, as Chief Constable of Greater Manchester Police, now appeals both on liability and quantum.
The reason why the action has been pursued against the police, and not, as might have been expected, against the prison authorities is as follows. The police were well aware of Mr Kirkham's suicidal tendencies. They failed to pass this information on to the prison authorities. If they had, then the probability is, as found by the judge, that Mr Kirkham would have been placed on the hospital wing on arrival at Risley, instead of in an ordinary cell. If he had been placed on the hospital wing, the probability is that his suicide would have been prevented. On these findings, the judge has held that the negligence of the police in failing to pass on the information in their possession was an effective cause of Mr Kirkham's suicide. The judge then went on to consider and reject a submission that the claim was barred under the principle ex turpi causa non oritur actio. In so doing he felt free not to follow certain observations of Lord Denning in Hyde v. Tameside Area Health Authority (unreported). He drew no distinction between the claim under the Law Reform Act and the claim under the Fatal Accidents Act.
There was no dispute that the police knew that Mr Kirkham was a suicide risk. They were told so by the plaintiff herself when he was arrested on a charge of criminal damage on 8th January 1980. Indeed he had made a serious suicide attempt only two days before, on 6th January. On 9th January Mr Kirkham was taken before the Dukinfield Magistrates. The police objected to bail. The case summary prepared by the officer in charge stated that Mr Kirkham had "attempted suicide by hanging within the last week." As a result Mr Kirkham was remanded in custody, inter alia, for his own safety. So there is no doubt that the police were well aware of Mr Kirkham's suicidal tendencies. Were they negligent in not informing the prison authorities? The judge has found that they were, and I agree with him. The police have a form, POL/1, which they fill in when a prisoner, whom they regard as an exceptional risk, is handed over to the prison authorities. It is addressed to the prison governor. It is headed:
"Prisoners - Exceptional Risk
Form for completion by police handing over for prison custody a prisoner who presents special risks"
At the foot, in bold type, the form states:
"N.B. This form is to be handed to the gaoler at the magistrates' court or to the prison officer at the crown court when a person, who has not been produced from prison, is sentenced to imprisonment or remanded in prison custody immediately after remand, committal or sentence as the case may be."
There are a number of different reasons listed in the form why a prisoner might present a special risk. One of them is "may have suicidal tendencies". Another is "physical illness or mental disturbance". The police accepted in evidence that they should have filled in form POL/1 in the present case, as they clearly should. Otherwise the prison authorities had no means of knowing of Mr Kirkham's recent suicide attempt. Due to some oversight, they failed to do so.
Mr Shannon argued that the failure of the police to fill in form POL/1 was a pure omission. They owed Mr Kirkham no duty of care to pass on the information in their possession. The purpose of filling in POL/1 is not, so it is said, to protect the prisoner. It is to ensure that he is brought to trial. This is shown by the other reasons why a prisoner might be regarded as a special risk, e.g. "likely to try to escape" and "being associated with a dangerous gang who may attempt rescue". Mr Shannon relied on the speech of Lord Goff in Smith v. Littlewood [1987] A.C. 242 at 270 for the proposition that there is as yet in English law no generalised duty to act positively so as to prevent harm to others. The common law does not impose liability for pure omissions. "Otherwise", as Lord Keith said in Yuen Kun Yeu v. A.-G. of Hong Kong [1988] A.C. 175, "there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forbears to shout a warning".
Such was Mr Shannon's argument. I would, of course, accept his general proposition. But there is an important qualification. The common law frequently imposes liability for a pure omission where the defendant is under a duty to act, or, as the case may be, a duty to speak. The Court of Appeal has had occasion to consider the existence of such a duty in two very recent cases: Banque Financiere v. Westqate [1988] 2 L.L.R. 513 and the Good Luck [1989] 2 L.L.R. 238. The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility towards the plaintiff, and whether the plaintiff has relied on that assumption of responsibility. In both cases the Court of Appeal held, on the facts, that the defendant was under no duty to speak, and was therefore not liable. But the principle is well established.
In the present case I have no difficulty in holding that the police assumed certain responsibilities towards Mr Kirkham when they took him into custody, and in particular assumed a responsibility to pass on information which might affect his well-being when he was transferred from their custody to the custody of the prison authorities. Nor have I any difficulty in inferring reliance. That is sufficient to impose on the police a duty to speak. They were not in the position of a mere bystander, as in the example given by Lord Keith in Yuen Run Yeu. That was the very language which the judge himself used in the present case. I find myself in complete agreement.
It follows that the police were under a duty to inform the prison authorities of Mr Kirkham's suicidal tendencies, and were in breach of that duty by failing to fill in form POL/1.
As for causation, it would have been sufficient for the plaintiff to show that the failure to inform the prison authorities materially increased the risk of Mr Kirkham making a successful suicide attempt: see McGhee v. National Coal Board [1973] 1 WLR 1. In fact the judge went further, and found that on the balance of probabilities Mr Kirkham would have been prevented from committing suicide if the prison authorities had been informed. I see no reason to interfere with that finding of fact.
I come now to the two defences which lie at the heart of this appeal. They are expressed, for convenience, in two Latin maxims, volenti non fit injuria and ex turpi causa non oritur actio.
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I deal first with volenti non fit injuria.
Where a man of sound mind injures himself in an unsuccessful suicide attempt, it is difficult to see why he should not be met by a plea of volenti non fit injuria. He has not only courted the risk of injury by another; he has inflicted the injury himself. In Hyde v. Tameside Area Health Authority, the plaintiff, who had made an unsuccessful suicide attempt, brought an action for damages against the Health Authority alleging negligence on the part of the hospital staff. Lord Denning doubted whether a defence of volenti non fit injuria would be available in such a case "seeing that [the plaintiff] did not willingly injure himself - he wanted to die". I find that reasoning hard to follow. Any observation of Lord Denning is, of course, entitled to great weight; but the observation was obiter, since the court held that the hospital staff had not been negligent. Moreover we were told by Mr Foster, who happened to have appeared for the plaintiff in that case, that the point was never argued.
So I would be inclined to hold that where a man of sound mind commits suicide, his estate would be unable to maintain an action against the hospital or prison authorities, as the case might be. Volenti non fit injuria would provide them with a complete defence. There should be no distinction between a successful attempt and an unsuccessful attempt at suicide. Nor should there be any distinction between an action for the benefit of the estate under the Law Reform Act and an action for the benefit of dependants under the Fatal Accidents Act. In so far as Pilcher J. drew a distinction between the two types of action in Pigney v. Pointers Transport Services Ltd. 1957 2 All E.R. S07, I would respectfully disagree.
But in the present case Mr Kirkham was not of sound mind. True, he was sane in the legal sense. His suicide was a deliberate and conscious act. But Dr Sayed, whose evidence the judge accepted, said that Mr Kirkham was suffering from clinical depression. His judgment was impaired. If it had been a case of murder, he would have had a defence of diminished responsibility due to disease of the mind.
I have had some doubt on this aspect of the case, in the light of Dr Sayed's further evidence that, though his judgment was impaired, Mr Kirkham knew what he was doing. But in the end I have been persuaded by Mr Foster that, even so, he was not truly volens. Having regard to his mental state, he cannot, by his act, be said to have waived or abandoned any claim arising out of his suicide. So I would reject the defence of volenti non fit injuria.
I turn last to ex turpi causa non oritur actio. This is the most difficult part of the case. Prior to 1961 suicide was a crime. Although there appears to be no reported case directly in point, I do not doubt that a claim based on the failure of the authorities to prevent a suicide would have failed. The courts would have declined to lend their aid to enforce such a claim. But by section 1 of the Suicide Act 1961, the rule of law whereby it was a crime for a person to commit suicide was abrogated. The question is whether the Suicide Act, by abrogating the criminal nature of suicide, has taken away the defence of ex turpi causa. The learned judge took the straightforward line that the defence depends on some causally related criminal activity. He referred to Hardy v. Motor Insurers' Bureau [1964] 2 Q.B. 745 and Murphy v. Culhane [1977] QB 94 and considered that, since suicide is no longer a crime, the defence ex turpi causa is no longer available.
Unfortunately, the learned judge was not referred to three recent cases in which the scope of the defence has been considered: Thackwell v. Barclays Bank [1986] 1 All E.R. 676, Saunders v. Edwards [1987] 1 W.L.R. 1116 and Euro-Diam Ltd v. Bathurst [1988] 2 W.L.R. 517. The last two cases contain an elaborate analysis of the relevant principles by Kerr L.J. It would be superfluous to summarise the principles here. It is sufficient to quote two sentences from Kerr L.J.'s judgment in the Euro-Diam case at p. 526.
"The ex turpi causa defence ultimately rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct of which the courts should take notice. It applies if in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts."
It is apparent from these authorities that the ex turpi causa defence is not confined to criminal conduct. So we cannot adopt the simple approach favoured by the judge. We have to ask ourselves the much more difficult question whether to afford relief in such a case as this, arising, as it does, directly out of a man's suicide, would affront the public conscience, or, as I would prefer to say, shock the ordinary citizen. I have come to the conclusion that the answer should be "no". I would give two reasons.
In the first place the Suicide Act does more than abolish the crime of suicide. It is symptomatic of a change in the public attitude to suicide generally. It is no longer regarded with the same abhorrence as it once was. It is, of course, impossible for us to say how far the change in the public attitude has gone. But that there has been a change is beyond doubt. The fact that aiding and abetting suicide remains a crime under section 2 of the Suicide Act does not diminish the force of the argument.
The second reason is that in at least two decided cases courts have awarded damages following a suicide or attempted suicide. In Selfe v. Ilford and District Hospital Management Committee (unreported) Hinchcliffe J. awarded the plaintiff damages against a hospital for failing to take proper precautions when they knew that the plaintiff was a suicide risk. In Pigney v. Pointers Transport Services Ltd., to which I have already referred, Pilcher J. awarded damages to the dependants of a suicide under the Fatal Accidents Act 1846. Moreover, in Hyde v. Tameside Area Health Authority, another hospital case, the judge awarded £200,000.00 damages in respect of an unsuccessful suicide attempt. The Court of Appeal allowed the defendant's appeal, on the ground that there had been no negligence on the part of the hospital, but not on the ground that the plaintiff's cause of action arose ex turpi causa; the appeal was allowed. Selfe and Pigney are not binding on us. But they are important for this reason. They show, or appear to show, that the public conscience was not affronted. It did not occur to anyone to argue in either case that the granting of a remedy would shock the ordinary citizen; nor did it occur to the court.
For the above reason I would hold that the defence of ex turpi causa is not available in these cases, at any rate where, as here, there is medical evidence that the suicide is not in full possession of his mind. To entertain the plaintiff's claim in such a case as the present would not, in my view, affront the public conscience, or shock the ordinary citizen. I thus reach the same conclusion as the judge on this aspect of the case, but for somewhat different reasons.
I come last to the judgment of Lord Denning in Hyde v. Tameside Area Health Authority. I have already quoted his observations on volenti non fit injuria with which I find myself in respectful disagreement. As to public policy, he referred to the fact that suicide is no longer a crime, and continued:
"But it is still unlawful. It is contrary to ecclesiastical law which was, and is still, part of the general law of England, see Mackonochie v. Lord Penzance [1881] 6 Appeal Cases at page 446 by Lord Blackburn. The suicide's body was not buried in the churchyard with Christian rites. You will remember the gravediggers' scene in Hamlet (Act V, sc i, 1):
'Is she to be buried in Christian burial that wilfully seeks her own salvation?'
I know this all sounds very out of date: but it has a useful lesson for us in modern times. I feel it is most unfitting that the personal representatives of a suicide should be able to claim damages in respect of his death. At any rate, when he succeeds in killing himself. And I do not see why he should be in any better position when he does not succeed. By his act - in self-inflicting this grievous injury - he has made himself a burden on the whole community. Our hospital services and our social welfare services have done, and will do, all they can to help him and his family - in the grievous injury that he has inflicted on himself and on them. But I see no justification whatever in his being awarded, in addition, the huge sum of £200,000 - because he failed in his attempt. Such a sum will have to be raised, in the long run, by society itself - a sum which it cannot well afford. The policy of law should be to discourage these actions. I would disallow them altogether - at the outset - rather than burden the community with them. Especially when, as this experience shows, they all fail in the end. At any rate, all failed before the trial judges until this one - and this one now fails before us."
Since there was no argument on the application of public policy, or the maxim ex turpi causa non oritur actio, the court was not referred to Selfe or Pigney. This explains why Lord Denning thought that all previous cases at first instance had failed. I accept of course that the ecclesiastical law is part of the law of England. But I would not for that reason refuse all relief in the common law courts. In the end it comes down to Lord Denning's view that to allow such an action as the present would be unfitting. I have respect for that view. But I do not share it. The court does not condone suicide. But it does not, in Bingham L.J.'s graphic phrase in Saunders v. Edwards, "draw up its skirts and depart." I notice that neither Tasker Watkins L.J. nor O'Connor L.J. expressed agreement with that part of Lord Denning's judgment which I have quoted. Indeed, O'Connor L.J. clearly contemplated the possibility of a successful claim arising out of a suicide. So I would not regard Lord Denning's judgment in Hyde v. Tameside Area Health Authority as standing in the way of the view I have formed.
I would dismiss the appeal against liability.
As to quantum, the judge had first to decide on Mr Kirkham's expectation of life, having regard to his general health, and the chance that he would have made a further attempt at suicide. Secondly, he had to arrive at a dependency, having regard to Mr Kirkham's continuing capacity and willingness to earn.
On the first, the judge accepted the evidence of Dr Sayed in preference to Dr Harkness, and arrived at a multiplier of five. This may seem on the high side; but I am not disposed to disagree with the very experienced judge who heard and saw the witnesses.
On the second, the judge accepted the evidence of the plaintiff herself. He found that Mr Kirkham would have worked fairly consistently. Nevertheless, he regarded £30 a week, which was the figure put forward by the plaintiff, as too high. Instead he took £20 a week, or £1,000 a year, making £5,000 in all. I can see no basis for disturbing the judge's decision on quantum.
On the case as a whole, I would dismiss the appeal.
LORD JUSTICE FARQUHARSON: The deceased John Joseph Kirkham had a long history of excessive abuse of alcohol and had for some time prior to the month of January 1980 been suffering from clinical depression. He had spent the first nine months of 1979 in hospital suffering from this state, being discharged in the month of October. For a short time thereafter he had been in work, but had given it up in the month of December. During 1979 Kirkham had made two apparent suicide attempts. On Sunday 6th January 1980 he made two further attempts - one by an overdose of tablets, and the other by hanging. He was taken to hospital where his doctor, Dr Sayed, described him as "very depressed and suicidal...He is desperate and wants to do away with himself." Kirkham discharged himself the following day, 7th January 1980, and that evening had an argument with his wife, the plaintiff, because she refused to give him a bottle of wine. Kirkham went berserk and began to smash the furniture and their other belongings. It was in these circumstances that the police were called - being officers under the command of the defendant - and Kirkham was arrested.
There is no dispute that the police were told of Kirkham's suicidal tendencies by the plaintiff and of his specific attempts to kill himself as well as his alcoholism: further, the defendant concedes that the form POL/I was not completed and sent to the authorities at Risley, so that the latter were unaware of the risk created by Kirkham's condition.
1. Did the defendant owe a duty of care to Kirkham? The appellant argues that the learned judge was wrong in holding that such a duty existed, more particularly that the duty was to prevent Kirkham taking his own life. Counsel submits that there can be no duty to safeguard a man from his own act of self-destruction, on the principle that there is no duty of care to protect another from a risk of injury created by himself. The position must, in my judgment, be different when one person is in the lawful custody of another, whether that be voluntarily, as is usually the case in a hospital, or involuntarily, as when a person is detained by the police or by prison authorities. In such circumstances, there is a duty upon the person having custody of another to take all reasonable steps to avoid acts or omissions which they could reasonably foresee would be likely to harm the person for whom he is responsible. This is illustrated by the "hospital" cases to which we have been referred by Mr Shannon, such as Selfe v. Ilford District Hospital Management Committee (unreported). Where, as in the present case, the risk is specifically identified then reasonable steps must be taken to avoid that risk. It is conceded that the appellant's officers were aware that Kirkham was a suicide risk and it is not now contested that the failure to inform the authorities at Risley of the existence of the risk amounted to a breach of that duty.
2. Was that breach causative of Kirkham's suicide? It was pointed out by Mr Shannon that by the time Kirkham killed himself he was no longer under the appellant's control. Custody of him had passed to the officers at Risley. This issue really turned on what steps would have been taken by those officers, had they been informed of Kirkham's condition. On his arrival Kirkham had been placed in a cell and it was while he was so confined and between inspections that he hanged himself with a torn blanket. The evidence was that if the proper information had been supplied by the police Kirkham would have been placed in the hospital wing at Risley, where he would have been under closer supervision. It was submitted that Kirkham would still have had the opportunity, which he was likely to take, of killing himself. Doctor Harkness, who subsequently became the principal medical officer at Risley, said in evidence that it is not possible to stop a man committing suicide if he is determined to do so. However, the question of whether the appellant's omission was causative of the suicide was a question of fact for the judge. He found that Kirkham was a high suicidal risk, that the failure to pass on all the information about him in POL/1 considerably curtailed the full appreciation by the doctor at Risley of the deceased's mental state and the risk of suicide; and that if the doctor had been given that information he would in all probability have put the deceased in the hospital wing. The judge concluded on these findings that, on a balance of probability, the standard of surveillance in the hospital would have prevented Kirkham from committing suicide. On the evidence available to the judge he was entitled to come to that conclusion and there are no grounds upon which this court could disturb those findings.
3. Dr Sayed, who gave evidence for the plaintiff at the trial and was well acquainted with Kirkham's medical history, agreed under cross-examination that Kirkham's suicide was a conscious and deliberate act. In those circumstances, it is argued that the appellant could rely on the maxim volenti non fit injuria. In one sense there can be no better evidence of Kirkham being volens than the fact that he died by his own hand. In my judgment this defence fails on two grounds. It is clear that Kirkham was disturbed at the time of his death: quite apart from his recent medical history there was his behaviour at home immediately before his arrest, and his shouting at the magistrates in court, when they remanded him in custody to Risley, that if he was sent there he would never come back. Dr Sayed gave evidence that Kirkham was, at the time of his death, suffering from clinical depression. I have already cited his opinion that Kirkham was desperate and wanted to do away with himself. In the light of those facts and that evidence, it seems to me quite unrealistic to suggest that Kirkham was truly volens. His state of mind was such that, through disease, he was incapable of coming to a balanced decision even if his act of suicide was deliberate. The second ground is that the defence is inappropriate where the act of the deceased relied on is the very act which the duty cast upon the appellant required him to prevent. If in such circumstances the appellant could raise this defence, as Mr Foster submits on behalf of the respondent, no action would ever lie in respect of a suicide or attempted suicide where a duty of care could be proved. 4. Perhaps the most formidable argument raised by Mr Shannon is that such an action is barred by the rule ex turpi causa non oritur actio, or alternatively should be dismissed as being contrary to public policy. This stems from the general principle that nobody should benefit from his own wrong. Mr Shannon argues that the rules still apply even where, as here, the suicide is not bringing the action but his widow under the Fatal Accidents Act. Up till 1961 there may well have been no answer to the argument, at any rate so far as it affected the criminal himself, but in that year by the Suicide Act both suicide and attempted suicide were declared not to be crimes. The strongest support for Mr Shannon's argument is to be found in the obiter dicta of Lord Denning M.R. in Hyde v. Tameside Area Health Authority, where he said:
"Before 1961 I cannot think that any such claim would have succeeded. Suicide was then a crime. So was attempted suicide. And no one was allowed to benefit from his own deliberate crime. Nor were his personal representatives, see Beresford v. Royal Insurance [1938] Appeal Cases 586. Is it any different now? Under the Suicide Act 1961 suicide is no longer a crime. Nor is attempted suicide. But it is still unlawful. It is contrary to ecclesiastical law which was, and is still, part of the general law of England, see Mackonochie v. Lord Penzance [1881] 6 Appeal Cases 424 at p. 446 by Lord Blackburn. The suicide's body was not buried in the churchyard with Christian rights. You will remember the gravedigger's scene in Hamlet (Act V, sc i, 1):
'Is she to be buried in Christian burial that wilfully seeks her own salvation?'
I know this all sounds very out of date: but it has a useful lesson for us in modern times. I feel it is most unfitting that the personal representatives of a suicide should be able to claim damages in respect of his death. At any rate, when he succeeds in killing himself."
It is implicit in these observations that even where the turpi causa is not a crime the action should still not lie if it is based on immoral conduct, at least if it is such as to merit the condemnation of society at large. In this case Kirkham committed no crime, but would his act now be characterised in this way? For my part, I would regard the passing of the Act as a mark of changing public attitudes to suicide. In times gone by an act of suicide may well have met with universal condemnation and serious consequences, but nowadays society has a different view. With the development of medical science a much greater understanding has been achieved of those who are driven to act in this way. In cases where grave mental instability on the part of the victim has been proved it could hardly be said that any action brought in respect of the suicide, or for that matter the attempt, is grounded in immorality. The position may well be different where the victim is wholly sane, but I would respectfully differ from Lord Denning's view in those cases where a serious mental instability has been proved. The same considerations will apply if one is looking at the claim on public policy grounds. It is not necessary to decide in these circumstances whether a claim by a widow under the Fatal Accidents Act arising from her husband's suicide arises ex turpi causa or is against public policy.
I would dismiss this appeal against liability.
I agree with Lloyd L.J. that for the reasons he gave the appeal against the quantum of damages must likewise be dismissed. SIR DENYS BUCKLEY: I agree with the conclusion reached by my Lords, and for the reasons which they have given. I only add a few words of my own out of respect for Lord Denning, whose dictum in Hyde v. Tameside Area Health Authority, which has already been read, has been criticised. That those observations of Lord Denning were obiter dicta is clear. The claim with which he was concerned in that case was a claim against a hospital by a plaintiff who, while in the care of the hospital, had made an unsuccessful suicide attempt. He claimed damages for negligence against the hospital. The judge of first instance awarded damages. Lord Denning allowed the appeal against that award, first on the grounds that the evidence did not justify a finding of negligence, and secondly on the grounds that the suicide attempt was causally too remote from the conduct of the hospital staff to support a claim in negligence.
Having thus disposed of the substance of the appeal, Lord Denning proceeded thus: "Seeing that this is the first case of its kind to come before the Court of Appeal, I would add a few words on public policy". He then referred to three unreported suicide cases, all decided since the Suicide Act 1961 came into force, and continued with the passage which Farquharson L.J. has already read in full and which I shall not repeat.
Since we have only a transcript of the judgments in Hyde v. Tameside Area Health Authority, we cannot be sure whether Lord Denning heard any argument relating to the subject-matter of his observations contained in that passage. It seems to me to be most probable that he did not. He cannot, in any case, have been referred to Selfe v. Ilford and District H.M.C. or Piqney v. Pointers Transport Services Limited, to which Lloyd L.J. has referred. If he had been aware of those two cases, Lord Denning would surely have mentioned them.
Ecclesiastical law is a very specialised field. Although any excess of jurisdiction by an ecclesiastical court may be controlled by the ordinary courts of the land, the jurisdiction of the ecclesiastical courts is a distinct jurisdiction. The maxim ex turpi causa expresses a principle which for many centuries has been accepted by the common law courts as part of the common law of the land. I should need to be satisfied that the same is true of ecclesiastical courts and causes.
In these circumstances, although of course I recognise the respect in which any carefully framed dictum of Lord Denning (as this one clearly was) should be held, I feel at liberty to approach the present case without embarrassment from Lord Denning's observations.
On the broad question whether, since the enactment of the Suicide Act 1961, an act of suicide or an attempted suicide should be regarded as a turpis causa for the purpose of the doctrine expressed in the maxim, I am in entire agreement with what has been said by Lloyd L.J. and Farquharson L.J., and I do not think that I can usefully add anything.
I also agree that on the facts of this case the dead man, although he died as a result of his own act, should not be treated as volens within the meaning of the maxim "volenti non fit injuria".
For my part, I am not at present satisfied that a claim under the Fatal Accidents Act could be defeated by any turpitude on the part of the deceased. Although such a claim must under the statute be brought in the name of the deceased's legal personal representative, it is, as I understand it, in substance an action by the dependants for whose benefit it is brought. Should their statutory right to compensation be adversely affected by the deceased's conduct? This is not, I think, a point which requires resolution in the present case. I also would dismiss this appeal.
Order: Appeal dismissed with costs; legal aid taxation for the Respondent; application for leave to appeal to the House of Lords refused.
