England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th April 2005

Factual Background

1. Thomas Corr ("the Deceased") was injured in an accident at work on 22 June 1996. He was employed by the defendants as a maintenance man. On the day of the accident he was working on a prototype press line when a sheet metal panel shot out of the press, striking him on the side of the head and almost severing his right ear.
2. Proceedings were commenced by the Deceased for personal injury and consequential loss. The Defendants admitted liability in a Defence dated 15 November 1999. On 23 May 2002, almost 6 years after the accident, the Deceased committed suicide by jumping from the top of a multi-storey car park. The Claimant claims as Widow and Administratrix under the Law Reform (Miscellaneous Provisions) Act 1934 and under the Fatal Accidents Act 1976.
3. There is no dispute that the Claimant is entitled to recover £45,000 as general damages for the personal injury suffered. The Defendants deny that they are liable in respect of the subsequent suicide.
4. The factual background is set out in two statements made by the Deceased, respectively in June 1997 and February 2002.
5. The Deceased commenced employment with the Defendant as a production operative in February 1992. He transferred to maintenance in December 1995. It is the Claimant's case that her husband had never had any psychiatric illness. He was a normal well-adjusted family man. In evidence the Claimant said that her husband was very easy going and was well liked. He was a happy person and a good father to their two children. He was ambitious and aimed to progress to a managerial position at work. It is the Claimant's case that the Deceased had good promotion prospects.
6. The Deceased returned to work on 7 October 1996. He was promoted on merit to Team Leader on 1 December 1996. In his first statement he described having mood swings but stated specifically that he had no thoughts of suicide.
7. In his second statement the Deceased described having psychological counselling sessions in 1997 and 1999. He was able to do some overtime. In October 2001 he was transferred to an office-based job. In February 2002 he was off sick by reason of stress and depression. It is plain that he made a suicide attempt at about that time.
8. It is plain from the evidence of Dr. McLaren, a Consultant Psychiatrist, called on behalf of the Claimant, that the Deceased developed severe depressive episodes. I will return to the evidence of Dr. McLaren later in this Judgment.

Counsels' Submissions

9. The Claimant's case is set out in para.6 of the Re-Amended Particulars of Claim.

"6. Further by reason of the psychological problems aforesaid including (1) depression and/or (2) post traumatic stress disorder and/or (3) lowered self-esteem and/or (4) the stresses involved in pursing this litigation, the deceased committed suicide on 23 May 2002. As a result of his death the claimant has suffered loss and damage. It is the claimant's primary case that

1. The suicide would not have occurred but for the said accident and/or

2. The suicide was caused by the said accident and its sequelae and/or

3. The defendant must takes its victims as it finds them and/or

4. That so long as some injury of the type which occurred (psychiatric injury) was foreseeable the claimant does not have to prove that every detailed aspect of the injury and loss was foreseeable for it to be recoverable from the first defendant and/or

5. The medical treatment which the deceased received through the NHS after the accident for his psychiatric condition was not negligent nor substantially causative of the claimant's suicide"

10. Mr. Foy QC on behalf of the Claimant, in summary argued that:

(i) `The "but-for" and "material contribution" tests were satisfied.

(ii) The Claimant does not have to prove that suicide was reasonably foreseeable. Provided some injury was foreseeable it matters not whether the resulting injury was physical or psychiatric. Suicide it is argued is a symptom of depression (Page v Smith [1996] 1 AC155).

(iii) The Claimant could recover under the principle enunciated in Hughes v Lord Advocate [1963] AC 837 because the suicide represented damage of the same kind (albeit to a much greater extent) as that which was reasonably foreseeable.

(iv) Pigney v Pointers Transport Services [1957] 1 WLR 1121 remains good law and was decided on facts similar to those in the present case.

(v) The pleaded defences of novus actus interveniens; volenti non fit injuria and contributory negligence should be rejected because it cannot be said that the Deceased was capable of a reasoned and rational decision making ability at the time he took his life.

11. Mr. Cousins QC on behalf of the Defendants in summary argued that:

(i) The Defendants duty was to take reasonable care to avoid injury to their employee. The duty, unlike the custodian cases of which Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283 and Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 are examples, did not extend to a duty to take reasonable care to prevent the Deceased from taking his own life.

(ii) Suicide was not reasonably foreseeable and in any event fell outside the alleged breach of duty.

(iii) The decision in Page v Smith provided no basis in law for the Claimant to recover for the Deceased's suicide in this case. Suicide is not personal injury. The Claimant's reliance on Hughes v Lord Advocate is a misapplication of the principle there decided. Pigney v Pointers Transport Services Ltd was a decision based on the principle in Re: Polemis & Anr & Furness Withy & Co. Ltd [1921] 3 KB 560 and no longer represents good law.

(iv) Re: Polemis was never part of the law of Scotland and Cowan v NCB [1958] SLT 19 applying the "grand rule" was correctly decided on facts not dissimilar to those in the present case.

(v) The "but-for" and "material contribution" tests represent only the first part of the exercise. Questions involving reasonable foreseeability have to be considered once the first part of the test has been satisfied.

(vi) The Deceased, on the evidence, appreciated and had full knowledge of the risks when he jumped. The defences of novus actus interveniens, volenti non fit injuria and contributory negligence were established.

12. The Claimant's reliance on the "but-for" and "material contribution" tests is in my judgment unhelpful. Those tests represent but the first part of a two part exercise as the editors of Kemp & Kemp (2004) para.2-004 observe.

"Whether it is the "but for" or "material contribution" test that is adopted, once that first part of the test has been satisfied, it is necessary to address the second part which is essentially one of remoteness and requires the Court to identify the losses that can be proved to result from the defendants wrongdoing. In summary, a defendant will not be held liable for a loss that is

(i) of a type which was not reasonably foreseeable;

(ii) deemed to be too remote;

(iii) resulting from supervening or intervening events;

(iv) resulting from the claimant's own unreasonable or voluntary behaviour or choice…"

Neither of these tests permit the by-passing of the question whether the loss was of a type that was reasonably foreseeable. Equally questions of remoteness, novus actus and volenti would also require to be considered. It was notable that Mr. Foy QC referred to neither the "but for" or "material contribution" tests in his Closing Submissions in reply.

13. The concept of reasonable foresight is relevant to the questions whether a duty of care exists and if it does whether the damage is recoverable.
14. As Lord Hope said in Reeves at p.378C:

"The act of suicide may be both unforeseen and unforeseeable".

In the cases of Kirkham and Reeves, the prisoner in custody was a known suicide risk. The suicide in each case was reasonably foreseeable. The police owed the deceased in each case a duty to take reasonable care to prevent the prisoner from deliberate self-harm.

15. Orange v Chief Constable of West Yorkshire Police [2002] QB 347 is to be contrasted. In that case where the prisoner was not a known suicide risk it was held that there was no duty of care to prevent him from taking his own life. Latham LJ said at p.355C

"It is accepted that the police are under a duty to any person in their custody to take reasonable care for that person's health and safety. This duty undoubtedly encompasses a duty to take reasonable steps to prevent a person from committing suicide if that person is known to be a suicide risk"(my emphasis)

16. In Reeves it was made plain that the existence of a duty to guard against self-harm is rare and very unusual. Lord Hoffmann at p.369A said:

"The duty…is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives".

17. In observing that there was little authority on the question of contributory negligence in suicide, Lord Hoffmann stated at p.370A:

"It is not surprising that there is little authority on the point that the plaintiff's act in deliberately causing injury to himself is almost invariably regarded as negativing causal connection between any prior breach of duty by the defendant and the damage suffered by the plaintiff. The question can arise only in the rare case, such as the present, in which someone owes a duty to prevent, or take reasonable care to prevent, the plaintiff from deliberately causing injury to himself".

18. Lord Hope at p.379H said:

"It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. On the whole people are entitled to act as they please even if this will inevitably lead to their own death or injury. As a general rule the common law duty of care is directed towards the prevention of accidents or of injury caused by negligence. The person to whom the duty is owed is of course under corresponding duty to take reasonable care for his own safety. If he is in breach of that duty his damages may be reduced on the ground of his contributory negligence. But if he injures himself by intentionally doing deliberately the very thing which the defendant is under a duty to prevent him doing negligently he may find that he is unable to recover any damages. He may be found to assume the risk of injury on the principle of volenti non fit injuria. Or it may be held that the chain of causation was broken by his deliberate act in which case his claim will be defeated on the principle of novus actus interveniens. Or it may simply be that his loss, injury or damage will be held to have been caused wholly by his own fault with the result that there will be no room even for a reduced award on the ground of contributory negligence".

19. In Simmons v British Steel PLC [2004] ICR 585 the pursuer recovered damages following an accident at work. An aspect of his injury was the exacerbation of a pre-accident condition of psoriasis. It was found that the psoriasis had been caused by the anger that the pursuer felt about the accident and about his employers handling of it. This had led to a depressive illness that followed.
20. At p.609C Lord Rodger identified the principles of law in relation to remoteness of damage.

"These authorities suggest that once liability is established any question of the remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development.

(1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable.

(2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of a pursuer even if it was reasonably foreseeable.

(3) Subject to the qualification in (2) if the pursuer's injury is of a kind that was foreseeable, the defender is liable even if the damage is greater in extent that was foreseeable or it was caused in a way that could not have been foreseen. Hughes v Lord Advocate [1963] AC 7 at 847 per Lord Reid.

(4) The defender must take his victim as he finds him.

(5) Subject again to qualification in (2) where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury whether physical or psychiatric which the pursuer suffers as a result of his wrongdoing.

Page v Smith [1996] AC 155 at 197F-H per Lord Lloyd."

21. It is submitted by Mr. Foy QC that reasonable foreseeability of the suicide does not have to be established in this case. He places reliance on Pigney as being a similar factual situation and representing good law. At p.1123 Pilcher J concluded that the deceased's suicide was "clearly a matter which could not reasonably have been foreseen by the defendant". But went on to conclude that the death was "directly traceable" to the physical injury which he sustained (p.1124). Pilcher J took the phrase "directly traceable" from the judgment of Scrutton LJ in Re Polemis [1921] 3 KB 560 and applied the direct consequences test.
22. The Scottish Courts did not embrace the rule in Re Polemis but applied the "grand rule" in Allan v Barclay (1864) 2 M 873 at 874 per Lord Kinloch:

"The grand rule on the subject of damages is that none can be claimed except such as naturally and directly arise out of the wrong done and such therefore as may reasonably be supposed to have been in the view of the wrong doer".

23. In Cowan v NCB (1958) SLT 19 in a case of suicide following an accident at work, Lord Cameron held that the deceased's widow had not proved that the death had been caused by the negligence of the defendant. Lord Cameron applied the "golden rule" and declined to follow Pigney or the rule in Re: Polemis on which it was based. At p.21 he said:

"I think that the true test of whether the death of the deceased was caused by the negligence of the defenders is whether the death naturally and directly arose out of a supposed wrong done to him and was therefore such a consequence and might reasonably be supposed to have been in the view of the wrong doer".

Lord Cameron went on to state, again at p.21:

"In the present case if it were held to be established that the deceased had received a comparatively moderate injury through the negligence of the defenders and had thereafter become depressed and worried because of fear for his future working capacity or physical health and then had committed suicide under the influence of such depression and worry no doubt it might be inferred that the suicide was consequent upon that injury and result of it in the sense that but for the injury the suicide would in all probability not have occurred. But it does not follow that such a result could properly be described in the ordinary use of language was the "natural and direct" result of the initial injury so as to make the delinquent liable in damages to the dependants of the deceased for the suicide. In the present case not only is there no proof of injury to the skull or brain but there is no physical connection between the initial injury (assuming it to have been caused by the defenders negligence) and the assumed suicide".

24. The Privy Council disapproved the test in Re: Polemis in Overseas Tank Ship (UK) Ltd v Morts Dock & Engineering Co.Ltd (The Wagon Mound) [1961] AC 388. At p.423 Viscount Simon said:

"This concept applied to the slowly developing law of negligence has led to a great variety of expressions which can as it appears to their Lordships be harmonised with little difficulty with the single exception of the so-called rule in Polemis. For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable but because since they have this quality it is judged by the standard of the reasonable man that he ought to have foreseen them. Thus it is that over and over again it has happened that in different judgments in the same case and sometimes in a single judgment liability for a consequence has been imposed on the grounds that it was reasonably foreseeable or alternatively on the grounds that it was natural, necessary or probable. The two grounds have been treated as coterminus and so they largely are. But where they are not, the question arises to which the wrong answer was given in Re: Polemis. For if some limitation must be imposed upon the consequences for which the negligent act or is to be held responsible – and all are agreed that some limitation there must be – why should that test (reasonable foreseeability) be rejected which since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind and a test (the direct consequence) be substituted which leads to nowhere but the never-ending and insoluble problems of causation".

25. Applying the test of reasonable foreseeability to the facts of Pigney the claim would have failed as it did in Cowan which applied the grand rule which itself involved an element of foreseeability.
26. In Wright v Davidson (1992) 88 BLR 698 the British Colombia Court of Appeal rejected a claim by a widower for the death by suicide of his wife following a road traffic accident. The medical evidence was that the suicide appeared to be a direct result of depression and apprehension from not being able to function normally. At p.702 Legg JA considered that Pigney could no longer be regarded as good law in the light of The Wagon Mound. In my judgment that conclusion was and remains inescapable. Accordingly I do not consider that Pigney assists the Claimant's case.
27. I turn now to the Claimant's argument based on Page v Smith. The editors of Kemp & Kemp (2004) stated:

"…A defendant will not be liable for a loss that is

(i) of a type which was not reasonably foreseeable" (supra)

28. The question in the present case is whether death by suicide is of a type which was reasonably foreseeable by the defendants. Page v Smith is authority for the principle that where personal injury to the claimant was reasonably foreseeable, the defendant is liable for any personal injury whether physical or psychiatric which the claimant suffers as a result of the wrongdoing. (See Lord Rodger in Simmons at p.609, para.67). Mr. Foy QC argues that death by suicide is no different to that examples given by Lord Browne-Wilkinson at p.181B namely examples of heart attack or miscarriage produced by shock.
29. At p.182F Lord Browne-Wilkinson said:

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

30. In my judgment adapting that statement of principle to the employer/employee relationship it is plain that reasonable foreseeability is central to both the extent of the duty of care and to the question of remoteness of damage. The argument put forward on behalf of the Claimant in my judgment seeks to by-pass the question of foreseeability of the type of loss which occurred in this case, namely death by suicide. The argument, it seems to me, reverts to the "but for" test without the necessary qualification pointed out in Kemp & Kemp (supra). Furthermore, the argument ignores the effect of the Wagon Mound or on Pigney. In summary the argument seems to me to revert to Re: Polemis and the direct consequences test. For these reasons I am not persuaded by the Claimant's submissions.
31. The Claimant's argument based on Hughes v Lord Advocate [1963] AC 837 also fails in my judgment. The facts of that case are well known. Damaged by burns to a child was of a kind that was reasonably foreseeable. The injuries were greater than could have been foreseen. Lord Reid said at p.845

"That a defender is liable, although the damage may be a good deal greater in extent than was foreseeable. He could only escape liability if the damage can be regarded as differing in kind (my emphasis) from what was foreseeable".

32. It is agreed between the parties that the question of reasonable foreseeability has to be judged at the time of the commission of the tort, in this case 1996. Mr. Foy QC raised an alternative argument in his Closing Submissions, namely that if foreseeability of suicide had to be established it could be established on the facts of this case. He referred to the evidence of Dr. McLaren that those who suffer with severe depression had a 1-in-6 to 1-in-10 chance of committing suicide. That argument seems to me to be an argument based on hindsight rather that foresight as at the date of the accident.
33. Given the description of the Deceased as a happy, well-balanced family man, ambitious in his work and with no psychiatric problems in the past it is plain to me that his suicide 6 years later (or at all) would not have been reasonably foreseeable to the Defendant.
34. Conclusion

(i) The Defendants were in breach of their duty of care to take reasonable care toward injury to the Deceased. That duty did not extend to a duty to take care to prevent his suicide.

(ii) The Deceased's suicide was not reasonably foreseeable to the Defendants and as a matter of law reasonable foreseeability of the suicide must be established by the Claimant, both in respect of the duty and the recovery of damages.

(iii) The damage sought to be recovered in relation to the suicide falls outside the scope of the Defendants duty of care as I have found it to be (Aneco Re Insurance, Underwriting Ltd v Johnson & Higgins Ltd [2002] 1 Lloyds L.R. 157]

(iv) The Deceased's Estate will recover the damages attributable to the accident injuries. General damages are agreed at £45,000. Appropriate special damages will no doubt be agreed if they arise. I have heard no submissions on special damages.

Defences

35. In view of my above conclusions it is unnecessary for me to deal with the Defences raised by the Defendants in the alternative.
36. However I propose to make some observations about the Defence of novus actus interveniens. Had it been necessary for me to consider this defence the following matters would have been relevant.

(i) Unlike cases such as Reeves where the custodian knows of the suicide risk of a prisoner, there was no known risk of suicide in this case and on my findings no specific duty extended to the prevention of suicide. It follows that the Deceased's suicide was not the very act that the duty was directed to preventing.

(ii) On the evidence of Dr. McLaren the Deceased he told me acted deliberately knowing that when he jumped from the top of the building he knew and understood the risks he was taking. He went on to tell me that he knew the nature and quality of his act and in my judgment having considered all the evidence I have concluded that he knew it was wrong. It is relevant to observe that the Deceased had recurring thoughts of suicide about jumping off a high building but had decided not to do so by reason of thoughts of the effect of the suicide on his family. (See Medical Reports p.111).

(iii) Mr. Blunden, a Clinical Psychologist, called on behalf of the Claimant, had seen the Deceased as recently as 20 May, 3 days before the suicide. Although he recommended that an opinion of a psychiatrist should be obtained he agreed in cross-examination that if he had had a real concern for the safety of the Deceased at that stage he would either have referred him to the Duty Psychiatrist or, if preparing a medico-legal report, would have consulted the solicitor and the general practitioner. He agreed that he had done neither in this case.

Factual Issue

37. I turn finally to a factual issue which both parties have invited me to make findings upon, namely the career path likely to be followed by Mrs. Corr had the accident not happened.
38. Mrs. Corr told me that she was working full time days before the accident occurred. She and her husband had discussed their future employment plans together. They had discussed that when he became a supervisor she planned to seek part-time work with children, probably as a classroom assistant. She had received training in working with children upon leaving school and on going to college. In cross-examination she described her proposals variously as a plan or a dream.
39. On the evidence it is probable that the Deceased would have become a supervisor in about July 1999.
40. Following the suicide, Mrs. Corr took sickness leave for between 3 and 4 months. She then returned to part-time days before transferring in January 2003 to part-time nights. She said that following the litigation she planned to revert to part-time days and she still hoped to work with children as a classroom assistant.
41. On the evidence presented to the Court I make the following findings:

(i) Mrs. Corr would, on the balance of probabilities, have sought part-time work with children probably as a classroom assistant by about January 2000.

(ii) No evidence was called to show what the availability of such employment was but I am able to take notice of the increasing popularity of classroom assistants in the junior education system. I assess the chances of Mrs. Corr successfully obtaining such employment by about September 2000 at about 60%.

(iii) Mrs. Corr would probably have retired at the age of 50 at the latest when her children would have been well established.

(iv) Following the litigation I find that Mrs. Corr will on the balance of probabilities seek part-time work with children, again as a classroom assistant. I assess the percentage chance of her succeeding in her quest by about September 2005 at 60%.

42. In considering this factual issue I have been referred to and considered Allied Maples Group Ltd v Simmons & Simmons (A Firm) [1995] 1 WLR 1612 and Doyle v Wallace [1998] PIQR Q147.

NIGEL BAKER Q.C.