Status: Positive or Neutral Judicial Treatment

*884 Corr v IBC Vehicles Ltd

House of Lords

27 February 2008

[2008] UKHL 13

[2008] 1 A.C. 884

Lord Bingham of Cornhill , Lord Scott of Foscote , Lord Walker of Gestingthorpe , Lord Mance andLord Neuberger of Abbotsbury

2007 Dec 3, 4, 5; 2008 Feb 27

Negligence—Causation—Suicide—Employee suffering serious injury at work—Employer admittingnegligence and/or breach of statutory duty—Employee suffering post-traumatic stress disorderleading to severe depression and eventual suicide—Whether employer liable for suicide—Whethersuicide reasonably foreseeable—Contributory negligence— Fatal Accidents Act 1976 (c 30), ss 1, 5

In 1996 the claimant's husband was employed by the defendant as a maintenance engineerwhen he suffered severe head injuries caused by malfunctioning machinery. Following lengthyreconstructive surgery, he began to suffer post-traumatic stress disorder causing him to lapseinto depression. Prior to the accident he had been a happily married man of equabletemperament. In February 2002 he was admitted to hospital after taking a drug overdose; byMarch he was diagnosed as being at significant risk of suicide; in May he was further diagnosedas suffering from severe anxiety and depression, and three days later he committed suicide byjumping from the top of a multi-storey car park. The claimant, his widow and the administratrix ofhis estate, brought proceedings against the defendant. The defendant admitted that the accidenthad been caused by its negligence and/or breach of statutory duty, but denied liability undersection 1(1) of the Fatal Accidents Act 1976 1 for the deceased's suicide. It also pleaded that thedeceased had been guilty of contributory negligence for the purposes of section 5 of the Act. Thejudge awarded damages of £85,000 for the widow's claim on behalf of the deceased's estate butdismissed her Fatal Accidents Act claim, holding that the defendant's duty of care to thedeceased had not extended to a duty to take care to prevent his suicide and that the suicide hadnot been reasonably foreseeable by the defendant. He made no finding as to contributorynegligence. The Court of Appeal allowed the claimant's appeal against the judge's dismissal ofher claim under the Fatal Accidents Act 1976 .

On appeal by the defendant—

Held , dismissing the appeal, that an employer owed his employee a duty to take reasonablecare to avoid causing him personal, including psychiatric, injury, and foreseeability of risk ofphysical injury was sufficient to establish liability; that the depressive illness from which thedeceased had suffered had been the direct and foreseeable consequence of the accident forwhich the defendant had been responsible; that his suicide, although his own deliberate,conscious act, had been the direct result of that depressive illness at a time when his capacity tomake reasoned and informed judgments about his future had been impaired by it, and,accordingly, the chain of causal consequences for which the defendant was liable had not beenbroken by the suicide as a novus actus interveniens; and that (Lord Scott of Foscote dissenting)it would be inappropriate to reduce the damages to be awarded to the claimant on the basis ofthe deceased's contributory negligence in the absence of satisfactory material on which to decidewhether such a reduction should be made, and in what amount (post, paras 10, 13, 16, 20, 29,34, 42–44, 46, 47, 53, 56, 57, 70).

Page v Smith [1996] AC 155, HL(E) and dicta of Lord Rodger of Earlsferry in Simmons v British

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Steel plc [2004] ICR 585, para 67, HL(Sc) applied .

*885

Per Lord Mance and Lord Neuberger of Abbotsbury. A reduction in damages for contributory faultcould in principle be appropriate in circumstances such as those in the present case (post, paras47, 58).

Decision of the Court of Appeal [2006] EWCA Civ 331 ; [2007] QB 46 ; [2006] 3 WLR 395 ;[2006] ICR 1138 ; [2006] 2 All ER 929 affirmed .

The following cases are referred to in their Lordships' opinions:

AMP v RTA [2001] NSWCA 186; [2001] Aust Torts Reports 81–619

Champagne v United States of America (1994) 513 NW 2d 75

Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455; [1998] 3 WLR 1509;[1999] ICR 216; [1999] 1 All ER 1, HL(E)

Hughes v Lord Advocate [1963] AC 837; [1963] 2 WLR 779; [1963] 1 All ER 705, HL(Sc)

Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283; [1990] 2 WLR987; [1990] 3 All ER 246, CA

McFarland v Stewart (1900) 19 NZLR 22

M'Naghten's Case (1843) 10 Cl & F 200

Murdoch v British Israel World Federation (New Zealand) Inc [1942] NZLR 600

Page v Smith [1994] 4 All ER 522, CA; [1996] AC 155; [1995] 2 WLR 644; [1995] 2 All ER736, HL(E)

R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269; [2007] 3 WLR 612; [2007] 4 All ER1083, HL(E)

Reeves v Comr of Police of the Metropolis [1999] QB 169; [1998] 2 WLR 401; [1998] 2 All ER381, CA; [2000] 1 AC 360; [1999] 3 WLR 363; [1999] 3 All ER 897, HL(E)

St George's Healthcare NHS Trust v S [1999] Fam 26; [1998] 3 WLR 936; [1998] 3 All ER673, CA

Simmons v British Steel plc [2004] UKHL 20; [2004] ICR 585, HL(Sc)

Smith v Leech Brain & Co Ltd [1962] 2 QB 405; [1962] 2 WLR 148; [1961] 3 All ER 1159

Stapley v Gypsum Mines Ltd [1953] AC 663; [1953] 3 WLR 279; [1953] 2 All ER 478, HL(E)

Wright Estate v Davidson (1992) 88 DLR (4th) 698

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The following additional cases were cited in argument:

Allan v Barclay (1864) 2 M 873

Aneco Reinsurance Underwriting Ltd v Johnson & Higgins Ltd [2001] UKHL 51; [2002] 1Lloyd's Rep 157, HL(E)

Attorney General of the British Virgin Islands v Hartwell [2004] UKPC 12; [2004] 1 WLR 1273,PC

Bourhill v Young [1943] AC 92; [1942] 2 All ER 396, HL(Sc)

Church v Dugdale & Adams Ltd (1929) 22 BWCC 444, CA

Clunis v Camden and Islington Health Authority [1998] QB 978; [1998] 2 WLR 902; [1998] 3All ER 180, CA

Cowan v National Coal Board 1958 SLT (Notes) 19

Cross v Highlands and Islands Enterprises 2001 SLT 1060

Dixon v Sutton Heath and Lea Green Colliery Ltd (No 2) (1930) 23 BWCC 135, CA

Holdlen Pty Ltd v Walsh [2000] NSWCA 87

Jolley v Sutton London Borough Council [2000] 1 WLR 1082; [2000] 3 All ER 409, HL(E)

Jones v Jones [1985] QB 704; [1984] 3 WLR 862; [1984] 3 All ER 1003, CA

Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883;[2002] 2 WLR 1353; [2002] 3 All ER 209; [2002] 1 All ER (Comm) 843, HL(E)

Lisle v Brice [2001] QCA 271; [2002] 2 Qd R 168 *886

McKew v Holland & Hannens & Cubitts (Scotland) Ltd 1970 SC(HL) 20; [1969] 3 All ER 1621,HL(Sc)

McKillen v Barclay Curle & Co Ltd 1967 SLT 41

McLoughlin v O'Brian [1983] 1 AC 410; [1982] 2 WLR 982; [1982] 2 All ER 298, HL(E)

Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353, CA

Meah v McCreamer [1985] 1 All ER 367

Meah v McCreamer (No 2) [1986] 1 All ER 943

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Orange v Chief Constable of West Yorkshire Police [2001] EWCA Civ 611; [2002] QB 347;[2001] 3 WLR 736, CA

Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1AC 617; [1966] 3 WLR 498; [1966] 2 All ER 709, PC

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961]AC 388; [1961] 2 WLR 126; [1961] 1 All ER 404, PC

Pallister v Waikato Hospital Board [1975] 2 NZLR 725

Pigney v Pointer's Transport Services Ltd [1957] 1 WLR 1121; [1957] 2 All ER 807

Polemis and Furness Withy & Co Ltd, In re [1921] 3 KB 560, CA

Pritchard v J H Cobden Ltd [1988] Fam 22; [1987] 2 WLR 627; [1987] 1 All ER 300, CA

R v Johnson [2007] EWCA Crim 1978, CA

R v Roberts (1971) 56 Cr App R 95, CA

Rahman v Arearose Ltd [2001] QB 351; [2000] 3 WLR 1184, CA

Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39; [2008] 1 AC 281; [2007] 3 WLR876; [2007] 4 All ER 1047, HL(E)

Withers v London, Brighton and South Coast Railway Co [1916] 2 KB 772, CA

APPEAL from the Court of Appeal

This was an appeal by the defendant employer, IBC Vehicles Ltd, by leave of the House of Lords(Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Baroness Hale of Richmond) given on 11July 2006 from the majority decision of the Court of Appeal (Sedley and Wilson LJJ, Ward LJdissenting) on 31 March 2006 allowing an appeal by the claimant, Mrs Eileen Corr, as a dependant ofher deceased husband, Thomas Corr, from the decision of Nigel Baker QC who, sitting as a deputyjudge of the Queen's Bench Division on 26 April 2005 [2005] EWHC 3409 (QB), had dismissed herclaim for damages under the Fatal Accidents Act 1976 .

The facts are stated in the opinion of Lord Bingham of Cornhill.

Jeremy Cousins QC , John Brennan and Justin Kitson for the employer. A tortfeasor should not beliable for the death by suicide of the injured person where that person is sane and has taken his ownlife deliberately with full understanding of his actions and their implications. Such a person should betreated as responsible in law for his conduct and its consequences. This is so whether responsibilityis analysed in terms of duty, remoteness or causation or on any other basis.

The wording of the Fatal Accidents Act 1976 emphasises the need not only for the cause of death tohave been the neglect or default of the tortfeasor but also for his relevant action (“wrongful act,neglect or default”) to have been one for which he would have been liable to the injured person ifdeath had not ensued. For the claimant's case to be sound the law would have to be that if Mr Corrhad suffered injuries in a failed suicide attempt the employer would have been liable to compensatehim in damages for such injuries. Mr Corr did not suffer from hallucinations. It is accepted that as a

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*887 result of the accident he suffered from depressive illness, and that it was because of suchillness that he committed suicide. In the light of the agreed factual matters, however, his suicide wasthe result of a decision taken by him. Those factual matters are his capacity to manage his ownaffairs, his unimpaired intellectual faculties and appreciation of danger, his awareness of theconsequences of jumping from the building, his deliberate action, his understanding of the differencebetween right and wrong and his knowing the nature and quality of his actions. The autonomy of theindividual, and the right of self-determination, are enshrined in law to the point that a person is entitledto act to his own detriment even though the decision concerned is completely unreasonable: see StGeorge's Healthcare NHS Trust v S [1999] Fam 26 , especially at pp 43–44 and 51, and Hart &Honoré, Causation in the Law , 2nd ed (1985), p 136. The corollary must be that a person whoappreciates danger and whose cognitive functions are not impaired is to be held responsible forself-harming conduct. [Reference was also made to R v Kennedy (No 2) [2008] 1 AC 269 , para 14.]

Mr Corr's suicide (i) fell outside the scope of the duty of care owed to him by the employer; (ii) was anaction not reasonably foreseeable and therefore not one for which the employer should be held liable;(iii) broke the chain of causation and constituted a novus actus interveniens; (iv) was an unreasonableact that broke the chain of causation; (v) amounted to volenti and (vi) constituted contributorynegligence.

It is essential to identify the scope of the duty of care to establish whether the loss falls within it. Thedamage may be foreseeable but not be within the scope of the duty. The employer owed Mr Corr thesame duty as it owed to any employee, namely to take reasonable care to avoid causing himreasonably foreseeable injury. No wider duty was ever asserted by the claimant. For the employer tobe responsible for the losses suffered by reason of Mr Corr's suicide, such losses must fall within thescope of the duty. This follows from the well established principle, described by Lord Lloyd of Berwick(with whom the majority of their Lordships agreed) in Aneco Reinsurance Underwriting Ltd v Johnson& Higgins Ltd [2002] 1 Lloyd's Rep 157 , 181, para 11, that “a defendant is not liable in damages inrespect of losses of a kind which fall outside the scope of his duty of care”. He said that there wasnothing new in that principle and that it had been the rule in tort since In re Polemis and FurnessWithy & Co Ltd [1921] 3 KB 560 had been disapproved in Overseas Tankship (UK) Ltd v Morts Dock& Engineering Co Ltd (The Wagon Mound) [1961] AC 388 . The scope of the duty of caresubstantially defines whether a loss can be said to be too remote: see per Lord Nicholls ofBirkenhead in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 , para 59.

The purpose of the causes of action relevant to the present case was the avoidance of the employerinjuring his employee. It was not to protect him from deliberately inflicted self-harm: see perSpigelman CJ in AMP v RTA [2001] Aust Torts Reports 81 –619, para 9. There is no authority for theproposition that an employer owes such an exceptional duty to an employee. A duty to protect aperson from self-harm arises only exceptionally, and only where such risk is or should be evident, e g,in the case of a prisoner or mental patient who is a known suicide risk, or in the case of children: seeReeves v Comr of Police of the Metropolis [2000] 1 AC 360 ; Pallister v Waikato Hospital Board[1975] 2 NZLR 725 and *888 Jolley v Sutton London Borough Council [2000] 1 WLR 1082 . It is clearfrom the speeches of the majority in Reeves's case (Lord Hoffmann, at pp 365 g – h , 367 h –368 aand 368 c Lord Mackay of Clashfern, at p 373 a , Lord Jauncey of Tullichettle, at p 374 f – h and LordHope of Craighead, at pp 379 h and 380 c –381 c ) that it was because of the exceptional nature ofthe duty owed in that case that the plaintiff succeeded. Even where there is a duty to protect fromself-harm, its very narrow limits are demonstrated by the recent decision of the Court of Appeal inOrange v Chief Constable of West Yorkshire Police [2002] QB 347 .

Unless the claimant can demonstrate that there subsisted an exceptional duty of the kind described,she can succeed only if she can show that Mr Corr's death by suicide was, as at the date of theaccident, a reasonably foreseeable consequence of the employer's failure to take reasonable stepsfor his safety. In the light of the observations of the House of Lords in Jolley v Sutton London BoroughCouncil [2000] 1 WLR 1082 as to the nature of a judge's findings as to foreseeability (see especiallyper Lord Steyn, at pp 1088 h –1089 c ), the Court of Appeal should not have disturbed the deputyjudge's findings unless they were shown to be wrong.

From the terms of the judgments of the majority of the Court of Appeal it is clear that they regardedthe decision of the House of Lords in Page v Smith [1996] AC 155 as leading to the conclusion thatMr Corr's suicide had been foreseeable, or was to be treated as such. On a true analysis, Page vSmith does not require such a result. The principles applicable to questions of foreseeability andremoteness of damage were recently restated by the House of Lords in Simmons v British Steel plc[2004] ICR 585 , per Lord Rodger of Earlsferry, at para 67. Ward LJ [2007] QB 46 , paras 57 and 62

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rightly asked whether the particular kind of injury in question was reasonably foreseeable. In bothEnglish and Scottish cases, suicide has been found not to be a reasonably foreseeable consequenceof an employer's breach of duty to his employee to avoid causing personal injury. Pigney v Pointer'sTransport Services Ltd [1957] 1 WLR 1121 , although supportive of the claimant's case, wasexpressly decided on the basis of an application of the principles in In re Polemis and Furness Withy& Co Ltd [1921] 3 KB 560 . Pilcher J reached his decision despite an express finding, at p 1123, thatthe suicide was not reasonably to be foreseen by the employer. By contrast, a nearlycontemporaneous decision of Lord Cameron in Cowan v National Coal Board 1958 SLT (Notes) 19reached the opposite conclusion: see per Lord Rodger in Simmons's case [2004] ICR 585 , para 62.In both cases, the trial judges accepted that the suicides had not been reasonably foreseeable. Theonly reason for the difference in conclusion was the application of Polemis principles in the one andthe “grand rule” of Allan v Barclay (1864) 2 M 873 in the other. Since the decision in The WagonMound [1961] AC 388 , and the departure from the Polemis case, it is clear that the legal principleunderpinning the decision in Pigney's case no longer subsists: see Wright Estate v Davidson (1992)88 DLR (4th) 698 and AMP v RTA [2001] Aust Torts Reports 81 –619, paras 15–18 and 30, whereSpigelman CJ also suggested that it might, for foreseeability purposes, be appropriate to recognisethe deliberate infliction of self-harm as a separate kind of damage distinct from both personal injuryand psychiatric harm, an approach very close to that suggested by Professor Glanville Williams inrespect of “contributory intention” in Joint Torts and Contributory Negligence (1951), *889 p 199, para55. Lord Rodger in Simmons's case did not say in terms that he approved of Lord Cameron'sreasoning in Cowan v National Coal Board , but it is difficult to read his speech in any other way. It issignificant that in his analysis of the legal principles leading to the law of negligence he chose to useCowan's case as his example. The passage is integral to his exposition of the development of Englishand Scots law in accordance with the principles he set out. So Simmons's case is strong authority forthe proposition that suicide following an industrial accident, albeit leading to depression, is notreasonably foreseeable. The law is now the same in Scotland as in England. Pigney's case shouldnow be disapproved. It appears that the Law Commission, Claims for Wrongful Death (November1999) (Law Com No 263) refrained from recommending a change in the law to overrule Pigney's casebecause it was of the view that the decision was no longer authoritative since the decision in TheWagon Mound .

As to the effect of Page v Smith [1996] AC 155 , it is no part of the employer's submissions that theHouse of Lords should depart from it (Lord Rodger's proposition (5) in Simmons's case, para 67). Theclaimant does not need Page v Smith to recover for nervous shock. The speech of Lord Lloyd ofBerwick can be taken as representing the majority view and the ratio. For present purposes, thecritical passage is at p 197 e – h . Page v Smith was not a case concerned with self-inflicted injury ofany kind. The decision establishes that, if personal injury of any kind is foreseeable, the defendantowes the injured party a duty of care in respect of it and it does not matter whether it is physical orpsychiatric. In short, so far at least as primary victims are concerned, personal injury is indivisible.Page v Smith did not suggest that a loss flowing from a separate physical cause was to be treated asa foreseeable consequence of an accident. Even if personal injury in the case of a primary victim isone and indivisible, so that if any injury can be foreseen there is a liability for all injury arising from theaccident, it does not follow that additional and further injury by the victim's own hand is to be treatedas foreseeable. It is inconceivable that the House of Lords intended to sweep aside the wellestablished body of case law dealing with issues such as novus actus and unreasonable act withoutexpressly making reference to such considerations. The decision involved only a very small extensionof the “egg-shell” principle.

The development of chronic fatigue syndrome in Page v Smith and psoriasis in Simmons's case werenot the result of decisions by the respective plaintiff or pursuer. The examples of a heart attack ormiscarriage produced by shock (given by Lord Browne-Wilkinson in Page v Smith , at p 181 b ) aredifferent from suicide for the reasons give by Ward LJ in his judgment in the present case, at para 61.Those conditions do not occur spontaneously, whereas in the case of suicide “The unhappy victimhas to do something to bring it about”. Ward LJ's reliance on Hughes v Lord Advocate [1963] AC 837for finding that death by suicide was a different kind of damage from that suffered by accident waswell founded. Mr Corr was not deprived of his reason or faculties before he committed suicide. Heknew what he was doing, but acted deliberately with the intention of killing himself. That was notsomething that a defendant is reasonably likely to foresee.

The approach of the majority of the Court of Appeal was, in substance, to adopt a Polemis approach.It was to invest the employer, at the time of the accident, with the degree of foresight that might beavailable to an informed *890 bystander at each stage of the progression of Mr Corr's condition over

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a period of six years. The supposed foreseeability of suicide was based on statistical evidence as tothe behaviour of only the most vulnerable category of accident victims, namely those who progress todevelop severe depression. The proper time to analyse foreseeability is when the breach of dutyoccurs. The unfairness and inappropriateness of investing such foresight in the appellant six yearsbefore Mr Corr's death is demonstrated by the evidence of Mr Blunden, the clinical psychologist calledon behalf of the employer, to the effect that (i) when he had seen Mr Corr only three days before hisdeath he had not considered that he was in imminent danger of suicide and (ii) to outwardappearances Mr Corr was recovering from the worst, did not intend to commit suicide and wascontinuing with confidence-building sessions. What is foreseeable is to be judged by foresight, nothindsight.

As to liability for personality change, in Jones v Jones [1985] QB 704 it was conceded that separationor divorce was reasonably foreseeable: see at p 708 g – h . Meah v McCreamer [1985] 1 All ER 367(decided before Jones v Jones had been noted) was decided (i) expressly on the basis that it was notargued on behalf of the defendant that the plaintiff was not entitled to compensation for such loss (seeat p 371 h ); (ii) on the basis of the decision in Jones v Jones . Of relevance to the present case is therhetorical question posed by Woolf J in Meah v McCreamer (No 2) [1986] 1 All ER 943 , 950 h as towhether or not the plaintiff would have been entitled to a declaration as to indemnity in respect offuture attacks committed by him. Applying that question to the present case, should a claimant whosuffers a head injury be entitled to a declaration as to indemnity or an order for provisional damagesin the event of a later suicide? The answer must be “no”. In that case, how could his estate recoverfor his suicide if his action for damages for the head injury had been brought and settled before it?[Reference was made to Pritchard v J H Cobden Ltd [1988] Fam 22 .]

In criminal cases, responsibility for injury sustained by the victim of an attack where then injury issuffered in the course of action taken by the victim depends on foreseeability: see R v Roberts (1971)56 Cr App R 95 .

As to novus actus interveniens, in the very context of death by suicide speeches in Reeves v Comr ofPolice of the Metropolis [2000] 1 AC 360 (see per Lord Jauncey of Tullichettle, at p 374 d – e , andLord Hope of Craighead, at p 380 b ) indicate the generally applicable principle with regard toself-inflicted harm; see also Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 ,para 69, per Lord Nicholls of Birkenhead. The present is a case of deliberate self-harm, so the chainof causation is broken.

As to contributory intention, it is clear that Mr Corr intended to kill himself. This is, therefore, notmerely a case of contributory negligence but, to adopt the phrase used by Professor GlanvilleWilliams in Joint Torts and Contributory Negligence (1951), one of “contributory intention”. ProfessorGlanville Williams suggests, at p 199, para 55, that contributory intention should be a defence in anaction for tort; see also his discussion at p 354, para 88. There is no liability. It is black and white, nota grey area.

As to the suggested relevance of depression, the reasoning of each of the judgments of the Court ofAppeal [2007] QB 46 appears to have been based on, or influenced by, a passage from the judgmentof Lloyd LJ in Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283 , 290,cited by Ward LJ, at para 48. That passage is not of relevance in the present *891 case. Kirkhamwas a death in police custody case, where the police had actual knowledge of the deceased's suicidaltendencies and suicide attempts before they committed their breach of duty. It was the very fact of thedeceased's known unsound mental state that gave rise to the duty on them to impart knowledge of itto the prison authorities.

A tortfeasor is not liable for damage that results from an unreasonable act on the part of the injuredperson. The authorities suggest that this is a basis, distinct from foreseeability and novus actus, forholding that the chain of causation has been broken and that there is no liability for the relevant loss:see McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 and Simmons v BritishSteel plc [2004] ICR 585 , 609, where Lord Rodger of Earlsferry, referring to McKew , also treatedunreasonable conduct on the part of a claimant as a ground separate from novus actus andforeseeability for holding a loss too remote. As with the principle applicable to a plea of novus actus,to hold that where the duty of care is designed to prevent the occurrence of a particular act that actcan constitute an unreasonable act would be inconsistent with the existence of the duty, but in othercases if an act can fairly be described as unreasonable the loss flowing from it will be too remote. Inthe present case, given the unimpeded faculties of Mr Corr, his action was unreasonable. As a matterof legal policy, the law should not condone suicide by categorising it as a reasonable act save in

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genuinely extreme circumstances.

It is in this context that the mental faculties of the injured person become relevant. If a person hasbeen deprived of his reason by being rendered insane, it is not appropriate to apply the yardstick ofreason to his actions. This is why the New Zealand courts have held that suicide or self-injury by aninsane person does not break the chain of causation. By contrast, death by suicide in the case of asane person is treated as caused by the act of the injured person himself: see Murdoch v BritishIsrael World Federation (New Zealand) Inc [1942] NZLR 600 and Pallister v Waikato Hospital Board[1975] 2 NZLR 725 . This approach reflects the traditional position in English decisions under theWorkmen's Compensation Acts 1906 and 1925 . Foreseeability was not required by those Acts, sothe cases do not address the question. There have been almost no cases on suicide since the Actswere repealed. Even a person who would be able to maintain a plea of diminished responsibility on acharge of murder “must be taken to have known what he was doing and that it was wrong” andremains legally responsible for his actions: see Clunis v Camden and Islington Health Authority [1998]QB 978 , 989 d – g . His responsibility is diminished but not extinguished. [Reference was also madeto Withers v London, Brighton and South Coast Railway Co [1916] 2 KB 772 and Church v Dugdale &Adams Ltd (1929) 22 BWCC 444 .]

As to volenti non fit injuria, applying the observations of Lord Hope of Craighead in Reeves v Comr ofPolice of the Metropolis [2000] 1 AC 360 , 381 b this would appear to be a classic case where it couldbe said that the deceased voluntarily assumed the risk of injury. Lord Hobhouse of Woodborough,dissenting, used Pigney v Pointer's Transport Services Ltd [1957] 1 WLR 1121 and Kirkham v ChiefConstable of the Greater Manchester Police [1990] 2 QB 283 as examples of lack of capacity. On theevidence in the present case, however, there was no lack of capacity. The proper test for volenti isthat formulated by Lord Hope in Reeves's case. *892 The decision in Kirkham's case was correctbecause the deceased was a known suicide risk and, therefore, for the reasons given in Reeves'scase, there was a duty to guard against that suicide. In so far as Kirkham's case suggests that aperson who takes his own life with full knowledge of what he is doing is not volens, the decisionshould be disapproved. However, having regard to the facts of the present case it is accepted that, ifMr Corr's deliberate, informed act of suicide did not constitute a novus actus, it is unlikely to be thebasis of a successful plea of volenti.

As to contributory negligence, in Reeves's case four of their Lordships held that the deceased was50% at fault in taking his own life. Lord Hoffmann specifically recognised that that division ofresponsibility was to reflect the duty on the police to take care to protect those in custody. In thepresent case the deceased's responsibility must be much greater. Any apportionment should beweighted very heavily against the claimant.

John Foy QC , Andrew Ritchie and Robert McAllister for the claimant. The issue here is, as Sedley LJsaid [2007] QB 46 , para 66, not whether the particular outcome (suicide) was foreseeable butwhether the kind of harm for which damages were sought was foreseeable and, if it was, whether theeventual harm is nevertheless to be regarded, on grounds of policy or of fact, as too remote. If aclaimant's suicide was the result of his rational, voluntary, free and informed decision rather than ofsevere depression, he is responsible for it. If his action was the result of the severe depressioncausing him to suffer an irrational or fundamental derangement of his decision-making process (orcausing his power of volition to be dethroned), then the suicide was not his responsibility and wassimply the effect or a symptom of his depression. Whether the deceased was a man of normalfortitude is irrelevant. If the claimant cannot recover for the deliberate act of the deceased, a claimantcould never recover for suicide.

The central issues are: (i) as to the kind of harm for which the employer should be liable and (ii)whether the act of the deceased was a free, voluntary, informed act by someone with mentalcapacity. In summary: (i) the employer's duty is to prevent injury; (ii) suicide cannot be divorced fromthe feeling of helplessness that leads up to it; (iii) depression is encompassed by the expression“same kind of harm”; (iv) Mr Corr's depression was foreseeable in fact; (v) if it is necessary so tosubmit, the suicide itself was reasonably foreseeable; (vi) causation is clear, obvious and in generalundisputed; (vii) Mr Corr's mental state actually determined novus actus, volenti and unreasonableact, which all stand or fall together; (viii) because of his mental state, his suicide was not truly volens;and (ix) M'Naghten insanity ( M'Naghten's Case (1843) 10 Cl & F 200 ) is meaningless in the tortcontext and is relevant in the criminal context only: see R v Johnson [2007] EWCA Crim 1978 .

It is not, and never has been, the claimant's case that the employers owed a duty of care to preventsuicide. Such a duty is peculiar to the custodian cases, such as Kirkham v Chief Constable of the

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Greater Manchester Police [1990] 2 QB 283 ; Reeves v Comr of Police of the Metropolis [2000] 1 AC360 and Orange v Chief Constable of West Yorkshire Police [2002] QB 347 , where liability dependson such a duty existing. The duty on the employer was the ordinary duty of care owed by an employerto an employee to take all reasonable steps to protect him from suffering personal *893 injury. In thepresent case it is not in dispute that there was a “wrongful act, neglect or default” ( section 1(1) of theFatal Accidents Act 1976 ) by the employer and that it was such as would “have entitled [Mr Corr] tomaintain an action and recover damages in respect thereof”. The issue under the Act, therefore, iswhether the wrongful act, neglect or default caused his death. It is not in dispute that as a result of theaccident he suffered from depressive illness and that it was because of such illness that he committedsuicide. The claimant's primary case, therefore, is that no issue relating to duty of care arises eitherunder the Act or at common law.

Whether there is a duty of care depends on whether it is reasonably foreseeable that carelessconduct of any kind by a defendant may result in damage of some kind to a third party. There must beforeseeability of damage of any kind and a relationship of proximity, and it should be fair, just andreasonable that a duty is owed. All of this is established in the present case as it is in anyemployer/employee relationship. To establish breach, it is necessary to prove that the particular kindof careless conduct of the defendant might result in some kind of damage to a third party. In thepresent case, the breach did cause damage to Mr Corr. At common law, it is only when consideringfor what damage the tortfeasor is liable that the claimant has to prove that the kind of damagesuffered was a reasonably foreseeable consequence of the breach of duty. The claimant adoptsProfessor Stapleton's exposition in “Cause-in-Fact and the Scope of Liability for Consequences”(2003) 119 LQR 388 , 390, quoted with approval by Ward LJ, para 15. The issue, therefore, is not asto the scope of the duty but as to whether the damage is within the extent of the liability.

The issue of causation involves consideration of causation in fact and remoteness. There is nodispute that, on the evidence, the accident, caused by breach of duty, was the sole cause of Mr Corr'sdepression. There is also no dispute that depression was the sole cause of the suicide. The deathwas therefore caused by the wrongful act. The “but for” test is satisfied in relation to both depressionand suicide. There is no need for a more sophisticated consideration of the test. The interveningdepression does not take away causation and accounts for the deceased's inability to resist thesuicide.

Novus actus is an element of causation: see Rahman v Arearose Ltd [2001] QB 351 , paras 29 and33. If causation is established, there is no room for saying that there is a novus actus that takes allliability away. The test is: for what should the deceased be held justly responsible? In McKew vHolland & Hannens & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 the pursuer had no mentalincapacity, so was to be judged as an ordinary man. It is not fair to apply ordinary standards to MrCorr, a man with very severe depression, etc. Given the clear progression from accident todepression to suicide with no other causative factor, the employer is the only party responsible for theloss and damage that the claimant suffered. Once the law accepts, as it does, the foreseeability ofpsychiatric harm as a concomitant of foreseeable physical harm, it is only if a break dictated by logicor policy or evidence intervenes that it is possible to exclude death by suicide from compensatabledamage where that is what the depression has led to. Neither logic nor evidence provides a reasonfor its exclusion.

The defences raised by the employer of novus actus, unreasonable act, volenti and contributorynegligence all fail for the same reason, namely that *894 they require a free, rational, informed act onthe part of the deceased that is independent of the employer and that obliterates, in the case of novusactus and volenti, the causative potency of the employer's breach of duty or is intended to exploit it. Ifit is to be the deceased's action that interrupts causation, it has to be one not caused by theemployer. Because Mr Corr's capacity to make reasoned and informed judgments was taken awayand because he was suffering from a disabling mental condition, his mental state could not be trulyvolens. He was acting under the duress of depression. His act was not informed, because he wasacting on information that was unreal. It was not rational, because what he thought was based ondelusion. To the extent that his action was “unreasonable” that was because his irrationality wascaused by the employer itself, and it cannot rely on its own breach to defeat the claim against it. Hispower of volition was dethroned by the depression caused by the employer.

The employer accepts that if Mr Corr was insane in the M'Naghten sense the defences of novusactus, volenti, unreasonable act and contributory negligence are not open to it. There is no reason,however, why insanity should be the threshold test. The M'Naghten Rules only have relevance in acriminal context and, so far as civil liability is concerned, should be considered in the light of the

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Mental Capacity Act 2005 , which recognises mental incapacity in relation to specific issues. There isno difference, so far as liability is concerned, between being M'Naghten insane and having thedisabling psychiatric illness that Mr Corr had. If he had committed suicide whilst M'Naghten insane itwould still have been a deliberate act and he would still have intended the consequences. The degreeto which it was foreseeable would be the same (if anything insanity would be more unforeseeable). Itwould have resulted in the same kind of harm. The real question is whether his ability to make rationaldecisions and exercise rational judgment was impaired. There is no doubt on the evidence that it was,and, if it was, he cannot have committed a free informed act independent of the employer's breach ofduty. When he was about to jump from the car park roof it would have been appropriate for him to besectioned under the Mental Health Act / Mental Capacity Act 2005 . In Murdoch v British Israel WorldFederation (New Zealand) Inc [1942] NZLR 600 there was no consideration of whether somethingless than insanity would suffice. [Reference was also made to Pallister v Waikato Hospital Board[1975] 2 NZLR 725 .]

The employer's reliance on decisions under the Workmen's Compensation Acts 1906 and 1925 ismisconceived. Those decisions entirely support the claimant's case. [Reference was made to Marriottv Maltby Main Colliery Co Ltd (1920) 13 BWCC 353 ; Dixon v Sutton Heath and Lea Green CollieryLtd (No 2) (1930) 23 BWCC 135 ; Holdlen Pty Ltd v Walsh [2000] NSWCA 87 and AMP v RTA [2001]Aust Torts Reports 81 –619.]

As to criminal cases (see Clunis v Camden and Islington Health Authority [1998] QB 978) , Mr Corrdid not commit a crime: see per Sedley LJ [2007] QB 46 , para 73. There is no public policy reasonbased in criminal law why his dependants should not recover. The 1976 Act is intended to benefitdependants who have suffered loss. Other criminal cases quoted by the employer do not assist. Inany event, different considerations apply when the courts are considering penal consequences.Duress is a defence in criminal law. Mr Corr was acting under the duress of his mental condition.

*895

As to “unreasonable act”, this is another way of saying that there is a novus actus. The act must bejudged as unreasonable by the standards of a man with very severe depression and a feeling ofhopelessness, since it was the employer who put him in that position. 15% of men with severedepression would have committed suicide, so it is not even unusual for suicide to occur in thesecircumstances. It is neither just nor appropriate to apply the reasonable man test to someone whowas not a reasonable man by reason of the tort complained of. In McKew v Holland & Hannen &Cubitts (Scotland) Ltd [1969] 3 All ER 1621 (see at pp 1623 f , 1623 i and 1625 h ) the House of Lordslooked at the disability that the pursuer had (which was all physical) and made a judgment whetherwith that disability he acted unreasonably.

As to remoteness, it is unnecessary to establish that suicide was specifically foreseeable, either byinterpretation of section 1 of the Fatal Accidents Act 1976 (which was not an argument advancedbelow) or because death by suicide is not a different kind of damage from that which was or is takento have been foreseeable, such as suicide. Being caused by lack of mental capacity does not make ita different kind of harm. The 1976 Act concerns a particular kind of harm (death) and is intended togive dependants a remedy for it. It is not concerned with the scope of the duty, nor with thecircumstances of the death or the way in which the death came about, but with whether the wrongfulact would have entitled the deceased to maintain an action: was the death caused by the wrongfulact? The position would not necessarily have been different if Mr Corr had not been killed: see theLaw Commission Report, Claims for Wrongful Death (1999) (Law Com No 263), paras 2.4, 3.7.Contrary to the view of Ward LJ [2007] QB 46 , para 61, death by suicide and death by decapitationare the same kind of harm or damage. Death is death. Hughes v Lord Advocate [1963] AC 837 andJolley v Sutton London Borough Council [2000] 1 WLR 1082 show that all that is necessary for aclaimant to succeed is that personal injury was a reasonably foreseeable result of the defendant'sbreach of duty and that the claimant does not have to prove that the precise mechanism of the injury(the manner in which the death came about) was reasonably foreseeable. Psychiatric illness canhave many different symptoms and effects but the claimant does not have to prove that eachindividual symptom is reasonably foreseeable: see Smith v Leech Brain & Co Ltd [1962] 2 QB 405 ;Simmons v British Steel plc [2004] ICR 585 and Page v Smith [1996] AC 155 . A claimant can recoverfor obsessive compulsive disorder, claustrophobia, anorexia and the results of a refusal to takemedication as a result of mental illness; there is no relevant difference between death by suicide andheart attack or miscarriage referred to by Lord Browne-Wilkinson in Page v Smith , at p 181 b . WardLJ suggested that there is a difference because these are spontaneous, but this, even if valid as adistinction, can apply to an action based on an instinctive or unconstrained personal impulse. In Lisle

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v Brice [2001] 2 Qd R 168 the court in Queensland held, without reference to Page v Smith , thatdepression and death by suicide were a foreseeable kind of damage. Overseas Tankship (UK) Ltd vMorts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388 did not deal with the mannerby which the injury or harm was caused (see Jolley's case), nor with the degree of foreseeabilityrequired; *896 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2))[1967] 1 AC 617 did that. In Cowan v National Coal Board 1958 SLT (Notes) 19 there was no physicalconnection between the initial injury and the suicide, no indication that mental illness was foreseeableand no evidence that he was “mentally deranged”. The decision, given before Page v Smith , was oneon its facts and would probably not be made now. It does not say that the suicide itself has to beforeseeable, only that there must be a physical connection. Cross v Highlands and IslandsEnterprises 2001 SLT 1060 did come to a different conclusion: see at paras 121–127, also paras 114et seq. In Wright Estate v Davidson 88 DLR (4th) 698 there was no evidence as to the cause of MrsWright's disabling illness. The true analysis is that the feeling of hopelessness from which Mr Corrsuffered cannot be separated from his desire to commit suicide. The one governed the other and theywere in effect the same thing. Whether it is said that the suicide was a symptom of the depression, orwhether it was the effect of it, as Wilson LJ [2007] QB 46 , para 94 suggested, or whether it wassimply a manifestation of the illness, does not matter: it was part and parcel of the illness. [Referencewas also made to McLoughlin v O'Brian [1983] 1 AC 410 , 443 and Page v Smith [1996] AC 155 , 188c – e .]

As to the foreseeability in fact of Mr Corr's suicide, the deputy judge held, at para 33, that, “given thedescription of the deceased as a happy, well-balanced family man, ambitious in his work and with nopsychiatric problems in the past it is plain to me that his suicide six years later (or at all) would nothave been reasonably foreseeable to the defendant”. This is not a primary finding of fact: OverseasTankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 , 641 aand Jolley v Sutton London Borough Council [2000] 1 WLR 1082 , 1089 b . There was no evidence assuch to support the finding, and apart from what is quoted no reason was given. The deputy judgegave no consideration to the degree of foreseeability required, nor did he properly apply the principlethat the issue of foreseeability has to be judged with hindsight. Ward LJ also mistakenly said, at para64, that foreseeability should not be judged with the benefit of hindsight. The test of reasonableforeseeability is to be applied ex post facto, i e in the light of what has happened (in this case anear-death experience): see per Lord Bridge of Harwich in McLoughlin v O'Brian , at p 432 b , LordKeith of Kinkel and Lord Jauncey of Tullichettle in Page v Smith [1996] AC 155 , 169 b and 178 f ,following Lord Wright in Bourhill v Young [1943] AC 92 , 110, Lord Hoffmann in Rothwell v Chemical& Insulating Co Ltd [2008] 1 AC 281 , para 30, referring to foreseeability from “the event whichactually happened”, and Mullany & Handford's Tort Liability for Psychiatric Damage , 2nd ed (2006),para 5.510. It is not clear that the deputy judge looked at foreseeability from the point of view of theaccident that actually happened. The degree of foreseeability required is no more than a small riskthat would not be brushed aside as far-fetched: The Wagon Mound (No 2) , at pp 642–643, andAttorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 , para 21. Anyone whowas aware that Mr Corr had nearly been decapitated in an industrial accident and in fact had his earsevered would foresee that he was someone who might suffer severe psychiatric illness as a resultthat could lead to suicide. This view was supported by the evidence of Dr McLaren and ICD 10(International Classification of Mental and Behavioural Disorders (World Health Organisation,Geneva, 1992)), para F32.2, which refers to suicide being a *897 “distinct danger in particularlysevere cases”. If it is necessary to establish that suicide was reasonably foreseeable, the evidencedid that when considering the accident that actually happened. The deputy judge gave no reason forrejecting the evidence of Dr McLaren. The employer refers to the fact that Mr Blunden did notconsider that there was an imminent danger of suicide when he saw Mr Corr three days before hisdeath and suggests that that is evidence of unfairness in imposing foreseeability on them. Thisconfuses the timing of the suicide with the risk of it occurring. It is irrelevant that Mr Blunden thenthought that the risk was not imminent. The important thing is that he did foresee a risk and that thedeceased had already in fact made a suicide attempt that made the risk clear.

As to volenti, in the light of the evidence and particularly the fact that Mr Corr could not make arational and informed decision, “There is nothing one can decently call voluntary either in the sufferingor in the act of self-destruction of a profoundly depressed individual”: per Sedley LJ [2007] QB 46 ,para 69. [Reference was made to Kirkham v Chief Constable of the Greater Manchester Police [1990]2 QB 283 and Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 .]

As to policy, the policy issues referred to by Ward LJ had not been raised in argument. Whatever elsemay be said about the employer's case it is wholly without merit and, in those circumstances, there

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are no policy reasons for relieving the employer from liability and responsibility for the consequencesin fact of its breach of duty. There is no criminal offence committed, there can be no floodgatesargument and there can only be sympathy for the dependants. Policy arguments were rejected inPigney v Pointer's Transport Services Ltd [1957] 1 WLR 1121 , which was determined at a time whensuicide was still a criminal offence. Perceptions of mental illness have moved on since then. Thepolicy of the Fatal Accidents Acts has been, as it was under the Workmen's Compensation Acts, thatdependants should recover when the wrongful act causes death.

As to contributory negligence, if the defence of volenti fails contributory negligence must also fail. It isinappropriate to say that the deceased was at “fault”. He did not, by virtue of his mental state, doanything wrong. The Law Reform (Contributory Negligence) Act 1945 requires both causative potencyand blameworthiness on the claimant's part for contributory negligence to be considered. Thequestion is whether the degree of mental illness means that the deceased was at fault. It is difficult tohave a sliding scale of mental incapacity. Where, as in Mr Corr's case, the relevant act was caused infact only by a disabling mental illness resulting from the employer's tort and dethroning his power ofvolition, neither causative potency nor blameworthiness can be attributed to him. This is all the moreso if, as is not in dispute, his mental condition was the foreseeable result of the employer's breach ofduty. [Reference was made to Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 , 371 h etseq (Lord Hoffmann), 384 h et seq (Lord Hope of Craighead).]

Cousins QC in reply. The claimant says that there are two elements: the kind of harm for which theemployer should be liable and Mr Corr's mental capacity.

As to the kind of harm, the claimant says that “death is death”. For the purposes of the law ofnegligence, however, it cannot simply be so *898 characterised, because the mechanism of injury iscrucial in determining whether the harm is of the same kind as that which could have been foreseen.Hughes v Lord Advocate [1963] AC 837 makes that clear. The claimant relies on Cross v Highlandsand Islands Enterprises 2001 SLT 1060 , but that case was decided in 2000 without the benefit ofLord Rodger's review of authority in Simmons v British Steel plc [2004] ICR 585 . Central to thereasoning in Cross's case, at para 127, were the observations of the Lord President (Clyde) inMcKillen v Barclay Curle & Co Ltd 1967 SLT 41 , 42, which were expressly disapproved by LordRodger. Hughes's case was not cited. Cross's case is, therefore, wrong. It is not consistent with theclearly established requirement of foreseeability of risk of a particular kind.

The claimant could not have recovered under an insurance policy.

Mr Corr acted intentionally. He knew what the consequences would be. All the authorities that theclaimant relies on regarding inability to form volition are, therefore, nothing to the point. Here, as anagreed fact, there was volition.

The claimant says that the 1976 Act says that once causation is established foreseeability isunnecessary. The Act does not define the scope of the damage, which is to be determined accordingto the usual principles of foreseeability.

If it is suggested that the judge was wrong in approaching the matter of foresight from a viewpointafter the accident, he can hardly be criticised for that.

The observations of Laws LJ in Rahman v Arearose Ltd [2001] QB 351 , para 33 are adopted.

Pallister v Waikato Hospital Board [1975] 2 NZLR 725 did not suggest that Murdoch v British IsraelWorld Foundation (New Zealand) Inc [1942] NZLR 600 was wrongly decided. It said that the duty inMurdoch had been different: see at p 633.

Their Lordships took time for consideration.

27 February 2008. LORD BINGHAM OF CORNHILL

1 My Lords, the issue in this appeal is whether loss attributable to the death by suicide of the late MrThomas Corr is recoverable by his dependent widow under section 1 of the Fatal Accidents Act 1976in this action against his former employer.

2 Mr Corr was employed as a maintenance engineer by the appellant company (“the employer”), amanufacturer of light commercial vehicles. On 22 June 1996, then aged almost 31, he was workingon a prototype line of presses which produced panels for Vauxhall vehicles. He was working, withanother, to remedy a fault on an automated arm with a sucker for lifting panels. The machine picked

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up a metal panel from the press, without warning, and moved it forcibly in Mr Corr's direction. Hewould have been decapitated had he not instinctively moved his head. He was struck to the right sideof his head and most of his right ear was severed.

3 As a result of this accident, Mr Corr underwent long and painful reconstructive surgery. Heremained disfigured, suffered persistently from unsteadiness, mild tinnitus and severe headaches,and had difficulty in sleeping. He also suffered from post-traumatic stress disorder. He experiencedsevere flashbacks which caused his body to jolt, and suffered *899 from nightmares. He drank morealcohol than before the accident and became bad-tempered.

4 Also as a result of the accident, Mr Corr became depressed, a condition which worsened with thepassage of time. He was referred to hospital for treatment for depression on 6 February 2002, andwas admitted to hospital after taking an overdose of drugs on 18 February. He was assessed asbeing a significant suicide risk on 2 March 2002, and on 9 March it was noted that he had recurringthoughts of jumping from a high building. He was treated with electro-convulsive therapy. It was notedin his NHS care plan on 15 April that he felt life was not worth living and that he felt he was a burdento his family. On 20 May 2002 Mr Corr was examined by a clinical psychologist who noted that MrCorr felt helpless and admitted to suicidal ideation. The psychologist diagnosed his condition as oneof “severe anxiety and depression”. On 23 May 2002, while suffering from an episode of severedepression, Mr Corr committed suicide by jumping from the top of a multi-storey car park in which hehad parked his car some hours earlier. A note which he left behind graphically illustrates the depth ofdesperation to which he had been reduced. Nearly six years had passed since the accident.

5 The facts summarised above are agreed between the parties, as are the facts of Mr Corr's mentaland psychological condition at the time of his death. On the one hand, he had the capacity to managehis own affairs. His intellectual abilities were not affected. His appreciation of danger was notlessened. He was aware of the likely consequences of jumping from a high building. He acteddeliberately with the intention of killing himself. He had from time to time since the accident thought oftaking his own life but had hesitated because of the effect on his family. He understood the differencebetween right and wrong. He knew the nature and quality of his acts. He did not suffer fromhallucinations. It would seem clear, had the question arisen, that his mental condition would not havemet the M'Naghten test of insanity ( M'Naghten's Case (1843) 10 CL & F 200 ). On the other hand, atthe time of his death Mr Corr was severely depressed. His depression had caused him to experiencefeelings of hopelessness. These became increasingly difficult to resist. A critical change took place inthe balance of his thinking, when he stopped recognising these feelings of hopelessness assymptoms of his depressive illness, and instead they came to determine his reality. At the time of hissuicide Mr Corr was suffering from a disabling mental condition, namely a severe depressive episodewhich impaired his capacity to make reasoned and informed judgments about his future. It was wellknown that between one in six and one in ten sufferers from severe depression kill themselves.

6 These proceedings were begun by Mr Corr in June 1999, shortly before expiry of the three-yearlimitation period, claiming damages for the physical and psychological injuries which he had suffered.The proceedings were amended after his death to substitute his widow and personal representativeas claimant. She claims for the benefit of Mr Corr's estate pursuant to the Law Reform (MiscellaneousProvisions) Act 1934 and also for herself as a dependant of the deceased under the 1976 Act. Thefirst of these claims has not been contentious. The second is a claim to recover the financial lossattributable to Mr Corr's suicide, and that alone is in issue in this appeal.

7 Before turning to the issue which divides the parties, I think it helpful to record and recapitulate thesignificant points which are common ground *900 between them. First, the employer accepts that itowed a duty to Mr Corr as its employee to take reasonable care to avoid causing him personal injury.Personal injury must be understood as embracing both physical and psychological injury. That is theeffect of the decision of the House in Page v Smith [1996] AC 155 , which neither party criticises orinvites the House to review. (The case is not of course authority for the medical premises on which itrests.) It is common ground, secondly, that the employer was in breach of its duty to Mr Corr and thatthis breach caused the accident on 22 June 1996. So much was admitted on the pleadings. It iscommon ground, thirdly, that as a consequence of this breach Mr Corr suffered severe physicalinjuries and mental and psychological injury for which, up to the date of his death, he could haverecovered damages had he survived, and for which his personal representative is entitled to recoverdamages for his estate. It is agreed, fourthly, that the depressive illness from which Mr Corr sufferedbefore and at the time of his death was caused by the accident. There was nothing in his backgroundor history to suggest that he suffered in this way before his accident. Finally, it is common ground, asalready noted, that it was his depressive illness which drove Mr Corr to take his own life.

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8 Analysed in terms of section 1(1) of the 1976 Act, the question to be decided is whether Mr Corr'sdeath was caused by a wrongful act, namely the employer's breach of duty. In the context of what isagreed, however, the real issue dividing the parties in this case, compendiously expressed, iswhether, for one reason or another, the damages claimed by Mrs Corr under the 1976 Act are tooremote. In this context both parties relied on Lord Rodger of Earlsferry's recent summary of principlein Simmons v British Steel plc [2004] ICR 585 , para 67, a summary which neither side questionedalthough they laid emphasis on different propositions. That opinion was given in an appeal fromScotland, but it was not suggested that the law in the two jurisdictions is now different in any relevantrespect. The summary reads:

“These authorities suggest that, once liability is established, any question of theremoteness of damage is to be approached along the following lines which may, ofcourse, be open to refinement and development. (1) The starting point is that a defenderis not liable for a consequence of a kind which is not reasonably foreseeable: McKew vHolland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20 , 25, per Lord Reid;Bourhill v Young [1943] AC 92 , 101, per Lord Russell of Killowen; Allan v Barclay(1864) 2 M 873 , 874, per Lord Kinloch. (2) While a defender is not liable for damagethat was not reasonably foreseeable, it does not follow that he is liable for all damagethat was reasonably foreseeable: depending on the circumstances, the defender maynot be liable for damage caused by a novus actus interveniens or unreasonable conducton the part of the pursuer, even if it was reasonably foreseeable: McKew v Holland &Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20 , 25, per Lord Reid: Lamb v CamdenLondon Borough Council [1981] QB 625 ; but see Ward v Cannock Chase DistrictCouncil [1986] Ch 546 . (3) Subject to the qualification in (2), if the pursuer's injury is ofa kind that was foreseeable, the defender is liable, even if the damage is greater inextent than was foreseeable or it was caused in a way that could not have beenforeseen: Hughes v Lord Advocate [1963] AC 837 , 847, per Lord Reid. (4) Thedefender must take his victim as he *901 finds him: Bourhill v Young [1943] AC 92 ,109–110, per Lord Wright; McKillen v Barclay Curle & Co Ltd 1967 SLT 41 , 42, perLord President Clyde. (5) Subject again to the qualification in (2), where personal injuryto the pursuer was reasonably foreseeable, the defender is liable for any personalinjury, whether physical or psychiatric, which the pursuer suffers as a result of hiswrongdoing: Page v Smith [1996] AC 155 , 197 f – h , per Lord Lloyd of Berwick.”

Lord Rodger's summary conveniently introduces the submissions advanced and skilfully developedby Mr Cousins for the employer, which were that Mr Corr's suicide (1) fell outside the duty of careowed to him by the employer (“the scope of duty issue”); (2) was not an act which was reasonablyforeseeable and therefore not one for which the employer should be held liable (“the foreseeabilityissue”); (3) broke the chain of causation and constituted a novus actus interveniens (“the novus actusissue”); (4) was an unreasonable act which broke the chain of causation (“the unreasonable actissue”); (5) was the voluntary act of the deceased, and so precluded by the principle volenti non fitinjuria (“the volenti issue”); (6) amounted to contributory negligence (“the contributory negligenceissue”). I shall consider these submissions in turn.

(1) The scope of duty issue

9 Mr Cousins adopted and applied to this case the pithy statement of Spigelman CJ in AMP v RTA[2001] Aust Torts Reports 81–619 , para 9: “There was no duty upon the employer … to protect thedeceased from self-harm.” Mr Cousins pointed out that different duties arise in different situations butthat, as Lord Hope of Craighead observed in Reeves v Comr of Police of the Metropolis [2000] 1 AC360 , 379, “It is unusual for a person to be under a duty to take reasonable care to prevent anotherperson doing something to his loss, injury or damage deliberately”. Mr Cousins invoked the importantprinciple of personal autonomy, illustrated by St George's Healthcare NHS Trust v S [1999] Fam 26and recently upheld by the House in the criminal field in R v Kennedy (No 2) [2008] 1 AC 269 , tosubmit that if an adult of sound mind chooses, for whatever reason, to inflict injury upon himself, thatis an act for which responsibility cannot be laid on another.

10 I would agree with the broad thrust of this submission. The law does not generally treat us as ourbrother's keeper, responsible for what he may choose to do to his own disadvantage. It is his choice.But I do not think that the submission addresses the particular features of this case. The employer

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owed the deceased the duty already noted, embracing psychological as well as physical injury. Itsbreach caused him injury of both kinds. While he was not, at the time of his death, insane inM'Naghten terms, nor was he fully responsible. He acted in a way which he would not have done butfor the injury from which the employer's breach caused him to suffer. This being so, I do not think hisconduct in taking his own life can be said to fall outside the scope of the duty which his employerowed him.

(2) The foreseeability issue

11 As Lord Rodger's summary, ante, para 8, makes clear, and despite the differences of opinionwhich formerly prevailed, it is now accepted that there can be no recovery for damage which was notreasonably foreseeable. *902 This appeal does not invite consideration of the corollary that damagemay be irrecoverable although reasonably foreseeable. It is accepted for present purposes thatforeseeability is to be judged by the standards of the reasonable employer, as of the date of theaccident and with reference to the very accident which occurred, but with reference not to the actualvictim but to a hypothetical employee. In this way effect is given to the principle that the tortfeasormust take his victim as he finds him. Mr Cousins submits that while psychological trauma anddepression were a foreseeable result of the accident (and thus of the employer's breach), Mr Corr'sconduct in taking his own life was not.

12 This submission was accepted by the deputy judge (Mr Nigel Baker QC) at first instance [2005]EWHC 3409 (QB). He held that reasonable foreseeability of the suicide must be established inrespect of both the duty and the recovery of damages: the suicide fell outside the employer's duty andwas not reasonably foreseeable: judgment, paras 33 and 34(ii) and (iii). Dissenting in the employer'sfavour in the Court of Appeal [2007] QB 46 , Ward LJ drew a distinction, at para 57, between whatwas logically foreseeable and what was reasonably foreseeable, and concluded, at para 64, that thesuicide was not reasonably foreseeable. Both the deputy judge and Ward LJ attached significance inreaching this conclusion, as I think mistakenly, to the personal qualities of the deceased. The majorityin the Court of Appeal reached a different conclusion. Sedley LJ, at para 66, referred to the admittedfact that depression was a foreseeable consequence of the employer's negligence and to theuncontroverted evidence that suicide was a not uncommon sequel of severe depression. Hedescribed it, at para 67, as correct but irrelevant that the employer's duty did not extend to anticipatingand preventing suicide. It was not the claimant's case that it did. But the law drew no distinction, forpurposes of foreseeability and causation, between physical and psychological injury, and on theevidence, at para 68, the suicide of Mr Corr was grounded in post-traumatic depression and nothingelse. Wilson LJ observed, at para 98, that the claimant did not have to establish that, at the date ofthe accident, the deceased's suicide was reasonably foreseeable. He did not accept the view ofSpigelman CJ in AMP v RTA [2001] Aust Torts Reports 81 –619 that suicide was a kind of damageseparate from psychiatric and personal injury, and therefore having to be separately foreseeable.

13 I have some sympathy with the feeling, expressed by Ward LJ, at para 61, that “suicide does makea difference”. It is a feeling which perhaps derives from recognition of the finality and irrevocability ofsuicide, possibly fortified by religious prohibition of self-slaughter and recognition that suicide was,until relatively recently, a crime. But a feeling of this kind cannot absolve the court from the duty ofapplying established principles to the facts of the case before it. Here, the inescapable fact is thatdepression, possibly severe, possibly very severe, was a foreseeable consequence of this breach.The Court of Appeal majority were right to uphold the claimant's submission that it was not incumbenton her to show that suicide itself was foreseeable. But, as Lord Pearce observed in Hughes v LordAdvocate [1963] AC 837 , 857, “to demand too great precision in the test of foreseeability would beunfair to the pursuer since the facets of misadventure are innumerable”. That was factually a verydifferent case from the present, but the principle that a tortfeasor who reasonably foresees theoccurrence of some damage need not *903 foresee the precise form which the damage may take inmy view applies. I can readily accept that some manifestations of severe depression could properlybe held to be so unusual and unpredictable as to be outside the bounds of what is reasonablyforeseeable, but suicide cannot be so regarded. While it is not, happily, a usual manifestation, it isone that, as Sedley LJ put it [2007] QB 46 , para 66, is not uncommon. That is enough for theclaimant to succeed. But if it were necessary for the claimant in this case to have established thereasonable foreseeability by the employer of suicide, I think the employer would have had difficultyescaping an adverse finding: considering the possible effect of this accident on a hypotheticalemployee, a reasonable employer would, I think, have recognised the possibility not only of acutedepression but also of such depression culminating in a way in which, in a significant minority of

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cases, it unhappily does.

(3) The novus actus issue

14 The deputy judge made no express finding on this question. But Ward LJ, having reviewed anumber of authorities, concluded [2007] QB 46 , para 49, that the chain of causation was not brokenby the suicide of the deceased. This was an opinion which Sedley LJ shared. He said, at para 76:

“But once the law accepts, as it does, the foreseeability of psychological harm as aconcomitant of foreseeable physical harm, it is only if a break dictated by logic orpolicy—or, of course, by evidence—intervenes that it is possible today to exclude deathby suicide from the compensable damage where that is what the depression leads to.”

He expressed his conclusions in paras 82–83:

“82. To cut the chain of causation here and treat Mr Corr as responsible for his owndeath would be to make an unjustified exception to contemporary principles ofcausation. It would take the law back half a century to a time when the legal and moralopprobrium attaching to suicide placed damages for being driven to it on a par withrewarding a person for his own crime. Today we are able to accept that people to whomthis happens do not forfeit the regard of society or the ordinary protections of the law.

“83. Once it is accepted that suicide by itself does not place a clinically depressedindividual beyond the pale of the law of negligence, the relationship of his eventualsuicide to his depression becomes a pure question of fact. It is not a question which fallsto be determined, as the deputy judge in significant measure determined it, by analogywith the duty of care resting on a custodian. Once liability has been established for thedepression, the question in each case is whether it has been shown that it was thedepression which drove the deceased to take his own life. On the evidence in thepresent case, it clearly was.”

Wilson LJ, at para 100, agreed with Ward and Sedley LJJ.

15 The rationale of the principle that a novus actus interveniens breaks the chain of causation isfairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damagecaused to the claimant not by the tortfeasor's breach of duty but by some independent, superveningcause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not theless so where the independent, supervening cause *904 is a voluntary, informed decision taken bythe victim as an adult of sound mind making and giving effect to a personal decision about his ownfuture. Thus I respectfully think that the British Columbia Court of Appeal (McEachern CJBC, Leggand Hollinrake JJA) were right to hold that the suicide of a road accident victim was a novus actus inthe light of its conclusion that when the victim took her life “she made a conscious decision, therebeing no evidence of disabling mental illness to lead to the conclusion that she had an incapacity inher faculty of volition”: Wright Estate v Davidson (1992) 88 DLR (4th) 698 , 705. In suchcircumstances it is usual to describe the chain of causation being broken but it is perhaps equallyaccurate to say that the victim's independent act forms no part of a chain of causation beginning withthe tortfeasor's breach of duty.

16 In the present case Mr Corr's suicide was not a voluntary, informed decision taken by him as anadult of sound mind making and giving effect to a personal decision about his future. It was theresponse of a man suffering from a severely depressive illness which impaired his capacity to makereasoned and informed judgments about his future, such illness being, as is accepted, aconsequence of the employer's tort. It is in no way unfair to hold the employer responsible for this direconsequence of its breach of duty, although it could well be thought unfair to the victim not to do so.Mr Cousins submitted that on the agreed findings Mr Corr was not, in M'Naghten terms, insane, and itis true that in some of the older authorities a finding of insanity was regarded as necessary if aclaimant were to recover for loss attributable to suicide: see, for example, Murdoch v British IsraelWorld Federation (New Zealand) Inc [1942] NZLR 600 , following McFarland v Stewart (1900) 19NZLR 22 . I do not for my part find these cases persuasive, for two main reasons. First, so long assuicide remained a crime the courts were naturally reluctant to award damages for the consequencesof criminal conduct. Thus a finding of insanity, which exculpated the deceased from criminal

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responsibility, removed this obstacle. Modern changes in the law overcome the problem: there is nowno question of rewarding the consequences of criminal conduct, although it remains true that themore unsound the mind of the victim the less likely it is that his suicide will be seen as a novus actus.The second reason is that whatever the merits or demerits of the M'Naghten rules in the field of crime,and they are much debated, there is perceived in that field to be a need for a clear dividing linebetween conduct for which a defendant may be held criminally responsible and conduct for which hemay not. In the civil field of tort there is no need for so blunt an instrument. “Insane” is not a term ofmedical art even though, in criminal cases, psychiatrists are obliged to use it. In cases such as this,evidence may be called, as it was, to enable the court to decide on whether the deceased wasresponsible and, if so, to what extent. I agree with Sedley LJ that it would be retrograde to barrecovery by the claimant because the deceased was not, in M'Naghten terms, insane.

(4) The unreasonable act issue

17 In his summary of principle in Simmons v British Steel plc [2004] ICR 585 , para 67 (ante, para 8),Lord Rodger refers to both a novus actus interveniens and unreasonable conduct on the part of thepursuer as potentially breaking the chain of causation. No doubt there is room for a theoreticaldistinction between the two. But having regard to the reasons *905 I have given for holding thesuicide of the deceased not to be a novus actus I would find it impossible to hold that the damagesattributable to the death were rendered too remote because the deceased's conduct wasunreasonable. It is of course true that, judged objectively, it is unreasonable in almost any situation totake one's own life. But once it is accepted, as it must be, that the deceased's unreasonable conductwas induced by the breach of duty of which the claimant complains, the argument ceases in myjudgment to have any independent validity.

(5) The volenti issue

18 It is a salutary and fair principle that a tortfeasor cannot be held responsible for injury or damage towhich a victim, voluntarily and with his eyes open, consents. But it is not suggested that Mr Corrconsented in any way to the accident and injury which befell him on 22 June 1996. It is an argumentaddressed only to his suicide. But that was not something to which Mr Corr consented voluntarily andwith his eyes open but an act performed because of the psychological condition which the employer'sbreach of duty had induced. I conclude, again, that this is an argument which has no independentvalidity.

(6) The contributory negligence issue

19 The employer pleaded contributory negligence in its defence, and it featured in Mr Cousins'ssubmissions to the trial judge. The judge, however, made no finding, which he may have thoughtunnecessary since he was dismissing the claim. In the Court of Appeal [2007] QB 46 , Ward LJreferred to the defence of contributory negligence, observing, at para 8, that it had rightly not been thesubject of much argument in the appeal. It may be inferred that he considered the defence to havelittle substance whatever the outcome of the appeal, an impression fortified by the omission of Sedleyand Wilson LJJ, both of whom allowed the claimant's appeal and awarded her the additional damagesclaimed, to mention the point at all. In argument before the House, the issue was again raised, butaddressed by both parties with extreme brevity.

20 I very much question whether it is appropriate for the House to conduct what is in effect anindependent inquiry into a matter on which the courts below have made no findings and on which, tothe extent that it raises any question of law, we have heard no more than cursory argument. I wouldfor my part decline to conduct that inquiry.

21 If, however, my noble and learned friends are of a different opinion, we must pay attention to theterms of section 1(1) of the Law Reform (Contributory Negligence) Act 1945 :

“Where any person suffers damage as the result partly of his own fault and partly of thefault of any other person or persons, a claim in respect of that damage shall not bedefeated by reason of the fault of the person suffering the damage, but the damagesrecoverable in respect thereof shall be reduced to such extent as the court thinks just

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and equitable having regard to the claimant's share in the responsibility for the damage…”

Thus attention is directed to the fault of the deceased and to his causal contribution to the damagewhich ensued.

*906

22 For reasons already given, I do not think that any blame should be attributed to the deceased forthe consequences of a situation which was of the employer's making, not his. Consistently with myrejection of arguments based on novus actus and unreasonable conduct, I would similarly absolve thedeceased from any causal responsibility for his own tragic death. I would accordingly assess hiscontributory negligence at 0%. That, in my opinion, reflects the responsibility of the deceased for hisown loss: see Reeves v Comr of Police of the Metropolis [1999] QB 169 , 198.

23 For these reasons, largely those of the Court of Appeal majority, and also the reasons of my nobleand learned friend, Lord Walker of Gestingthorpe, which I have had the advantage of reading in draft,and with which I wholly agree, I would accordingly dismiss the employer's appeal with costs.

LORD SCOTT OF FOSCOTE

24 My Lords, I have had the advantage of reading in advance the opinion prepared by my noble andlearned friend, Lord Bingham of Cornhill and gratefully adopt his exposition of the facts of this sadcase.

25 Mr Corr, the respondent's husband, was injured at work by the negligence of the appellantcompany, his employers. The accident he suffered could easily have killed him but in the eventinflicted on him serious and disfiguring injuries to his head but left him alive. It is easy to understandthat the repercussions of an injury of that character may have an enduring effect on the mental stateof the victim, continuing after the physical effects are spent. So it was with Mr Corr. He becameclinically depressed, bad-tempered and suffered from nightmares. He was treated withelectro-convulsive therapy. All of this was, it is accepted, a result of the accident. Mr Corr also beganto entertain thoughts of suicide. This, it is accepted, was a symptom of his clinical depression. On 23May 2002, nearly six years after the accident, Mr Corr did commit suicide. In doing so he acteddeliberately, aware of the consequences and with the intention of killing himself. The action which hasnow reached your Lordships' House is the action brought by his widow, Mrs Corr, under the FatalAccidents Act 1976 .

26 Section 1(1) of the 1976 Act enables a dependant of the deceased to bring an action for damages

“If death is caused by any wrongful act, neglect or default which is such as would (ifdeath had not ensued) have entitled the person injured to maintain an action andrecover damages in respect thereof …”

The first question for decision, therefore, is whether Mr Corr's death by suicide was “caused” by theact, neglect or default of his employer that had occasioned, or failed to prevent, the accident.Consideration of this question can easily become over-influenced by the cataclysmic nature andfinality of an act of suicide and I have found it easier to consider the question by asking myself whatthe position would have been if Mr Corr's attempt at suicide had not been successful but instead hadcaused him serious and additional physical injuries to those he suffered in the accident at work. If theanswer is that he would have been entitled not only to recover for his original injuries but also for theadditional injuries caused by his attempted suicide, there is no reason that I can see why Mrs Corrshould not have a good Fatal Accidents Act claim; but if he would not have been entitled to recover*907 damages for the additional injuries, then I would conclude that Mrs Corr would not be entitled toFatal Accidents Act damages. The issue is whether his jumping from the top of the multi-storey carpark was “caused” by his employer's negligence.

27 There is no doubt, on the facts of this case, that but for the employer's negligence the accident atwork would not have happened, that but for the accident at work and the physical damage he sufferedMr Corr would not have become clinically depressed and that but for that psychiatric feature he wouldnot have entertained suicidal thoughts or have attempted suicide. On a “but for” test, his jump fromthe top of the multi-storey car park can be said to have been “caused” by his employer's negligence.But the developing case law has placed limits on the extent of the “but for” consequences of

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actionable negligence for which the negligent actor can be held liable. This case engages andquestions the extent of those limits. As it is put in Clerk & Lindsell on Torts , 19th ed (2006), para2–78:

“Where the defendant's conduct forms part of a sequence of events leading to harm tothe claimant, and the act of another person, without which the damage would not haveoccurred, intervenes between the defendant's wrongful conduct and the damage, thecourt has to decide whether the defendant remains responsible or whether the actconstitutes a novus actus interveniens ie whether it can be regarded as breaking thecausal connection between the wrong and the damage.”

After noting that a novus actus may take the form of conduct by the claimant (i e Mr Corr) himself, thetext says: “Whatever its form the novus actus must constitute an event of such impact that it‘obliterates’ the wrongdoing of the defendant.” The question in this case, therefore, is whether MrCorr's deliberate act of jumping from a high building in order to kill himself, an apparent novus actus,albeit one that was causally connected, on a “but-for” basis, to the original negligence, broke thechain of causative consequences for which Mr Corr's negligent employers must accept responsibility.

28 The answer to this question does not, in my opinion, require the application of a reasonableforeseeability test. To ask whether it was reasonably foreseeable that an accident of the sort thatinjured Mr Corr might have psychiatric as well as physical consequences and, if it did have psychiatricconsequences, whether those consequences might include suicidal tendencies and an eventualsuicide would be unlikely, on the facts of this case, to result in an affirmative answer. The possibility ofthose consequences is clear. On the other hand, the likelihood of their happening, if judged at thetime of the accident, seems to me to be remote. The evidence was that between one in ten and onein six persons suffering from clinical depression will commit suicide. There was, I think, no evidenceas to the likelihood, in percentage terms, of persons suffering the sort of physical injuries that Mr Corrsuffered developing as a consequence clinical depression, but I would be surprised if it were morethan, say, 25%. So my expectation would be that the percentage of cases in which an accident of thesort that befell Mr Corr would lead to clinical depression and suicide would lie in the range of 2–4%. Astatement that an outcome of this degree of likelihood was reasonably foreseeable would be toattribute to the adverb a less than helpful meaning. It would mean, I think, no more than that the *908outcome was foreseeable as a possibility and was one for which the negligent employer ought to beheld responsible.

29 Authority, however, discourages attempts to decide cases like the present by the application of areasonable foreseeability test. The general rule is that in a case where foreseeable physical injurieshave been caused to a claimant by the negligence of a defendant the defendant cannot limit hisliability by contending that the extent of the physical injuries could not have been reasonablyforeseen; the defendant must take his victim as he finds him. In Smith v Leech Brain & Co Ltd [1962]2 QB 405 , 415 Lord Parker CJ said:

“The test is not whether these employers could reasonably have foreseen that a burnwould cause cancer and that [the victim] would die. The question is whether theseemployers could reasonably foresee the type of injury he suffered, namely, the burn.What, in the particular case, is the amount of damage which he suffers as a result ofthat burn, depends upon the characteristics and constitution of the victim.”

Smith v Leech Brain & Co Ltd did not involve psychiatric consequences of a physical injury, but Pagev Smith [1996] AC 155 did. In Page v Smith the House held that where physical injury was areasonably foreseeable consequence of the negligence the defendant was liable for psychiatricdamage caused by the negligence even though physical injury had not in the event been caused andwhether or not psychiatric damage as a consequence of the negligence was foreseeable. As LordBrowne-Wilkinson put it, at p 182:

“In the present case the defendant could not foresee the exact type of psychiatricdamage in fact suffered by the plaintiff who, due to his ME, was an ‘eggshellpersonality.’ But that is of no significance since the defendant did owe a duty of care toprevent foreseeable damage, including psychiatric damage. Once such duty of care isestablished, the defendant must take the plaintiff as he finds him.”

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And, per Lord Lloyd of Berwick, at p 189:

“The negligent defendant … takes his victim as he finds him. The same should apply inthe case of psychiatric injury. There is no difference in principle … between an eggshellskull and an eggshell personality.”

Page v Smith , therefore, extended the rule as stated in Smith v Leech Brain & Co Ltd so as toinclude psychiatric injury. If a duty of care to avoid physical injury is broken and psychiatric injury isthereby caused, whether with or without any physical injury being caused, the negligent defendantmust accept liability for the psychiatric injury. He must take his victim as he finds him. That this is so isa consequence of the House's decision in Page v Smith . That decision has been the subject of somecriticism but not in the present case. If Mr Corr's psychiatric damage caused by the accident at work isdamage for which his employers must accept liability, it is difficult to see on what basis they couldescape liability for additional injury, self-inflicted but attributable to his psychiatric condition. If Mr Corrhad not suffered from the clinical depression brought about by the accident, he would not have hadthe suicidal tendencies that led him eventually to kill himself. In my opinion, on the principlesestablished by the authorities to which I have referred, the chain of causal consequences of theaccident for which Mr Corr's negligent *909 employers are liable was not broken by his suicide. Fortortious remoteness of damage purposes his jump from the multi-storey car park was not, in myopinion, a novus actus interveniens. Mrs Corr is entitled, in my opinion, to a Fatal Accidents Act claimagainst his employers.

30 But that is not an end of the issues that arise in this case. Section 5 of the 1976 Act applies wherethe deceased whose death has entitled the dependant to a Fatal Accidents Act damages action hasdied “as the result partly of his own fault and partly of the fault of any other person”. In that event thedamages recoverable by the dependant are to be reduced to the same proportionate extent asdamages recoverable in an action brought for the benefit of the deceased's estate would have beenreduced under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 . Here, too, I find iteasier to examine the issue by supposing that Mr Corr had not died from his jump but had merely, ifthat is the right word, added to his physical injuries. Would he have been entitled to recover in full forthose additional injuries, or would there have been a proportionate reduction to reflect the fact that thejump had been his own deliberate decision?

31 Section 1(1) of the 1945 Act provides for the reduction of damages recoverable in respect of thenegligence “to such extent as the court thinks just and equitable having regard to the claimant's sharein the responsibility for the damage”. This reduction does not come into operation unless there hasbeen some “fault” on the part of the claimant, or, in a Fatal Accidents Act case, the deceased, thathas been a contributory cause of the damage or the death, as the case may be. There is no doubt inthe present case that both the employer's negligence and Mr Corr's act in jumping from a highbuilding with the intention of killing himself were contributory causes of his death. The issue, to mymind, is whether Mr Corr's act can be described as “fault” within the meaning of that word in section 5of the 1976 Act. Mr Corr's state of mind, his suicidal tendencies, had been brought about as a resultof his employers' negligence. But he was not an automaton. He remained an autonomous individualwho retained the power of choice. The evidence that clinical depression leads often to suicidaltendencies and that between one in ten and one in six persons succumb to those tendencies isevidence also that between nine in ten and five in six persons do not. Suppose, for example, thatthere had been people in the area on to which Mr Corr was likely to land if he jumped. If he hadjumped in those circumstances and had in the process injured someone beneath, surely no court,faced with a claim by the injured person for damages, would have found any difficulty in attributingfault to his action. “Fault” in section 4 of the 1945 Act includes: “[any] act or omission which gives riseto a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence”,and “fault” in section 5 of the 1976 Act must bear the same meaning. So if the act of jumping indisregard for the safety of others would have constituted fault for tort purposes, it is difficult to seewhy that same act of jumping with the deliberate intention of terminating his own life should not alsobe so regarded. If, in jumping, Mr Corr had both injured someone else and also himself, it would seemto me highly anomalous to hold him liable in negligence in an action by the third party but not guilty offault for contributory negligence purposes so far as his own injuries were concerned.

32 In my opinion, therefore, this is a case to which section 5 of the 1976 Act applies and the damagesrecoverable by Mrs Corr fall to be *910 reduced accordingly. The percentage reduction is very mucha matter of impression, dependent on the view taken of the degree of responsibility for Mr Corr'sdeath to be attributed to Mr Corr and his employers respectively. The written case submitted to your

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Lordships on behalf of the employers has drawn attention for comparative purposes to Reeves vComr of Police of the Metropolis [2000] 1 AC 360 . That was a case where a person known to be asuicide risk was being held in police custody and while in that custody succeeded in a suicideattempt. The police were held liable in negligence for allowing this to happen and the issue ofcontributory negligence arose. The House held that responsibility for the death should be apportionedequally between the police and the deceased. The employers in their written case submit that MrCorr's responsibility for his own death should be taken to be much greater than the 50% responsibilityattributed to the deceased in the Reeves case. My Lords, I do not take that view. Mr Corr's suicidaltendencies which led him to take his own life were one of the psychiatric products of his employers'negligence. As I read the evidence Mr Corr struggled against those tendencies, underwent extremelyunpleasant therapy in an attempt, sadly unsuccessful, to be cured of them, but finally succumbed tothem. I think, for the reasons I have given, that this is a case to which section 5 of the 1976 Actapplies and that there must, therefore, be a proportionate reduction in the damages recoverable byMrs Corr. But I do not regard the adjective “blameworthy” as an apt description, other than in a strictlycausal sense, of Mr Corr's conduct in jumping to his death. I would attribute to him responsibility forhis death of 20%.

33 For the reasons I have given I would dismiss this appeal on liability but support a direction that MrsCorr's damages be reduced by 20% to reflect Mr Corr's responsibility for his own death.

LORD WALKER OF GESTINGTHORPE

34 My Lords, I have had the privilege of reading in draft the opinion of my noble and learned friend,Lord Bingham of Cornhill. I am in full agreement with it, and for the reasons that Lord Bingham gives Iwould dismiss this appeal. But because of the importance of the issues raised I add someobservations of my own.

35 It is common ground that the issues raised are different from those in the so-called “custodian”cases—that is, where an individual known to be a suicide risk is in the care or custody of a hospital, aprison, or the police. In England the two most important custodian cases are (in chronological order)Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283 and Reeves v Comr ofPolice of the Metropolis [2000] 1 AC 360 . In Kirkham's case the claimant's husband hanged himselfin Risley Remand Centre after the police had failed to warn the prison authorities that he was (as thepolice knew) a suicide risk. He was suffering from clinical depression and had previously attemptedsuicide more than once. The Court of Appeal upheld awards under the Fatal Accidents Act 1976 andthe Law Reform (Miscellaneous Provisions) Act 1934 , not reduced by an allegation of contributorynegligence (an issue raised in the notice of appeal but not discussed at all in the judgments of theCourt of Appeal).

36 In Reeves's case the claimant was the administratrix of a man who had hanged himself while incustody in a police cell. He was known to be a suicide risk (having made two previous attempts) but adoctor who *911 examined him at the police station a few hours before his death thought that heshowed no signs of psychiatric disorder or clinical depression. This House upheld the majority of theCourt of Appeal (Lord Bingham of Cornhill CJ and Buxton LJ, Morritt LJ dissenting) in holding thepolice liable but allowed the appeal on the issue of contributory negligence, directing a 50% reductionin damages (whereas the Court of Appeal had directed no reduction). The majority was howeverachieved only by the process explained by Lord Bingham, at p 198. In this House the issue ofcontributory negligence was discussed at some length in the opinions of Lord Hoffmann, at pp369–372, Lord Jauncey of Tullichettle, at pp 376–377, and Lord Hope of Craighead, at pp 382–385.

37 This appeal differs from the custodian cases in two important respects. The late Mr Thomas Corrwas not, before the dreadful accident on the press line, a suicide risk; he was a happy family man.The appellant, IBC Vehicles Ltd, was not Mr Corr's custodian but his employer. IBC owed him variouscontractual, tortious and statutory duties, of which the most important for present purposes was totake reasonable care that he did not sustain personal injuries in the course of his work. Mr Corr didnot suffer from depression, suicidal ideation or any other psychological disorder. There was noquestion of IBC owing him any special duty, before the accident, on account of any such disability.His severe clinical depression and feelings of worthlessness and hopelessness came after, and as aresult of, the very serious physical injuries which he received in the accident.

38 Before the decision of this House in Page v Smith [1996] AC 155 there was much uncertainty as tothe circumstances in which psychiatric injury was actionable on its own, unaccompanied by bodilyinjury. The appellant, Mr Page, had been in a car crash in which he was not physically injured. But he

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did as a result of the crash suffer a serious recurrence of myalgic encephalomyelitis (also known asME), which although viral in origin seems to have been treated as on a par with what used to becalled “nervous shock”. There is a much fuller discussion of the aetiology of ME in the judgments inthe Court of Appeal [1994] 4 All ER 522 , where Hoffmann LJ observed that the distinguishing featureof psychiatric damage was its causation rather than its symptoms; it would include a miscarriagecaused by severe fright.

39 Such fine distinctions are however unnecessary since Page v Smith , in which your Lordships'House held that in the case of a primary victim foreseeability of the risk of physical injury is sufficientto establish liability, if there is a breach of duty, for personal injury of any sort, including psychiatricinjury (either on its own or in conjunction with physical injury). Lord Lloyd of Berwick, delivering theleading speech in the majority, stated, at p 188:

“In an age when medical knowledge is expanding fast, and psychiatric knowledge withit, it would not be sensible to commit the law to a distinction between physical andpsychiatric injury, which may already seem somewhat artificial, and may soon bealtogether outmoded. Nothing will be gained by treating them as different ‘kinds’ ofpersonal injury, so as to require the application of different tests in law.”

40 The case has attracted adverse comment from some legal scholars, but it has not beenchallenged before your Lordships. It provides a much *912 simpler test for judges trying personalinjury cases, even if it sometimes results in compensation for damage in the form of psychiatricsequelae which might not, on their own, have been reasonably foreseeable by an employer.

41 In this case the trial judge (Mr Nigel Baker QC) held that Mr Corr's suicide was not reasonablyforeseeable. But he had earlier quoted from the speech of Lord Browne-Wilkinson in Page v Smith[1996] AC 155 , 182:

“I am therefore of opinion that any driver of a car should reasonably foresee that, if hedrives carelessly, he will be liable to cause injury, either physical or psychiatric or both,to other users of the highway who become involved in an accident. Therefore he owesto such persons a duty of care to avoid such injury. In the present case the defendantcould not foresee the exact type of psychiatric damage in fact suffered by the plaintiffwho, due to his ME, was ‘an eggshell personality’. But that is of no significance sincethe defendant did owe a duty of care to prevent foreseeable damage, includingpsychiatric damage. Once such a duty of care is established, the defendant must takethe plaintiff as he finds him.”

But the judge then took his eye off the essential principle in Page v Smith , and misdirected himself byreference to earlier authority, some not concerned with personal injuries at all.

42 It was not disputed by Mr Cousins, for IBC, that Mr Corr's severe clinical depression was the result(and if it mattered, which it does not, the foreseeable result) of the severe physical injuries and shockwhich he sustained in the accident. His severe depression produced feelings of hopelessness whichbecame increasingly strong; they came to determine his reality; by the time of his suicide he wassuffering from a disabling mental condition which (as the agreed statement of facts and issuesrecords) impaired his capacity to make reasoned and informed judgments. But (as is also in theagreed statement) Mr Corr still had the capacity to manage his affairs; his intellectual abilities werenot affected; he did not come within the definition of insanity (at best obsolete and probably neverscientifically sustainable) found in the judges' answers to the second and third abstract questions putto them, without their hearing argument, in connection with M'Naghten's Case (1843) 10 Cl & F 200 .

43 Mr Corr was not therefore deprived of his personal autonomy. It was his own decision to end hislife, despite the love and support which he was given, after as well as before his accident, by hisimmediate family. He must have known that his death would cause them enormous pain, but in hisseverely depressed state he felt that he was an even greater burden to them alive. Suicide was hisdecision, but it came from his feelings of worthlessness and hopelessness, which were the result ofhis depression, which was in turn the result of his accident. Sedley LJ said in the Court of Appeal[2007] QB 46 , para 76:

“But once the law accepts, as it does, the foreseeability of psychological harm as a

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concomitant of foreseeable physical harm, it is only if a break dictated by logic orpolicy—or, of course, by evidence—intervenes that it is possible today to exclude deathby suicide from the compensable damage where that is what the depression leads to.”

*913 I agree. Indeed, apart from its absence of any reference to contributory negligence, I agree withthe whole of the judgment of Sedley LJ, which is, I think, very much in line with the opinion of LordBingham.

44 Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 provides:

“Where any person suffers damage as the result partly of his own fault and partly of thefault of any other person or persons, a claim in respect of that damage shall not bedefeated by reason of the fault of the person suffering the damage, but the damagesrecoverable in respect thereof shall be reduced to such extent as the court thinks justand equitable having regard to the claimant's share in the responsibility for the damage…”

In applying this test the court has to have regard both to blameworthiness and to what is sometimescalled causal potency: Stapley v Gypsum Mines Ltd [1953] AC 663 , 682. These are not precise ormutually exclusive tests. I do not regard “blameworthy” as an appropriate term to describe Mr Corr'sconduct when, with his judgment impaired by severe depression, he decided to end his life byjumping off a high building. That was his own decision, but it was nevertheless a natural consequenceof the physical and mental suffering which he had been enduring since the accident. For my part, inagreement with Lord Bingham, I would make no reduction in the damages to be awarded under theFatal Accidents Act 1976 .

LORD MANCE

45 My Lords, I have had the benefit of reading in draft the opinions of my noble and learned friends,Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Neuberger ofAbbotsbury.

46 On the question whether the defendants are liable to the claimant in respect of the suicide of thelate Mr Corr, I agree that the appeal should be dismissed for the reasons given in the opinions of LordBingham and Lord Walker. I also agree with Lord Neuberger's comments on Page v Smith [1996] AC155 , and its irrelevance on this appeal.

47 On the issue of contributory fault, I agree that, in the light of the extreme brevity with which thisissue has been treated at all stages in this case and on the basis of such material as is available, it isnot appropriate to contemplate a deduction on that score in this House. But, I have considerablesympathy with the general approach taken by Lord Scott of Foscote in his opinion on this issue; andso, like Lord Neuberger, I prefer to leave open the possibility that such a deduction could beappropriate in circumstances of deliberate suicide committed in a state of depression induced by anaccident. Lord Scott's and Lord Neuberger's observations in this respect are, I note, in accord withremarks made in the Supreme Court of North Dakota in Champagne v United States of America(1994) 513 NW 2d 75 and quoted with apparent approval by Lord Hope of Craighead in Reeves vComr of Police of the Metropolis [2000] 1 AC 360 , 384 g –385 b .

48 “Blameworthiness” and causal potency are factors to which attention has to be addressed in casessuch as Stapley v Gypsum Mines Ltd [1953] AC 663 , which are concerned with a defendant's failureto take care. But Reeves v Comr of Police of the Metropolis establishes that “fault” in section 1 of theLaw Reform (Contributory Negligence) Act 1945 is wide enough to cover deliberate suicide. This wasthe view of Lord Bingham of *914 Cornhill CJ in the Court of Appeal [1999] QB 169 , 198 a – c ,upheld by the majority of the House of Lords [2000] 1 AC 360 : see the passages from LordHoffmann's opinion quoted by Lord Neuberger and also per Lord Jauncey of Tullichettle, at p 377 f ,and Lord Hope of Craighead, at pp 383 e – f (pointing out that “one should not be unduly inhibited bythe use of the word ‘negligence’ in the expression ‘contributory negligence’”) and 384 c . Lord Mackayof Clashfern agreed, at p 373 a, with the reasoning of both Lord Hoffmann and Lord Hope.

49 In Reeves's case the police's duty of care was specifically related to the known risk that Mr Lynchwould, although of “sound” mind, seek to commit suicide. But Mr Lynch's decision to commit suicidewas not induced by the police's breach of duty, which merely enabled him to implement it. Comparing

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these two contributing factors, the House concluded, in common with Lord Bingham of Cornhill CJ,that an appropriate deduction would be 50%. In the present case, Mr Corr's depression and suicidewere both caused by and within the foreseeable range of consequences of the appellants' negligence,and this puts the present claimant in a stronger position than the claimant in Reeves's case.

50 Here, the coroner found that Mr Corr “underwent over time a psychological change resulting indepression and anxiety not previously experienced”, while Dr Paul McLaren, the consultantpsychiatrist instructed by Mrs Corr, said in his reports that “a critical change takes place in thebalance of a sufferer's thinking, when they stop seeing the hopeless thoughts as symptoms of anillness and the depressive thinking comes to determine their reality” and concluded that “Mr Corr'scapacity to make a reasoned and informed judgment on his future was impaired by a severedepressive episode in the hours leading up to his death”. In these circumstances, there was aconsiderable case for the full recovery which the Court of Appeal awarded; this is also highlighted byLloyd LJ's reasoning in Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283, 290 c – e , although his remarks were directed simply to an issue of volenti non fit injuria and it is notapparent that the issue of contributory fault raised in the notice of appeal, at p 285 f – g , was actuallypursued before the court in that case.

51 However, in my view, the existence of a causal link between an accident and depression leadingto suicide, sufficient to make a defendant who is responsible for the accident liable for the suicide asone of its consequences, does not necessarily mean that such liability should involve a 100%recovery. The concept of impairment is itself one which could usefully be further explored in expertevidence in another case. On the one hand, a person suffering from depression may be perfectlycapable of managing his or her affairs in certain respects, but be caught ineluctably in a downwardspiral of depressive thinking with regard to their own worth and future. On the other hand, aconclusion that a person suffering from depressive illness has no responsibility at all for his or herown suicide, and is in effect acting as an automaton, may be open to question in law, at least whenthe person's capacity to make a reasoned and informed judgment is described as “impaired” ratherthan eliminated. I agree with Lord Scott that, unless such a person could be described as anautomaton, he or his estate could not expect to escape liability to a bystander injured by a suicide orsuicide attempt. But this may not, I believe, by itself be conclusive on the issue whether such aperson should bear part of any loss flowing from suicide or *915 an attempt as against a personresponsible causally for the depression leading to the suicide or attempt. It may be right, not only toconsider more closely with the benefit of expert evidence what is involved in “impairment” but also, asLord Hope suggested in Reeves's case [2000] 1 AC 360 , 385 a , to identify differing degrees ofimpairment and responsibility. It may also be relevant if other factors were also operating on theclaimant, independently of the accident and the consequent depression-for example, impendingexposure of lack of probity, financial ruin or matrimonial breakdown.

52 The different strands of policy which exist in this area, and the balancing of different goals which isnecessary, may therefore make it appropriate not only to hold liable a defendant who causes anaccident which leads to depression and suicide, but also to attribute an element of responsibility,small though it may be, to a person who commits suicide, so recognising the element of choice whichmay be present even in the case of someone suffering from an impairment due to an accident.

LORD NEUBERGER OF ABBOTSBURY

53 My Lords, I have had the opportunity of reading in draft the opinions of my noble and learnedfriends, Lord Bingham of Cornhill, Lord Scott of Foscote and Lord Mance. I agree with Lord Binghamthat this appeal should be dismissed for the reasons that he gives, subject to two points which Ishould like to address.

54 The first point concerns the somewhat controversial decision of this House in Page v Smith [1996]AC 155 . As Lord Bingham has explained, neither party has criticised that decision, let alone invitedthe House to review it. At least for my part, I understood that was the position of the employerbecause, even if we had been persuaded that Page v Smith was wrongly decided, that would nothave ensured the success of this appeal. I agree. Accordingly, not least in the light of the trenchantobservations of Lord Goff of Chieveley in Frost v Chief Constable of South Yorkshire Police [1999] 2AC 455 , 473 d –480 f , I would not want to appear to prejudge any decision as to the correctness ofthe majority view in Page v Smith , if it comes to be challenged before your Lordships' House onanother occasion.

55 I should briefly explain why my conclusion that this appeal should be dismissed on the liability

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issue is not in any way based on the assumption that Page was correctly decided. It is commonground that Mr Corr's depression was the direct and foreseeable consequence of the accident forwhich the employer accepts responsibility, and that Mr Corr's suicide was the direct consequence ofhis depression. In these circumstances, it appears to me that the only issue on liability can bewhether the fact that Mr Corr's suicide was his own conscious act at a time when he was sane shoulddefeat the claim under the 1976 Act. Although that is expressed as a single issue, it can becharacterised in a number of different ways in law, all of which have been dealt with by my Lord inways that I cannot improve on.

56 It is accepted that Mr Corr's severe depression satisfied the requirements of a valid claim withregard to causation, foreseeabilty and remoteness, and was not excluded for any of the policyreasons mentioned by Lord Rodger of Earlsferry in Simmons v British Steel plc [2004] ICR 585 , para67 in the passage quoted in para 8 of Lord Bingham's opinion. In those circumstances, I havedifficulty in seeing how it could be said that suicide was not a reasonably foreseeable result, or even areasonably foreseeable *916 symptom, of his severe depression. I accept that it can often bedangerous to deduce that, if each step in a chain was foreseeable from the immediately precedingstep, then the final step must have been foreseeable from the start. None the less, once it is acceptedthat Mr Corr's severe depression is properly the liability of the employer, I find it hard to see why,subject to the specific arguments raised by the employer and disposed of by Lord Bingham, Mr Corr'ssuicide should not equally be the liability of the employer. It is notorious that severely depressedpeople not infrequently try to kill themselves: indeed, the evidence before us suggests that thechances are higher than 10%. While I would not attribute to a reasonable defendant, such as theemployer in the present case, the knowledge that the likelihood of suicide attempts among severedepressives is higher than 10%, I would expect him to appreciate that there was a substantial risk of asuicide attempt by someone who suffers from severe depression, and that suicide attempts oftensucceed.

57 The second point which I wish to deal with is that of contributory negligence. I have reached theconclusion that, in this case, it would be inappropriate to reduce the damages awarded to Mr Corr onthe basis of his contributory negligence. That is essentially because the point appears hardly to havebeen touched on in evidence or argument either at first instance or in the Court of Appeal.Accordingly, there is no satisfactory material available to your Lordships to enable an assessment tobe made as to whether a deduction, and if so what deduction, in damages would be appropriate.Further, it seems to me that it would be unfair to the claimant if we were to make a deduction giventhat she will have had no real opportunity to deal with the arguments on the point.

58 Having said that, I think it would be wrong not to record the fact that, in agreement with thereasoning of Lord Scott and Lord Mance, I consider that a defendant such as the employer in thiscase could, in principle, succeed in an argument for a reduction in damages based on contributorynegligence. In that connection, guidance is available from the decision of your Lordships' House inReeves v Comr of Police of the Metropolis [2000] 1 AC 360 , a case involving the question of whetherthe dependant of a Mr Lynch could recover damages from the police commissioner, in circumstanceswhere Mr Lynch had committed suicide when in police custody, and if so whether those damagesshould be reduced pursuant to the Law Reform (Contributory Negligence) Act 1945 .

59 Section 1(1) of the 1945 Act provides that where a person suffers damage “as the result partly ofhis own fault and partly of the fault of any other person” the damages he recovers from the otherperson “shall be reduced to such extent as the court thinks just and equitable having regard to theclaimant's share in the responsibility for the damage”. Section 4 defines “fault” as “negligence, breachof statutory duty or other act or omission which gives rise to a liability in tort or would, apart from thisAct, give rise to the defence of contributory negligence”.

60 In Reeves's case, at pp 369 g –372 c , Lord Hoffmann considered the question of whether the factthat Mr Lynch had killed himself could be said to be his own “fault” within section 1(1) of the 1945 Act.While recognising that it was “odd” to describe such a person “as having being negligent”, LordHoffmann pointed out that *917

“the ‘defence of contributory negligence’ at common law was based upon the view that aplaintiff whose failure to take care for his own safety was a cause of his injury could notsue. One would therefore have thought that the defence applied a fortiori to a plaintiffwho intended to injure himself.”

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Lord Hoffmann then went on to examine and reject the arguments which had been put forward forquestioning that conclusion.

61 Mr Lynch was of sound mind, and, for that reason, Morritt LJ, in the Court of Appeal [1999] QB 169, had taken the view that he should be held to be 100% contributorily negligent. Lord Hoffmanndisagreed [2000] 1 AC 360 , 372 d , on the basis that this was effectively to hold that thecommissioner owed Mr Lynch no duty of care. He continued, at p 372:

“The law of torts is not just a matter of simple morality but contains many strands ofpolicy, not all of them consistent with each other, which reflect the complexity of life. Anapportionment of responsibility ‘as the court thinks just and equitable’ will sometimesrequire a balancing of different goals … The apportionment must recognise that apurpose of the duty accepted by the commissioner in this case is to demonstratepublicly that the police do have a responsibility for taking reasonable care to preventprisoners from committing suicide. On the other hand, respect must be paid to thefinding of fact that Mr Lynch was ‘of sound mind’. I confess to my unease about thisfinding, based on a seven-minute interview with a doctor of unstated qualifications, butthere was no other evidence … I therefore think it would be wrong to attribute noresponsibility to Mr Lynch and compensate the plaintiff as if the police had simply killedhim.”

In those circumstances, he concluded that it was appropriate to hold Mr Lynch 50% contributorynegligent, a view which coincided with that of Lord Bingham of Cornhill CJ in the Court of Appeal.

62 In these circumstances, there is, I accept, a powerful case for saying that, where a defendant istortiously liable under the 1976 Act for the suicide of a person, a degree of contributory negligence(which in the absence of special factors, might well be 50%) should be attributable to the deceasedwhere he is of sound mind, but that it is inappropriate to attribute any contributory negligence to himwhere it can be said that he was not of sound mind. However, it seems to me that such an approachdoes not pay sufficient regard to what Lord Hoffmann referred to in the passage already quoted as“the complexity of life”. Indeed, what Lord Hoffmann had to say earlier in his opinion, at pp 368 h –369a , appears to me to be even more directly in point:

“The difference between being of sound and unsound mind, while appealing to lawyerswho like clear-cut rules, seems to me inadequate to deal with the complexities of humanpsychology in the context of the stresses caused by imprisonment.”

63 In my view, although that remark was plainly directed to circumstances in prison, it is applicablemuch more generally. It is often necessary to have a clear-cut decision: either someone is saneenough to plead to a criminal charge, to bring civil proceedings, to enter into a contract, or to avoidbeing detained, or he is not. However, it is only *918 realistic to accept that there are degrees towhich a person has control over, or even appreciation of the effect and consequences of, his acts. Italso seems clear that there is no inconsistency between the notion that there is a spectrum of sanity,normalcy or autonomy, and the notion that a clear point has to be identified for some purposes atsome specific place on the spectrum.

64 In the present type of case, as I see it at least, a nuanced approach is appropriate, and theexistence of a spectrum can and should be recognised. At one extreme is a case such as Reeves'scase where (surprising though it might seem) the evidence was that Mr Lynch was of sound mindwhen he killed himself. In those circumstances, the suicide could be said to be a purely voluntary act,and one can see how the principle of personal autonomy could be invoked to justify the view reachedby Morritt LJ. None the less, your Lordships' House decided that there were, in reality, two proximatecauses of the death, namely the negligence of the police and Mr Lynch's choice to kill himself and itwas effectively impossible to say, at least on the facts of that case, that the suicide was moreattributable to one cause than to the other.

65 At the other extreme, in my view, would be a case where the deceased's will and understandingwere so overborne by his mental state, which had been caused by the defendant, that there could beno question of any real choice on his part at all, because he had effectively lost his personalautonomy altogether. In effect, in that type of case, the deceased does not really appreciate what heis doing when he kills himself, and he has no real control over his action. In such a case, as the

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deceased would have had no real choice, there would therefore be no real “fault” on his part for hissuicide; consequently there would be no reduction for contributory negligence.

66 In my judgment, there will be cases in the middle, where the deceased, while not of entirely soundmind, can be said to have a degree of control over his emotions and actions, and will appreciate whathe is doing when he kills himself. In other words, there will be cases where a person will have lost adegree of his personal autonomy, but it will not by any means have been entirely lost. In one sense,of course, it can be said that anybody who kills himself has been driven to it, because his naturalinstinct for self-preservation has been overcome by an irresistible urge to die. However, if thatanalysis were correct, there would have been no contributory negligence in Reeves's case, becausethat argument would apply equally when the deceased's mental state was entirely unimpaired.

67 In the present case, Mr Corr's depression led him to have “thoughts of hopelessness” which“became more difficult to resist” before the suicide and, at the time he committed suicide, he wassuffering from a “disabling mental condition, namely a severe depressive episode, [which] impairedhis capacity to make a reasoned and informed judgment on his future”. This seems to me to renderthe employer's case on contributory negligence plainly and significantly weaker than that of thecommissioner in Reeves's case. However, Mr Corr's capacity was “impaired” rather than removed, apoint emphasised by the fact that neither his intellectual abilities nor his appreciation of danger hadbeen lessened from the norm, and that he appreciated the consequences of jumping from a building.

68 In my judgment, in a case such as this, it would represent a failure to take into account theimportance of personal autonomy, and would be inconsistent with the reasoning in Reeves's case, ifwe were to hold that, save *919 where the deceased was of entirely sound mind at the relevant time,it would be inappropriate in principle to reduce the damages awarded under the 1976 Act on thegrounds of contributory negligence, where the deceased had taken his own life. The mere facts thathis mental state was impaired to some extent by a condition for which the defendant was responsible,and that he would not have killed himself but for that impairment, cannot, in my opinion, without morejustify rejecting the contention that there could have been a degree of “fault” on his part.

69 In the end, I consider that the question to be addressed is the extent to which the deceased'spersonal autonomy has been overborne by the impairment to his mind attributable to the defendant.Where it has not been so overborne at all, the contribution, and hence the reduction in damages, maywell be 50% (as in Reeves's case); where it has been effectively wholly overborne, there will be noreduction. In other cases, the answer will lie somewhere between those two extremes. In such cases,the question, while a relatively easy question to formulate, will, I strongly suspect, be a relativelydifficult question to answer, at least in many circumstances.

70 Almost any exercise which involves assessing the degree of contributory negligence mustinevitably be somewhat rough and ready, and that is particularly so where one has to decide on theextent to which a person, whose mental capacity is impaired to a degree, is responsible for his ownsuicide. However, even bearing that in mind, and acknowledging the force of Lord Scott's view to thecontrary, I am in agreement with Lord Mance in that I do not consider it appropriate for your Lordshipsto determine the appropriate degree of responsibility (if any) to apportion to Mr Corr for his suicide inthe present case. The question does not seem to have been the subject of significant evidence orargument at first instance, and it was hardly touched on in argument in the Court of Appeal. Not onlydo I doubt whether it is possible to answer that question on the basis of the evidence and limitedargument before us, and in the absence of any finding in the courts below; it would also be unfair onthe claimant to consider a reduction in her damages on this ground as, for essentially the samereasons, she has not had a proper opportunity to deal with the question. It is not as if it is inevitablethat there would have been some discount on this ground: it would be for the defendant to establishany deduction on the basis of evidence and argument.

71 Accordingly, I too would dismiss this appeal.

Appeal dismissed with costs in House of Lords .

Representation

Solicitors: Moran & Co, Tamworth; Rowley Ashworth .

M G*920

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1. Fatal Accidents Act 1976, s 1(1) : see post, para 26. S 5 : see post, para 30.

(c) Incorporated Council of Law Reporting for England & Wales

© 2013 Sweet & Maxwell

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