Reeves v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE BUXTON,LORD JUSTICE MORRITT |
| Judgment Date | 10 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1110-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTF 96/0976/C |
| Date | 10 November 1997 |
[1997] EWCA Civ J1110-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE WHITE)
Royal Courts of Justice
The Strand
London
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Lord Justice Morritt
and
Lord Justice Buxton
CCRTF 96/0976/C
MR TIMOTHY OWEN (instructed by Messrs Christian Fisher, London WC1A) appeared on behalf of THE APPELLANT
MR SIMON FREELAND (instructed by the Solicitors Department, New Scotland Yard) appeared on behalf of THE RESPONDENT
Monday 10 November 1997
For the reasons circulated in writing the appeal will be allowed; the order of the judge will be set aside and an order will be entered for the plaintiff and damages.
The basic facts relevant to this appeal can be stated in short compass; are not in dispute; and are set out very clearly in the judgment of Judge Sir Frank White.
The plaintiff sues as the administratrix of Martin Lynch deceased. Mr Lynch died in hospital on 1 April 1990, as a direct result of a suicide attack upon himself committed on 23 March 1990 when he was in custody on remand at the Kentish Town Police Station. On 23 March 1990 the officers responsible for Mr Lynch's custody already knew that he was a suicide risk, because of incidents on earlier occasions when he had been in police custody. On the morning of that day, while Mr Lynch was at the magistrates court, a further incident occurred which may or may not have been a serious suicide attempt by Mr Lynch. He was however produced to the magistrates and further remanded in custody by them. On his return to the Kentish Town police station he saw the police surgeon. She thought him to be a suicide risk and said that he should be kept under observation, but could find no evidence of specific mental disturbance. I interpose to say that on the basis of that and other evidence the Judge found that at time of his suicide Mr Lynch was of sound mind and not suffering from any marked medical or psychiatric condition.
Shortly after that examination Mr Lynch hanged himself. He was able to do that because the wicket gate or flap in the cell door had been left down, and that enabled him to tie his shirt through the spy hole on the outside of his cell door, and hang himself with it. On the basis of those primary facts the Judge made a number of holdings that are not challenged before us:
1. The defendant's officers owed a particular duty of care to Mr Lynch, because they knew he was a suicide risk. The content of the duty was to take reasonable care to prevent such a person who was being held by them from committing suicide.
2. It was negligent of those officers not to shut the wicket gate after Mr Lynch had been placed in the cell, because it might reasonably have been foreseen that that gave Mr Lynch an opportunity to strangle himself in way that in fact occurred.
3. Leaving aside at that stage the important question of whether Mr Lynch's own act was a novus actus interveniens, there was causative link between the negligent act and Mr Lynch's death.
The decision in the court below
On that basis, and save for the defences raised by the Commissioner, the plaintiff should have succeeded. The judge however held that the Commissioner could avoid liability by relying on the defences both of volenti non fit injuria and of contributory fault; and further, without deciding the point, he was attracted to the view that the plaintiff's claim was defeated also by the operation of the maxim or principle ex turpi causa non oritur actio. The Commissioner maintains all those defences before us, and in addition argues that Mr Lynch's suicide was a novus actus interveniens, thus defeating the plaintiff's claim on grounds of causation. Although logically that issue should come first, involving as it does an alleged failure on the part of the plaintiff to establish his claim rather than a defence to that claim once prima facie established, for reasons of convenience which will become apparent I deal with it at a later stage of this judgment.
Volenti non fit injuria
The judge described this defence as amounting to a claim by the Commissioner that, both on the facts and on the law, the whole blame for Mr Lynch's death must rest on Mr Lynch's shoulders. He held that that claim was made out. This issue was dominated before the judge by very careful analysis of decision in this court in Kirkham v Chief Constable of Greater Manchester [1990] CB 283 [ Kirkham], a case that also involved a suicide in police custody, and which has equally and properly been the subject of careful analysis before us. Before turning to Kirkham, however, it is important to remind ourselves first of the nature and basis of the defence of volenti. Mr Owen, for the plaintiff, took us to paragraphs 3–43 and 3–44 of Clerk & Lindsell on Torts (17th edition) [ Clerk & Lindsell], where the learned editor draws attention to two possible theoretical bases for the defence: that the plaintiff is to be taken to have agreed to waive any claim for injury (see per Lord Denning MR in Nettleship v Weston [1971] 2 QB 691 at p701); or on the other hand that evidence that the plaintiff was volens simply operates to define the scope of the duty owed to him by the defendant (see most clearly for that view the judgment of Diplock LJ in Woolridge v Sumner [1963] 2 QB 43 at p67). In Morris v Murray [1991] 2 QB 6 at p15 Fox LJ held that there was probably not much difference between the two positions, a view strongly endorsed in Clerk & Lindsell, and continued, in respect of the application of the defence of volenti to a case of negligence:
"In general, I think that the volenti doctrine can apply to the tort of negligence, though it must depend upon the extent of the risk, the [plaintiff's] knowledge of it and what can be inferred as to his acceptance of it."
I would respectfully agree that this broadly pragmatic approach is to be found in the majority of the cases. I would however note in passing that if the theory of the defence of volenti is indeed that "volens" conduct on the part of the plaintiff affects the content of the defendant's duty, that would seem to be conclusive in this case against the availability of the defence. That is because the judge found, without challenge before us, that the duty in this case was to take reasonable care to prevent Mr Lynch committing suicide. It is very difficult to see how Mr Lynch's voluntary act in actually so committing suicide can amend or affect the content of that duty at all; save at least by destroying that duty altogether, which would be inconsistent with the judge's unchallenged finding as to the existence of the duty.
Putting these difficult theoretical matters on one side, however, and approaching the defence on a more pragmatic basis, counsel for the Commissioner said, without dissent by his opponent, that a valuable guide was to be found in Smith v Baker [1891] AC 325 at p360, where Lord Herschell said that:
"The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong."
That means, in a negligence case, not so much assent to infliction of injury as assumption of risk of it: see Salmond & Heuston on Tort (21st edition), p474. It will immediately be seen that there may be some difficulty in applying that analysis in a case such as ours, where the negligence of the defendant consisted not in the infliction of injury, but in not taking reasonable steps to prevent Mr Lynch from injuring himself. I return to that difficulty at a later stage of this judgment.
Turning now to Kirkham, the prisoner in that case was, unlike Mr Lynch, suffering from what was described as clinical depression. He killed himself in prison, in circumstances where the defendant police authority was found to have been negligent in not passing on to the prison authorities information about his suicidal tendencies. In Kirkham, as in our case, the defence advanced were volenti and ex turpi causa. Both failed, but we should note now that in the argument in our case the difference between the mental state of deceased in Kirkham on the one hand and of Mr Lynch on the other looms very large.
Thus in Kirkham Lloyd LJ said (at pp 289G-290C):
"When 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 on himself….But in the present case Mr Kirkham was not of sound mind…If it had been a case of murder he would have had a defence of diminished responsibility due to disease of the mind….he was not truly volens. Having regard to his mental state, he cannot, by his act, be said to have waived or abandoned any claim arising out of his suicide. So I would reject the defence of volenti non fit injuria."
On the basis of this passage the Commissioner argues strongly that Lloyd LJ, albeit obiter, could see no answer to a claim of volenti in respect of the suicide of a person of sound mind: as on the judge's findings Mr Lynch has to be taken to have been.
Farquharson LJ adopted a different approach, at pp 294H-295C:
"Dr. Sayed, who gave evidence for the plaintiff at the trial and was well acquainted with Mr. Kirkham's medical history, agreed under cross-examination that Mr. Kirkham's suicide was a conscious and deliberate act. In...
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