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URL: http://www.bailii.org/uk/cases/UKHL/1999/35.html
Cite as: [2000] AC 360, [1999] 3 All ER 897, [1999] UKHL 35, [1999] 3 WLR 363, [2000] 1 AC 360

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Commissioners of Police for the Metropolis v. Reeves (Joint Administratix of the Estate of Martin Lynch, Deceased) [1999] UKHL 35; [2000] 1 AC 360; [1999] 3 All ER 897; [1999] 3 WLR 363 (15th July, 1999)

HOUSE OF LORDS

  Lord Hoffmann   Lord Mackay of Clashfern   Lord Jauncey of Tullichettle
  Lord Hope of Craighead   Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

COMMISSIONERS OF POLICE FOR THE METROPOLIS
(APPELLANT)

v.

REEVES (A.P.)
(JOINT ADMINISTRATIX OF THE ESTATE OF MARTIN LYNCH, DECEASED)
(RESPONDENT)

ON 15 JULY 1999

LORD HOFFMANN

My Lords,

    On 23 March 1990 Martin Lynch hanged himself in his cell in Kentish Town Police Station. He had been remanded in custody on charges of credit fraud and was also under investigation for handling stolen vehicles. He had made two previous attempts at suicide. One had been in a cell at Clerkenwell Magistrates' Court three months earlier. The second was in a cell at Brent Magistrates' Court that very morning. On each occasion he had tried to strangle himself with his belt. After the first incident, the police noted on his record that he was a suicide risk. When he was brought back to Kentish Town Police Station after the second incident, he was seen by a doctor. She found no other evidence of mental disturbance but gave instructions that, as a suicide risk, he should be frequently observed. An hour later, at 1.57 p.m., a policeman looked through the open wicket hatch in his cell door and saw that he was lying on his bed. A few minutes later he used his shirt as a ligature to hang himself by pushing it through the wicket hatch and securing it to the door. He was found by another policeman at 2.05 pm. Despite attempts at resuscitation, he died a week later.

    The police and prison service have long been aware that prisoners are more than usually likely to attempt suicide or self-injury. In 1994 the Director of Prisons issued an Instruction to Governors (IG 1/1994) which said: "The care of prisoners who are at risk of suicide and self-harm is one of the Prison Service's most vital tasks." The risk of suicide is particularly high among prisoners on remand facing a new environment and an uncertain future. Between 1972 and 1982, 45 per cent. of suicides in prisons were remand prisoners, although they made up only 10-15 per cent. of the prison population (Report by Helen Grindrod Q.C. and Gabriel Black, "Suicides at Leeds Prison : An enquiry into the deaths of five teenagers during 1988/89" ISBN 0903683113 (Howard League for Penal Reform, (1989), p. 5.) As long ago as 1968 the Home Office sent a circular to Chief Constables drawing attention to the need to ensure that fittings in cells should not provide an opportunity for the prisoner to do himself injury. Paragraph 4 said:

    The plaintiff in this action is Mrs. Sheila Reeves, who had lived with Mr. Lynch for some years and had a child by him. She sues the Metropolitan Police Commissioner under the Fatal Accidents Act 1976 for negligently causing Mr. Lynch's death. The trial judge (Judge White) found that having regard to the fact that the police knew that Mr. Lynch was a suicide risk, they owed him a duty to take reasonable care to prevent him from committing suicide while being held in custody. He also found that the police had been negligent and in breach of this duty by failing to shut the wicket hatch after he had been put in the cell. There has been no appeal against these two findings.

    The judge found, however, that the breach of duty by the police did not cause Mr. Lynch's death. He was of sound mind and his judgment was not impaired. The sole cause of his death was therefore his deliberate act in killing himself. The judge thought that this result could be expressed in Latin either by the maxim volenti non fit injuria (Mr. Lynch had consented to the injury he received) or by saying that his suicide was a novus actus interveniens. He also gave the Commissioner leave to amend the defence to raise an alternative plea of contributory negligence. On the assumption that the death had been caused partly by the fault of the Commissioner and partly by the fault of Mr. Lynch, he assessed the responsibility of Mr. Lynch in accordance with section 1(1) of the Law Reform (Contributory Negligence) Act 1945 at 100 per cent. The judge was also inclined, without deciding the point, to think that the plaintiff's claim should fail on grounds of public policy in accordance with the maxim ex turpi causa non oritur actio. He held that if the action had succeeded, he would have assessed the damages at £8,690.

    Mrs. Reeves appealed to the Court of Appeal [1999] QB 169. By a majority, the appeal was allowed. Lord Bingham of Cornhill, C.J. and Buxton L.J. said that, as the police did not deny that they owed Mr. Lynch a duty to take reasonable care to prevent him from committing suicide or that their breach of duty had enabled him to commit suicide, they could not say that their breach of duty was not a cause of his death. "So to hold," said the Lord Chief Justice, at p. 196 "would be to deprive the duty of meaningful content." Morritt L.J. dissented, saying that a deliberate act of suicide by a person of sound mind must negative the causal connection between acts which merely created the opportunity and the subsequent death.

    On contributory negligence, there was no clear majority view. Buxton L.J., for reasons to which I shall return, thought that the concept really had no application. The Lord Chief Justice said it did, and would have held the Commissioner and Mr. Lynch responsible in equal shares. Morritt L.J. agreed in principle that contributory negligence could apply but said that the judge was right to assess Mr. Lynch's responsibility at 100 per cent. In order to have some majority judgment on the point, the Lord Chief Justice, while adhering to the view that Mr. Lynch's fault contributed to his death, agreed to assess his share of responsibility at 0 per cent. So the plaintiff recovered the damages in the full amount of £8,690 assessed by the judge.

    The Commissioner appeals to your Lordships' House. Mr. Pannick argued two points on his behalf. The first was the question of causation: was the breach of duty by the police a cause of Mr. Lynch's death? The way he put the answer was to say that the deliberate act of suicide, while of sound mind, was a novus actus interveniens which negatived the causal connection between the breach of duty and the death. He said at first that he was going to argue the application of the maxim volenti non fit injuria as a separate point. But when it came down to it, he accepted that if the breach of duty was a cause of the death, he could not succeed on volenti non fit injuria. I think that is right. In the present case, volenti non fit injuria can only mean that Mr. Lynch voluntarily caused his own death to the exclusion of any causal effect on the part of what was done by the police. So I think it all comes to the same thing: was the breach of duty by the police a cause of the death?

    The other point argued by Mr. Pannick was contributory negligence. The question of public policy or ex turpi causa non oritur actio, which had not found favour with any member of the Court of Appeal, was not pursued.

    On the first question, Mr. Pannick relied upon the general principle stated in Hart and Honoré, Causation in the Law 2nd ed. (1985), at p. 136:

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. This principle has been recently considered by your Lordships' House in Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. [1998] 2 WLR 350. In that case, examples are given of cases in which liability has been imposed for causing events which were the immediate consequence of the deliberate acts of third parties but which the defendant had a duty to prevent or take reasonable care to prevent.

    Mr. Pannick accepted this principle when the deliberate act was that of a third party. But he said that it was different when it was the act of the plaintiff himself. Deliberately inflicting damage on oneself had to be an act which negatived causal connection with anything which had gone before.

    This argument is based upon the sound intuition that there is a difference between protecting people against harm caused to them by third parties and protecting them against harm which they inflict upon themselves. It reflects the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions. This philosophy 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. But, once it is admitted that this is the rare case in which such a duty is owed, it seems to me self-contradictory to say that the breach could not have been a cause of the harm because the victim caused it to himself.

    Morritt L.J. drew a distinction between a prisoner who was of sound mind and one who was not. He said, at p. 190 that when a prisoner was of sound mind, "I find it hard to see how there is any material increase in the risk in any causative sense." In Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 QB 283, 289-90, Lloyd L.J. said much the same. It seems to me, however, they were really saying that the police should not owe a person of sound mind a duty to take reasonable care to prevent him from committing suicide. If he wants to take his life, that is his business. He is a responsible human being and should accept the intended consequences of his acts without blaming anyone else. Volenti non fit injuria. The police might owe a general moral duty not to provide any prisoner with the means of committing suicide, whether he is sound mind or not. Such a duty might even be enforceable by disciplinary measures. But the police did not owe Mr. Lynch, a person of sound mind, a duty of care so as to enable him or his widow to bring an action in damages for its breach.

    My Lords, I can understand this argument, although I do not agree with it. It is not, however, the position taken by the Commissioner. He accepts that he owed a duty of care to Mr. Lynch to take reasonable care to prevent him from committing suicide. Mr. Lynch could not rely on a duty owed to some other hypothetical prisoner who was of unsound mind. The Commissioner does not seek to withdraw this concession on the ground that Mr. Lynch has been found to have been of sound mind. For my part, I think that the Commissioner is right not to make this distinction. The difference between being of sound and unsound mind, while appealing to lawyers who like clear-cut rules, seems to me inadequate to deal with the complexities of human psychology in the context of the stresses caused by imprisonment. The duty, as I have said, 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.

    Mr. Pannick also suggested that the principle of human autonomy might be infringed by holding the Commissioner liable. Autonomy means that every individual is sovereign over himself and cannot be denied the right to certain kinds of behaviour, even if intended to cause his own death. On this principle, if Mr. Lynch had decided to go on hunger strike, the police would not have been entitled to administer forcible feeding. But autonomy does not mean that he would have been entitled to demand to be given poison, or that the police would not have been entitled to control his environment in non-invasive ways calculated to make suicide more difficult. If this would not infringe the principle of autonomy, it cannot be infringed by the police being under a duty to take such steps. In any case, this argument really goes to the existence of the duty which the Commissioner admits rather than to the question of causation.

    The decision of the majority of the Court of Appeal is supported by the Commonwealth and United States authority to which we were referred. See in particular, Pallister v. Waikato Hospital [1975] 2 N.Z.L.R. 725 (Court of Appeal of New Zealand), Funk v. Clapp [1986] 68 D.L.R. (4th) 229 (British Columbia Court of Appeal) and Hickey v. Zezulka 487 N.W. 2nd 106 (Mich. 1992) (Supreme Court of Michigan).

    This brings me to the question of contributory negligence. Section 1(1) of the Act of 1945 provides as follows:

Section 4 defined "fault" as:

    Plainly Mr. Lynch's act in committing suicide would not have given rise to liability in tort. That part of the definition is concerned with fault on the part of the defendant. The question is whether, apart from the Act, it would have given rise to a defence of contributory negligence. I recognise, of course, that it is odd to describe Mr. Lynch as having been negligent. He acted intentionally and intention is a different state of mind from negligence. On the other hand, the "defence of contributory negligence" at common law was based upon the view that a plaintiff whose failure to take care for his own safety was a cause of his injury could not sue. One would therefore have thought that the defence applied a fortiori to a plaintiff who intended to injure himself. The late Professor Glanville Williams, in his book Joint Torts and Contributory Negligence (1951) (at p. 199) expressed the view that "contributory intention should be a defence." It is not surprising that there is little authority on the point, because 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. Logically, it seems to me that Professor Glanville Williams is right.

    Buxton L.J. took a different view and I must examine the reasons which he gave. First, he said, at p. 182 that there was no authority that the intentional act of the plaintiff could be "fault" within the meaning of section 4 of the Act of 1945. This, as I have said, is true but, logically, I think it can be.

    Secondly, he said that the conclusion that Mr. Lynch's act did not prevent the negligence of the police from being a cause of his death meant that his death could not have been partly as a result of his own fault and partly as a result of the fault of the police. The way he put it, at p. 182 was as follows:

This reasoning seems to me fallacious. It is saying that because Mr. Lynch's own act did not negative the causal connection between the negligence of the police and his death, it would be inconsistent to say that he caused his own death at all. Neither logic nor common sense requires such a conclusion. Mr. Lynch's suicide did not prevent the breach of duty by the police from being a cause of his death but that does not mean that his suicide was not also a cause of his death. As I said in Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. [1998] 2 WLR 350, 358, "one cannot give a common sense answer to a question of causation for the purposes of attributing responsibility without knowing the purpose and scope of the rule." Because the police were under a duty to take reasonable care not to give Mr. Lynch the opportunity to kill himself, the common sense answer to the question whether their carelessness caused his death is yes. Because Mr. Lynch also had responsibility for his own life, the common sense answer to the question whether he caused his own death is yes. Therefore both causes contributed to his death and the Act of 1945 provides the means of reflecting this division of responsibility in the award of damages: see the majority judgment of Riley J. in Hickey v. Zuzulka 487 N.W. 2nd 106, 123 (Mich. 1992) and the view of Richmond J. in Pallister v. Waikato Hospital [1975] 2 N.Z.L.R. 725, 736.)

    Thirdly, Buxton L.J. referred to cases under the Factories Acts, in which appellate judges have warned against allowing the legislative policy in imposing an absolute duty on the employer to be undermined by too readily allowing a defence of contributory negligence. He quoted Goddard L.J.'s remarks in Hutchinson v. London and North Eastern Railway Co. [1942] K.B. 481, 488:
 

It is important to notice that these remarks were made before the Act of 1945 was passed. It is not surprising that judges, faced with an all or nothing decision between the policy of the Factories Acts and the common law rule which made contributory negligence a complete defence, should have given priority to the legislative policy even if in practice it often meant overriding the common law rule. But Goddard L.J. did not say that contributory negligence could not in principle be a defence and it has always been recognised as such. Buxton L.J., at p. 182 also quoted an observation of Lord Tucker in Staveley Iron & Chemical Co. Ltd. v. Jones [1956] A.C. 627, 648 after the Act of 1945 had come into effect:

This citation performs the valuable function of reminding us that what section 1 requires the court to apportion is not merely degrees of carelessness but "responsibility" and that an assessment of responsibility must take into account the policy of the rule, such as the Factories Acts, by which liability is imposed. A person may be responsible although he has not been careless at all, as in the case of breach of an absolute statutory duty. And he may have been careless without being responsible, as in the case of "acts of inattention" by workmen. I shall return to this point when I consider the proper apportionment of responsibility in this case. But the two citations do not support the view that contributory negligence can in principle have no application when the plaintiff's carelessness is something which the defendant had a duty to guard against. It is commonly the case that people are held liable in negligence for not taking precautions against the possibility that someone may do something careless and hurt themselves, like diving into a shallow swimming pool, but I do not think it has been suggested that in such cases damages can never be reduced on account of the plaintiff's contributory negligence.

    Fourthly, at p. 183 Buxton L.J. referred to cases in which a defence of contributory negligence failed against child plaintiffs who had injured themselves by taking opportunities to play with dangerous things which the defendant had carelessly given them or left unguarded. He treated these as cases in which the defence failed because the child had done the very thing which it was the defendant's duty to take reasonable care to prevent. In my opinion, however, they have a different explanation. It is because the plaintiffs were children, without full understanding of the dangers they were running, that it would not have been just and equitable to attribute responsibility to them. This may be equally true in the case of a prisoner of unsound mind who commits suicide. In Kirkham v. Chief Constable of the Greater Manchester Police [1989] 3 All E.R. 882, where a prisoner suffering from clinical depression committed suicide in his cell, Tudor Evans J. decided that no share of responsibility for his death should be attributed to him under the Act of 1945. There appears to have been no appeal against this finding: see [1990] 2 QB 283. But it does not follow that no prisoner committing suicide in consequence of a breach of duty by the police or prison officers can ever be treated as sharing the responsibility for his own death.

    In my view it would therefore have been right to apportion responsibility between the Commissioner and Mr. Lynch in accordance with the Act of 1945. The judge and Morritt L.J. would have apportioned 100 per cent. to Mr. Lynch. But I think that this conclusion was heavily influenced by their view, expressed in connection with the question of causation, that Mr. Lynch, as a person of sound mind, bore full responsibility for taking his own life. This is of course a tenable moral view, which was powerfully advocated by the late Lord Denning M.R. in 1981 in the case of Hyde v. Thameside Area Health Authority reported in [1986] P.N. 26. But whatever views one may have about suicide in general, a 100 per cent. apportionment of responsibility to Mr. Lynch gives no weight at all to the policy of the law in imposing a duty of care upon the police. It is another different way of saying that the police should not have owed Mr. Lynch a duty of care. The law of torts is not just a matter of simple morality but contains many strands of policy, not all of them consistent with each other, which reflect the complexity of life. An apportionment of responsibility "as the court thinks just and equitable" will sometimes require a balancing of different goals. It is at this point that I think that Buxton L.J.'s reference to the cases on the Factories Acts is very pertinent. The apportionment must recognise that a purpose of the duty accepted by the Commissioner in this case is to demonstrate publicly that the police do have a responsibility for taking reasonable care to prevent prisoners from committing suicide. On the other hand, respect must be paid to the finding of fact that Mr. Lynch was "of sound mind." I confess to my unease about this finding, based on a seven minute interview with a doctor of unstated qualifications, but there was no other evidence and the judge was entitled to come to the conclusion which he did. I therefore think it would be wrong to attribute no responsibility to Mr. Lynch and compensate the plaintiff as if the police had simply killed him. In these circumstances, I think that the right answer is that which was favoured by the Lord Chief Justice, namely to apportion responsibility equally. I would therefore allow the appeal and substitute a judgment for the plaintiff in the sum of £4,345 with interest.

LORD MACKAY OF CLASHFERN

My Lords,

    I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hoffmann. For the reasons they have given I too would allow the appeal and make the same order as that which has been proposed.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

    This appeal arises out of the death by suicide of Martin Lynch while in police custody. The deceased was brought to the police station shortly after midday on 23 March 1990 having already tried to kill himself in a cell at the Magistrates' Court earlier in the day. Police officers at the station were made aware of this attempt and as a result the deceased was examined by a doctor at about 1.40 p.m. who found no evidence of schizophrenia, clinical depression or other mental disturbance but considered him to be a suicide risk and left instructions that he should be frequently observed. He was thereafter taken back to a cell whose door contained a flap which opened outwards and a spy hole which should have contained but was in fact devoid of glass. At 1.57 p.m. he was observed through the open flap to be sitting awake on his bed but at eight minutes later at 2.05 p.m. he was discovered with his shirt tied around his neck beside the door. He had tied his shirt through the open flap and spy hole and thereby hung himself. Attempts to resuscitate him failed and he died on 1 April 1990. His administratrix raised the present action of damages against the commissioner on the ground of negligence. The trial judge accepted the plaintiff's contention that it was negligent not to shut the flap after the deceased had been placed in the cell but concluded that the defence of volenti non fit injuria had been made out and the claim therefore failed. In the Court of Appeal [1999] QB 169 Buxton L.J. concluded that none of the three defences advanced by the commissioner namely "novus actus interveniens," "volenti non fit injuria" and contributory negligence were made out and that the appeal should be allowed. Morritt L.J. considered that both the defences of novus actus interveniens and volenti non fit injuria were made out and that the appeal should be dismissed. He went on to express the view that if contributory negligence fell to be considered he would uphold the judge's apportionment of 100 per cent blame to the deceased. Lord Bingham of Cornhill L.C.J. rejected the defences of novus actus interveniens and volenti non fit injuria but expressed the view that had he been sitting alone he would have concluded that the deceased was 50 per cent. to blame for the fatal outcome. In the event, however, because of the divergent view of the three judges he thought it right to allow the appeal and award the plaintiff full damages.

    In opening the commissioner's appeal to this House Mr. Pannick Q.C. accepted:- (1) that because they were aware that he was a suicide risk there was a duty on the part of the officers at the station to take reasonable care to prevent the deceased from committing suicide, and (2) that they were in breach of this duty by failing to close the flap. There were, he submitted, three issues for your Lordships' consideration namely:- (i) novus actus interveniens, (ii) volenti non fit injuria, and (iii) contributory negligence. I shall deal with these issues in that order.

Novus actus interveniens

    Mr. Pannick submitted that the deceased's death was caused not by the negligence of the police officers but by the voluntary act of the deceased while of sound mind. This act broke the chain of causation between the Commissioner's breach of duty and the death. He referred to Kirkham v. Chief Constable of Greater Manchester Police [1990 ] 2 Q.B. 283 and in particular to the following observations of Lloyd L.J. at p. 290B:

    Lloyd L.J. then pointed out that the plaintiff was not of sound mind. Mr. Pannick went on to develop his argument by referring to the fundamental principle of the autonomy of each individual and his or her right of self determination as expounded in St. George's Healthcare N.H.S. Trust v. S. [1998] 2 W.L.R. 936, 950H. If it is unlawful forcibly to administer food or medicine to a patient against his will because of his right of self determination it must follow that an adult of sound mind who chooses to take his own life must bear the whole responsibility for his act.

    My Lords, I consider that this argument is flawed. Professor Glanville Williams in his Joint Torts and Contributory Negligence (1951) stated at para. 2-24 that:

He went on to state that the novus actus interveniens "must constitute an event of such impact that it rightly obliterates the wrongdoing of the defendant." The reference to an independent act superseding the effect of the tortious conduct must, in my view, relate to an act which was outwith the contemplated scope of events to which the duty of care was directed. Where such a duty is specifically directed at the prevention of the occurrence of a certain event I cannot see how it can be said that the occurrence of that event amounts to an independent act breaking the chain of causation from the breach of duty, even although it may be unusual for one person to come under a duty to prevent another person deliberately inflicting harm on himself. It is the very thing at which the duty was directed see: Stansbie v. Troman [1948] 2 K.B. 48, Tucker L.J. at pp. 51-52. In Kirkham v. Chief Constable of Manchester [1990] 2 QB 283, 295C Farquharson L.J. at 295C rejected the defence of volenti non fit injuria as "inappropriate where the act of the deceased relied on is the very act which the duty cast upon the defendant required him to prevent." These observations are equally apposite to the defence of novus actus interveniens in the present case. In Pallister v. Waikato Hospital [1975] 2 N.Z.L.R. 725, Woodhouse J. in a dissenting judgment at p. 742 put the matter most succinctly, "The concept of a novus actus interveniens does not embrace foreseeable acts in respect of which the duty of care has specifically arisen." It follows that the observations of Lloyd L.J. in Kirkham v. The Chief Constable of Manchester at p. 290B cannot apply to a case in which there exists a duty of care on a custodier to prevent a man with known suicidal tendencies from committing suicide.

    The individual's right of self determination is irrelevant here for two reasons. In the first place it is not a defence to a breach of duty but rather an argument against the existence of a duty at all. If an individual can do to his own body what he wills, whether by positive act or neglect then there can be no duty on anyone else to prevent his so doing. In this case, however, it is accepted that the commissioner owed a duty of care to the deceased. In the second place the cases in which the principle has been recognised and to which your Lordships have been referred were cases in which prevention of injury to health or death would have involved an unlawful physical invasion of the individual's rights. In this case performance of the duty of care by closing the flap would have involved no invasion of any rights of the deceased.

    Mr. Pannick, with his customary fairness, drew the attention of your Lordships to a number of authorities from other common law jurisdictions which he accepted did not support his contention. In the U.S.A. the position appears to be that although as a general rule the act of suicide is viewed as an intentional intervening act which relieves the tortfeasor of liability, where a person with known suicidal tendencies is placed in the care of a jailer or other custodian the failure of such person to take reasonable care to prevent the suicide may be a direct and proximate cause of the death. (Sudderth v. White (1981) Ky. App. 621 S.W. 2d. 33 Court of Appeals of Kentucky McLaughlin v. Sullivan (1983) 461 A. 2d. 123 Supreme Court of New Hampshire and Watters v. T.S.R. Inc. (1990) 904 F. 2d. 378 U.S. Court of Appeals, Sixth Circuit).

    In New Zealand, Richmond J. in Pallister v. Waikato Hospital Board [1975] 2 N.Z.L.R. 725, 736 expressed the view that had there been a failure by the hospital board to use reasonable care to guard the deceased against his known suicidal tendencies that failure would have been an effective or substantial cause of his death.

    It appears from the decision of the British Columbia Court of Appeal in Funk v. Clapp (1986) 68 D.L.R. (4th) 229 that in Canada the doctrine of novus actus interveniens does not necessarily break the chain of causation between a jailer's failure in duty of care and the suicide of a prisoner in his charge.

    My Lords, I have no doubt that given the admitted breach of duty of care the defence of novus actus interveniens cannot assist the commissioner. The deceased's suicide was the precise event to which the duty was directed and as an actus it was accordingly neither novus nor interveniens.

Volenti non fit injuria

    Mr. Pannick conceded that if his argument on novus actus interveniens failed so must his argument on volenti non fit injuria. I consider that this concession was rightly made. If the defence were available in circumstances such as the present where a deceased was known to have suicidal tendencies it would effectively negative the effect of any duty of care in respect of such suicide as Farquharson L.J. pointed out in Kirkham v. Chief Constable of Manchester [1990] 2 QB 283, 295C in the passage to which I have already referred.

Contributory Negligence

    Mr. Blake Q.C. for the plaintiff submitted that the act of suicide could not amount to contributory negligence on the part of the deceased inasmuch as it did not amount to fault by him within the meaning of section 4 of the Law Reform (Contributory Negligence) Act 1945. Section 1(1) of that Act provides that where A suffers damage "as the result partly of his own fault and partly of the fault" of B, the damages recoverable may be reduced "having regard to the claimant's share in the responsibility for the damage." Fault is defined in section 4 as meaning "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." Mr. Blake contended that since an act which was intentional not only as to its performance but also as to its consequences would not have amounted to contributory negligence at common law it followed that the deceased's act of suicide was not "fault" within the meaning of section 4. He referred to a number of English cases which did not appear to me to bear upon the issue or to advance his argument. In Pallister v. Waikato Hospital Board [1975] 2 N.Z.L.R. 725, 736, Richmond J. referred to the possibility of the act of the deceased in jumping from the window amounting to "fault" within the meaning of the Contributory Negligence Act 1947. Mr. Blake also referred to three United States cases, two from State Court of Appeals and one from a Federal Court of Appeals which ruled that a plaintiff's suicide did not amount to contributory negligence. In Cole v. Multomah County (1979) Or. App. 592 P. 2d. 221 the Court of Appeals of Oregon ruled that acts which a plaintiff's mental illness caused him to commit were the same acts which the defendants had a duty to prevent and therefore could not constitute contributory negligence. In Alvarado v. Brownsville (1993) 865 S.W. 2d. 148 the State Court of Appeals ruled that the Texas Civil Practices and Remedies Code prohibited the use of a plaintiff's suicide as a defence if the suicide was caused in whole or in part by a defendant's breach of duty. In Myers v. County of Lake Indiana (1994) 30 F. 3d. 847 the United States Court of Appeals Seventh Circuit opined that Indiana law would probably not recognise intentional effects to commit suicide as defences to the tort of negligently failing to prevent suicide attempts. However, this opinion was expressed in the context of a defence which appeared to equiparate contributory negligence to novus actus interveniens and volenti non fit injuria as a complete defence rather than one resulting in reduced quantum of damages. I do not therefore consider that it advances Mr. Blake's argument.

    On the other hand Mr. Pannick referred to three United States cases one from a Federal Court of Appeals and two from States Supreme Courts in which suicide had been treated as amounting to contributory negligence. In Hickey v. Zezulka (1992) 487 N.W. 2d. 106 the majority of the Supreme Court of Michigan held that the contributory negligence of a prisoner who committed suicide could be taken into account in assessing damages for the jailer's breach of duty. In Molton v. City of Cleveland 839 F. 2d. 240 (1998) the United States Court of Appeals, Sixth Circuit, refused to disturb the decision of a jury as to the degree of contributory negligence found on the part of a prisoner who committed suicide. In Champagne v. United States of America (1994) 513 N.W. 2d. 75 the Supreme Court of North Dakota rejected an argument that the contributory negligence of the victim is never to be considered where suicide is a foreseeable result of a medical provider's failure to take reasonable steps to prevent it and held that where the patient was responsible for his own care allocation of fault was in order. Although I have referred to the circumstances of each of the six United States cases cited by counsel in relation to contributory negligence the only significant conclusion which I draw from them is that in the United States a deliberate act of suicide by someone in command of his senses does not necessarily bar a plea of contributory negligence in reduction of damages.

    My Lords, no United Kingdom authority has been cited in support of Mr. Blake's contention so far as the period before 1945 is concerned. This is perhaps not altogether surprising in view of the fact that the effect of contributory negligence at that time was identical to that of the defence of volenti non fit injuria. The authorities from New Zealand and the United States do not suggest that an act intentional both as to performance and consequences can never amount to contributory negligence. If the law is to retain the respect of the public it should where possible walk hand in hand with common sense. There are, of course, occasions where legislation both domestic and European appear to make this impossible but where there is no such legislative inhibition the law should be interpreted and applied so far as possible to produce a result which accords with common sense. To take an example A working beside a tank of boiling liquid which is inadequately guarded negligently allows his hand to come in contact with the liquid and suffers damage; B for a dare plunges his hand into the same liquid to see how long he can stand the heat. It would be bordering on the absurd if A's entitlement to damages were reduced but B could recover in full for his own folly. B's responsibility for the damage which he suffered is undeniable. I see no reason to construe section 4 of the Act of 1945 to produce such a result and I agree with the Lord Chief Justice that the word "fault" in that section is wide enough to cover acts deliberate as to both performance and consequences. An individual of sound mind is no less responsible for such acts than he is for negligent acts and it is his share of responsibility for the damage which reduces the damages recoverable.

    In this case the open flap was not a danger to an occupant of the cell acting normally with reasonable regard for his own safety. It only became a danger when it was deliberately used by the deceased as part of the mechanism whereby he strangled himself. The act of the deceased was accordingly a substantial cause of his own demise and any damages recoverable by the plaintiff should be reduced to reflect this.

    Were I sitting alone I would have apportioned the blame as to one third to the commissioner and as to two thirds to the deceased. However, I understand that the majority of your Lordships favour a 50/50 division of responsibility and I do not feel inclined to dissent from that view.

    In all the circumstances I would allow the appeal and make the same order as that proposed by my noble and learned friend Lord Hoffmann.

LORD HOPE OF CRAIGHEAD

My Lords,

    The problem with which this case is concerned is, sadly, all too familiar both to the police and to the prison authorities. It is well known that people are more likely to commit suicide when they are in prison or in a police cell than when they are at liberty. Research has shown that some prisoners are more at risk than others would be when detained in custody. Those who are mentally disordered, young persons on remand and those who are serving very long sentences are thought to be particularly vulnerable. In some cases the prison regime may be a contributory factor in a prisoner's decision to end his own life. In others there may be no such contributory factor. The act of suicide may be both unforeseen and unforeseeable. But in the present case the act was foreseeable, and it would not have occurred if reasonable care had been taken to prevent it.

    The deceased, who was then aged 29, died on 1 April 1990 as a result of having hanged himself on 23 March 1990 while he was in custody in Kentish Town Police Station. The judge said that, on the evidence, he was unable to conclude other than that the deceased was of sound mind at the time. He was not suffering from any marked medical or psychiatric condition. A doctor who had seen him earlier that day said that she had found no evidence of any psychiatric disorder or clinical depression and that he was calm and rational. There is no suggestion that there was anything in the conditions in which he was being held which might have prompted a rational person to wish to take his own life. On the other hand he had tried about three months previously to throttle himself with a belt when he was in a cell at Clerkenwell Magistrates' Court, having just been remanded in custody. In the light of this incident, which occurred on 29 December 1989, the court jailer completed a form which notified the prison authorities that he presented a special risk because he might have suicidal tendencies.

    After about ten days he was released from custody without further incident. But on 21 March 1990 he was arrested again following further police investigations into his activities. He was kept overnight at West Hampstead Police Station and transferred the next day to Willesden Police Station, where he was charged and kept overnight to appear at Brent Magistrates' Court on 23 March 1990. By the time when he arrived at the magistrates' court he had been identified as a suicide risk. He was placed in a cell on his own under close observation. Within five minutes he was seen to be on the floor attempting once again to throttle himself with a belt. As he was uninjured, he duly appeared before the magistrates who remanded him in custody. He was then transferred to Kentish Town Police Station, where all the responsible officers were alerted to the fact that he was a suicide risk as he had made an attempt at suicide that morning.

    He was examined by the doctor soon after his arrival at the police station. At 1.50 p.m. he was returned to his cell. Seven minutes later, at 1.57 p.m., he was checked by a police officer who saw him on his bed. Minutes later, no later than 2.05 p.m., when his cell was again checked he was found in a semi-crouched position by the door with his shirt tail round his neck, having strangled himself. He was cut down and artificial respiration was applied, but he died from his injuries a week later in hospital.
 

    The fact that the deceased, who was clearly determined to put an end to his own life, was able to achieve his aim so quickly despite being kept under observation by the custody officer was due to defects in the door of his cell. The wicket gate, or drop-down service hatch, on the cell door had been left open and the glass was missing from the spy hole above the wicket gate. The deceased had taken the opportunity of tying his shirt through the spy hole in order to form a ligature, with which he was then able to strangle himself. A Home Office circular of 10 April 1968 had warned police authorities and police officers of the need to ensure that fittings in cells should not provide opportunity for a prisoner to do himself injury. It had stated that, where cell doors were fitted with a drop-down service hatch, the hatch should not be left open when the cell was occupied by a prisoner, as with the hatch open it would be possible for a person inside the cell to secure a ligature on the handle of the hatch. In the present case the deceased did not need to use the handle, as the open spy hole provided him with an even more effective means of securing his ligature.

    The Commissioner accepts that he owed a duty of care to the deceased while he was in police custody. He also accepts that he was in breach of that duty, as the wicket gate was left open when the deceased was in the cell. But he submits that, as the deceased was of sound mind, his suicide in these circumstances did not give rise to a liability to his estate in damages. He seeks to distinguish this case from Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 QB 283, where the person who committed suicide was held to have been suffering from clinical depression when he took his own life while in police custody. His arguments on liability been maintained in your Lordships' House on three grounds: volenti non fit injuria, novus actus interveniens and contributory negligence.

    In my opinion it is necessary at the outset to identify the duty which was owed to the deceased by the Commissioner. There is no doubt that the Commissioner was right to concede that he owed a duty of care to the deceased while he remained in police custody. The deceased had been identified as a suicide risk, having on two previous occasions attempted to strangle himself with a belt after being placed in a cell. It was the Commissioner's duty to take reasonable care not to provide him with the opportunity of committing suicide by making use of defects in his cell door. The risk was not that he would injure himself accidentally if given that opportunity, but that he would do so deliberately. That is the nature of an act of suicide by a person who is of sound mind. It is a deliberate act of self-destruction by a person who intends to end his own life. So I think that the Commissioner's duty can most accurately be described as a duty to take reasonable care to prevent the deceased, while in police custody, from taking his own life deliberately.

    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 a 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 have assumed 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 and 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.

    But the duty of care may sometimes extend to preventing people injuring themselves deliberately. The person to whom the duty is owed may be unaware of the risks to which he will expose himself by his deliberate act. Or he may be too young to appreciate them, as in Yachuk v. Oliver Blais Co. Ltd [1949] AC 386, where petrol was sold to a child aged nine who was unaware of its dangerous properties, or Hughes v. Lord Advocate [1963] AC 837, where the inquisitive children meddled with objects in the unattended shelter in the roadway without thought as to the consequences. Or he may be of unsound mind, with the result that he is at risk of doing something to himself which no rational person would do as he would appreciate that to do this would inevitably lead to injury. Or the risk that the person may commit an act of deliberate self-harm may be the result of something which the defendant has done or is doing to him.

    That is the situation which may arise where a person who is of sound mind is deprived of his liberty and put in prison or detained in custody by the police. The duty of those who are entrusted with his custody is to take reasonable care for his safety while he remains in their hands. If it is known that he may engage in self-mutilation or suicide while he is in their custody, their duty is to take reasonable care to prevent him from engaging in these acts so that he remain free from harm until he is set at liberty. This duty is owed to the prisoner if there is that risk, irrespective of whether he is mentally disordered or of sound mind. It arises simply from the fact that he is being detained by them in custody and is known to be at risk of engaging in self-mutilation or of committing suicide. If the prisoner, while of sound mind, destroys himself despite all reasonable precautions to prevent him doing so, there is no liability: see Pallister v. Waikato Hospital Board [1975] 2 N.Z.L.R. 725, where the board was held not to have been negligent; Pretty on Top v. City of Hardin, (1979) 597 P.2d 58, where there was no evidence that the cause of the prisoner's suicide was anything other than his own intentional act; Sudderth v. White (1981) Ky. App. 621 S.W. 2d 33. But it is hard to see why liability should not follow if the prisoner was a known suicide risk and precautions which could have been taken to prevent a deliberate act of suicide were not taken by the police.

    This brings me to the first of the three arguments which the Commissioner has advanced in his defence, which is volenti non fit injuria. I do not see how that principle can be applied to a case where the loss, injury or damage was caused by the deliberate act of self-harm which the defendant was under a duty to take reasonable care to prevent. The situation would be different if a defendant who was under a duty to prevent the plaintiff from sustaining injury by accident or negligently was faced with a claim for damages arising from an injury which the plaintiff, in full knowledge of the risks, had done to himself deliberately. It might then be said that he had voluntarily assumed the risk of injury. But that is not this case. The deceased did to himself the very thing that the Commissioner was under a duty to take reasonable care to prevent while he remained in his custody. It is true that he deliberately exploited the situation which had been created by the Commissioner's negligence. But that was the thing which the Commissioner was under a duty to prevent, as it was the foreseeable consequence of his acting negligently.

    Similarly, I do not see how what occurred in this case could be said to amount to a novus actus interveniens. There was no "new" act here at all. The act by which the deceased killed himself was the very act which the Commissioner was under a duty to prevent by not leaving the wicket gate open when the deceased was in his cell and thus providing him with the means of hanging himself. The chain of causation was not broken. There was no "third factor", as explained by Hart and Honore, Causation in the Law, 2nd ed. (1985), p. 134, which might have negatived a causal connection between the wrongful act and the harm to the deceased. Here the wrongful act was the cause of the harm because it created the opportunity for the deliberate act of self-harm. The suicide was a foreseeable consequence of the failure in duty which occurred when the deceased, who was a known suicide risk, was placed in a cell which provided him with the opportunity to carry out that act.

    Support for this view can be found in cases from New Zealand, the United States and Canada. In Pallister v. Waikato Hospital Board [1975] 2 N.Z.L.R. 725, 742 Woodhouse J., who dissented on the question whether there was evidence that the Board were negligent, rejected the argument that the voluntary act of the deceased in throwing himself from the window of the hospital was a new and independent cause of his death. He said that in his opinion it was not, because it had been made possible by the removal of the precautions. The fall was the product of the Board's negligence, not independent of it. In Moulton v. City of Cleveland, 839 F.2d 240 (6th Cir. 1988), it was held that, as the deceased's suicide was well within the scope of the risk and was foreseeable, it was not an independent intervening cause resulting in no liability. In Funk v. Clapp, (1986) 68 D.L.R. (4th) 229, Seaton J.A. said that the doctrine of novus actus interveniens could not aid the defendants in that case, where the deceased had committed suicide in his cell by hanging himself from the top of his cell door with his own belt two hours after he had been arrested, on the ground that the act of negligence consisted in the failure to take reasonable care to guard against the very thing that happened: Stansbie v. Troman [1948] 2 K.B. 48, 51-52, per Tucker L.J.. There was evidence that the police were in breach of their duty, as they should have removed his belt before he was placed in the cell and checked at intervals to see if he was all right.

    There remains the question whether the damages should be reduced on the ground of contributory negligence and, if so, what should be the extent of the reduction. The first question raises an issue of statutory construction as well as an issue of principle. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides:

The word "fault" is defined by section 4 of the Act in these terms:

The question is whether this definition extends to a deliberate act such as that which the deceased performed when he strangled himself with the ligature.

    It has been said that this definition of "fault" comprises two limbs: Rowe v. Turner Hopkins & Partners [1980] 2 N.Z.L.R. 550, 555 per Pritchard J., in a passage which was approved by O'Connor L.J. in Forsikringsaktielskapet Vesta v. Butcher [1989] AC 852, 866E-G. The first limb, which is referable to the defendant's conduct, comprises various acts or omissions which give rise to a liability in tort. The second limb, which is referable to the plaintiff's conduct, deals with acts or omissions which would, but for the Act, have given rise to the defence of contributory negligence. The first is directed to the basis of the defendant's liability, while the second is concerned with his defence on the ground that the damage was the result partly of the plaintiff's own negligence. In Mouat v. Clark Boyce [1992] 2 N.Z.L.R. 559, 564- 565 Sir Robin Cooke P. departed to some extent from Pritchard J.'s views as to the proper interpretation of the words used in the first limb. But he did not disagree with the underlying analysis, which makes it clear that the question whether the deceased was at fault in this case must be considered with reference to the words used to describe the second limb.

    Mr. Blake said that the deceased's deliberate act fell outside the scope of the common law concept of contributory negligence. It would not have provided the Commissioner with a defence to the claim of damages, as it was his duty to prevent that very same act of intentional self-harm. He submitted that the defence of contributory negligence excluded the idea of deliberation, as the defence was based on the plaintiff's failure to take reasonable care: Salmond on Torts, 10th ed. (1945), p. 451. It would be inconsistent with a rejection of the defence of novus actus interveniens, on the ground that there was no intervening act to break the chain of causation, to hold that the deceased's own act had nevertheless contributed to the harm which resulted from it.

    This argument is not without substance, for the reasons which were explained by Buxton L.J. in his discussion of this question in the Court of Appeal: [1999] QB 169, 181-183. But I am unable to agree with it. In the first place, it seems to me that the consequences of this approach are unacceptable on policy grounds. It would mean that a plaintiff's award of damages could be reduced if it was held that he had contributed to his injury even to a small degree by his own negligence, but that it could not be reduced irrespective of the degree of the defendant's negligence if it was held that he had caused his own injury deliberately. This problem did not emerge until after the reform which was introduced by the Act of 1945. Until that Act introduced a new approach to the question of contributory negligence, the fact that the plaintiff's own act contributed to the damage was always a complete defence to the claim. It made no difference to the result whether his act was a negligent or a deliberate one. There was no need for the question to be explored, because there was no opportunity in either case for an apportionment of the liability in damages. But at least it can be said that no authority was cited from the law as it existed before the Act of 1945 which would make it impossible for us to say that a person was negligent, in the sense of failing to take reasonable care for his own safety, where he acted deliberately by inflicting harm on himself. That would lead to what I would regard as the proper result, which is that he should accept a share of the responsibility for the consequences.

    Next there is the analysis of the definition in section 4 into two limbs. I do not disagree with this analysis. But I think that it ought not to lead us to ignore its context, which is that of an apportionment of liability according to each party's share in the responsibility for the damage: see section 1(1) of the Act. It seems to me that the definition of "fault" in section 4 is wide enough, when examined as a whole and in its context, to extend to a plaintiff's deliberate acts as well as to his negligent acts. This reading of the word would enable the court, in an appropriate case, to reduce the amount of damages to reflect the contribution which the plaintiff's own deliberate act of self-harm made to the loss.

    The point that one should not be unduly inhibited by the use of the word "negligence" in the expression "contributory negligence" has been well made by Prosser & Keeton, Torts, 5th ed., (1984) section 65, p. 453 in a passage which appears as a footnote in Hickey v. Zezulka, (1992) 487 N.W. 2d 106, to which I refer later, at p. 123:

Then there is Buxton L.J.'s reference, [1999] QB 169, 182E, to the warnings which have been issued on policy grounds against permitting an employer's absolute duty under the Factories Acts to be undermined by an appeal to contributory negligence, especially where the contributory negligence alleged was the very thing which the statutory duty of the employer was designed to prevent: e.g. Hutchinson v. London and North Eastern Railway Co. [1942] 1 K.B. 481, 488 per Goddard L.J. I do not think that much, if anything, can be made of this point. The need for such extreme caution is less obvious now that the complete defence which was afforded by a finding of contributory negligence has been replaced by the provisions which the Act of 1945 made for reducing the amount of damages. Cases such as Hugh v. National Coal Board 1972 S.C. 252 show that judges have no difficulty in practice in making a finding of contributory negligence where a plaintiff has deliberately disobeyed instructions which his employer, in pursuance of an absolute statutory duty, has issued to his employees.

    Further support for the view that a finding of "contributory negligence" may be made where the plaintiff has injured himself deliberately can be found in decisions in other jurisdictions in cases where damages have been claimed following an act of suicide. In Pallister v. Waikato Hospital Board [1975] N.Z.L.R. 725, 736 Richmond J. doubted whether, if it had been established that the Board failed to use reasonable care to guard Mr. Pallister against his own suicidal tendencies, that could be called the sole cause of his death as the act of the deceased in jumping from a window would possibly amount to "fault" as defined by section 2 of the Contributory Negligence Act 1947. It was unnecessary to decide the point, as it was not argued in that case. But the question has been decided, as an issue about comparative fault, in several cases in the United States.

    In Molton v. City of Cleveland, (1988) 839 F.2d 240 (6th Cir.), the city's liability for the death of a detainee who committed suicide in a cell after being beaten by police officers was reduced by 20 per cent on the ground of the detainee's comparative fault. In Hickey v. Zezulka (1992) 487 N.W. 2d 106 (Mich.), it was held that the campus police officer who had been accused of negligence after a person whom he had arrested hanged himself in a cell was entitled to an instruction at the trial on comparative fault. The judges in the Michigan Supreme Court were not unanimous as to the need for such an instruction. But the majority view was that, while the plaintiff should not lose his cause of action because the act of suicide had been committed deliberately, the court should not go to the other extreme of holding that the defendant must assume all responsibility and liability for injuries that the plaintiff intentionally commits upon himself. The majority were also of the opinion that jurors were capable of reaching a rational and sensible balance between the deceased's deliberate fault and the jailer's negligence. As Riley J. put it at p. 124, the goal of establishing a fair system of apportionment of damages is not served, rather it is thwarted, when a slightly negligent defendant is held liable for 100 per cent of the damages caused principally by the plaintiff's wrongful intentional conduct. In Champagne v. United States of America (1994) 513 N.W. 2d. 75, after examining a number of cases about comparative fault in cases of suicide including the Hickey case, the Supreme Court of North Dakota rejected the argument that, when a patient's act of suicide is a foreseeable result of a medical provider's failure to treat reasonably to prevent the suicide, it is never appropriate to compare the victim's act of suicide with the medical provider's fault. If the patient was capable of being responsible for his own care, allocation of fault was in order. But a mentally ill patient could only be held to the degree of care permitted by his diminished capacity. The worse the suicidal patient's diminished capacity, the greater the medical provider's responsibility.

    I would apply that approach to the present case. The judge found that the deceased was of sound mind. One may question whether that is an appropriate description of a person who for no obvious reason decides to end his own life. But the judge felt that he was bound to proceed on the evidence and we also must accept that evidence. So there are no grounds for minimising the deceased's share of the responsibility on the basis of diminished mental capacity. Moreover the contribution which he made to the fatal outcome was clearly a substantial one. It was not only a deliberate act. The fact that it was done so quickly, within minutes of the last check of the cell, also indicates a determination on his part immediately to seize the opportunity before the time came for the next check. On the other hand the contribution which was made by the Commissioner's fault indicates that he too must bear a substantial share of the responsibility. The defects in the cell door fell clearly within the warning in the Home Office circular. Anyone taking reasonable care to prevent the deceased from committing suicide should have appreciated that these defects would provide him with the opportunity of taking that step as soon as he was left unobserved in the cell. In all the circumstances I agree with the view expressed by Lord Bingham of Cornhill C.J. in the Court of Appeal, [1999] QB 169, 198D-E, that responsibility for the suicide should be shared equally in this case between the deceased and to the Commissioner, and that the damages recoverable by the plaintiff should be reduced by 50 per cent.

    I would therefore allow the appeal and make the same order as that which has been proposed by my noble and learned friend Lord Hoffmann.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    This appeal raises two questions. The first is whether the death of Mr Lynch was caused by the negligence of the defendant. The second is whether, assuming that it was, the defendant has a defence under the Law Reform (Contributory Negligence) Act 1945. Your Lordships would answer both questions in the affirmative. It was a forensic paradox (as confirmed by the judgment of Lord Justice Buxton in the present case) that the argument of each side on the second question was persuasive to undermine its argument on the first question. If however the first question is, contrary to my view, to be answered in favour of the plaintiff, then I see no difficulty in answering the second question in favour of the defendant nor, on that hypothesis, would I differ from your Lordships' opinion, in agreement with the preferred view of Lord Bingham L.C.J., that the reduction in the plaintiff's recoverable damages should be 50%. In this speech I will therefore confine myself to the first question, the question of causation.

    The plaintiff's cause of action arises out of the death of her former husband, Mr Lynch. She is to be taken as having sued under both the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. Under sections 1(1) of each of these Acts, the plaintiff is not entitled to assert any cause of action which the deceased could not have asserted if he had survived and the defendant can rely upon the defences he would have had against the deceased. (See also s.5 of the 1976 Act.) This needs to be stressed at the outset since there are indications in the judgments of both Buxton L.J. and Lord Bingham in the Court of Appeal in the present case that they were influenced by the fact that the action was being brought for the benefit, not of the deceased, but of his relatives. But it is fundamental that it is the deceased's cause of action (if any) which is being sued on. For the purposes of my discussion of causation it is both convenient and right to treat the deceased as the plaintiff. The principles of law to be applied are those which relate to the assessment of the conduct of a plaintiff as the cause of his own loss.

    The starting point in the present case is the acceptance that the defendant owed Mr Lynch a duty of care. As Lord Bingham put it, [1998] 2 WLR 392, 424,

(This duty is an application of the more general duty to take reasonable care of a person in one's custody: Reg. v. Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58) Lord Bingham emphasised that the duty was a duty to take reasonable care and not to guarantee that a fatality did not occur. He then went on to say in two similar passages (at pp. 424-425):

I would draw attention to three features of these two passages. The first is that Lord Bingham apparently does not accept that any conduct of the suicide would be capable of constituting the sole legal cause of his death. The second is the peculiarity of the present case that the deceased was held by the trial judge to have been of sound mind in contrast with the finding which had been made in Kirkham v. Chief Constable of the Greater Manchester Police [1990] 2 QB 283, and had formed the basis of the Court of Appeal's decision in that case. The third is the use of metaphors and Latin tags which I will suggest have outlived their usefulness and now only serve to cause confusion (a view expressed by Lord Sumner as long ago as 1915: British Columbia Electric Railway Co. Ltd. v. Loach [1916] 1 A.C. 717, 727-728).
 

    My Lords, in relation to the first feature, let me take two hypothetical situations, neither unduly fanciful. Suppose that the detainee is a political agitator whose primary motivation is to further a political cause. Such persons are liable to see self-destruction, in circumstances which they hope will attract as much publicity and media attention as possible, as an appropriate means of advancing their political cause. Can such a person, having taken advantage of a careless oversight by the police and carried out his purpose, vicariously bring an action against the police and recover damages from them? Or suppose a detainee who and whose family are in serious financial difficulties and who, knowing what the Court of Appeal decided in the present case, says to himself "the best way for me to help those I love is to commit suicide" and then carries out that purpose by taking advantage of the careless oversight. As Mr Pannick Q.C. said in argument, he might even leave a suicide note for his wife telling her this. In cases such as these it would be surprising if the courts were to say that, notwithstanding the determinative, rational and deliberate choice of the deceased, that choice had not become the only legally relevant cause of the death. It would also in my judgment be contrary to principle. It certainly would be contrary to principle to resort to the fiction of saying that he was guilty of 100% contributory negligence: if the responsibility for his death was his alone, the principled answer is to say that the sole legal cause was his own voluntary choice. Yet, if such a case were hereafter to come before a court, that court, on the basis of the majority decision of the Court of Appeal, would be bound to award the plaintiff damages.

    I give these examples to illustrate the need to identify a dividing line unless one is to say that even in such cases the deliberate voluntary choice of the deceased, the quasi-plaintiff, can never break the chain of causation. The view accepted by the majority of the Court of Appeal reduces all such questions to an examination of the scope of the duty of care or remoteness (which in the context of the law of negligence is effectively the same thing: Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound) [1961] AC 388). The reason why this is contrary to principle is that it is a basic rule of English law that a plaintiff cannot complain of the consequences of his own fully voluntary conduct--his own "free, deliberate and informed" act: see Hart and Honore: Causation in the Law, 2nd ed. (1985), p. 136. This principle, overlooked by the plaintiff, is to be found in a variety of guises in most branches of the law. In the law of tort it overlaps with other principles and invites recourse to expressions (usually Latin maxims) not all of which have a consistent usage.

    One such guise is that a party cannot rely upon his own unlawful or criminal conduct: the so-called ex turpi causa non oritur actio maxim. Until the passing of the Suicide Act 1961, suicide was a crime and accordingly a person who committed that crime could acquire no rights thereby. But it was always open to the interested party to say that the suicide was not criminally responsible because of insanity, usually temporary insanity. The insanity negatived both the criminal character of the conduct and its immorality. This principle is no longer relevant to the present type of case and has not been relied upon by the defendant before us. I agree with the unanimous rejection by the Court of Appeal of this defence. But it is necessary to mention it since the terminology of insanity has properly been used in cases in the past and has, since then, still tended confusingly to colour some of the judicial language. The contrast now is not between sane and insane behaviour but between conduct of the plaintiff which can and cannot be properly described as voluntary.

    Suicide is within the range of conduct lawfully open to a person: personal autonomy includes the right to choose conduct which will cause that person's death and the right to refuse to allow others to obstruct that choice. (Airedale N.H.S. Trust v. Bland [1993] AC 789, St. George's Healthcare Trust v. S. [1999] Fam 26) Imprisonment does not deprive the prisoner of that autonomy. (Freeman v. Home Office (No. 2) [1984] 1 Q.B. 524) It would also be wrong to treat the principle of illegality or public policy as the answer to the illustrative hypothetical examples which I have given. Our culture has always regarded the willingness to sacrifice one's life for a cause or for the benefit of others as laudable not reprehensible.

    In the context of suicide, these points are illustrated by the classic decision of your Lordships' House, Beresford v. Royal Insurance Co. Ltd. [1938] A.C. 586. There the assured who was sane decided, in circumstances not dissimilar to those postulated by Mr Pannick in argument, that copious life insurance followed by deliberate suicide was the answer to the grave financial problems with which he and his family were faced. The assured's heir was unable to recover under the policies for two primary reasons. "No system of jurisprudence can with reason include among the rights which it enforces rights directly resulting to the person asserting them from the crime of that person" (at p. 596, quoting Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147, 156). The other was: "On ordinary principles of insurance law, an assured cannot by his own deliberate act cause the event upon which the insurance money is payable." (p. 595) The causation question is independent of the crime/public policy question and remains notwithstanding the removal of other.

    The legal problem in the present case arises because of the particular findings of fact which the trial judge made about the state of mind of Mr Lynch. Were it not for those findings, the case would have been indistinguishable from the decision in Kirkham; but, as it was, he rightly considered that he should follow the reasoning of the Court of Appeal in that case and dismiss the claim. Lord Bingham was clearly surprised by the findings which the trial judge had made. I can understand his reaction. It might be thought that any person locked up in a cell was almost certainly being subjected to abnormal stresses which would be liable to cause him to act in an irrational fashion and do things which he would not normally contemplate; he may suffer impulses which he would not normally suffer. He may be in all other respects a normal person. He may not be mentally ill or otherwise suffering from any disturbance of the mind. It is the general experience of those concerned with prison administration and the custody of persons in police stations that the risk of suicide or self-harm exists among those confined whether they be suffering from some frank mental condition or appear to be relatively undisturbed. Your Lordships have been referred to reports and statistics which support this and the risk is clearly recognised in the instructions and recommendations issued by the Police Authorities and the Home Department. The risk of suicide is a concern of those responsible for holding persons in custody and within their contemplation. But it was the trial judge who heard the evidence, including expert evidence, and made the findings, being fully aware of their significance, and his findings have not been challenged.

The Facts:

    Mr Lynch committed suicide whilst left in a police cell unobserved for a period of about 8 minutes between 1.57pm and 2.05pm. He had been identified as a suicide risk. He had however been put in a cell with a defective door. The glass spy-hole was broken and the glass missing. The flap on the door was also defective and could not be shut properly. In fact it was left open. This created what was a known opportunity for a prisoner to rig a ligature and strangle himself. It was this opportunity which Mr Lynch took.

    He was treated as a suicide risk because he had earlier that day whilst in a cell at the Magistrates Court attempted to throttle himself. At the police station he had been seen by a doctor between 1.40pm and 1.50pm who was able to observe mark upon his neck consistent with that having occurred. He claimed to be bored. The doctor's assessment was that he appeared calm and rational with no evidence of mental disturbance.

Judge White found:

(The "difficult circumstances" referred to were that Mr Lynch was facing a trial on serious criminal charges.)

    The character of the act in question has been well described by my noble and learned friend Lord Hope of Craighead: "the nature of an act of suicide by a person who is of sound mind . . . is a deliberate act of self- destruction by a person who intends to end his own life." Mr Lynch's act was deliberate and voluntary and no question of its being uninformed arises. Indeed it was because he knew of the defendant's oversight that he was in a position to take advantage of it.

Kirkham v. Chief Constable of the Greater Manchester Police:

    In this case the Court of Appeal held that a prisoner's wife was held entitled to recover damages in the tort of negligence for the suicide of her husband whilst in custody. But that case was specifically decided on basis that Mr Kirkham had at the material time been suffering from clinical depression. Lloyd L.J. said at p. 290:

This decision was binding upon the Judge White in the present case. He followed what Lloyd L.J. said and concluded that volenti non fit injuria provided the defendant with a defence. (He was prepared to hold that the claim failed on other grounds as well.)

In the Court of Appeal:

    There was no appeal against Judge White's findings of fact. Only points of law were raised on appeal to the Court of Appeal (causation, volenti non fit injuria, novus actus interveniens, public policy/ex turpi causa, and contributory negligence). The Court of Appeal decided the appeal (as they were bound to) on the basis of the judge's findings of fact. The suicide was the deliberate act of a man of sound mind. The majority allowed the appeal because they held that as a matter of law, regardless of Mr Lynch's state of mind, the defences of lack of causation and volenti were not apt.

    I have already quoted from the judgment of Lord Bingham. The reasoning of Buxton L.J. was similar but went rather further. He gave a number of grounds for rejecting the causation/volens argument. He held that the defence was inconsistent with the duty which contemplated and was directed to the very act of suicide; he adopted the alternative ground of Farquharson L.J. in Kirkham at p. 295 -

This is a mistaken analysis. The act of the deceased relied upon as providing the defence is not the act of suicide: it is the voluntary choice which precedes the act of suicide. His second ground involves a similar error; he suggests that the claim could never succeed and the duty is owed to those who are of sound mind as well as to those who are not. The defence does not affect or negative the duty of care. It presupposes the existence of such a duty and that it has been broken in a factually relevant way. Where, as in Kirkham and the New Zealand case Pallister v. Waikato [1975] 2 N.Z.L.R. 725, the deceased was not of sound mind at the relevant time, the defence will fail. As every one accepts, the cases where the defence will succeed will be exceptional. But this is not a reason for denying the defence when exceptionally such a case occurs. Buxton L.J. and Lord Bingham argued that evidentially it was impractical to apply a rule which involved examining the deceased's state of mind and considering whether or not he had acted voluntarily. The difficulties are for the defendant. The burden of proof, either legal or evidential, is upon him. (Williams v. Birmingham Battery and Metal Co. [1899] 2 Q.B. 338) In the exceptional case where the defendant can satisfy the judge of fact, the finding should be acted upon. Similarly Buxton L.J. argued that the situation did not meet the technical features of the defence of volenti since it did not involve the element of acceptance of risk. There are two answers to these arguments. First, the deceased did voluntarily accept the consequence of the defendant's negligence; observing what had occurred, he voluntarily chose to take advantage of it. Secondly, even were the strict criteria of volenti not satisfied, there still remains the question of legal causation and the principle that a plaintiff cannot complain of the consequences of his own free and deliberate choice.

    The proposition of law facing the defendant on this appeal is that the scope of the duty of care which he owed to the deceased (and which he broke) precludes any scope for relying on the causation and volenti defences--that as a matter of law they are not apt and therefore cannot be entertained.

Causation:

    My Lords, causation as discussed in the authorities has been complicated both by conflicting statements about whether causation is a question of fact or of law or, even, 'common sense' and by the use of metaphor and Latin terminology, eg, causa sine qua non, causa causans, novus actus and volenti, which in themselves provide little enlightenment and are not consistently used.

    At one level causation is purely a question of fact. It is a question of fact whether event 'a' was a cause of event 'x'. To simplify, it is a factual question whether event 'x' would still have occurred if event 'a' had not. However facts are not that simple. Virtually every event will have a number of antecedent facts which satisfy such a factual test. The ordinary use of language then distinguishes between them, choosing some and discarding others. The presence of oxygen is a necessary cause of combustion yet it is not normally treated as being a cause. This is because it is part of the normal environment and therefore is disregarded when identifying the cause of some abnormal event. (In certain circumstances, oxygen is not or should not be part of the normal environment, eg in tanks used for the sea carriage of petroleum, in which case its presence would be identified as a cause.) The ordinary use of language makes a distinction, independent of any legal concept, between the normal and the abnormal in describing something as a cause.

    This use of language is most easily observed in relation to physical events but is also applied to human conduct. Reasonable human responses to situations are not treated as causative; they are a normal consequence of the antecedent event and it is that event which is described as the cause. Thus the reasonable response of a rescuer to an accident caused by the negligence of another would not without more be described as a cause of an injury suffered by the rescuer. Similarly, to act reasonably on the faith of some misinformation is normally described as a consequence not as a cause. Human conduct, which is not entirely reasonable, for example, where it is itself careless, but is within the range of human conduct that is foreseeable and normally contemplated as not unlikely, may add a further cause of the relevant subsequent event but would not normally mean that an earlier relevant event ceased also to be a cause of that later event. Careless conduct may ordinarily be regarded as being within the range of normal human conduct when reckless conduct ordinarily would not.

    Any disputed question of causation (factual or legal) will involve a number of factual events or conditions which satisfy the "but for" test. A process of evaluation and selection has then to take place. It may, for example, be necessary to distinguish between what factually are necessary and sufficient causes. It may be necessary to distinguish between those conditions or events which merely provide the occasion or opportunity for a given consequence and those which in the ordinary use of language would (independently of any imposed legal criterion) be said to have caused the relevant consequence. Thus certain causes will be discarded as insignificant and one cause may be selected as the cause. It is at this stage that legal concepts may enter in, either in a way that is analogous to the factual assessment--as for "proximate" cause in insurance law--or, in a more specifically legal manner, in the attribution of responsibility (bearing in mind that responsibility may not be exclusive). In the law of tort it is the attribution of responsibility to humans that is the relevant legal consideration.

    The attribution of human responsibility is often a complex exercise since it involves an examination of the legally relevant features of the consequence in question and the legally relevant features of the conduct complained of (eg The Empire Jamaica [1957] A.C. 386) in conjunction with or in contrast to other human conduct which may also be factually relevant. Legal criteria (maybe fact sensitive) have to be applied. At this level causation is a question of law. Now is not the time to enter upon an exhaustive examination of the legal criteria. For present purposes two categories are directly relevant.

    Before examining these two categories, however, I would stress three points. First, a distinction is drawn between natural and human phenomena. Save in theologically inspired language now long discarded, responsibility is not attached to natural events. The only consideration to which they give rise is remoteness. Secondly, human conduct in contrast can have a double relevance, both to remoteness and to attracting legal and moral responsibility. But, for most purposes in the law, and in particular in the law of tort, all a plaintiff need prove is that the defendant's tort was a cause of the loss in respect of which the plaintiff claims. If two or more tortfeasors have each contributed to causing the plaintiff's loss, each of them is severally liable for that loss. Remoteness is, again, the only relevant consideration. Unless the conduct of one tortfeasor has been such as to take the consequence out of the scope of another's tortious duty and render it too remote, the liability of one does not preclude the claim of the plaintiff against each.

    Thirdly and most importantly in the present context, there is a radical distinction between the conduct of the plaintiff and the conduct of third parties. To overlook this distinction will inevitably lead to error. At one level where it merely involves some lack of care or breach of duty it reduces but does not negative the plaintiff's right of recovery; this is the position (now) where there is contributory negligence. Failure to mitigate can be similarly analysed (though it can also be analysed pro tanto in terms of remoteness or causation). Where deliberate voluntary conduct of the plaintiff is involved in the knowledge of what the defendant has done, the plaintiff cannot disclaim responsibility for the consequence: he has caused his own loss. His conduct has a different impact to that of a third party.

Remoteness:

    The first category is the concept of remoteness. In the law of tort, the question is whether the consequence complained of, although factually caused by the defendant's act or omission, was legally too remote. This in turn, in relation to negligence, involves an inquiry into what was reasonably foreseeable by the defendant at the relevant time and what matters came within the scope of the duty of care which the defendant owed to the plaintiff. (The Wagon Mound [1961] AC 388, Caparo Industries Plc. v. Dickman [1990] 2 AC 605.) Where other factually causative human conduct is concerned, the application of these tests provides the legal answer. Foreseeable human conduct which falls within the scope of the duty of care is not too remote, even if dishonest or criminal. A clear illustration of this is the well known case of Stansbie v. Troman [1948] 2 K.B. 48. A decorator was left in charge of the plaintiff's house. He went out to buy some more rolls of wall paper leaving the front door unlocked. As a result a burglar was able to enter and steal the plaintiff's diamond bracelet. The decorator was liable notwithstanding the intervening criminal act of the burglar. The burglar's act was both foreseeable and within the scope of the duty owed by the defendant to the plaintiff. (Of course this does not mean that the burglar was not also legally responsible.) The conclusion can be expressed in a number of ways: the defendant's negligence caused the plaintiff's loss; the plaintiff's loss was not too remote; the burglar's act was not a novus actus interveniens. As discussed in Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. [1998] 2 WLR 350, [1998] 1 All ER 481, it is necessary to evaluate the subsequent human intervention in conjunction with the essential character of the fault of the defendant.

    This principle also extends to conduct of the plaintiff. Was the conduct of the plaintiff foreseeable? Was it within the scope of the duty of care owed by the defendant to the plaintiff? Where the plaintiff is a child, the predictable conduct of the child will not make the child's injury too remote; indeed it is usually the foundation of the defendant's liability to the child. (Yachuk v. Oliver Blais Co. Ltd. [1949] AC 386) Where the defendant's conduct has created a dangerous situation either for the plaintiff or another, the conduct of the plaintiff in response to that danger will not be too remote. (Scott v. Shepherd (1773) 3 Wils. 403; Haynes v. Harwood [1935] 1 K.B. 146) Where the defendant has set out to deceive the plaintiff, the success of that deception even though others might not have been deceived does not render the plaintiff's loss too remote; intended consequences are not too remote. Many other examples could be given. Where the conduct of the plaintiff has also been blameworthy, justice is achieved by applying the provisions of the Law Reform (Contributory Negligence) Act 1945. On the other hand, conduct, whether of the plaintiff or any other person, which is of such a character as to remove the relevant factual consequence from the scope of the relevant duty owed by the defendant to the plaintiff or take it outside the range of what was reasonably foreseeable, will by the same criteria make the consequence too remote for it to be said that it was caused by the relevant act or omission of the defendant.

    Thus far, my Lords, these legal principles present no obstacle to the plaintiff in the present case. The suicide of Mr Lynch was foreseeable; it was within the scope of the duty of care owed by the defendant to Mr Lynch. If the plaintiff or some other person had an independent cause of action of their own against the defendant, say for nervous shock, in connection with what occurred that day in Kentish Town Police Station, the conduct of Mr Lynch would not make the loss suffered by such a person too remote. The Court of Appeal and your Lordships have been right to reject the defence of novus actus. But where, in my judgment, the majority of the Court of Appeal went wrong was to stop there. They rejected wholly any relevance of the second category of legal principle. It would be wrong to be too critical since, as was illustrated by the argument in your Lordships' House, counsel too tended to make the same error.

The Responsibility of the Plaintiff:

    The second category of legal principle to which I must refer is that which relates to the responsibility of the plaintiff for that of which he complains. A number of principles are involved. First there is the fundamental principle of human autonomy. Where a natural person is not under any disability, that person has a right to choose his own fate. He is constrained in so far as his choice may affect others, society or the body politic. But, so far as he himself alone is concerned, he is entitled to choose. The choice to commit suicide is such a choice. A corollary of this principle is, subject to the important qualification to which I will refer, the principle that a person may not complain of the consequences of his own choices. This both reflects coherent legal principle and conforms to the accepted use of the word cause: the person's choice becomes, so far as he is concerned, the cause. The autonomy of the individual human confers the right and the responsibility.

    To qualify as an autonomous choice, the choice made must be free and unconstrained--ie, voluntary, deliberate and informed. If the plaintiff is under a disability, either through lack of mental capacity or lack or excess of age, the plaintiff will lack autonomy and will not have made a free and unconstrained choice. Child plaintiffs come into this category. Both as a matter of causation and the attribution of responsibility, their conduct does not (without more) remove the responsibility of the defendant or transfer the responsibility to the child plaintiff. (Yachuk sup.) Similarly, plaintiffs suffering from a temporary or a more serious loss of mental capacity (Kirkham; Pallister; Pigney v. Pointers' Transport Services Ltd. [1957] 1 W.L.R. 1121), will not have made the requisite free and unconstrained choice. Where the plaintiff's lack of mental capacity has been caused by the defendant's breach of duty, the entitlement to recover is all the stronger. On the same basis choices made under constraint of circumstances, such as those made by rescuers or persons placed in immediate danger, will not carry with them the consequence that the choice was the sole cause of the subsequent injury to the plaintiff nor will it result in his bearing the sole responsibility for his injury. (Haynes v. Harwood sup: cf Cutler v. United Dairies London Ltd. [1933] 2 K.B. 297) The same applies if the plaintiff's choice was vitiated by misinformation or lack of information. In the context of employment, the question of the reality of the employee's assent and his acceptance of risk has been the subject of many decisions; perhaps the most illuminating discussion for present purposes is to be found in Imperial Chemical Industries Ltd. v. Shatwell [1965] AC 656, particularly per Lord Hodson at pp. 680-681 where he stresses that the plaintiff's conduct cannot be described as voluntary unless he truly had a free choice. (The case also, like Stapely v. Gypsum Mines Ltd. [1953] AC 663, illustrates the distinction between lack of care for one's own safety and the true acceptance of risk.) These qualifications are fundamental and are the basis of the decisions where a plaintiff has been held entitled still to sue notwithstanding his having made a choice which led to the event of which he complains.
 

    The simplest way in which to express the relevant principles, both the basic principle of autonomy and the qualification, is in terms of causation. Both as a matter of the ordinary use of language and as a matter of law it is correct to say that the plaintiff's voluntary choice was the cause of his loss. Another partial expression of this principle is the maxim volenti non fit injuria. This maxim, originating from a rather different Roman law context, is a notorious source of confusion. (Dann v. Hamilton [1939] 1 K.B. 509) In intentional torts it means consent by the plaintiff to the act which would otherwise be the tort. In the law of negligence it means the acceptance variously of the risk created by the defendant's negligence or of the risk of the defendant's negligence. In such cases it is probably best confined to cases where it can be said that the plaintiff has expressly or impliedly agreed to exempt the defendant from the duty of care which he would otherwise have owed (Nettleship v. Weston [1971] 2 QB 691), a formulation which, it will be appreciated, immediately brings the maxim into potential conflict with s. 2 of the Unfair Contract Terms Act 1977. It will also be appreciated that so interpreted the maxim would only have an artificial application to the facts of the present case. The suggestion that Mr Lynch was agreeing to exempt the Police Authority from anything is both objectionable and wholly unrealistic. (It may be that this consideration understandably coloured counsel's presentation of the defendant's case.)

    But, my Lords, if the question raised by Mr Lynch's conduct is seen as a question of causation, these artificialities fall away. If Mr Lynch, knowing that the police officers had put him in a cell with a defective door and had failed to close the hatch, then voluntarily and deliberately, in full possession of his faculties, made the rational choice to commit suicide, principle and language say that it was his choice which was the cause of his subsequent death. He was not, on the judge's findings, acting under any disability or compulsion. He made a free choice: he is responsible for the consequence of that choice.

Conclusion:

    I would allow the appeal and direct judgment to be entered for the defendant. The argument of the plaintiff and the decision of the majority of the Court of Appeal disclose errors of law. They fail to have adequate regard to the fact that the action is to be decided as if Mr Lynch was the plaintiff. They treat remoteness as the sole criterion of recovery. They do not recognise the principle that a plaintiff who by his own voluntary choice deliberately chooses to cause the loss which he seeks to recover from the defendant cannot thereafter say that his choice was not the sole cause of his loss. The decision of the Court of Appeal is also worrying since it fails to provide any dividing line between cases where the plaintiff can recover and those where he cannot and, in view of the findings of fact that were made in the present case, leaves it open for any suicide to recover once some negligence on the part of the prison or police authorities has been shown. I do not consider that this is the law.


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