England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE CCRTF 96/0976/C

COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE WHITE )

Royal Courts of Justice

The Strand

London

Monday 10 November 1997

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND

(Lord Bingham of Cornhill )

LORD JUSTICE MORRITT

and

LORD JUSTICE BUXTON

B E T W E E N:

SHEILA REEVES

(Joint administratrix of the estate

of Martin Lynch, deceased) Appellant/Plaintiff

- v -

COMMISSIONER OF POLICE

FOR THE METROPOLIS Respondent/Defendant

_______________

(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

Telephone 0171 421 4040

Official Shorthand Writers to the Court)

_______________

MR TIMOTHY OWEN (instructed by Messrs Christian Fisher, London WC1A)

appeared on behalf of THE APPELLANT

MR SIMON FREELAND (instructed by the Solicitors Department, New

Scotland Yard) appeared on behalf of THE RESPONDENT

_______________

J U D G M E N T

(As Approved by the Court )

_______________

THE LORD CHIEF JUSTICE: For the reasons circulated in writing the appeal will be allowed; the order of the judge will be set aside and an order will be entered for the plaintiff and damages.

LORD JUSTICE BUXTON: The basic facts relevant to this appeal can be stated in short compass; are not in dispute; and are set out very clearly in the judgment of Judge Sir Frank White.

The plaintiff sues as the administratrix of Martin Lynch deceased. Mr Lynch died in hospital on 1 April 1990, as a direct result of a suicide attack upon himself committed on 23 March 1990 when he was in custody on remand at the Kentish Town Police Station. On 23 March 1990 the officers responsible for Mr Lynch's custody already knew that he was a suicide risk, because of incidents on earlier occasions when he had been in police custody. On the morning of that day, while Mr Lynch was at the magistrates court, a further incident occurred which may or may not have been a serious suicide attempt by Mr Lynch. He was however produced to the magistrates and further remanded in custody by them. On his return to the Kentish Town police station he saw the police surgeon. She thought him to be a suicide risk and said that he should be kept under observation, but could find no evidence of specific mental disturbance. I interpose to say that on the basis of that and other evidence the Judge found that at time of his suicide Mr Lynch was of sound mind and not suffering from any marked medical or psychiatric condition.

Shortly after that examination Mr Lynch hanged himself. He was able to do that because the wicket gate or flap in the cell door had been left down, and that enabled him to tie his shirt through the spy hole on the outside of his cell door, and hang himself with it. On the basis of those primary facts the Judge made a number of holdings that are not challenged before us:

1. The defendant's officers owed a particular duty of care to Mr Lynch, because they knew he was a suicide risk. The content of the duty was to take reasonable care to prevent such a person who was being held by them from committing suicide.

2. It was negligent of those officers not to shut the wicket gate after Mr Lynch had been placed in the cell, because it might reasonably have been foreseen that that gave Mr Lynch an opportunity to strangle himself in way that in fact occurred.

3. Leaving aside at that stage the important question of whether Mr Lynch's own act was a novus actus interveniens, there was causative link between the negligent act and Mr Lynch's death.

On that basis, and save for the defences raised by the Commissioner, the plaintiff should have succeeded. The judge however held that the Commissioner could avoid liability by relying on the defences both of volenti non fit injuria and of contributory fault; and further, without deciding the point, he was attracted to the view that the plaintiff's claim was defeated also by the operation of the maxim or principle ex turpi causa non oritur actio . The Commissioner maintains all those defences before us, and in addition argues that Mr Lynch's suicide was a novus actus interveniens, thus defeating the plaintiff's claim on grounds of causation. Although logically that issue should come first, involving as it does an alleged failure on the part of the plaintiff to establish his claim rather than a defence to that claim once prima facie established, for reasons of convenience which will become apparent I deal with it at a later stage of this judgment.

The judge described this defence as amounting to a claim by the Commissioner that, both on the facts and on the law, the whole blame for Mr Lynch's death must rest on Mr Lynch's shoulders. He held that that claim was made out. This issue was dominated before the judge by very careful analysis of decision in this court in Kirkham v Chief Constable of Greater Manchester [1990] CB 283 [ Kirkham], a case that also involved a suicide in police custody, and which has equally and properly been the subject of careful analysis before us. Before turning to Kirkham, however, it is important to remind ourselves first of the nature and basis of the defence of volenti. Mr Owen, for the plaintiff, took us to paragraphs 3-43 and 3-44 of Clerk & Lindsell on Torts (17th edition) [Clerk & Lindsell ], where the learned editor draws attention to two possible theoretical bases for the defence: that the plaintiff is to be taken to have agreed to waive any claim for injury (see per Lord Denning MR in Nettleship v Weston [1971] 2 QB 691 at p701); or on the other hand that evidence that the plaintiff was volens simply operates to define the scope of the duty owed to him by the defendant (see most clearly for that view the judgment of Diplock LJ in Woolridge v Sumner [1963] 2 QB 43 at p67). In Morris v Murray [1991] 2 QB 6 at p15 Fox LJ held that there was probably not much difference between the two positions, a view strongly endorsed in Clerk & Lindsell , and continued, in respect of the application of the defence of volenti to a case of negligence:

"In general, I think that the volenti doctrine can apply to the tort of negligence, though it must depend upon the extent of the risk, the [plaintiff's] knowledge of it and what can be inferred as to his acceptance of it."

I would respectfully agree that this broadly pragmatic approach is to be found in the majority of the cases. I would however note in passing that if the theory of the defence of volenti is indeed that "volens" conduct on the part of the plaintiff affects the content of the defendant's duty, that would seem to be conclusive in this case against the availability of the defence. That is because the judge found, without challenge before us, that the duty in this case was to take reasonable care to prevent Mr Lynch committing suicide. It is very difficult to see how Mr Lynch's voluntary act in actually so committing suicide can amend or affect the content of that duty at all; save at least by destroying that duty altogether, which would be inconsistent with the judge's unchallenged finding as to the existence of the duty.

Putting these difficult theoretical matters on one side, however, and approaching the defence on a more pragmatic basis, counsel for the Commissioner said, without dissent by his opponent, that a valuable guide was to be found in Smith v Baker [1891] AC 325 at p360, where Lord Herschell said that:

"The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong."

That means, in a negligence case, not so much assent to infliction of injury as assumption of risk of it: see Salmond & Heuston on Tort (21st edition) , p474. It will immediately be seen that there may be some difficulty in applying that analysis in a case such as ours, where the negligence of the defendant consisted not in the infliction of injury, but in not taking reasonable steps to prevent Mr Lynch from injuring himself. I return to that difficulty at a later stage of this judgment.

Turning now to Kirkham, the prisoner in that case was, unlike Mr Lynch, suffering from what was described as clinical depression. He killed himself in prison, in circumstances where the defendant police authority was found to have been negligent in not passing on to the prison authorities information about his suicidal tendencies. In Kirkham, as in our case, the defence advanced were volenti and ex turpi causa. Both failed, but we should note now that in the argument in our case the difference between the mental state of deceased in Kirkham on the one hand and of Mr Lynch on the other looms very large.

Thus in Kirkham Lloyd LJ said (at pp 289G-290C):

"When 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 on himself....But in the present case Mr Kirkham was not of sound mind...If it had been a case of murder he would have had a defence of diminished responsibility due to disease of the mind....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."

On the basis of this passage the Commissioner argues strongly that Lloyd LJ, albeit obiter, could see no answer to a claim of volenti in respect of the suicide of a person of sound mind: as on the judge's findings Mr Lynch has to be taken to have been.

Farquharson LJ adopted a different approach, at pp 294H-295C:

"Dr. Sayed, who gave evidence for the plaintiff at the trial and was well acquainted with Mr. Kirkham's medical history, agreed under cross-examination that Mr. Kirkham's suicide was a conscious and deliberate act. In those circumstances, it is argued that the defendant could rely on the maxim volenti non fit injuria. In one sense there can be no better evidence of Mr. 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 Mr. 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 Mr. Kirkham was, at the time of his death, suffering from clinical depression. I have already cited his opinion that Mr. 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 Mr. 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 defendant required him to prevent. If in such circumstances the defendant could raise this defence, as Mr. Foster submits on behalf of the plaintiff, no action would ever lie in respect of a suicide or attempted suicide where a duty of care could be proved."

Sir Denys Buckley said, at p 296E, that he agreed with both the conclusion and the reasons of both of the other Lords Justices. On that basis, counsel for the plaintiff argues that that agreement must extend to the second of the grounds adopted by Farquharson LJ, and that the latter is therefore a binding ratio of Kirkham. I do not agree. Sir Denys Buckley did not distinguish between the second ground of Farquharson LJ and the approach adopted by Lloyd LJ, even though, as we can now see, with the benefit of the argument in this case, they are inconsistent or at least potentially inconsistent with each other. Sir Denys' agreement as much extends to the doubts expressed by Lloyd LJ as to whether a man of sound mind may maintain an action as to the second ground of Farquharson LJ, that appears to set those doubts aside. It is not possible, therefore, to spell out of Kirkham the ratio that the plaintiff seeks.

At the same time, however, Sir Denys conspicuously did not express disagreement with the second ground of Farquharson LJ, which remains open for consideration by this court. I consider that that ground is clearly correct, and should be followed. I say that with great respect to Lloyd LJ, while bearing in mind that, because of the view that he took of the impact on the result in Kirkham of the deceased's mental illness, he was not required to submit the issue that is now before this court to full and detailed analysis. My reasons for thinking that the defence of volenti is inept in the present case are as follows.

First, the very short point is that the defence is inappropriate for the short reason given by Farquharson LJ. If the police's obligation was to guard against suicide, that is, to protect Mr Lynch from a deliberate act against his own life, I do not see how they can be or should be exempted from liability because that deliberate act in fact occurred. If it were to be the law that the act of suicide by a sane person exempts the police from liability, one would expect that to be achieved by holding there to be no duty of care in the case of a sane man. That was not what the judge held, nor is it what the Commissioner submits to us. It is the existence of that duty, which contemplates the prevention by the defendant of very act that is said to constitute the voluntary or intervening act on the part of the plaintiff, that sets this case apart from those such as Cutler v United Dairies [1933] 2 KB 297, where the plaintiff by his own act put himself within the zone of peril that caused the accident (see per Slesser LJ at p305).

Second, I think that Farquharson LJ was right in saying that, if the defence of volenti is available, no action would ever lie for a suicide in respect of which a duty of care had been established. The judge did not agree, pointing to the outcome in Kirkham itself. But that outcome, if it is held (as in the Commissioner's argument) to uphold the availability of the defence where the deceased was sane or of sound mind, depends on making a distinction, within the persons who are suicide risks to whom the duty is owed, between those who are of sound mind and those who are not. But the law in imposing the duty in the first place makes no such distinction, as the judge's own findings in this case demonstrate.

Third, if the defence of volenti is to be available, it is necessary to distinguish this case from the result in Kirkham. That can only be done on the basis that Mr Lynch was "of sound mind". That distinction is inconsistent with the recognition that a duty of care existed in his case as much as in the case of the deceased in Kirkham. But, further, the distinction in practical terms will be difficult or impossible to make. Counsel for the Commissioner declined to specify where the line could or should be drawn, or what mental state (over and above the mere existence of suicidal tendencies) might deprive a person of the status of soundness of mind. The court in Kirkham placed weight on the fact that the deceased there would, in a case of murder, have had the benefit of a defence of diminished responsibility. It is not clear whether that was a necessary, or merely a sufficient, condition for lack of soundness of mind. In either event, the possibility of introducing that notoriously difficult enquiry into this area of litigation is one that I would not wish to contemplate unless driven to it.

Fourth, to introduce a criterion of soundness of mind would cause some difficulties in terms of evidence. In the nature of things, the deceased will not have been examined by anyone acting on behalf of the plaintiff, and any expert evidence given on the plaintiff's part will be theoretical only. This would of course not be a conclusive objection if the law otherwise demanded such an enquiry; but in our case it underlines the practical as well as the principled objections to the availability of the defence of volenti.

Fifth, more difficult to state and no doubt also less compelling, there is a considerable element of artificiality involved in applying the traditional statements setting out the elements of the defence of volenti to the facts of the present case. In a negligence case such as the present, the defendant can assert the defence if he can show that the plaintiff assumed or consented to his being exposed to the risk the existence of which constituted the defendant's negligent act. The risk that the defendants created or failed to dispel in this case was the risk that Mr Lynch might kill himself. But is it realistic to say that by deliberately killing himself Mr Lynch assumed a risk that he might kill himself? And how did he assume that risk? The only evidence of that assumption or agreement on his part is his actual suicide. Although in one sense it might be said that Mr Lynch manifested his agreement to the failure of the police to take precautions against his suicide by actually committing that suicide, I consider that analysis to be misleading. The case is quite different from the normal case of volenti, where the plaintiff can be said to have willingly entered a hazardous situation in which injury may or may not accrue to him from the future negligence of another party: most conspicuously, where the plaintiff accepts a lift from an obviously drunken driver. By contrast, in our case the defendant had an obligation to act towards Mr Lynch in and because of an already existing situation between them. Mr Lynch did not enter that situation, of incarceration, as a volunteer: quite the reverse. Nor, except by reference to the eventual outcome, is it possible to say that Mr Lynch agreed to or accepted the way in which the police performed their duty in that situation. Rather, he took advantage of the police's lapse: but it was the proffering of that opportunity that constituted the police's actual negligence.

I mention these latter difficulties in applying the traditional analysis to this case not so much to suggest that they are conclusive in themselves, but rather further to illustrate that the defence of volenti simply does not fit into a case where the act demonstrating the plaintiff to be volens is that act that the defendant was negligent in not taking reasonable precautions to prevent.

I would therefore reject the judge's conclusion on this issue. The defence of volenti non fit injuria is not available to the Commissioner in this case.

I deal with this matter at this stage because the judge treated the plea or assertion of novus actus as being closely bound up with the defence of volenti, to the extent that he gave no separate consideration to novus actus. I doubt whether that view was correct; but I do not pause on that question, since the plea of novus actus was separately debated before us. Put shortly, the contention is that Mr Lynch's death was caused by his own act, not by the acts or omissions of the police officers, and therefore the necessary link between their negligence and any damage suffered by Mr Lynch or his representatives was broken. That argument at first sight has the attraction of appealing to practical commonsense, but I am satisfied that it is incorrect in law.

Counsel for the Commissioner was at one stage minded to argue that the issue, being an issue of causation, was one of fact, and as such not one on which this court could lightly differ from the trial judge. There are two difficulties about that argument. First, because of the way in which the judge treated this question, as described above, it is not easy to identify any specific finding on the issue of causation that could claim the status at one time contended for by the Commissioner. Second, however, although issues of causation are generally ones of fact, they are subject to certain specific principles, the application of which is certainly not exclusively an issue of fact. That is particularly so when the claim is made that what otherwise might be thought to be a chain of causation between negligent omission and injury has been interrupted by a novus actus.

It is convenient to cite the description of novus actus given at paragraph 2-24 of Clerk & Lindsell :

"Whatever its form the novus actus must constitute an event of such impact that it rightly obliterates the wrongdoing of the defendant. The question which ought to be asked is "whether that intervening cause was of so powerful a nature that the conduct of the plaintiffs was not a cause at all but was merely a part of the surrounding circumstances."

In our case, it cannot be said that Lynch's act of suicide rightly obliterates the wrongdoing of the defendant, because the defendant's act or failure was characterised as wrongdoing in the context of, and by reason of a duty to prevent, that very suicide. Another way of illustrating that point is to say that in the context of this case, and on the basis of the set of facts that require this enquiry to be made in the first place, the suicide was not an intervening cause at all, or was not a new act: because foresight of its possible occurrence was part of the reason, indeed by far the most important part of the reason, for placing the defendants under their duty in the first place. That approach is strongly reinforced by consideration of the well-known case, admittedly in contract, of Stansbie v Troman [1948] 2 QB 48, where decorators in breach of their duty to take reasonable care for the safety of the premises where they were working had left them unsecured, thus enabling the entry of a thief. Tucker LJ, at pp 51-52, said that the general rule with regard to responsibility for acts done by a third party was "even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do" (per Lord Sumner in Weld-Blundell v Stephens [1920] AC at p986), but that principle did not apply where

"the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened."

In such a case, therefore, as Oliver LJ put it in Perl Ltd v Camden LBC [1984] 1 QB at p353C:

"if there be a duty to take reasonable care to prevent damage being caused by a third party then I find it difficult to see how damage caused by the third party consequent on the failure to take such care can be too remote a consequence of the breach of duty."

The application of this principle in our case only at first sight appears unusual because of the unusual nature of the duty imposed on the defendant, to take steps to protect from himself the party under whom the plaintiff claims. But once that duty to take care to prevent Mr Lynch's suicide is admitted, the approach indicated by Oliver LJ in the case of duties to protect the plaintiff from third parties has necessarily to apply in this case also. The Commissioner cannot therefore escape from liability on the basis of the destruction of the causal link through a new or intervening act on the part of Mr Lynch.

The judge gave leave during the course of the trial for the defence of contributory fault to be pleaded and concluded that:

"On the facts of this case [I] accept that [the defendant] can establish a contributory defence. Further, I accept that, in the circumstances, the plaintiff's contribution must be set at 100 per cent."

This ground was originally abandoned by the Commissioner before us, but reinstated, without more than token objection by the plaintiff, on better consideration on the opening of the appeal. The debate before us principally concentrated on the question of whether the finding of 100 per cent contributory liability was consistent with the existence of the defence, or indeed open to the judge in law in view of the observations in this court in Pitts v Hunt [1991] 2 QB 254. The first and most important issue is, however, whether a claim that is not open to attack on grounds of volenti or novus actus interveniens can nonetheless be defeated on grounds of contributory fault. On closer examination, I am satisfied that doubt on that issue was indeed well-founded, and that the defence of contributory fault is not available in this case.

The enquiry must start from the Law Reform (Contributory Negligence) Act 1945 [the 1945 Act], which provides in section 1 that:

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons....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."

"Fault" is, by section 4:

"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."

It is recognised that the last part of this definition applies to the claimant, and has the effect of providing that any conduct that would have amounted to contributory negligence at common law will continue to be regarded as contributory negligence under the 1945 Act.

The basic problem in applying that test to this case is the same as with the other defence relied on by the Commissioner: that it is simply artificial to contend that a defence to liability can rest upon the performance by the deceased of the very act that the defendant was under a duty to take reasonable steps to prevent. That said, closer examination of the terms of the defence present more particular difficulties.

First, what was Mr Lynch's "fault"? The answer must be, to have killed himself. It is quite obscure whether, in the terms of section 4 of the 1945 Act, that act would have given rise to a defence of contributory negligence at common law, and no authority was cited either to the judge or to us in support of that contention. However, for reasons that I shall shortly develop, if we have to decide that issue for ourselves, there are strong pointers against the defence being available in a case such as the present.

Second, on the assumption that Mr Lynch's alleged "fault" is to have killed himself, did Mr Lynch suffer death partly as a result of his killing himself and partly as a result of the defendants giving him an opportunity to kill himself, to adapt the terms of section 1 of the 1945 Act to this case? The commonsense answer to a question posed in those terms is that given by the judge: that Mr Lynch suffered death entirely as a result of his killing himself. That conclusion would however entail, and be the same as saying, that Mr Lynch's act of self-destruction was in law a novus actus: which, as I have sought to demonstrate, is not the case. Rather, this verbal investigation strongly suggests that the defence provided by the 1945 Act simply does not fit a case such as the present.

Third, strong support for the view that contributory negligence should not apply in this case is to be found in an analogous area where defendants are, as on the judge's findings was the Commissioner, under a duty to take care with regards to the plaintiff. Such a duty rests on employers under the Factories Acts. That duty is absolute, and not merely a duty of reasonable care, but the warnings on policy grounds against permitting the employer's duty to be undermined by an appeal to contributory negligence seem equally appropriate to the duty that the judge found in the present case. Some few examples may be given. In Hutchinson v LNER [1942] 1 KB 481 at p 488 Goddard LJ said:

"It is only too common to find in cases where the plaintiff alleges that a defendant employer has been guilty of breach of statutory duty that a please of contributory negligence has been set up. In such a case I always directed myself to be exceedingly chary of finding contributory negligence where the contributory negligence alleged was the very thing which the statutory duty of the employer was designed to prevent."

In Staveley Iron & Chemical Co Ltd v Jones [1956] AC 627 at p648 Lord Tucker said:

"In Factory Act cases the purpose of imposing the absolute obligation is to protect the workmen against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute."

And in a somewhat similar case Lord du Parcq graphically summed up the point by saying, Grant v Sun Shipping [1948] 549 at p 567:

"The real complaint of the defenders is that the pursuer reposed an unjustified confidence in them."

In my view, the present case is, by reason of the judge's finding as to the Commissioner's duty, not different in principle. It would destroy the content of that duty if the Commissioner could be heard to complain that Mr Lynch had done the very thing that society, rather than Mr Lynch, looked to the Commissioner to take reasonable steps to prevent.

This approach is not affected by Jayes v IMI (Kynoch) Ltd [1985] ICR 155, which was strongly relied on by the Commissioner. There the appellant's contention was that it was impossible as a matter of law, where there had been a breach of statutory duty, to hold the workman 100 per cent liable. This court held that there was no such rule. In a case where the plaintiff had admitted that what he did was "a crazy thing to do", the trial judge was entitled if so minded to find that on the facts the fault was entirely that of the plaintiff. Neither the court's view on the legal argument put to it, nor its conclusion as to the trial judge's findings, in any way offsets the warnings cited above against finding contributory negligence when the act relied on as such negligence is the very thing (in our case, the very thing in precise detail) that the defendant had a duty to take steps to prevent.

Fourth, perhaps even stronger guidance can be obtained from cases in which the defence of contributory negligence has been asserted against child plaintiffs. In Lynch v Nurdin [1841] 1 QB 30 the defendant negligently left a cart unattended in the street. The seven year old plaintiff climbed on to it and was injured. Lord Denman CJ said, at p38:

"The most blameable carelessness of [the defendant] having tempted the child, he ought not to reproach the child with yielding to that temptation."

That case was followed by the Privy Council in Yachuk v Oliver Blais [1949] AC 386, where the infant plaintiff was negligently sold gasoline by the defendant and injured himself when he set fire to it. The Board, per Lord du Parcq at p397, held that the case was concluded by the judgment of the Ontario Court of Appeal that:

"If one gives to a child an explosive substance, and the child, with a limited knowledge in respect to the likely effect of the explosion, is tempted to meddle with it to his injury, it cannot be said in answer to a claim on behalf of the child that he did meddle to his own injury, or that he was tempted to do that which a child of his years might reasonably be expected to do."

Mr Lynch was not a child, and he acted deliberately and not in ignorance. He did, however, do that what he might have reasonably been expected to do, given the opportunity provided to him by the Commissioner. It was precisely because of that expectation that the Commissioner had the duty towards him that the judge found and which is unchallenged before us. I can see no difference in principle between Mr Lynch's case and the cases just cited. I do not see how it can be properly said in answer to Mr Lynch's claim, or even in partial answer to his claim, that he did that which the Commissioner was under a duty to take reasonable steps to prevent.

I am therefore of opinion that a plea of contributory negligence is inappropriate in this case, and that that defence must likewise fail.

The Commissioner argues strongly that this defence is available in this case. That was clearly also the preference of the judge, though since he rejected the claim on grounds of volenti he did not need to reach any final conclusion on the point.

The limits of this defence are very difficult to state or rationalise, it being recognised as sitting more easily in the law of contract than of tort: see for instance Lord Porter in National Coal Board v England [1954] AC 403 at p419:

"The adage itself is generally applied to a question of contract and I am by no means prepared to concede where concession is not required that it applies also to the case of a tort."

However, in Kirkham Lloyd LJ cited a passage from Kerr LJ in Euro-Diam v Bathurst [1990] 1 QB 1 at p35 which although found in a contract case he thought properly demonstrated the principle to be applied also in tort:

"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..."

On the basis of that passage Lloyd LJ held at p291C that:

"we have to ask ourselves...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."

The Lord Justice referred to the fact that suicide is no longer a crime and that the public attitude to it had changed, and concluded, at p 291H:

"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."

Farquharson LJ adopted a similar approach, at p 296B:

"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..."

On the basis of these passages, counsel for the Commissioner argued that Mr Lynch's case was that specifically reserved by Lloyd and Farquharson LJJ in Kirkham. Both of them, and Sir Denys Buckley, had at the lowest left open the possibility that suicide by a sane man would be turpi causa, preventing his representatives from recovering. Although the matter was not pursued in Kirkham, and that case certainly does not decide the point, he urged that we should hold that the defence of turpi causa does indeed hold in this case.

When a judge is asked to hold that a particular outcome would affront the public conscience or shock the ordinary citizen it behoves him to proceed with caution, as did this court in Kirkham. No evidence will be available to him on which to base such conclusions, and therefore the exercise must be one of speculation, albeit one would hope intelligent speculation. In the present case, however, I feel able to address the issue without descending into arena in that way, because there are in my view clear reasons why the defence of ex turpi cannot, as a matter of logic and of legal principle, be available in this case.

First, the defence fails on a logical ground similar to that which is fatal to the defence of volenti. If it shocks the conscience of the ordinary citizen that a suicide could recover, why is it duty of the police, not merely as public officers but in the private law of negligence, to take reasonable steps to prevent that outcome? The case is, again, quite different from the usual application of ex turpi causa, where the plaintiff suffers injuries in the course of a criminal enterprise such as an affray or burglary. Here, the alleged turpitudinous act is the very thing that the defendants had a duty to try to prevent, imposed by a law of negligence which itself appeals to public conscience or at least to public notions of reasonableness.

Second, the present case does not fit at all well into the explanation of the defence given by Kerr LJ in Euro-Diam: the defence applies where it would affront public conscience to grant relief:

"because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts."

I accept that this does not purport to be a complete statement of the nature and terms of the defence. I also accept that the actual application of Kerr L's exposition of ex turpi causa in Euro-Diam itself has been disapproved: see Tinsley v Milligan [1994] 1 AC 340 at p363. Nevertheless, the exposition in my view remains a valuable guide to the basis of the defence, and was accepted as such by Lloyd LJ in Kirkham. To grant relief in our case does not assist or encourage either Mr Lynch or others in his situation to continue in their disapproved conduct; and even less is that the effect of the grant of relief to Mr Lynch's representatives. Nor even are others in Mr Lynch's position encouraged to act on their representatives' behalf: all that the latter recover is their actual loss, and no element of profit or windfall benefit.

Third, I cannot in this connection see any difference between persons who are suffering from a defined mental illness and persons who are not; and here I may have with respect to differ from what was the at least preliminary view of Lloyd and Farquharson LJJ in Kirkham. The plaintiff or rather his representatives recovers damages not because of his mental state but because as a suicide risk he has not received the care that he should have done. While it may be more obviously objectionable, as the court in Kirkham held, to hold an act by a mentally ill person to be morally repugnant, the question for this court is whether that act should deprive him of relief in the law of negligence. The defendant has been negligent towards him because he was a suicide risk, whether he was mentally ill or not; and therefore in either case the fact that he did what the authorities should have sought to prevent should not afford those authorities a defence.

I regard those considerations as conclusive against the availability of the defence in this case. However, if I were forced to do so, I would hold that, the burden of establishing this defence being on the Commissioner, it is quite impossible for him to show on material before the court, or even by reasonable judicial deduction and assumption, that the grant of relief to the plaintiff would so shock the public conscience that that relief, otherwise available, should be withheld. The citizen whose reactions are the basis of the defence must be taken to be fully informed of the circumstances of the case, and of the responsibilities and duties properly undertaken by the Commissioner. I am quite unpersuaded that shock or affront (both of which are very strong reactions indeed) would be the reaction of a citizen armed with that information to an award of damages in respect of the suicide of a man known to be a suicide risk while he was involuntarily in police custody.

I say that conscious that the very experienced trial judge was inclined to a different view. He said:

"I would hesitate before concluding that, unless a deceased's action in taking his own life can be attributed to serious mental instability which deprived him of his judgment so that he was not truly volens, public conscience would not be affronted, even in the present climate of social opinion, if he was not held in law to be fully accountable for his deliberate act...if the law is to retain the confidence of the public, relief against the consequences of deliberate action, even under such pressures, should only guardedly be given."

I would respectfully make three comments. First, as the judge made clear, his view was only a preliminary one. Second, as expressed his approach appears to reverse the burden of proof on this issue. That is more than a technical point, because the need to make good the extreme claims of affront or outrage is a cardinal necessity of this defence. Third, the judge's view could not be, any more than the view of this court can be, a finding of fact, so it is not subject to the inhibitions affecting this court should it be minded to interfere with such findings.

I feel also obliged to comment, I do not need to say with great respect, on one aspect of the view expressed by Lord Denning MR in Hyde v Tameside Area Health Authority , an unreported case in this court, not least because the Commissioner relied on it before us as the high point of his case on ex turpi. Lloyd LJ in Kirkham, [1990] 2 QB at p292A, cited extensively from Lord Denning; I repeat part of that citation:

"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 App. Cas. 424,446, per Lord Blackburn."

But Lloyd LJ did not accept that view. He said, at p 292F:

"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 [1987] 1 W.L.R. 1116, 1134, "draw up its skirts and refuse all assistance to the plaintiff."

I agree. I would only add one point, with some considerable diffidence. I think that some caution should be exercised before acting on the proposition that ecclesiastical law is part the (general) law of England. Lord Blackburn's dictum in Mackonochie v Lord Penzance was in context of a case of prohibition to the Court of Arches for acting in excess of its jurisdiction, in a case that concerned not Christian doctrine but the rules of Anglican ritual. The House of Lords had therefore to consider whether what had been done had indeed been in excess of the jurisdiction of the Court of Arches, and for that purpose had to look at the terms of the law applied in that court. Lord Blackburn explained how a temporal court such as the House of Lords went about that task:

"The ecclesiastical law of England is not a foreign law. It is a part of the general law of England - of the common law - in that wider sense which embraces all the ancient and approved customs of England which form law, including... that law administered in the Courts Ecclesiastical... When the question arises what is the English ecclesiastical law, it is not ascertained by calling witnesses to prove it, as if it were a foreign law, but by taking judicial notice of what the law is."

Lord Blackburn thus said no more than that temporal courts take judicial notice of English ecclesiastical law, without that having to be proved like foreign law. I for my part, therefore, quite apart from sharing the opinion expressed by Lloyd LJ, would not think that there is authority, or at least not authority to be found in speech of Lord Blackburn in Mackonochie v Lord Penzance , for thinking that a rule of the ecclesiastical law is part of English law in the sense that it has necessarily to be applied by the temporal courts. Should a judge find himself having to apply the terms of the ex turpi causa doctrine he may well wish to have regard to the view of the conduct in question entertained by the Church of England, or indeed by other churches. There is, however, in my respectful view nothing in Mackonochie to give those views a special status as part of the general law of England.

I would hold that none of the defences asserted by the Commissioner are made out, and that therefore the appeal should be allowed and the plaintiff should recover damages. What might at first sight seem to be a surprising outcome has to be seen in the context of the duty imposed on the Commissioner, which he has not sought to challenge before us. And, for the avoidance of doubt, I am not by drawing attention to that last feature of the case to be taken as suggesting that such a challenge could or

should have been undertaken.

LORD JUSTICE MORRITT: By this action under Fatal Accidents Act 1976 Mrs Reeves seeks to enforce the cause of action which would have been available to Mr Lynch if his death had not ensued. In that respect the judge, His Honour Judge Sir Frank White, concluded that, having regard to the fact that they had been warned that Mr Lynch was a suicide risk, the police officers at Kentish Town Police Station owed a particular duty of care to Mr Lynch. He considered that such duty was to take reasonable care to prevent Mr Lynch, as the person being held in custody, from committing suicide. He accepted Mrs Reeves’ contention that it was negligent not to shut the wicket gate after Mr Lynch had been placed in the cell because, as might reasonably have been foreseen, it gave Mr Lynch an opportunity to secure a ligature through the spy hole with which to strangle himself. Finally the judge accepted that, if the action of Mr Lynch was not a novus actus interveniens, a causative link could be established between the negligence and the death because the failure to close the wicket gate materially increased the risk of Mr Lynch making a successful suicide bid.

The judge concluded that:

"In this case the deceased at the time he took his own life was not suffering from any marked medical or psychiatric condition. On the evidence, I am unable to conclude other than that he was, when he took the decision to end his life, of sound mind."

In the light of that finding the judge formulated the relevant principle as

"where the judgment of a person is not seriously impaired, he or she will be held to account for his or her deliberate actions."

Though he expressed such principle in relation to the suggested defence of volenti non fit injuria he sought to apply it in relation to the other legal issues, namely whether the chain of causation was broken because the action of Mr Lynch was a novus actus interveniens, whether Mr Lynch would have been liable for contributory negligence and whether his claim would have been barred by public policy.

In these circumstances the first issue is whether the action of Mr Lynch in taking his life broke the chain of causation because it was a novus actus interveniens or new force intervening between the negligence and the damage. The judge impliedly accepted that it was but gave no reasons for that conclusion separate from his conclusions on the other issues to which I have referred. The general principle, as expressed by Professors Hart and Honore in Causation in the Law 1985 ed.p.136, is that

"The free, deliberate and informed act or omission of a human being, intended to exploit the situation created by a defendant negatives causal connection."

The subsequent examples given by the authors cover the acts of the plaintiff as well as those of independent persons. At page 214 (in relation to contributory negligence) they suggest that

"If [a] defendant drove at an excessive speed and [the] plaintiff, in order to commit suicide, threw himself under the wheels of [the] defendant’s car but suffered injuries short of death, [the] plaintiff even under a system of apportionment would presumably be totally barred from recovery."

This is not disputed by counsel for Mrs Reeves. He submits that the instant case is not an ordinary one because the police were under a specific duty to take reasonable care to prevent Mr Lynch (whatever his mental state) from injuring or killing himself by his own deliberate, intentional act. For this submission he relies on the principle that the occurrence of the very thing which it was the duty of the defendant to use reasonable care to prevent cannot be a new intervening force so as to break the chain of causation. This was established in Stansbie v Troman [1948] 2 KB 48 in which at page 51 Tucker LJ said:

"Mr, Brown referred to Weld-Blundell v. Stephens (2) and in particular, to the following passage of Lord Sumner (3): “In general (apart from special contracts and relations and the maxim respondeat superior), even though A. is in fault, he is not responsible for injury to C. which B., a stranger to him, deliberately chooses to do. Though A, may have given the occasion for B.’s mischievous activity, B. then becomes a new and independent cause.” I do not think that Lord Sumner would have intended that very general statement to apply to the facts of a case such as the present where, as the judge points out, the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened. The reason why the decorator owed a duty to the householder to leave the premises in a reasonably secure state was because otherwise thieves or dishonest persons might gain access to them; and it seems to me that the decorator was, as I think he was, negligent in leaving the house in this condition, it was as a direct result of his negligence that the thief entered by the front door which was left unlocked, and stole these valuable goods."

Counsel were not able to refer us to any case in which "the very thing" was the voluntary and intentional action of a plaintiff of sound mind. Thus, as it seems to me, the important issue is which should be applied to the facts of this case: the general principle expressed by Professors Honore and Hart or, by extension, the principle enunciated by Tucker LJ. For Mrs Reeves reliance is placed on the particular duty of care found by the judge. It would be odd, so it is submitted, if the police owed that duty in respect of a prisoner who was not of sound mind but not to one who was.

I am unable to accept that submission. The duty of care arose because Mr Lynch was held in the custody of the police. The general duty is to take reasonable care not to harm him. If the person in custody is known to be a suicide risk and is not of sound mind there is a particular duty to take reasonable steps to prevent him committing suicide. Kirkham v Anderton [1990] 2 QB 283. In such a case it may fairly be said that the omission of such steps materially increased the risk of the prisoner taking his own life. But where the prisoner is of wholly sound mind I find it hard to see how there is any material increase in the risk in any causative sense. It is true that the failure to take reasonable care provides the opportunity for the suicide but the occurrence of that event depends wholly on the will and intention of the prisoner. In my view the voluntary, deliberate and informed act of a plaintiff (or one whom the plaintiff represents) intended to exploit the situation created by the defendant albeit in breach of duty precludes a causative link between the breach of duty and the consequences of the plaintiff’s action. If the law is otherwise then those who fail to take reasonable care will become insurers for the deliberate actions of those to whom they owe their duty of care. In my view this would extend the law of negligence far beyond its proper scope. I believe that this conclusion is consistent with the decision of Lloyd LJ and Sir Denys Buckley in Kirkham v Anderton [1990] 2 QB 283 and of the House of Lords in Banque Bruxelles SA v Eagle Star [1997] AC 191 in relation to the mountaineering analogy given by Lord Hoffmann at page 213.

I should add three comments. First, in connection with the suggestion made in the course of argument that if the law is as I would hold it to be then the police may allow to die by his own hand the prisoner in their custody who is of sound mind. In my view that would not be so. Their public duty and their duty to their employer would each require them to save all prisoners alike whether of sound or unsound mind. The issue on this appeal is whether the police must treat both classes alike for the purposes of paying compensation to their representatives.

The second comment is the suggested difficulty of deciding whether a person was of sufficient soundness or unsoundness of mind. This was not argued but I would suggest that the test for unsoundness of mind would be whether the deceased was sufficiently informed and capable of forming the requisite intention. The satisfaction or otherwise of that test would depend on the medical or other evidence. My third comment relates to the fact that there was no argument on the scope of the duty of care owed by the police officers to Mr Lynch. No one would dispute that where one person is lawfully held against his will by another the latter must owe to the former a duty to take reasonable care of him. At that, general, level there is ample scope for the duty in respect of all persons detained against their will whether of sound or unsound mind. Commonly such a general duty is narrowed by reference to the facts of the particular case so that, as reformulated, it expresses an obligation on the part of the defendant to use reasonable care in a specific respect or to prevent specific harm. Such particularisation may well assist in elucidating the problems in that case. But I question whether it is permissible to narrow the general duty by reference to the facts of the case and then preclude questions of causation by applying the principle of Stansbie v Troman or, which seems to me to be much the same, finding the necessary causation because otherwise the duty so narrowed would be robbed of reasonable scope. As the editors of Clerk & Lindsell 17th Edition at para. 7-08 observe:

"Even if both the plaintiff and the kind of damage are foreseeable, there may still be a third question, namely whether the defendant should be held responsible for the manner in which the damage was caused. This problem arises where the damage was a direct result of the conduct of a third party and only indirectly the consequence of the defendant’s conduct. It may be answered at the level of notional duty or by reference to the principles of causal responsibility. The courts are not consistent in their analysis of the problem, frequently merging the questions of duty and causation."

In this case the damage was the direct result of the action of, in effect, the plaintiff; that is an a fortiori case. I am concerned that the lack of consistency discerned by the editors of Clerk & Lindsell may have been increased by the absence of any argument in this case in relation to the duty of care and its scope.

For my part therefore I would dismiss this appeal on the ground that the action of Mr Lynch was a novus actus interveniens. But it is convenient also to consider the applicability of the maxim volenti non fit injuria for it is so closely linked to the issue of causation.

This issue attracted the most attention in the course of argument because of the judgments of this court in Kirkham v Anderton [1990] 2 QB 283. At page 289 Lloyd LJ said:

"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 , Court of Appeal (Civil Division) Transcript No. 130 of 1981, 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 M.R. doubted whether a defence of volenti non 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 as well, 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 Act of 1934 and an action for the benefit of dependants under the Fatal Accidents Act 1976. In so far as Pilcher J. drew a distinction between the two types of action in Pigney v. Pointer’s Transport Services Ltd [1957] 1 W.L.R. 1121, I would respectfully disagree."

Farquharson LJ considered that the maxim volenti non fit injuria did not apply to the facts of that case because Mr Kirkham was not of sound mind at the time. He added, at page 295:

"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 defendant requiring him to prevent. If in such circumstances the defendant could raise this defence, as Mr. Foster submits on behalf of the plaintiff, no action would ever lie in respect of a suicide or attempted suicide where a duty of care could be proved."

Though, on page 296, Sir Denys Buckley expressed his agreement with the conclusion of Lloyd and Farquharson LJJ and the reasons they had given, at page 297, he said:

"I also agree that on the facts of this case the dead man, although he died as the result of his own act, should not be treated as volens within the meaning of the maxim volenti non fit injuria."

In view of this later passage I do not consider that the judgment of Sir Denys Buckley can be construed as agreeing with Farquharson LJ’s second point in relation to a prisoner of sound mind. (For reasons I have already explained in connection with causation I do not, with respect, agree with Farquharson LJ’s second point in relation to such a prisoner.) It follows that it was the view of two members of the court, Lloyd LJ and Sir Denys Buckley, that the defence was available in the case of a prisoner of sound mind. This was the view of the judge. He concluded that Lloyd LJ had correctly expressed the current state of the law and upheld this defence.

Counsel for Mrs Reeves contends that, when properly analysed, the maxim volenti non fit injuria cannot be sensibly applied to the deliberate action of the plaintiff. He relies on the classic statement of Lord Herschell in Smith v Baker [1891] AC 325 at p.360 that:

"the maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong."

As he pointed out in his excellent written argument the maxim envisages the free and voluntary acceptance by a claimant of the consequences to him of an act done, not by himself but, by another. He referred to the well-known examples of passengers, employees and those participating in games or sports. He submitted that this maxim cannot be sensibly applied to Mr Lynch who "in his suicidal condition, of which [the police] were fully aware took advantage of an act of carelessness by a police officer which (but for [his] frame of mind) was not dangerous or risky at all".

I do not accept this submission. Acceptance by a claimant of the consequences of his own intentional act is a stronger reason for excluding liability than acceptance of the risk created by negligence of the defendant. Professors Honore and Hart in Causation in the Law page 216 state:

"When the plaintiff’s action fails because the harm is the consequence of his voluntary conduct, whether intentional or reckless, it is perhaps strictly speaking incorrect to say that he is barred by his contributory negligence since in such cases his conduct is not merely contributory but is described, from a common sense point of view and also in law, as the sole cause or the cause of the harm. The “defence” is then simply that the plaintiff has not proved causal connection between the defendant’s act and the harm. Often this state of affairs may coincide with one where the defence of voluntary assumption of risk is available."

The authority relied on is Cutler v United Dairies [1933] 2 KB 297. In that case the plaintiff went into a field and tried to help to hold the defendant’s horse which had bolted. He had no experience of horses and was injured when the horse reared up and threw him to the ground. His action failed on the grounds that the plaintiff’s intervention not only broke the chain of causation but was one to which the maxim volenti non fit injuria applied. At page 303 Scrutton LJ said:

"A man is under no duty to run out and stop another's horse, and, if he chooses to do an act the ordinary consequence of which is that damage may ensue, the damage must be on his own head and not on that of the owner of the horse. This is sometimes put on the legal maxim volenti non fit injuria; sometimes it is put that a new cause has intervened between the original liability, if any, of the owner of the horse which has run away. That new cause is the action of the injured person, and that new cause intervening prevents liability attaching to the owner of the horse."

Slesser LJ was of the same view. At page 306 he said:

"However heroic and laudable may have been [the respondent’s] act, it cannot properly be said that it was not in the legal sense the cause of the accident. For that reason I come to the conclusion that the jury could not find that the appellant’s negligence, which I will assume to have existed, was the cause of the damage. The action therefore fails on the threshold because of the failure to show that the negligence caused the damage of which complaint is made. The appellant’s can also properly say that the respondent agreed to accept freely and voluntarily, with full knowledge of the risk he ran, the chances of the injury he suffered. The case is one where the maxim volenti non fit injuria applies."

The third member of the court, Eve J, concerned not to fall behind the others in latinity, expressed his conclusion to be

"that the injuries sustained by the respondent were due to a course which he adopted ex mero motu."

Professors Honore and Hart suggest that in that case the plaintiff's conduct was not voluntary for he did not intend to injure himself and was not reckless. That qualification, if otherwise sound, could not apply to the conduct of Mr Lynch.

Accordingly in my view the criticisms of the judgments of Lloyd LJ and Sir Denys Buckley in Kirkham v Anderton [1990] 2 QB 283 are misplaced. I agree with the judge in this case that the maxim volenti non fit injuria applies so as to bar the action of Mrs Reeves.

In those circumstances it is not necessary to deal with the issues relating to contributory negligence and public policy. But in case this case goes further I should briefly express my views on those issues.

The definition of fault contained in s.4 The Law Reform (Contributory Negligence) Act 1945 includes any “other act or omission which....would, apart from this Act, give rise to the defence of contributory negligence”. As reckless conduct was capable of constituting such a defence I see no reason why deliberate conduct not breaking the chain of causation altogether should not do likewise. cf Anglo-Newfoundland Corporation Co v Pacific Steam Navigation Co [1924] AC 406. It is not suggested that if the act of Mr Lynch was such as to break the chain of causation then it falls within the definition. But if, contrary to my view, it did not, then the damage, defined as including loss of life, was sustained partly by the fault (as defined) of Mr Lynch and partly by the fault of the police. In such circumstances the Act applies and the Court is entitled to reduce the recoverable damages to such extent as it thinks just and equitable.

The judge accepted that the Act applied to what might be described as deliberate fault, that the police could, accordingly, establish contributory negligence and set the contribution of Mr Lynch at 100%. Counsel for Mrs Reeves contends that that course was not open to the judge in the light of the decision of this court in Pitts v Hunt [1991] 2 QB 254. In that case the court considered that before the act could come into operation it must be found that there was fault on behalf of both parties. Such a finding presupposed that the claimant would recover some damage with which a finding of 100% responsibility was inconsistent.

I find no problem with the first part of that decision for I have approached the question of contributory negligence on the assumption, contrary to my view on causation, that each party was partly at fault in respect of the death of Mr Lynch. But in Pitts v Hunt the Court of Appeal was not referred to the earlier decision of the same court in Jayes v IMI (Kynoch) Ltd [1985] ICR 155. In the latter case the Court of Appeal upheld an apportionment of 100%. At page 159 Robert Goff LJ, with whom Oliver LJ and Sir John Donaldson MR agreed, said:

"In my judgment, there is no principle of law which requires that, even where there is a breach of statutory duty in circumstances such as the present (where the intention of the statute is to provide protection, inter alia, against folly on the part of a workman), there cannot be a case where the folly is of such a kind or of such a degree that there cannot be 100 per cent. contributory negligence on the part of the workman. If authority is needed for that proposition, we need only turn to Mitchell v. W.S. Westin Ltd [1965] 1 W.L.R. 297, where we find in the judgments in the Court of Appeal dicta both of Sellers L.J. at p. 305 and Pearson L.J. at pp. 308-309 which show very clearly that in such a case it can properly be held that the degree of fault on the part of the workman is so great that it would be appropriate to make no order for damages on the basis of 100 per cent. contributory negligence.

It must be borne in mind that in a case of this kind the court does not, for example, hold that there is 1 per cent. or 2 per cent. fault on the part of the employer and 99 per cent. or 98 per cent. fault on the part of the workman. There comes a point in time where the degree of fault is so great that the court ceases to make fine calculations of that kind and holds that, in practical terms, the fault is entirely that of the workman. It follows that Mr. May’s submission is one which, in point of law, I am unable to accept."

In my view the latter decision is to be preferred and followed in the sense that in cases where both parties are at fault the court is not required to make fine calculations of the sort referred to by Robert Goff LJ. Thus, though it may appear to be strictly illogical, an apportionment of 100% is permissible. On the facts as found by the judge I do not think that he erred in his apportionment of 100% to Mr Lynch. For these reasons, if it is necessary to do so, I would uphold the judge’s conclusion on contributory negligence.

There remains only the question of public policy. The judge said:

"I would hesitate before concluding that, unless a deceased’s action in taking his own life can be attributed to serious mental instability which deprived him of his judgment so that he was not truly volens, public conscience would not be affronted, even in the present state of social opinion, if he was not held in law to be fully accountable for his deliberate act."

Accordingly had it been necessary the judge was inclined to the view that public policy or the maxim ex turpi causa would have barred Mrs Reeves’ claim. This was contrary to the views of the members of the Court of Appeal in Kirkham v Anderton . For my part I would have difficulty in sharing the view of the judge. In 1961 Parliament abrogated the rule of law that suicide was a crime. Although it remains criminal to aid and abet a suicide that cannot affect the position of those who, like Mrs Reeves, claim solely under the person who committed suicide. I would not think it appropriate in those circumstances for a court to brand as contrary to public policy or offensive to the public conscience an act which Parliament has so recently legalised.

I would dismiss this appeal.

THE LORD CHIEF JUSTICE: The trial judge held that the defendant owed the deceased a duty of care and found on the facts that the defendant had broken that duty. There is no appeal against those findings. The plaintiff failed at trial because the judge upheld the defendant's defences of novus actus, volenti and contributory negligence. It is plain that he would have upheld the defendant's defence based on the maxim ex turpi causa or public policy had it been necessary to do so.

Despite the absence of controversy, it is in my view helpful for purposes of analysis to begin by seeking to define the duty to which the defendant was admittedly subject. The plaintiff in her amended particulars of claim pleaded no duty expressly. The defendant in his amended defence denied that he "owed a duty of care to the deceased to prevent him from taking his life". The judge concluded that the defendant had plainly owed the deceased a duty, but did not define what the duty had been. In Kirkham v Chief Constable of the Greater Manchester Police [1989] 3 All ER 882 at 887E, Tudor Evans J held at first instance that the defendant owed a duty in law to take reasonable care to prevent the deceased committing suicide. On appeal, Lloyd LJ had no difficulty in holding that the police had assumed certain responsibilities towards Mr Kirkham when they took him into custody and in particular had 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: [1990] 2 QB 283 at 289C. At 293H, Farquharson LJ said:

"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 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 he could reasonably foresee would be likely to harm the person for whom he is responsible.

.... Where, as in the present case, the risk is specifically identified then reasonable steps must be taken to avoid that risk".

The issue here, as I think, was whether the defendant by his officers at Kentish Town owed the deceased a duty to take reasonable care to ensure that he was not afforded an opportunity to take his own life. I have no doubt that an affirmative answer to that question should have been given, as in effect it was.

Since breach of that duty is acknowledged, it would be inappropriate to comment on the detailed facts established before the judge. It should however be emphasised that the duty of the defendant and his officers was to take reasonable care, and not to guarantee that a fatality did not occur.

Since an act of self-destruction by the deceased was the very risk against which the defendant was bound in law to take reasonable precautions, I cannot see how that act can be regarded as a novus actus. So to hold would be to deprive the duty of meaningful content. This was, after all, the very thing against which the defendant was duty-bound to take precautions. It can make no difference that the deceased was mentally "normal" (assuming he was), since it is not suggested that the defendant's duty was owed only to the abnormal. The suicide of the deceased cannot in my view be regarded as breaking the chain of causation.

In Kirkham, Lloyd LJ held that Mr Kirkham had not been volens because he had at the time been suffering from clinical depression, but made it plain that a different result would have followed had Mr Kirkham been of sound mind: see 290B, 289G and 290D. Farquharson LJ agreed that Mr Kirkham had not been volens, both on that ground and also because he regarded the defence as inappropriate where the act of the deceased relied on was the very act which the duty cast upon the defendant required him to prevent. In agreeing with the conclusion of both Lloyd and Farquharson LJJ, Sir Denys Buckley is probably to be understood as agreeing with the argument which both accepted.

If the defendant owed the deceased a duty of care despite the fact that the deceased was of sound mind, then it again seems to me to empty that duty of meaningful content if any claim based on breach of the duty is inevitably defeated by a defence of volenti. Since there is in any event no sharp line of demarcation between mental normality and mental abnormality, it would be unworkable in practice to treat the state of mind of a deceased as determinative of his estate's right to recover. I have for my part great difficulty in regarding a defence of volenti as apt in circumstances such as these. There is on the authorities a difference in the juridical approach to this defence. But it is essentially based on the commonsense view that a plaintiff cannot complain of a defendant's negligence if he has knowingly consented to the defendant acting in the manner of which he now wishes to complain or has willingly accepted an obvious risk that the defendant will act in that way. It is difficult on present facts to see how the deceased can be said to have knowingly and willingly consented to the defendant's failure to take reasonable care to ensure that he was not afforded an opportunity to take his own life. It is true that the deceased wanted to take his own life, and it was because his wish to do so was known to the defendant that the particular duty binding on the defendant arose. The deceased took advantage of the defendant's breach of duty, as it was known he might, but he cannot in my judgment be said to have consented to it.

There is, I think, no difference in this case between the defence based on public policy and that based on the maxim ex turpi causa. In Kirkham, both Lloyd LJ at 291H and Farquharson LJ at 296B were satisfied that the defence was not available where the deceased had been of unsound mind, but both accepted that the position might be different where a deceased is of sound mind when taking his own life. Is it therefore contrary to public policy to permit the estate of a deceased to recover in circumstances such as these when the deceased was not of unsound mind at the time of taking his own life? Although suicide itself is no longer a crime, criminal liability continues to attach to aiders and abettors and survivors of uncompleted suicide pacts, and in some circumstances and some circles a stigma continues to attach to those who take their own lives. It cannot, however, be said, in my judgment, that by permitting recovery in a case such as this the law is covertly conniving at or countenancing suicide: it is indeed imposing a civil penalty on those who, having a duty to try and prevent suicide, fail to do so. I do not, either, think that the conscience of the ordinary citizen would be affronted by the awarding of damages to the estate of a deceased in a case such as this. The ordinary citizen is well able to understand the feelings of helplessness and despair which may overwhelm even a guilty person who finds himself suddenly incarcerated and facing a long process of trial and imprisonment. It requires little imagination to appreciate the temptation to take one's own life in such circumstances; and I think the ordinary citizen would be inclined to criticise a custodian who, knowing of a detainee's suicidal wishes, fails to take reasonable care to prevent that result.

Despite the decision of this court in Pitts v Hunt [1991]

1 QB 24 that a plaintiff may not properly be held 100% responsible for his own loss under section 1 of the Law Reform (Contributory Negligence) Act 1945, it is clear that such findings have been made in earlier cases such as Jayes v IMI (Kynoch) Limited [1985] ICR 155. I think perhaps such cases are properly to be understood as based on causation: the court has found that the defendant was negligent or in breach of statutory duty but has nevertheless concluded that such negligence or breach was not to any degree causative of the plaintiff's injury or damage. I agree with the decision of the trial judge in this case, however, that the definition of "fault" in section 4 of the Act is wide enough to cover the act of the deceased in this case and to entitle the court, if it thinks it right, to reduce the damages recoverable to reflect his own responsibility for the loss. This would appear to me to be a case in which both the defendant and the deceased bore a substantial responsibility for the fatal outcome. It would not seem to me appropriate to attribute all the responsibility to one party or the other. If I were sitting alone, I would for my part conclude that the responsibility should be shared equally between the deceased and the defendant, and would on that ground hold that the damages recoverable by the plaintiff should be reduced by 50%. I am not, however, sitting alone, and were I to give effect to my opinion we should achieve the very unsatisfactory outcome that only one member of the court would support and two members would oppose each of the three possible solutions on contributory negligence. This being so I think it right, while adhering to my view on the applicability of the 1945 Act, to conclude that the claim of the plaintiff should not be reduced to reflect any fault on the part of the deceased.

While the argument for the plaintiff has, reasonably enough, been directed to the case advanced for the defendant, I have an uneasy feeling (fortified by the research which My Lords have independently done) that the latter could have been more fully developed, perhaps with the benefit of additional Commonwealth authority. Should the case go further, it may well merit a more detailed consideration both of principle and authority.

To that extent, and on those grounds, I would allow this appeal and award the plaintiff the full damages to which she is entitled.

ORDER: Appeal allowed with costs here and below; judge's order to be set aside; judgment to be entered for the plaintiff for damages (£8,690, inclusive of special damages); interest to be agreed; liberty to apply; legal aid taxation; leave to appeal granted.

__________________________________