Kirkham v Chief Constable of the Greater Manchester Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LLOYD,LORD JUSTICE FARQUHARSON,SIR DENYS BUCKLEY |
| Judgment Date | 20 December 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J1220-4 |
| Docket Number | 89/1245 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 1989 |
[1989] EWCA Civ J1220-4
Lord Justice Lloyd
Lord Justice Farquharson
Sir Denys Buckley
89/1245
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(THE HON. MR JUSTICE TUDOR EVANS)
Royal Courts of Justice
MR T.E. SHANNON, instructed by Messrs Lace Mawer, appeared for the Appellant (Defendant).
MR J.R. FOSTER, instructed by Messrs Rookes Rider, London agents for Messrs Thompson & Cooke, appeared for the Respondent (Plaintiff).
On 10th January 1980 John Joseph Kirkham
committed suicide while on remand at Risley Remand Centre. His widow brings an action against the police for the benefit of his estate under the Law Reform (Miscellaneous Provisions) Act 1934 and for the benefit of his dependants under the Fatal Accidents Act 1976. The learned judge, Tudor Evans J., has found in favour of the plaintiff. He has awarded a total of £6,717.00, made up as to £5,000.00 under the Fatal Accidents Act, and the balance under the Law Reform Act. The police, or more accurately Mr James Anderton, as Chief Constable of Greater Manchester Police, now appeals both on liability and quantum.
The reason why the action has been pursued against the police, and not, as might have been expected, against the prison authorities is as follows. The police were well aware of Mr Kirkham's suicidal tendencies. They failed to pass this information on to the prison authorities. If they had, then the probability is, as found by the judge, that Mr Kirkham would have been placed on the hospital wing on arrival at Risley, instead of in an ordinary cell. If he had been placed on the hospital wing, the probability is that his suicide would have been prevented. On these findings, the judge has held that the negligence of the police in failing to pass on the information in their possession was an effective cause of Mr Kirkham's suicide. The judge then went on to consider and reject a submission that the claim was barred under the principle ex turpi causa non oritur action. In so doing he felt free not to follow certain observations of Lord Denning in Hyde v. Tameside Area Health Authority (unreported). He drew no distinction between the claim under the Law Reform Act and the claim under the Fatal Accidents Act.
There was no dispute that the police knew that Mr Kirkham was a suicide risk. They were told so by the plaintiff herself when he was arrested on a charge of criminal damage on 8th January 1980. Indeed he had made a serious suicide attempt only two days before, on 6th January. On 9th January Mr Kirkham was taken before the Dukinfield Magistrates. The police objected to bail. The case summary prepared by the officer in charge stated that Mr Kirkham had "attempted suicide by hanging within the last week." As a result Mr Kirkham was remanded in custody, inter alia, for his own safety. So there is no doubt that the police were well aware of Mr Kirkham's suicidal tendencies.
Were they negligent in hot informing the prison authorities? The judge has found that they were, and I agree with him. The police have a form, POL/1, which they fill in when a prisoner, whom they regard as an exceptional risk, is handed over to the prison authorities. It is addressed to the prison governor. It is headed:
"Prisoners—Exceptional Risk
Form for completion by police handing over for prison custody a prisoner who presents special risks"
At the foot, in bold type, the form states:
"N.B. This form is to be handed to the gaoler at the magistrates' court or to the prison officer at the crown court when a person, who has not been produced from prison, is sentenced to imprisonment or remanded in prison custody immediately after remand, committal or sentence as the case may be."
There are a number of different reasons listed in the form why a prisoner might present a special risk. One of them is "may have suicidal tendencies". Another is "physical illness or mental disturbance". The police accepted in evidence that they should have filled in form POL/1 in the present case, as they clearly should. Otherwise the prison authorities had no means of knowing of Mr Kirkham's recent suicide attempt. Due to some oversight, they failed to do so.
Mr Shannon argued that the failure of the police to fill in form POL/1 was a pure omission. They owed Mr Kirkham no duty of care to pass on the information in their possession. The purpose of filling in POL/1 is not, so it is said, to protect the prisoner. It is to ensure that he is brought to trial. This is shown by the other reasons why a prisoner might be regarded as a special risk, e.g. "likely to try to escape" and "being associated with a dangerous gang who may attempt rescue". Mr Shannon relied on the speech of Lord Goff in Smith v. Littlewood [1987] A.C. 242 at 270 for the proposition that there is as yet in English law no generalised duty to act positively so as to prevent harm to others. The common law does not impose liability for pure omissions. "Otherwise", as Lord Keith said in Yuen Kun Yeu v. A.-G. of Hong Kong [1988] A.C. 175, "there would be liability in negligence on the part of one who sees another about to walk over a cliff with his head in the air, and forbears to shout a warning".
Such was Mr Shannon's argument. I would, of course, accept his general proposition. But there is an important qualification. The common law frequently imposes liability for a pure omission where the defendant is under a duty to act, or, as the case may be, a duty to speak. The Court of Appeal has had occasion to consider the existence of such a duty in two very recent cases: Bangue Financiere v. Westgate [1988] 2 L.L.R. 513 and the Good Luck [1989] 2 L.L.R. 238. The question depends in each case on whether, having regard to the particular relationship between the parties, the defendant has assumed a responsibility towards the plaintiff, and whether the plaintiff has relied on that assumption of responsibility. In both cases the Court of Appeal held, on the facts, that the defendant was under no duty to speak, and was therefore not liable. But the principle is well established.
In the present case I have no difficulty in holding that the police assumed certain responsibilities towards Mr Kirkham when they took him into custody, and in particular assumed a responsibility to pass on information which might affect his well-being when he was transferred from their custody to the custody of the prison authorities. Nor have I any difficulty in inferring reliance. That is sufficient to impose on the police a duty to speak. They were not in the position of a mere bystander, as in the example given by Lord Keith in Yuen Kun Yeu. That was the very language which the judge himself used in the present case. I find myself in complete agreement.
It follows that the police were under a duty to inform the prison authorities of Mr Kirkham's suicidal tendencies, and were in breach of that duty by failing to fill in form POL/1.
As for causation, it would have been sufficient for the plaintiff to show that the failure to inform the prison authorities materially increased the risk of Mr Kirkham making a successful suicide attempt: see McGhee v. National Coal Board [1973] 1W.L.R. 1. In fact the judge went further, and found that on the balance of probabilities Mr Kirkham would have been prevented from committing suicide if the prison authorities had been informed. I see no reason to interfere with that finding of fact.
I come now to the two defences which lie at the heart of this appeal. They are expressed, for convenience, in two Latin maxims, volenti non fit injuria and ex turpi causa non oritur action.
I deal first with volenti non fit injuria.
Where a man of sound mind injures himself in an unsuccessful suicide attempt, it is difficult to see why he should not be met by a plea of volenti non fit injuria. He has not only courted the risk of injury by another; he has inflicted the injury himself. In Hyde v. Tameside Area Health Authority, the plaintiff, who had made an unsuccessful suicide attempt, brought an action for damages against the Health Authority alleging negligence on the part of the hospital staff. Lord Denning doubted whether a defence of volenti non fit injuria would be available in such a case "seeing that [the plaintiff] did not willingly injure himself—he wanted to die". I find that reasoning hard to follow. Any observation of Lord Denning is, of course, entitled to great weight; but the observation was obiter, since the court held that the hospital staff had not been negligent. Moreover we were told by Mr Foster, who happened to have appeared for the plaintiff in that case, that the point was never argued.
So I would be inclined to hold that where a man of sound mind commits suicide, his estate would be unable to maintain an action against the hospital or prison authorities, as the case might be. Volenti non fit injuria would provide them with a complete defence. There should be no distinction between a successful attempt and an unsuccessful attempt at suicide. Nor should there be any distinction between an action for the benefit of the estate under the Law Reform Act and an action for the benefit of dependants under the Fatal Accidents Act. In so far as Pilcher J. drew a distinction between the two types of action in Pigney v. Pointers Transport Services Ltd. 1957 2 All E.R. 807, I would respectfully disagree.
But in the present case Mr Kirkham was not of sound mind. True, he was sane in the legal sense. His suicide was a deliberate and conscious act. But Dr Sayed, whose evidence the...
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