Corr v IBC Vehicles

It is trite that there are five requirements for the tort of negligence: (1) the existence in law of a duty of care (2) breach of that duty; (3) damage; (4) a causal connection between the defendant’s careless conduct and the damage and (5) the particular kind of damage not being too remote. The defendant has a defence if he can establish that the claimant voluntarily assumed the risk of injury but the respondent does not rely on that here. The claimant’s damages will be reduced if he is guilty of contributory negligence but that has rightly not been the subject of much argument in this appeal. I can pass over these defences.

That much might be trite but there are considerable overlaps between the elements of the scope of the duty of care, any break in the causal chain and remoteness of damage. Questions of forseeability are the common thread but into which compartment one places it, and even whether it matters where one places it, are not matters which are always abundantly clear. As Lord Hoffmann said in Jolley v Sutton L.B.C. [2000] 1 W.L.R.1083, 1091:

“But the present law is that unless the injury is of a description which was reasonably foreseeable, it is (according to taste) ‘outside the scope of the duty’ or ‘too remote’”, (emphasis added by me).

Some indication of how that choice is to be made was given in the speech of Lord Russell of Killowen in Bourhill v Young [1943] A.C. 92, 101:

“In considering whether a person owes to another a duty breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e., to the question of culpability not compensation”, (with the emphasis again added by me).

I will try first to pick my way through the thicket of authority before expressing my conclusions.

There can be no dispute but that the defendant owed the deceased a duty of care. The company, as the claimant’s employer, was under the duty to take all reasonable steps to protect its employees, including the claimant, from any reasonably foreseeable risk of their suffering personal injury. It is not in dispute that once it is established that the defendant was under a duty of care to avoid causing personal injury to the claimant, then it mattered not whether the injury in fact sustained was physical or psychiatric or both. This is settled law since Page v Smith [1996] 1 A.C. 155. Lord Lloyd of Berwick, with whom Lord Ackner and Lord Browne-Wilkinson agreed, said at p. 190:

“The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. If a working definition of ‘personal injury’ is needed, it can be found in section 38(1) of the Limitation Act 1980: “Personal injuries’ includes any disease and any impairment of a person’s physical or mental condition …”. There are numerous other statutory definitions to the same effect. In the case of a secondary victim, the question would usually turn on whether the foreseeable injury is psychiatric, for reasons already explained. In the case of a primary victim the question will almost always turn on whether the foreseeable injury is physical. But it is the same test in both cases, with different applications. There is no justification for regarding physical and psychiatric injury as different ‘kinds’ of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to a plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both. ... Applying that test in the present case, it was enough to ask whether the defendant should reasonably have foreseen that the plaintiff might suffer physical injury as a result of the defendant’s negligence, so as to bring him within the range of the defendant’s duty of care. It was unnecessary to ask, as a separate question, whether the defendant should reasonably have foreseen injury by shock; and it is irrelevant that the defendant did not, in fact, suffer any external physical injury.”

Lord Browne-Wilkinson said this at pp. 181-182:

“Medical science has also demonstrated that there are other injuries the body can suffer as a consequence of an accident, such injuries not being demonstrably attributable directly to physical injury to the plaintiff. Injuries of this type may take two forms. First, physical illness or injury not brought about by the chain of demonstrable physical events, but by mental or emotional stresses, i.e. by a psychiatric route. Examples are a heart attack or a miscarriage produced by shock. In this case, the end product is a physical condition although it has been brought about by a process which is not demonstrably a physical one but lies in the mental or nervous system. The second form is psychiatric illness itself which is brought about by mental or emotional stresses, i.e. by a psychiatric route. …

I am therefore of opinion that any driver of a car should reasonably foresee that, if he drives carelessly, he will 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 persons 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 eggshell 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 a duty of care is established, the defendant must take the plaintiff as he finds him.”

Whilst, therefore, there is no dispute about the existence of the duty of care, there is a dispute about the scope of that duty. Mr Cousins Q.C., for the defendant, contends that the duty does not extend to a duty to protect the deceased from self-harm. Mr Foy Q.C., for the appellant, on the other hand, contends that the only issue is whether the employer should have foreseen injury – no further specific foreseeability is required. In any event, the kind of injury which lies within the scope of the duty includes the employee’s death and a death by decapitation, which so nearly occurred, is the same kind of harm as death by suicide. Depression was foreseeable and suicide is but a symptom of depression. Let me first deal with Mr Cousins’ argument.

The defendant relies heavily on Reeves v Commissioner of Police of the Metropolis [2000] 1 A.C. 360. This was a case where the deceased was a known suicide risk. Whilst in police custody he hanged himself in his prison cell. There was no appeal from the finding that in those circumstances the police owed him a duty to take reasonable care to prevent his committing suicide whilst he was being held in custody and that they were in breach of that duty. The main issue in the appeal to the House of Lords was whether that breach was a cause of his death, the argument being that the suicide was a novus actus interveniens which negatived the causal connection between the breach of the duty and the death. Lord Hoffmann said this at p. 368:

“This philosophy [the individualist philosophy of the common law] expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed.”

Lord Hope of Craighead considered it to be necessary at the outset to identify the duty which was owed to the deceased by the Commissioner and he said at p. 379 H:

“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.”

The facts of Reeves and other cases where prisoners commit suicide like Kirkham v Chief Constable of Greater Manchester Police [1990] 2 Q.B. 283 and Orange v Chief Constable of West Yorkshire Police [2001] EWCA Civ 611, [2002] QB 347 are all far removed from the facts of this case. In this case the duty arises out of the relationship of employer/employee, not out of the relationship of police/prisoner. Consequently Reeves does not seem to me to give any real help as to the scope of the duty in this case. In my judgment, the scope of the duty should be considered in the light of that master/servant relationship only. Whilst it will be appropriate to recognise that the deliberate infliction of self-harm may be regarded as a separate kind of damage when it comes to a consideration of remoteness of damage, I do not consider that one needs to decide whether an employer has a duty to guard against the risk of his employee committing suicide as a result of depression following an industrial injury. The employer’s duty is no greater than nor any different from the duty that ordinarily arises in industrial injury cases. The duty is simply to take reasonable care of the physical safety of his employees. That is all one needs, at least at this stage of my analysis. It suits my taste (to coin Lord Hoffmann’s phrase) to approach the matter on the basis that there is no specific duty on an employer to protect the employee from self-harm but that does not necessarily lead automatically to exculpating him from responsibility for the suicide if the suicide is a consequence of his wrongdoing for which he must be justly held responsible. Here the defendants admit their breach of duty and so, picking up on Lord Russell’s comment, questions of foreseeability seem to fit more accurately into the box dealing with compensation rather than the culpability box. I must return to this later.

Since writing the above I chanced upon an article by Jane Stapleton, Cause-In-Fact and the Scope for Consequences, (2003) 119 L.Q.R. 388, 390 where she explains more eloquently than I have:

“The duty of care should not be framed as being a duty only with respect to particular kinds of consequence. This “scope of the duty” or “scope of the risk” approach which asks “what kind of harm was it the defendant’s duty to guard against” at best conflates inquiries that it is clearer to keep separate and at worst encourages circular reasoning. It is preferable to keep “duty” as the issue that considers general concerns relating to whether the obligation of care should be recognised between the parties and without regard to the consequences of breach in the particular case. Where it is owed, the scope of the duty is simply to act reasonably in the circumstances. The breach analysis considers what reasonableness entails in the circumstances. Cause-in-fact provides the link between the breach and C suffering actionable damage. Finally, “scope of liability” then considers which of the stream of consequences of the tort that happened on this particular occasion should be judged to be within the scope of D’s liability.”

Though denying that the defendant’s duty extended to preventing him from committing suicide, the defendant has admitted that the accident was caused by its negligence and that the deceased was injured and developed “various psychological problems”. The defendant denies that the suicide was caused by any breach of duty on its part. There are no problems here.

It may be that the answer to this appeal lies in the proper analysis of the causation issues. In considering whether the suicide was caused by the defendant’s breach there are three aspects to causation which call for attention: (1) causation as a matter of fact, (2) whether the act of self-harm breaks the chain of causation and (3) whether the damage is too remote.

There was some discussion in the court below about the “but for” and “material contribution” test. The “but for” test, as a negative criterion, is the first step in establishing causation because its purpose is to exclude from consideration irrelevant causes. Nonetheless the fact that the defendant’s conduct is found to be a cause when applying the “but for” test is not conclusive as to whether he should be held responsible in law since the function of the causal enquiry in law is to determine which causes are effective for the purpose of attributing legal responsibility: hence the need for the defendant’s breach to have made a material contribution even if it was not the sole, or even the main, cause of the claimant’s damage.

The evidence on this and on the next question of the deceased’s true responsibility for his actions, was given by Mr Richard Blunden, a chartered clinical psychologist, and Dr Paul McLaren, a consultant psychiatrist. The defendant called no evidence in rebuttal.

Mr Blunden filed a number of reports. His first opinion was delivered following an examination on 15th October 1998, some two years after the accident. He reported:

“On formal questionnaires, there is evidence of clinically significant anxiety and depression, and continuing stress arising from the accident itself.

Mr Corr’s ongoing psychological complaints, particularly reliving the accident, heightened arousal, and avoidance behaviour, are consistent with a post-traumatic stress disorder. Although he has been helped by counselling, he is still struggling to cope with daily life, particularly his work.”

Following an examination on 22nd February 2001 he reported:

“At the present time, despite the above treatments, Mr Corr continues to be significantly distressed as a direct consequence of the material accident.”

He next examined Mr Corr on 20th May 2002, only three days before Mr Corr took his life. He recorded:

“26.

He said he was stuttering and starting to ‘lose it’ in January 2002. He said that he then took an overdose, wanting to end it all. ...

30.

Although he has apparently improved since his breakdown, Mr Corr is more depressed now than when he was previously examined in February 2001. He stated that ‘I’m useless’ and ‘I feel just everything’s gone’. He has no interest and no enthusiasm in his normal activities. Nothing is enjoyable now. He has lost his sense of humour. Everything is an effort. He complained that he is unable to plan or think about the future. He said he cannot think at all. He is indecisive. He cannot concentrate. He has no motivation. His appetite is poor, and his wife has to make him eat. He consumes quantities of chocolate and junk food. His sleep is disturbed and he wakes exhausted and in a sweat. He may get up during the night for a cigarette. He then stays in bed until the last minute before taking his children to school. He may then go back to bed when he returns home. He feels helpless. He admitted to suicidal ideation. He said he is still taking anti-depressants, although he could not recall the name. …

33.

These scores [on scales for measuring depression] are consistent with more severe anxiety and depression than last time. …

38.

At the present time, he remains depressed, with some suicidal thoughts.”

The overdose to which reference has just been made led to his admission to hospital. On his admission on 2nd March 2002 the medical officer noted:

“He has had recurrent thoughts of jumping off a high building → feels thought of family is preventing him to do so.”

The hospital reported to his general practitioner:

“His symptoms worsened lately since December last year leading to feelings of uselessness and hopelessness with suicidal ideations.”

Mr Blunden’s important conclusion was:

“I therefore consider that, on the balance of probabilities, Mr Corr’s suicide was a consequence of the material accident, the injuries sustained, and his profound difficulties in coping thereafter.”

Dr McLaren was asked to give his opinion “as to whether at the time of the claimant’s suicide he was suffering from a disabling medical condition which, even if temporary, prevented him from making a voluntary, rational and informed decision on whether he should live.” He concluded:

“4.2

On the balance of probabilities, the evidence points to Mr Corr having suffered symptoms of a severe depressive episode … in the days before his death. Mr Blunden, in his report of 23 May 2002, gives a very clear description of the objective signs of a severe depressive episode, which he observed in Mr Corr when he saw him on 22 May 2002. In earlier phases of his illness Mr Corr had recorded suicidal ideation, including suicide by jumping, associated with thoughts of hopelessness. He had reported struggling to challenge these thoughts, but as his depression deepened in the days and weeks before his death, this hopelessness became more difficult to resist. In such conditions a critical change takes place in the balance of a sufferer’s thinking, when they stop seeing the hopeless thoughts as symptoms of an illness and the depressive thinking comes to determine their reality.

4.3

This hopelessness, which was present because Mr Corr was suffering from a disabling medical condition, namely a severe depressive episode, impaired his capacity to make a reasoned and informed judgement on his future and this disturbance in his thinking led directly to his suicide.”

In examination-in-chief these exchanges took place:

“Q. Is it your view that Mr Corr’s state of mind at the time of his suicide can be fitted into the definition of sanity in the M’Naghten Rules?

A. I’m not sure that it can, particularly in relation to the issue of whether or not the act was right or wrong. I’m not sure how one could apply that test in a situation such as this. It is my view that when Mr Corr stood on the edge and took the decision to jump, that he knew what the consequences of that would be and that he would die as a consequence. But it is also my view that the history, the clinical descriptions and the information contained in the suicide note all indicate that he was suffering from depression and that the depression had distorted his thinking, particularly through the generation of hopelessness and that distortion led to his suicide.

…

Q. Can I ask you this, what do you understand, as it were, putting yourself, as far as you can, into Mr Corr’s mind at the time of his suicide, were his reasons for it?

A. In my view, Mr Corr was experiencing significant emotional distress as a result of the depression. The evidence for that comes from the suicide note, and also from the clinical description of his mental state when he was admitted to hospital in February 2002 and treated for the severe depressive episode. In the admitting records it refers to him having had thoughts of committing suicide through jumping and also having the thought which challenged that, of concerns about the effect it would have on his family. Mr Corr was then treated for the severe depressive episode with anti-depressants and electro-convulsive therapy, which is a treatment usually reserved for patients with severe depression, particularly where there is a strong and immediate suicide risk, and the records suggest that in the days before his suicide that his mental state may have been deteriorating and getting worse. … in his suicide note Mr Corr refers to, I think the sentence is: ‘I can’t think or do any more.’ He also describes himself as being like a shell inside, which is a common description of the experience that suffers with severe depression have. It may also be the case that Mr Corr’s presentation was influenced by his desire to conceal his intent, which again is not unusual in cases like that. Individuals will describe a feeling of almost relief once they have made a decision to complete suicide and the act is not always done in a state of heightened agitation or impulsivity, but nevertheless, the combination of intense internal suffering and hopelessness, which leads to the belief that situations can never improve, creates the impasse and the decision to suicide.

Q. And finally this. Is there a relationship between PTSD, which it appears Mr Corr suffered from, and the depression?

A. There is a very clear relationship between the two, and depression is recognised as a common complication of traumatic stress reactions. The rates vary between 50% and 80% of sufferers of PTSD, which persist and is complicated, and those individuals are at significant risk of developing depressive episodes.

Mr Foy: And finally, Dr Jacobson, in his letter of 9^th September 2003 … says … “The accident led to chronic fluctuating psychiatric disorder, which gave him a long term suicide risk.” Do you agree with that?

A. Yes. I do. ”

Under cross-examination by Mr Cousins Q.C., these exchanges occurred:

“Q. And I think you fairly accepted a few minutes ago, that Mr Corr would have known what the consequences of jumping from the building would be?

A. Yes, I believe he jumped with the intention of killing himself.

Q. Yes. So when he jumped he would have been aware of the consequences, but nevertheless acted deliberately?

A. Yes. That’s correct.”

He was cross-examined about the application of the M’Naghten Rules as follows:

“Q. You do not; you could not have suggested during Mr Corr’s lifetime that he was unable to tell the nature or quality of his act. Agreed?

A. Yes.

Q. Or that he was unable to tell right from wrong?

A. Yes.”

Later in his evidence Dr McLaren said this:

“There are descriptions in the records of Mr Corr struggling with irrational thoughts, and describing his thinking as fluctuating, and that is certainly the experience with depression, where there will be times when ideas of hopelessness become so strong and powerful, that they dominate one’s decision-making. The records describe Mr Corr battling against such thoughts during the course of his last depressive episode. … The suicide arises because one perceives one’s current state as unbearable and with the distorted thinking of depression, sees no hope of that getting better.”

In re-examination these relevant exchanges took place:

“Mr Foy: And do you see in this that Mr Corr was suffering a different condition at the time of his suicide to that which had been the position in the previous few months?

A.

No. It is a common and recognised complication of severe depression that between 1 in 6 and 1 in 10 sufferers will kill themselves. In my opinion, there is a clear sequence between the physical injuries, the traumatic stress disorder, the depression and the suicide.

Mr Foy: Finally, just this, you were taken to … your report dealing with the suicide attempt in February and the medical officer’s assessment sheet that he had recurrent thoughts of jumping off a high building, thoughts of family is preventing him to do so. What was it, do you think, that caused those concerns about the family to be overcome, what was the, what was in his mind?

A.

I think the severity of the depression increased and in particular his sense of hopelessness, which led him to believe there was no way in which treatment could alleviate his suffering and enable a recovery, and that hopelessness was the, in my opinion, the ultimate cause of his suicide.”

The judge did not expressly deal with this, probably because it must have seemed self-evident to him. On the evidence he had, there was of course only one answer: the accident caused the post-traumatic stress disorder, that caused the depression, and the depression caused the suicide. There is a clear causal link between the breach of duty by the defendants and the deceased’s decision to take his own life. Indeed I did not understand the respondent to be disputing this in this court.

The matter has been considered in this jurisdiction and elsewhere on a number of occasions and a number of authorities have been placed before us. The first in a poorly reported copy of The Times Oct. 23, 1956 is the case of Cavanagh v London Transport Executives. Mr Cavanagh had walked down Chancery Lane to cross the Strand. He stepped onto the road just behind a taxi cab which was stationary or just drawing up. He neither saw nor heard the approaching number 11 omnibus and walked directly into its path. He suffered a fractured skull and there was evidence that his mental processes had become grossly abnormal. Some sixteen months after the accident he committed suicide. Devlin J. was satisfied that “an irrational state of mind arising from his head injuries was a cause, if not the main cause, of his suicide.” The report adds that the judge “would, if necessary, hold that the plaintiff (the widow of the deceased) had discharged the burden of causation upon her and that the financial worry did not amount to a novus actus. But if, looked at independently of its origins it would amount to a novus actus, he was satisfied that the deceased’s financial position in January, 1955, could be traced back to the accident.”

Pigney v Pointers Transport Services Ltd [1957] 1 W.L.R. 1121 was decided a year later. Mr Pigney sustained head injuries as a result of an accident in the course of his employment with the defendant. He committed suicide eighteen months later. Pilcher J. held:

“It is reasonably clear that when the deceased hanged himself he was not insane under the M’Naughten Rules. I should infer that the deceased must have known what he was doing when he took his own life and must have known that what he was doing was wrong. To put the matter in ordinary language, the deceased took his life in a fit of depression brought about by a condition of acute anxiety neurosis induced by the accident and injury which he had sustained eighteen months earlier.

On these facts I have to make up my mind whether the suicide of the deceased constituted a novus actus interveniens which serves to break the chain of causation between his injury and his death, or whether upon the ordinary principles which cover remoteness of damage in cases of tort, the death of the deceased man was caused by the injury he received due to the defendants’ lack of care for his safety. I have no doubt on the evidence that the deceased would not have committed suicide if he had not been in a condition of acute neurotic depression induced by the accident. In this sense the injury which he sustained in the accident was a causa sine qua non of the accident. It is equally clear that the immediate cause of his death was that he hanged himself in a fit of acute depression. That he might do this was clearly a matter which could not reasonably have been foreseen by the defendants.

…

I have next to consider whether the fact that the deceased took his own life at a time when he was, as I find, sane under the M’Naughten Rules debars his widow and administratrix from successfully prosecuting her claim against the defendants under the Fatal Accidents Act on the ground of public policy. …

I prefer to base my decision on the grounds already stated, namely, that the deceased’s irrational and no doubt felonious act in taking his own life did not break the chain of causation between his accident and his death.”

The next case is not concerned with suicide but is of general application. It is McKew v Holland & Hannan & Cubitts [1969] 3 All E.R. 1621 where the appellant sustained injury in the course of his employment for which the respondents were liable. As a result, on occasions, he unexpectedly lost control of his left leg which gave way beneath him. He was descending a steep staircase without a handrail when the leg collapsed and he tried to jump down the stairs so that he would land in a standing position rather than falling over down the stairs. He suffered a severe fracture of his ankle. Lord Reid said at p. 1623:

“ In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender’s fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender’s fault or the disability caused by it.”

Here the reasonableness or unreasonableness of the claimant’s own action is the test.

For much the same reason as Reeves was not much help to me on the question of breach of duty, it does not seem to me to assist on this issue either. Lord Hoffmann dealt with the question whether the deliberate act of suicide, while of a sound mind, was a novus actus interveniens saying at p. 367:

“On the first question, Mr Pannick relied upon the general principle stated in Hart and Honoré, Causation in the Law, 2nd ed. (1985), p. 136: "the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by a defendant, negatives casual [sic] connection." However, as Hart and Honoré also point out, at pp. 194-204, there is an exception to this undoubted rule in the case in which the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being. It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss.”

Whilst, therefore, the causal link was not broken in Reeves because the suicide was the very thing at which the duty to prevent it was directed, I do derive support from the acceptance, as it seems to me, of the proposition that it needs “the free, deliberate and informed act” to break the causal link.

It seems that this point was taken in the Workman’s Compensation Act cases to which reference has been made in some of the authorities before us, for example, this in the judgment of Lord Hamworth MR in Church v Dugdale and Adams Ltd (1929) 22 BWCC 444, 449:

“It is necessary to find not merely that there has been suicide, not merely at the time of the suicide that there was some depression and some delusions, but you must find that the condition of the man was such that the accident disabled him from exercising a judgment, and in that sense caused the accident. If you find merely that in consequence of the accident he is brooding in fear of poverty, or in distress, or in a mental condition which is consistent with the condition of a person not suffering from the accident, there you do not find and are not entitled to draw the inference that his mind has become so unhinged as to dethrone his power of volition and in that sense there is no proof and no necessary connection between the accident and the suicide.”

I came across this line of authority in Holdlen Pty Ltd v Walsh [2000] NSWCA 87 where Giles JA says this:

“35.

… but it is now more readily recognised that in causation, said to be a question of fact though tempered by value judgements and infused with policy considerations because with a view to allocating legal responsibility (March v E and MH Stramare Pty Ltd (1991) 171 CLR 506), an intentional act even of the person wronged may not break the chain of causation. The intentional act may be part of the chain of causation …

Insanity is a concept of varying content, and the true enquiry (if the validity of any such enquiry be assumed) is into the worker’s mental state so that it might be found whether his suicide should be regarded as an intentional act. The test of dethronement of the power of volition has been adopted, and it does not necessarily turn on insanity. The law recognises in context not involving insanity that the will may be overborne or subjected to such influences that, although the act is deliberate, it is not regarded as the actor’s intentional act. In the context of duress, for example, Lord Simon said that duress “deflects, without destroying, the will of one of the contracting parties” (Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 at 695) …”

As one might expect from the tenor of his cross-examination, Mr Cousins seems to be asserting that only insanity, as the criminal lawyers understand it, is sufficient to exonerate the deceased from the consequences of taking his own life. He derives some support for this proposition from Murdoch v British Israel World Federation [1942] NZR 600 where the plaintiff succeeded because, per Ostler J. at p. 641:

“The plaintiff, in my opinion has succeeded in proving that her husband was so insane at the time he committed suicide as to be criminally irresponsible for his act, and therefore it has been proved, in my opinion, in fact (i) that the defendant’s negligence was the direct cause of the injury; (ii) that the injury was the direct cause of the insanity; (iii) that the insanity was the direct cause of the death; and therefore that the wrongful act of the defendant caused the death of the deceased.”

This case may, however, not stand the test of time: see the obiter comment in Pallister v Waikato Hospital Board [1975] 2 NZLR 725.

The American authority to which we have been referred is Waters v TSR, Inc. 904 F. 2d 378, United States Court of Appeals, 6th Circuit, decided on June 5, 1990. It may seem to us to have been an optimistic claim brought by a mother against the manufacturer of the game “Dungeons & Dragons” when her son, described as a “devoted” player of the game, became absorbed to the point of losing touch with reality and eventually being driven to self-destruction. The Court of Appeal observed that:

“Courts have long been rather reluctant to recognise suicide as a proximate consequence of a defendant’s wrongful act. … Generally speaking, it has been said that act of suicide is viewed as an “independent intervening act which the original tortfeasor could not have reasonably [been] expected to foresee.” … Exceptions to the general rule have been recognised where a decedent was delirious or insane and either incapable of realising the nature of his act or unable to resist an impulse to commit it.”

In Canada the leading decision seems to be Wright v Davidson [1992] 88 DLR (4th) 698, 705 where the judgment of the court was:

“What is determinative of liability in the case under appeal is that when Mrs Wright took her life she made a conscious decision, there being no evidence of disabling mental illness to lead to the conclusion that she had an incapacity in her faculty of volition. Accordingly her suicide must be taken as a novus actus interveniens such that it cannot be said that her death was a reasonably foreseeable consequence of the wrong doing. In my opinion, on the evidence before us, the taking of her life cannot reasonably be considered an incident within the purview of the risk created by the defendants when the motor vehicle accident occurred.”

In Australia there are two decision handed down within a month of each other. In Lisle v Brice [2001] QCA 271 the deceased received minor physical injuries in a motor vehicle collision and more than three years later committed suicide. The case is more concerned with remoteness than breaking the chain of causation. On causation the court held at p. 181:

“The learned trial judge here clearly adopted the common sense approach to the issue of causation. There was ample medical evidence to support his finding that the accident caused – “contributed in a material way to” – the depression. As he put it, “the depression would not have occurred but for the deceased’s accident-caused injuries”. There was also ample evidence to support the finding that depression continued throughout the period up to the suicide. Again, in the light of the medical evidence, and applying the common sense test, the findings that the “depression was the cause of his suicide” and that “the accident was a cause of the suicide” were clearly open on the evidence. I can see no reason for setting aside those findings.”

Then the New South Wales Court of Appeal decided AMP General Insurance Ltd v Roads and Traffic Authority of NSW [2001] Australian Torts Reports 81-619. This was an unusual case. An employee was injured in an accident at work in 1993. After the limitation period had expired he commenced an action for damages. When his application for an extension of time was heard, he was cross-examined and suffered stress as a result of that cross-examination. He developed a depression and committed suicide eight days after the hearing. The issue was whether it was the accident or the effects of the cross-examination that led to the suicide. Each of the three judges referred to a dictum of Mason C.J. in March v E and MH Stramare Pty Ltd at p. 517-518:

“As a matter of both logic and common sense, it makes no sense to regard the negligence of the plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant’s wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant’s negligence satisfies the “but for” test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.’’

On the other hand, Spigelman CJ thought that:

“30.

Actions involving the deliberate infliction of self-harm should generally be regarded as “independent and unreasonable” and as of breaking the sequence of events that may otherwise constitute a causal chain for the purpose of attributing legal responsibility.”

Heydon JA answered in the negative the question he posed in this way in paragraph 151:

“As a matter of value judgement, is it just to hold the defendant legally responsible for an injury to the plaintiff which, though it can be traced back to the defendant’s wrongful conduct, was the immediate result of unreasonable action on the part of the deceased?”

Davies AJA concluded:

“200.

As the depression and the suicide were not a continuation of the depression which the deceased suffered following his back injury, it seems to me that the cross-examination which brought about the suicide was a novus actus interveniens.”

Causation may be a matter of common sense but it also imports value judgements. As soon as the test is framed in terms of whether the action of the victim is “unreasonable” as in McKew, then one is making a value judgement. Laws L.J. explains this in Rahman v Arearose Ltd [2001] QB 351, 367:

“32.

… Once it is recognised that the first principle is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible, the metaphysics of causation can be kept in their proper place: of themselves they offered in any event no hope of a solution of the problems which confront the courts in this and other areas. …

33.

So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible? The nature of his duty (here, the common law duty of care) is relevant; causation, certainly, will be relevant - but it will fall to be reviewed, and in truth can only be understood, in light of the answer to the question: from what kind of harm was it the defendant's duty to guard the claimant? … Novus actus interveniens, the eggshell skull, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any liable defendant's responsibility for the loss and damage which the claimant has suffered.”

In considering an injured person’s suicide, the law has moved on. Suicide is no longer a crime. To require criminal insanity in the M’Naughten sense is artificial and out of date. Psychiatry is now a more precise science. In a just system of compensation, the tortfeasor cannot escape his responsibility by asserting a break in the chain of causation if his act has caused a depression and the depression so has unhinged the mind as to “dethrone [the] power of volition”.

Here the judge accepted the deceased acted deliberately and that when he jumped from the top of the building he knew and understood the risks he was taking and that he knew it was wrong. With respect that misses the point. Just as a party acting under undue influence or duress knows what he is doing, he is powerless to restrain himself from doing it. The real question is whether what he does is the product of full free and informed thought. Here the medical evidence established quite clearly that Mr Corr’s sense of hopelessness was so strong and powerful that it dominated his decision-making and that hopelessness was the ultimate cause of his suicide. In those circumstances I cannot characterise this as the “free, deliberate and informed act of a human being” required by Lord Hoffman.

If I move, for the moment, to the related question of volenti, the case of Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 Q.B. 283 is much in point. There Lloyd L.J. held at p. 290:

“ But in the present case Mr Kirkham was not of sound mind. True, he was sane in the legal sense. His suicide was a deliberate and conscious act. But … Mr Kirkham was suffering from clinical depression. His judgment was impaired. … though his judgment was impaired, Mr Kirkham knew what he was doing. But … 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.”

The same features must have their place when considering whether in justice this man’s suicide broke a causal link which was well established by the medical evidence that the severe depressive episode impaired his capacity to make a reasoned and informed judgment on his future and this disturbance in his thinking led directly to his suicide.

In those circumstances I conclude that the conduct of the deceased was not so wholly unreasonable nor of such overwhelmingly potent causative impact as to eclipse the defendant’s wrongdoing. In my judgment the chain of causation was not broken by the suicide.

Thus far I have assumed that a breach of duty is established and I have found that the causal link was not broken by the suicide. The question remains, nonetheless, whether self-harm is a kind of harm which was not reasonably foreseeable. What is reasonably foreseeable is the test.

I say that because Pigney, relying on the death of the deceased being “directly traceable” to the physical injury which he sustained due to the lack of care of the defendant’s for his safety, can no longer be regarded as good law. Pilcher J. followed In re Polemis v Furness Withy & Co [1921] 2 K.B. 560, 577. The modern law is stated in Overseas Tankship (U.K.)Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No. 1) [1961] A.C. 388, 426 where Viscount Simonds delivering the judgment of the Privy Council said:

“Their Lordships conclude this part of the case with some general observations. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is “direct”. In doing so they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. This accords with the general view thus stated by Lord Atkin in Donoghue v Stevenson [1932] A.C. 562, 580: ‘The liability for negligence whether you style it such or treat it as in other systems as a species of ‘culpa,’ is no doubt based upon the general public sentiment of moral wrongdoing for which the offender must pay.’ … Thus foreseeability becomes the effective test.”

That brings the common law into line with the law in Scotland where the “grand rule” stated as far back as 1864 by Lord Kinloch in the classic passage in Allan v Barclay, 2 M. 873 applies:

“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 wrongdoer.”

That was applied in Cowan v National Coal Board [1958] SLT 19 where Lord Cameron said:

“Now 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 had 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 the 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 course of language as the ‘natural and direct’ result of the initial injury so as to make the delinquent liable in damages to the dependents 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 defender’s negligence and the assumed suicide.”

Simmonds v British Steel Plc [2004] ICR 585 is the latest word on the subject. In paragraph 67 of his speech Lord Rodger of Earlsferry said this:

“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 the 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 than was foreseeable or it was caused in a way that could not have been foreseen … (4) The defender must take his victim as he finds him … (5) Subject again to the 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 ...”

How then have the suicide cases resolved this question? In Cavanagh the widow’s claims succeeded. It is not at all clear whether remoteness of damage was discussed: I rather think not. In Pigney the remoteness issue was resolved on what is now a plainly wrong basis. In Cowan death was not the natural and direct result of the initial injury. Cowan was referred to in Simmonds without there being any suggestion that it was wrongly decided. In Wright the Canadian court decided that the death was not a reasonably foreseeable consequence of the wrongdoing. In Lisle the Queensland court held:

“[40] … Experience, particularly over recent years, has shown that post-traumatic stress syndrome is a not uncommon sequela of injuries sustained in a motor vehicle accident. The foresight of a reasonable person in this day and age must encompass the possibility, perhaps even the likelihood, of psychiatric illness – depression – following on from physical injuries sustained as a result of negligence. …

[42] Then … the depressed person may ‘do what depressed persons are apt to do, namely, to attempt suicide’. If depression is foreseeable then it is difficult to conclude that suicide as the result of that depression is not foreseeable. Unless the evidence points to some other factor as being a more significant cause, but for it the suicide would not have occurred, the tortfeasor will be liable.”

The question is not directly addressed in AMP where the reasons for the onset of depression in that case put it in a different category from the case before us. In our case the conclusion of the judge, to whose views the Court must pay some deference, was that “the deceased’s suicide was not reasonably foreseeable to the defendants”.

I see the force of the reasoning in Lisle. If a depression is foreseeable (or per Page v Smith is treated as foreseeable) then it is equally foreseeable that the depressed person may take his life as the medical evidence given by Dr McLaren demonstrates is probable. As a matter of fact and of logic the argument is powerful.

But does it address the correct questions? In my judgment the legal questions to ask is not so much whether the kind of damage was logically foreseeable but more accurately, whether that kind of damage was reasonably foreseeable?

First, it seems to me, we have to identify or characterise the kind of damage. Is death by self-harm the same kind of damage as death by decapitation in a dreadful industrial accident? Hughes v Lord Advocate [1963] A.C. 837 is a case in point. It was very likely that if boys did enter the dark tent they would take one of the lighted red lamps with them. If the lamp fell and broke it was not at all unlikely that the boy would be burned and the burns might well be serious. No doubt it was not to be expected that the injuries would be as serious as those which the appellant in fact sustained. Lord Reid said at p. 845:

“So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.”

In The Wagon Mound the reasonably foreseeable kind of damage was the fouling of the slipways as the result of the spillage and the fire that caused the damage was then unforeseeable.

Those cases establish the need to identify the kind of injury in question. That is not easy in this case. This does seem to me to be a case of the kind contemplated by Lord Nicholls of Birkenhead in Att. Gen. v Hartwell [2004] UKPC 12, [2004] P.I.Q.R. 27 where he said:

“Sometimes, depending on the circumstances, personal injury as a type of damage may need to be broken down further, distinguishing between personal injury arising from one particular cause and personal injury arising from another.”

Here it seems to me that death caused by suicide after a lapse of time from the original accident and after the intervention of the depression is a different kind of damage from death by decapitation which immediately follows the cause of the injury. They do have a different character. I cannot accept Mr Foy’s argument that self-harm is “a symptom” of depression. Suicide does not occur spontaneously like a heart attack or miscarriage produced by shock in the examples given by Lord Browne-Wilkinson in Page v Smith. The unhappy victim has to do something to bring it about. I recognise that vomiting may more readily be seen to be a symptom of bulimia even though the vomiting is self-induced. So the distinctions may be difficult to draw and hard to articulate and the responses may be more visceral than cerebral. Not for the first time a ”judgment” may have to be made as a matter of impression. My feeling is that suicide does make a difference.

The next important question is whether that particular kind of injury is reasonably foreseeable. The need for reasonable foresight at once imports a value judgment which is “no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay”: per Lord Atkin in Donoghue v Stevenson. Eventually the answer to this case, as in other areas of the law of tort, must depend upon whether it is fair, just and reasonable to hold the defendant responsible for Mr Corr’s death. It is a policy decision.

That policy will be influenced by the extent to which Britain is in the grip of a “compensation culture”, the subject of an interesting article, State of Fear: Britain’s Compensation Culture Reviewed, (2005) 25 Legal Studies 499 by Kevin Williams. He concludes:

“There is good evidence that some sorts of accident claims have risen (from a relatively low base) and that the overall cost of personal injury settlements have gone up. But there is virtually no reliable evidence about the number of bogus or exaggerated claims or whether they constitute a grave (or increasing) problem.”

Perhaps that puts in perspective an observation, which I prefer to forget, by Lord Hobhouse in Tomlinson v Congleton BC [2003] UKHL 47, that the “pursuit of an unrestrained culture of blame and compensation has many evil consequences”. On the other hand I cannot ignore Lord Steyn’s warning in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 that “the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy”.

It must be remembered that the question of reasonable foresight must be judged in the light of the circumstances which were known and ought to have been known at the time the accident occurred, and not with the benefit of hindsight. With the benefit of that 20/20 vision one can see the inexorable progression from foresight of personal injury to foresight of psychiatric injury and then from depression to suicide. But the real question is whether suicide was reasonably foreseeable at the time. Bearing all those matters in mind, I, like the judge, am driven to the conclusion that, judging the responsibility of the defendant at the time the accident occurred, it could not reasonably have been foreseen that their employee, a man of actual not hypothetical fortitude, a man happy in his life and with no sign of wishing to end it, would lapse into such dark depression that he would many years later kill himself. I confess I have wrestled with this conclusion. Perhaps it may be said that it is inconsistent to find that Mr Corr did not behave so unreasonably as to break the chain of causation and to find at the same time that his death was not reasonably foreseeable by his employer. In my view my conclusions do justice to the case. It is not fair to heap the responsibility on Mr Corr nor is it fair to heap it on the employer. The sad fact is that the awful event at the multi-storey car park on 23rd May 2002 was a tragic accident which should be treated as such and not as an occasion for blame. It is a tragedy with which Mrs Corr and her children must live forever and I know the irreparable void in their life. I am deeply sorry for them but I do not feel it right to compensate them. My perceived duty is to dismiss the appeal.