Corr v IBC Vehicles Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 28 April 2005 |
| Neutral Citation | [2005] EWHC 895 (QB) |
| Court | Queen's Bench Division |
| Date | 28 April 2005 |
[2005] EWHC 895 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Nigel Baker QC Sitting as a Deputy High Court Judge Queen's Bench Division
Counsel for the Claimant: Mr. John Foy QC, Mr. Andrew Ritchie
Counsel for the Defendant: Mr. Jeremy Cousins QC, Mr. John Brennan
Hearing dates: 11 th, 12 th, 13 th April 2005
Factual Background
Thomas Corr ("the Deceased") was injured in an accident at work on 22 June 1996. He was employed by the defendants as a maintenance man. On the day of the accident he was working on a prototype press line when a sheet metal panel shot out of the press, striking him on the side of the head and almost severing his right ear.
Proceedings were commenced by the Deceased for personal injury and consequential loss. The Defendants admitted liability in a Defence dated 15 November 1999. On 23 May 2002, almost 6 years after the accident, the Deceased committed suicide by jumping from the top of a multi-storey car park. The Claimant claims as Widow and Administratrix under the Law Reform (Miscellaneous Provisions) Act 1934 and under the Fatal Accidents Act 1976.
There is no dispute that the Claimant is entitled to recover £45,000 as general damages for the personal injury suffered. The Defendants deny that they are liable in respect of the subsequent suicide.
The factual background is set out in two statements made by the Deceased, respectively in June 1997 and February 2002.
The Deceased commenced employment with the Defendant as a production operative in February 1992. He transferred to maintenance in December 1995. It is the Claimant's case that her husband had never had any psychiatric illness. He was a normal well-adjusted family man. In evidence the Claimant said that her husband was very easy going and was well liked. He was a happy person and a good father to their two children. He was ambitious and aimed to progress to a managerial position at work. It is the Claimant's case that the Deceased had good promotion prospects.
The Deceased returned to work on 7 October 1996. He was promoted on merit to Team Leader on 1 December 1996. In his first statement he described having mood swings but stated specifically that he had no thoughts of suicide.
In his second statement the Deceased described having psychological counselling sessions in 1997 and 1999. He was able to do some overtime. In October 2001 he was transferred to an office-based job. In February 2002 he was off sick by reason of stress and depression. It is plain that he made a suicide attempt at about that time.
It is plain from the evidence of Dr. McLaren, a Consultant Psychiatrist, called on behalf of the Claimant, that the Deceased developed severe depressive episodes. I will return to the evidence of Dr. McLaren later in this Judgment.
Counsels' Submissions
The Claimant's case is set out in para.6 of the Re-Amended Particulars of Claim.
"6. Further by reason of the psychological problems aforesaid including (1) depression and/or (2) post traumatic stress disorder and/or (3) lowered self-esteem and/or (4) the stresses involved in pursing this litigation, the deceased committed suicide on 23 May 2002. As a result of his death the claimant has suffered loss and damage. It is the claimant's primary case that
1. The suicide would not have occurred but for the said accident and/or
2. The suicide was caused by the said accident and its sequelae and/or
3. The defendant must takes its victims as it finds them and/or
4. That so long as some injury of the type which occurred (psychiatric injury) was foreseeable the claimant does not have to prove that every detailed aspect of the injury and loss was foreseeable for it to be recoverable from the first defendant and/or
5. The medical treatment which the deceased received through the NHS after the accident for his psychiatric condition was not negligent nor substantially causative of the claimant's suicide"
Mr. Foy QC on behalf of the Claimant, in summary argued that:
(i) 'The "but-for" and "material contribution" tests were satisfied.
(ii) The Claimant does not have to prove that suicide was reasonably foreseeable. Provided some injury was foreseeable it matters not whether the resulting injury was physical or psychiatric. Suicide it is argued is a symptom of depression ( Page v Smith [1996] 1 AC155).
(iii) The Claimant could recover under the principle enunciated in Hughes v Lord Advocate [1963] A.C. 837 because the suicide represented damage of the same kind (albeit to a much greater extent) as that which was reasonably foreseeable.
(iv) Pigney v Pointers Transport Services [1957] 1 WLR 1121 remains good law and was decided on facts similar to those in the present case.
(v) The pleaded defences of novus actus interveniens; volenti non fit injuria and contributory negligence should be rejected because it cannot be said that the Deceased was capable of a reasoned and rational decision making ability at the time he took his life.
Mr. Cousins QC on behalf of the Defendants in summary argued that:
(i) The Defendants duty was to take reasonable care to avoid injury to their employee. The duty, unlike the custodian cases of which Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283 and Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 are examples, did not extend to a duty to take reasonable care to prevent the Deceased from taking his own life.
(ii) Suicide was not reasonably foreseeable and in any event fell outside the alleged breach of duty.
(iii) The decision in Page v Smith provided no basis in law for the Claimant to recover for the Deceased's suicide in this case. Suicide is not personal injury. The Claimant's reliance on Hughes v Lord Advocate is a misapplication of the principle there decided. Pigney v Pointers Transport Services Ltd was a decision based on the principle in Re: Polemis & Anr & Furness Withy & Co. Ltd [1921] 3 KB 560 and no longer represents good law.
(iv) Re: Polemis was never part of the law of Scotland and Cowan v NCB [1958] SLT 19 applying the "grand rule" was correctly decided on facts not dissimilar to those in the present case.
(v) The "but-for" and "material contribution" tests represent only the first part of the exercise. Questions involving reasonable foreseeability have to be considered once the first part of the test has been satisfied.
(vi) The Deceased, on the evidence, appreciated and had full knowledge of the risks when he jumped. The defences of novus actus interveniens, volenti non fit injuria and contributory negligence were established.
The Claimant's reliance on the "but-for" and "material contribution" tests is in my judgment unhelpful. Those tests represent but the first part of a two part exercise as the editors of Kemp & Kemp (2004) para.2–004 observe.
"Whether it is the "but for" or "material contribution" test that is adopted, once that first part of the test has been satisfied, it is necessary to address the second part which is essentially one of remoteness and requires the Court to identify the losses that can be proved to result from the defendants wrongdoing. In summary, a defendant will not be held liable for a loss that is
(i) of a type which was not reasonably foreseeable;
(ii) deemed to be too remote;
(iii) resulting from supervening or intervening events;
(iv) resulting from the claimant's own unreasonable or voluntary behaviour or choice…"
Neither of these tests permit the by-passing of the question whether the loss was of a type that was reasonably foreseeable. Equally questions of remoteness, novus actus and volenti would also require to be considered. It was notable that Mr. Foy QC referred to neither the "but for" or "material contribution" tests in his Closing Submissions in reply.
The concept of reasonable foresight is relevant to the questions whether a duty of care exists and if it does whether the damage is recoverable.
As Lord Hope said in Reeves at p.378C:
"The act of suicide may be both unforeseen and unforeseeable".
In the cases of Kirkham and Reeves, the prisoner in custody was a known suicide risk. The suicide in each case was reasonably foreseeable. The police owed the deceased in each case a duty to take reasonable care to prevent the prisoner from deliberate self-harm.
Orange v Chief Constable of West Yorkshire Police [2002] QB 347 is to be contrasted. In that case where the prisoner was not a known suicide risk it was held that there was no duty of care to prevent him from taking his own life. Latham LJ said at p.355C
"It is accepted that the police are under a duty to any person in their custody to take reasonable care for that person's health and safety. This duty undoubtedly encompasses a duty to take reasonable steps to prevent a person from committing suicide if that person is known to be a suicide risk"(my emphasis)
In Reeves it was made plain that the existence of a duty to guard against self-harm is rare and very unusual. Lord Hoffmann at p.369A said:
"The duty…is a very unusual one, arising from the complete control which the police or prison authorities have over the prisoner, combined with the special danger of people in prison taking their own lives".
In observing that there was little authority on the question of contributory negligence in suicide, Lord Hoffmann stated at p.370A:
"It is not surprising that there is little authority on the point that the plaintiff's act in deliberately causing injury to himself is almost invariably regarded as negativing causal connection between any prior breach of duty by the defendant and the damage suffered by the plaintiff. The question can arise only in the rare case, such as the...
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