Corr v IBC Vehicles Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Sedley,Lord Justice Wilson |
| Judgment Date | 31 March 2006 |
| Neutral Citation | [2006] EWCA Civ 331 |
| Docket Number | Case No: B3/2005/1044 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 March 2006 |
[2006] EWCA Civ 331
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR NIGEL BAKER QC (SITTING AS A DEPUTY JUDGE
OF THE QUEEN'S BENCH DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Sedley and
Lord Justice Wilson
Case No: B3/2005/1044
John Foy QC and Andrew Ritchie (instructed by Rowley Ashworth) for the appellant
Jeremy Cousins QC and John Brennan (instructed by Moran & Co) for the respondent
Introduction
This is a tragic case and we all have the deepest sympathy for the appellant, Mrs Eileen Corr, the widow of the late Thomas Corr, who died on 23 May 2002, and for her 13 year old daughter and 11 year old son. The tragedy is that Mr Corr committed suicide by jumping from the top of a multi-storey car park nearly six years after he had been badly injured in a factory accident on the respondent's premises which the respondent admits was caused by its negligence or breach of statutory duty. Before his horrifying accident he was a happily married man of equable temperament, phlegmatic disposition and ordinary fortitude. He was a maintenance engineer on a prototype line of presses which produced panels for Vauxhall motor cars. There was an automated arm with a sucker for lifting these panels, one of which was malfunctioning and Mr Corr and another were working to remedy the fault. Suddenly and without warning the machine picked up a panel and lifted it out of the press while he was in the way. He would have been decapitated had he not instinctively moved his head. Unfortunately, however, the panel still struck him on the right side of his head and severed most of his ear. The reconstruction of his ear was a long and painful process requiring several operations and absences from work. He was disfigured, suffered persistent unsteadiness, mild tinnitus, severe headaches, and difficulty in sleeping. It was, therefore, a serious physical injury.
The psychological trauma was worse. He began to suffer a post-traumatic stress disorder, repeatedly reliving the accident and having flash backs to the event so awful they often caused his body to jolt. He began to suffer from nightmares. He struggled to cope with daily life and he particularly struggled with his work. He became bad tempered and drank more than he had before the accident. He felt bitter towards his employers and was angry that he had never received a proper apology. Even though his expert witness Mr Blunden, a chartered clinical psychologist, stated in a report prepared for this litigation in February 2001 that he would benefit from an apology from his employers, it was not forthcoming until the respondents were shamed into giving it as a result of my intervention. It came too late for the deceased. I do wish the word "Sorry" was a word which more frequently found its place in a defendant's (and more particularly their insurer's) lexicon since in human relations it can mean much and should not be thought to cost much.
As time went by Mr Corr lapsed deeper and deeper into depression. He began to feel he was not the same as everyone else and that he was starting to "lose it". On 6 February 2002 his G.P. referred him for hospital treatment for that depression. On 18 February 2002 he was admitted to hospital after he had taken an overdose. By 2 March 2002 he was at significant risk of suicide and a full risk assessment dated 9 March 2002 described him as having recurrent thoughts of jumping off a high building. Such was the level of his depression that he underwent E.C.T. By 15 April he was reporting that "life is not worth living" and he felt he was becoming a "burden on the family". He was seen by Mr Blunden on 20 May 2002 for the preparation of a supplementary psychological report. He noted: "He feels helpless. He admitted to suicidal ideation." He diagnosed him to be suffering from "severe anxiety and depression, worse than last time." He killed himself three days later.
4. Mrs Corr now brings a claim against his employers on behalf of his estate and under the Fatal Accident Act 1976. She was awarded some £85,000 including interest for the claim on behalf of his estate but her claim under the Fatal Accident Act was dismissed on 26 April 2005 by Mr Nigel Baker Q.C. sitting as a deputy judge of the Queen's Bench Division. Only the Fatal Accident claim is the subject of this appeal.
The judgment in the court below
In summary the judge held that the claimant's reliance on the "but for" and "material contribution" tests were unhelpful because that did not address the need to consider remoteness. He held that:
"30. … reasonable foreseeability is central to both the extent of the duty of care and to the question of remoteness of damage. The argument put forward on behalf of the claimant in my judgment seeks to by-pass the question of foreseeability of the type of loss which occurred in this case, namely death by suicide."
For those reasons he was not persuaded by the claimant's submission.
He added:
"32. … Mr Foy Q.C. raised an alternative argument in his Closing Submissions namely that if foreseeability of suicide had to be established it could be established on the facts of this case. He referred to the evidence of Dr McLaren that those who suffer with severe depression had a one-in-six to a one-in-ten chance of committing suicide. That argument seems to me to be an argument based on hindsight rather than foresight as at the date of the accident.
33. Given the description of the deceased as a happy, well-balanced family man, ambitious in his work and with no psychiatric problems in the past it is plain to me that his suicide six years later (or at all) would not have been reasonably foreseeable to the defendant."
His conclusions were:
"(i) The Defendants were in breach of their duty to take reasonable care towards injury to the Deceased. That duty did not extend to a duty to take care to prevent his suicide.
(ii) The Deceased's suicide was not reasonably foreseeable to the Defendants and as a matter of law reasonable foreseeability of the suicide must be established by the claimant, both in respect of duty and the recovery of damages.
(iii) The damages sought to be recovered in relation to the suicide falls outside the scope of the Defendant's duty of care as I have found it to be."
Discussion
General principles
It is trite that there are five requirements for the tort of negligence: (1) the existence in law of a duty of care (2) breach of that duty; (3) damage; (4) a causal connection between the defendant's careless conduct and the damage and (5) the particular kind of damage not being too remote. The defendant has a defence if he can establish that the claimant voluntarily assumed the risk of injury but the respondent does not rely on that here. The claimant's damages will be reduced if he is guilty of contributory negligence but that has rightly not been the subject of much argument in this appeal. I can pass over these defences.
That much might be trite but there are considerable overlaps between the elements of the scope of the duty of care, any break in the causal chain and remoteness of damage. Questions of forseeability are the common thread but into which compartment one places it, and even whether it matters where one places it, are not matters which are always abundantly clear. As Lord Hoffmann said in Jolley v Sutton L.B.C. [2000] 1 W.L.R.1083, 1091:
"But the present law is that unless the injury is of a description which was reasonably foreseeable, it is (according to taste) 'outside the scope of the duty' or 'too remote'", (emphasis added by me).
Some indication of how that choice is to be made was given in the speech of Lord Russell of Killowen in Bourhill v Young [1943] A.C. 92, 101:
"In considering whether a person owes to another a duty breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e., to the question of culpability not compensation", (with the emphasis again added by me).
I will try first to pick my way through the thicket of authority before expressing my conclusions.
The duty of care
There can be no dispute but that the defendant owed the deceased a duty of care. The company, as the claimant's employer, was under the duty to take all reasonable steps to protect its employees, including the claimant, from any reasonably foreseeable risk of their suffering personal injury. It is not in dispute that once it is established that the defendant was under a duty of care to avoid causing personal injury to the claimant, then it mattered not whether the injury in fact sustained was physical or psychiatric or both. This is settled law since Page v Smith [1996] 1 A.C. 155. Lord Lloyd of Berwick, with whom Lord Ackner and Lord Browne-Wilkinson agreed, said at p. 190:
"The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. If a working definition of 'personal injury' is needed, it can be found in section 38(1) of the Limitation Act 1980: "Personal injuries' includes any disease and any impairment of a person's physical or mental condition …". There are numerous...
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