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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 and Lord Neuberger of Abbotsbury 2007 Dec 3, 4, 5; 2008 Feb 27 NegligenceCausationSuicideEmployee suffering serious injury at workEmployer admitting negligence and/or breach of statutory dutyEmployee suffering post-traumatic stress disorder leading to severe depression and eventual suicideWhether employer liable for suicideWhether suicide reasonably foreseeableContributory negligence Fatal Accidents Act 1976 (c 30), ss 1, 5 In 1996 the claimant's husband was employed by the defendant as a maintenance engineer when he suffered severe head injuries caused by malfunctioning machinery. Following lengthy reconstructive surgery, he began to suffer post-traumatic stress disorder causing him to lapse into depression. Prior to the accident he had been a happily married man of equable temperament. In February 2002 he was admitted to hospital after taking a drug overdose; by March he was diagnosed as being at significant risk of suicide; in May he was further diagnosed as suffering from severe anxiety and depression, and three days later he committed suicide by jumping from the top of a multi-storey car park. The claimant, his widow and the administratrix of his estate, brought proceedings against the defendant. The defendant admitted that the accident had been caused by its negligence and/or breach of statutory duty, but denied liability under section 1(1) of the Fatal Accidents Act 1976 1 for the deceased's suicide. It also pleaded that the deceased had been guilty of contributory negligence for the purposes of section 5 of the Act. The judge awarded damages of 85,000 for the widow's claim on behalf of the deceased's estate but dismissed her Fatal Accidents Act claim, holding that the defendant's duty of care to the deceased had not extended to a duty to take care to prevent his suicide and that the suicide had not been reasonably foreseeable by the defendant. He made no finding as to contributory negligence. The Court of Appeal allowed the claimant's appeal against the judge's dismissal of her 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 reasonable care to avoid causing him personal, including psychiatric, injury, and foreseeability of risk of physical injury was sufficient to establish liability; that the depressive illness from which the deceased had suffered had been the direct and foreseeable consequence of the accident for which 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 to make 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 been broken 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 of the deceased's contributory negligence in the absence of satisfactory material on which to decide whether such a reduction should be made, and in what amount (post, paras 10, 13, 16, 20, 29, 34, 4244, 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 fault could in principle be appropriate in circumstances such as those in the present case (post, paras 47, 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 81619 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 WLR 987; [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 ER 736, HL(E) R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269; [2007] 3 WLR 612; [2007] 4 All ER 1083, HL(E) Reeves v Comr of Police of the Metropolis [1999] QB 169; [1998] 2 WLR 401; [1998] 2 All ER 381, 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 ER 673, 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] 1 Lloyd'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] 3 All 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] 1 AC 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 WLR 876; [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 11 July 2006 from the majority decision of the Court of Appeal (Sedley and Wilson LJJ, Ward LJ dissenting) on 31 March 2006 allowing an appeal by the claimant, Mrs Eileen Corr, as a dependant of her deceased husband, Thomas Corr, from the decision of Nigel Baker QC who, sitting as a deputy judge of the Queen's Bench Division on 26 April 2005 [2005] EWHC 3409 (QB), had dismissed her claim 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 be liable for the death by suicide of the injured person where that person is sane and has taken his own life deliberately with full understanding of his actions and their implications. Such a person should be treated as responsible in law for his conduct and its consequences. This is so whether responsibility is 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 to have 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 if death had not ensued. For the claimant's case to be sound the law would have to be that if Mr Corr had suffered injuries in a failed suicide attempt the employer would have been liable to compensate him 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 such illness that he committed suicide. In the light of the agreed factual matters, however, his suicide was the result of a decision taken by him. Those factual matters are his capacity to manage his own affairs, his unimpaired intellectual faculties and appreciation of danger, his awareness of the consequences of jumping from the building, his deliberate action, his understanding of the difference between right and wrong and his knowing the nature and quality of his actions. The autonomy of the individual, and the right of self-determination, are enshrined in law to the point that a person is entitled to act to his own detriment even though the decision concerned is completely unreasonable: see St George's Healthcare NHS Trust v S [1999] Fam 26 , especially at pp 4344 and 51, and Hart & Honor, Causation in the Law , 2nd ed (1985), p 136. The corollary must be that a person who appreciates danger and whose cognitive functions are not impaired is to be held responsible for self-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 an action 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 unreasonable act that broke the chain of causation; (v) amounted to volenti and (vi) constituted contributory negligence. It is essential to identify the scope of the duty of care to establish whether the loss falls within it. The damage may be foreseeable but not be within the scope of the duty. The employer owed Mr Corr the same duty as it owed to any employee, namely to take reasonable care to avoid causing him reasonably foreseeable injury. No wider duty was ever asserted by the claimant. For the employer to be responsible for the losses suffered by reason of Mr Corr's suicide, such losses must fall within the scope 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 in respect of losses of a kind which fall outside the scope of his duty of care. He said that there was nothing new in that principle and that it had been the rule in tort since In re Polemis and Furness Withy & 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 care substantially defines whether a loss can be said to be too remote: see per Lord Nicholls of Birkenhead 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 employer injuring his employee. It was not to protect him from deliberately inflicted self-harm: see per Spigelman CJ in AMP v RTA [2001] Aust Torts Reports 81 619, para 9. There is no authority for the proposition that an employer owes such an exceptional duty to an employee. A duty to protect a person 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: see Reeves 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 clear from the speeches of the majority in Reeves's case (Lord Hoffmann, at pp 365 g h , 367 h 368 a and 368 c Lord Mackay of Clashfern, at p 373 a , Lord Jauncey of Tullichettle, at p 374 f h and Lord Hope of Craighead, at pp 379 h and 380 c 381 c ) that it was because of the exceptional nature of the duty owed in that case that the plaintiff succeeded. Even where there is a duty to protect from self-harm, its very narrow limits are demonstrated by the recent decision of the Court of Appeal in Orange 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 the accident, a reasonably foreseeable consequence of the employer's failure to take reasonable steps for his safety. In the light of the observations of the House of Lords in Jolley v Sutton London Borough Council [2000] 1 WLR 1082 as to the nature of a judge's findings as to foreseeability (see especially per Lord Steyn, at pp 1088 h 1089 c ), the Court of Appeal should not have disturbed the deputy judge'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 regarded the decision of the House of Lords in Page v Smith [1996] AC 155 as leading to the conclusion that Mr Corr's suicide had been foreseeable, or was to be treated as such. On a true analysis, Page v Smith does not require such a result. The principles applicable to questions of foreseeability and remoteness 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 both English and Scottish cases, suicide has been found not to be a reasonably foreseeable consequence of an employer's breach of duty to his employee to avoid causing personal injury. Pigney v Pointer's Transport Services Ltd [1957] 1 WLR 1121 , although supportive of the claimant's case, was expressly 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, that the suicide was not reasonably to be foreseen by the employer. By contrast, a nearly contemporaneous decision of Lord Cameron in Cowan v National Coal Board 1958 SLT (Notes) 19 reached 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. The only reason for the difference in conclusion was the application of Polemis principles in the one and the grand rule of Allan v Barclay (1864) 2 M 873 in the other. Since the decision in The Wagon Mound [1961] AC 388 , and the departure from the Polemis case, it is clear that the legal principle underpinning 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 1518 and 30, where Spigelman CJ also suggested that it might, for foreseeability purposes, be appropriate to recognise the deliberate infliction of self-harm as a separate kind of damage distinct from both personal injury and psychiatric harm, an approach very close to that suggested by Professor Glanville Williams in respect of contributory intention in Joint Torts and Contributory Negligence (1951), *889 p 199, para 55. Lord Rodger in Simmons's case did not say in terms that he approved of Lord Cameron's reasoning in Cowan v National Coal Board , but it is difficult to read his speech in any other way. It is significant that in his analysis of the legal principles leading to the law of negligence he chose to use Cowan's case as his example. The passage is integral to his exposition of the development of English and Scots law in accordance with the principles he set out. So Simmons's case is strong authority for the proposition that suicide following an industrial accident, albeit leading to depression, is not reasonably foreseeable. The law is now the same in Scotland as in England. Pigney's case should now be disapproved. It appears that the Law Commission, Claims for Wrongful Death (November 1999) (Law Com No 263) refrained from recommending a change in the law to overrule Pigney's case because it was of the view that the decision was no longer authoritative since the decision in The Wagon Mound . As to the effect of Page v Smith [1996] AC 155 , it is no part of the employer's submissions that the House of Lords should depart from it (Lord Rodger's proposition (5) in Simmons's case, para 67). The claimant does not need Page v Smith to recover for nervous shock. The speech of Lord Lloyd of Berwick can be taken as representing the majority view and the ratio. For present purposes, the critical passage is at p 197 e h . Page v Smith was not a case concerned with self-inflicted injury of any kind. The decision establishes that, if personal injury of any kind is foreseeable, the defendant owes the injured party a duty of care in respect of it and it does not matter whether it is physical or psychiatric. 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 as a foreseeable consequence of an accident. Even if personal injury in the case of a primary victim is one and indivisible, so that if any injury can be foreseen there is a liability for all injury arising from the accident, it does not follow that additional and further injury by the victim's own hand is to be treated as foreseeable. It is inconceivable that the House of Lords intended to sweep aside the well established body of case law dealing with issues such as novus actus and unreasonable act without expressly making reference to such considerations. The decision involved only a very small extension of the egg-shell principle. The development of chronic fatigue syndrome in Page v Smith and psoriasis in Simmons's case were not the result of decisions by the respective plaintiff or pursuer. The examples of a heart attack or miscarriage produced by shock (given by Lord Browne-Wilkinson in Page v Smith , at p 181 b ) are different 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 victim has to do something to bring it about. Ward LJ's reliance on Hughes v Lord Advocate [1963] AC 837 for finding that death by suicide was a different kind of damage from that suffered by accident was well founded. Mr Corr was not deprived of his reason or faculties before he committed suicide. He knew what he was doing, but acted deliberately with the intention of killing himself. That was not something 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 be available 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 to the behaviour of only the most vulnerable category of accident victims, namely those who progress to develop severe depression. The proper time to analyse foreseeability is when the breach of duty occurs. The unfairness and inappropriateness of investing such foresight in the appellant six years before Mr Corr's death is demonstrated by the evidence of Mr Blunden, the clinical psychologist called on behalf of the employer, to the effect that (i) when he had seen Mr Corr only three days before his death he had not considered that he was in imminent danger of suicide and (ii) to outward appearances Mr Corr was recovering from the worst, did not intend to commit suicide and was continuing with confidence-building sessions. What is foreseeable is to be judged by foresight, not hindsight. As to liability for personality change, in Jones v Jones [1985] QB 704 it was conceded that separation or 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 not argued on behalf of the defendant that the plaintiff was not entitled to compensation for such loss (see at p 371 h ); (ii) on the basis of the decision in Jones v Jones . Of relevance to the present case is the rhetorical question posed by Woolf J in Meah v McCreamer (No 2) [1986] 1 All ER 943 , 950 h as to whether or not the plaintiff would have been entitled to a declaration as to indemnity in respect of future attacks committed by him. Applying that question to the present case, should a claimant who suffers a head injury be entitled to a declaration as to indemnity or an order for provisional damages in the event of a later suicide? The answer must be no. In that case, how could his estate recover for 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 is suffered 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 of Police of the Metropolis [2000] 1 AC 360 (see per Lord Jauncey of Tullichettle, at p 374 d e , and Lord Hope of Craighead, at p 380 b ) indicate the generally applicable principle with regard to self-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 chain of causation is broken. As to contributory intention, it is clear that Mr Corr intended to kill himself. This is, therefore, not merely a case of contributory negligence but, to adopt the phrase used by Professor Glanville Williams in Joint Torts and Contributory Negligence (1951), one of contributory intention. Professor Glanville Williams suggests, at p 199, para 55, that contributory intention should be a defence in an action for tort; see also his discussion at p 354, para 88. There is no liability. It is black and white, not a grey area. As to the suggested relevance of depression, the reasoning of each of the judgments of the Court of Appeal [2007] QB 46 appears to have been based on, or influenced by, a passage from the judgment of 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. Kirkham was a death in police custody case, where the police had actual knowledge of the deceased's suicidal tendencies and suicide attempts before they committed their breach of duty. It was the very fact of the deceased's known unsound mental state that gave rise to the duty on them to impart knowledge of it to the prison authorities. A tortfeasor is not liable for damage that results from an unreasonable act on the part of the injured person. The authorities suggest that this is a basis, distinct from foreseeability and novus actus, for holding 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 British Steel plc [2004] ICR 585 , 609, where Lord Rodger of Earlsferry, referring to McKew , also treated unreasonable conduct on the part of a claimant as a ground separate from novus actus and foreseeability 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 act can constitute an unreasonable act would be inconsistent with the existence of the duty, but in other cases if an act can fairly be described as unreasonable the loss flowing from it will be too remote. In the present case, given the unimpeded faculties of Mr Corr, his action was unreasonable. As a matter of 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 has been deprived of his reason by being rendered insane, it is not appropriate to apply the yardstick of reason to his actions. This is why the New Zealand courts have held that suicide or self-injury by an insane person does not break the chain of causation. By contrast, death by suicide in the case of a sane person is treated as caused by the act of the injured person himself: see Murdoch v British Israel 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 the Workmen's Compensation Acts 1906 and 1925 . Foreseeability was not required by those Acts, so the cases do not address the question. There have been almost no cases on suicide since the Acts were repealed. Even a person who would be able to maintain a plea of diminished responsibility on a charge of murder must be taken to have known what he was doing and that it was wrong and remains 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 made to 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 of Police of the Metropolis [2000] 1 AC 360 , 381 b this would appear to be a classic case where it could be 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 Chief Constable of the Greater Manchester Police [1990] 2 QB 283 as examples of lack of capacity. On the evidence in the present case, however, there was no lack of capacity. The proper test for volenti is that formulated by Lord Hope in Reeves's case. *892 The decision in Kirkham's case was correct because the deceased was a known suicide risk and, therefore, for the reasons given in Reeves's case, there was a duty to guard against that suicide. In so far as Kirkham's case suggests that a person who takes his own life with full knowledge of what he is doing is not volens, the decision should be disapproved. However, having regard to the facts of the present case it is accepted that, if Mr Corr's deliberate, informed act of suicide did not constitute a novus actus, it is unlikely to be the basis of a successful plea of volenti. As to contributory negligence, in Reeves's case four of their Lordships held that the deceased was 50% at fault in taking his own life. Lord Hoffmann specifically recognised that that division of responsibility was to reflect the duty on the police to take care to protect those in custody. In the present case the deceased's responsibility must be much greater. Any apportionment should be weighted very heavily against the claimant. John Foy QC , Andrew Ritchie and Robert McAllister for the claimant. The issue here is, as Sedley LJ said [2007] QB 46 , para 66, not whether the particular outcome (suicide) was foreseeable but whether the kind of harm for which damages were sought was foreseeable and, if it was, whether the eventual harm is nevertheless to be regarded, on grounds of policy or of fact, as too remote. If a claimant's suicide was the result of his rational, voluntary, free and informed decision rather than of severe depression, he is responsible for it. If his action was the result of the severe depression causing him to suffer an irrational or fundamental derangement of his decision-making process (or causing his power of volition to be dethroned), then the suicide was not his responsibility and was simply the effect or a symptom of his depression. Whether the deceased was a man of normal fortitude is irrelevant. If the claimant cannot recover for the deliberate act of the deceased, a claimant could 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 mental capacity. In summary: (i) the employer's duty is to prevent injury; (ii) suicide cannot be divorced from the 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 to submit, the suicide itself was reasonably foreseeable; (vi) causation is clear, obvious and in general undisputed; (vii) Mr Corr's mental state actually determined novus actus, volenti and unreasonable act, 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 tort context 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 prevent suicide. 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 AC 360 and Orange v Chief Constable of West Yorkshire Police [2002] QB 347 , where liability depends on such a duty existing. The duty on the employer was the ordinary duty of care owed by an employer to an employee to take all reasonable steps to protect him from suffering personal *893 injury. In the present case it is not in dispute that there was a wrongful act, neglect or default ( section 1(1) of the Fatal Accidents Act 1976 ) by the employer and that it was such as would have entitled [Mr Corr] to maintain an action and recover damages in respect thereof. The issue under the Act, therefore, is whether the wrongful act, neglect or default caused his death. It is not in dispute that as a result of the accident he suffered from depressive illness and that it was because of such illness that he committed suicide. The claimant's primary case, therefore, is that no issue relating to duty of care arises either under the Act or at common law. Whether there is a duty of care depends on whether it is reasonably foreseeable that careless conduct of any kind by a defendant may result in damage of some kind to a third party. There must be foreseeability of damage of any kind and a relationship of proximity, and it should be fair, just and reasonable that a duty is owed. All of this is established in the present case as it is in any employer/employee relationship. To establish breach, it is necessary to prove that the particular kind of careless conduct of the defendant might result in some kind of damage to a third party. In the present case, the breach did cause damage to Mr Corr. At common law, it is only when considering for what damage the tortfeasor is liable that the claimant has to prove that the kind of damage suffered was a reasonably foreseeable consequence of the breach of duty. The claimant adopts Professor 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 as to 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 no dispute that, on the evidence, the accident, caused by breach of duty, was the sole cause of Mr Corr's depression. There is also no dispute that depression was the sole cause of the suicide. The death was therefore caused by the wrongful act. The but for test is satisfied in relation to both depression and suicide. There is no need for a more sophisticated consideration of the test. The intervening depression does not take away causation and accounts for the deceased's inability to resist the suicide. Novus actus is an element of causation: see Rahman v Arearose Ltd [2001] QB 351 , paras 29 and 33. If causation is established, there is no room for saying that there is a novus actus that takes all liability away. The test is: for what should the deceased be held justly responsible? In McKew v Holland & Hannens & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 the pursuer had no mental incapacity, so was to be judged as an ordinary man. It is not fair to apply ordinary standards to Mr Corr, a man with very severe depression, etc. Given the clear progression from accident to depression to suicide with no other causative factor, the employer is the only party responsible for the loss and damage that the claimant suffered. Once the law accepts, as it does, the foreseeability of psychiatric harm as a concomitant of foreseeable physical harm, it is only if a break dictated by logic or policy or evidence intervenes that it is possible to exclude death by suicide from compensatable damage where that is what the depression has led to. Neither logic nor evidence provides a reason for its exclusion. The defences raised by the employer of novus actus, unreasonable act, volenti and contributory negligence all fail for the same reason, namely that *894 they require a free, rational, informed act on the part of the deceased that is independent of the employer and that obliterates, in the case of novus actus and volenti, the causative potency of the employer's breach of duty or is intended to exploit it. If it is to be the deceased's action that interrupts causation, it has to be one not caused by the employer. Because Mr Corr's capacity to make reasoned and informed judgments was taken away and because he was suffering from a disabling mental condition, his mental state could not be truly volens. He was acting under the duress of depression. His act was not informed, because he was acting on information that was unreal. It was not rational, because what he thought was based on delusion. To the extent that his action was unreasonable that was because his irrationality was caused by the employer itself, and it cannot rely on its own breach to defeat the claim against it. His power 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 novus actus, 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 a criminal 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 is no difference, so far as liability is concerned, between being M'Naghten insane and having the disabling psychiatric illness that Mr Corr had. If he had committed suicide whilst M'Naghten insane it would still have been a deliberate act and he would still have intended the consequences. The degree to which it was foreseeable would be the same (if anything insanity would be more unforeseeable). It would have resulted in the same kind of harm. The real question is whether his ability to make rational decisions 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 of duty. When he was about to jump from the car park roof it would have been appropriate for him to be sectioned under the Mental Health Act / Mental Capacity Act 2005 . In Murdoch v British Israel World Federation (New Zealand) Inc [1942] NZLR 600 there was no consideration of whether something less 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 is misconceived. Those decisions entirely support the claimant's case. [Reference was made to Marriott v Maltby Main Colliery Co Ltd (1920) 13 BWCC 353 ; Dixon v Sutton Heath and Lea Green Colliery Ltd (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 Corr did not commit a crime: see per Sedley LJ [2007] QB 46 , para 73. There is no public policy reason based in criminal law why his dependants should not recover. The 1976 Act is intended to benefit dependants who have suffered loss. Other criminal cases quoted by the employer do not assist. In any 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 be judged as unreasonable by the standards of a man with very severe depression and a feeling of hopelessness, since it was the employer who put him in that position. 15% of men with severe depression would have committed suicide, so it is not even unusual for suicide to occur in these circumstances. It is neither just nor appropriate to apply the reasonable man test to someone who was 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 Lords looked at the disability that the pursuer had (which was all physical) and made a judgment whether with that disability he acted unreasonably. As to remoteness, it is unnecessary to establish that suicide was specifically foreseeable, either by interpretation of section 1 of the Fatal Accidents Act 1976 (which was not an argument advanced below) or because death by suicide is not a different kind of damage from that which was or is taken to have been foreseeable, such as suicide. Being caused by lack of mental capacity does not make it a different kind of harm. The 1976 Act concerns a particular kind of harm (death) and is intended to give dependants a remedy for it. It is not concerned with the scope of the duty, nor with the circumstances of the death or the way in which the death came about, but with whether the wrongful act would have entitled the deceased to maintain an action: was the death caused by the wrongful act? The position would not necessarily have been different if Mr Corr had not been killed: see the Law 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 decapitation are the same kind of harm or damage. Death is death. Hughes v Lord Advocate [1963] AC 837 and Jolley v Sutton London Borough Council [2000] 1 WLR 1082 show that all that is necessary for a claimant to succeed is that personal injury was a reasonably foreseeable result of the defendant's breach 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 can have many different symptoms and effects but the claimant does not have to prove that each individual 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 recover for obsessive compulsive disorder, claustrophobia, anorexia and the results of a refusal to take medication as a result of mental illness; there is no relevant difference between death by suicide and heart attack or miscarriage referred to by Lord Browne-Wilkinson in Page v Smith , at p 181 b . Ward LJ suggested that there is a difference because these are spontaneous, but this, even if valid as a distinction, 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 , that depression and death by suicide were a foreseeable kind of damage. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) [1961] AC 388 did not deal with the manner by which the injury or harm was caused (see Jolley's case), nor with the degree of foreseeability required; *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 physical connection between the initial injury and the suicide, no indication that mental illness was foreseeable and no evidence that he was mentally deranged. The decision, given before Page v Smith , was one on its facts and would probably not be made now. It does not say that the suicide itself has to be foreseeable, only that there must be a physical connection. Cross v Highlands and Islands Enterprises 2001 SLT 1060 did come to a different conclusion: see at paras 121127, also paras 114 et seq. In Wright Estate v Davidson 88 DLR (4th) 698 there was no evidence as to the cause of Mrs Wright's disabling illness. The true analysis is that the feeling of hopelessness from which Mr Corr suffered cannot be separated from his desire to commit suicide. The one governed the other and they were in effect the same thing. Whether it is said that the suicide was a symptom of the depression, or whether it was the effect of it, as Wilson LJ [2007] QB 46 , para 94 suggested, or whether it was simply a manifestation of the illness, does not matter: it was part and parcel of the illness. [Reference was also made to McLoughlin v O'Brian [1983] 1 AC 410 , 443 and Page v Smith [1996] AC 155 , 188 c e .] As to the foreseeability in fact of Mr Corr's suicide, the deputy judge held, at para 33, that, 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. This is not a primary finding of fact: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617 , 641 a and Jolley v Sutton London Borough Council [2000] 1 WLR 1082 , 1089 b . There was no evidence as such to support the finding, and apart from what is quoted no reason was given. The deputy judge gave no consideration to the degree of foreseeability required, nor did he properly apply the principle that the issue of foreseeability has to be judged with hindsight. Ward LJ also mistakenly said, at para 64, that foreseeability should not be judged with the benefit of hindsight. The test of reasonable foreseeability is to be applied ex post facto, i e in the light of what has happened (in this case a near-death experience): see per Lord Bridge of Harwich in McLoughlin v O'Brian , at p 432 b , Lord Keith 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 which actually 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 the accident that actually happened. The degree of foreseeability required is no more than a small risk that would not be brushed aside as far-fetched: The Wagon Mound (No 2) , at pp 642643, and Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273 , para 21. Anyone who was aware that Mr Corr had nearly been decapitated in an industrial accident and in fact had his ear severed would foresee that he was someone who might suffer severe psychiatric illness as a result that 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 particularly severe cases. If it is necessary to establish that suicide was reasonably foreseeable, the evidence did that when considering the accident that actually happened. The deputy judge gave no reason for rejecting the evidence of Dr McLaren. The employer refers to the fact that Mr Blunden did not consider that there was an imminent danger of suicide when he saw Mr Corr three days before his death and suggests that that is evidence of unfairness in imposing foreseeability on them. This confuses the timing of the suicide with the risk of it occurring. It is irrelevant that Mr Blunden then thought that the risk was not imminent. The important thing is that he did foresee a risk and that the deceased 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 a rational and informed decision, There is nothing one can decently call voluntary either in the suffering or 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 else may 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 consequences in fact of its breach of duty. There is no criminal offence committed, there can be no floodgates argument and there can only be sympathy for the dependants. Policy arguments were rejected in Pigney v Pointer's Transport Services Ltd [1957] 1 WLR 1121 , which was determined at a time when suicide was still a criminal offence. Perceptions of mental illness have moved on since then. The policy of the Fatal Accidents Acts has been, as it was under the Workmen's Compensation Acts, that dependants should recover when the wrongful act causes death. As to contributory negligence, if the defence of volenti fails contributory negligence must also fail. It is inappropriate to say that the deceased was at fault. He did not, by virtue of his mental state, do anything wrong. The Law Reform (Contributory Negligence) Act 1945 requires both causative potency and blameworthiness on the claimant's part for contributory negligence to be considered. The question is whether the degree of mental illness means that the deceased was at fault. It is difficult to have a sliding scale of mental incapacity. Where, as in Mr Corr's case, the relevant act was caused in fact only by a disabling mental illness resulting from the employer's tort and dethroning his power of volition, neither causative potency nor blameworthiness can be attributed to him. This is all the more so if, as is not in dispute, his mental condition was the foreseeable result of the employer's breach of duty. [Reference was made to Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 , 371 h et seq (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 the employer 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 of negligence, however, it cannot simply be so *898 characterised, because the mechanism of injury is crucial 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 Highlands and Islands Enterprises 2001 SLT 1060 , but that case was decided in 2000 without the benefit of Lord Rodger's review of authority in Simmons v British Steel plc [2004] ICR 585 . Central to the reasoning in Cross's case, at para 127, were the observations of the Lord President (Clyde) in McKillen v Barclay Curle & Co Ltd 1967 SLT 41 , 42, which were expressly disapproved by Lord Rodger. Hughes's case was not cited. Cross's case is, therefore, wrong. It is not consistent with the clearly 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 the claimant relies on regarding inability to form volition are, therefore, nothing to the point. Here, as an agreed fact, there was volition. The claimant says that the 1976 Act says that once causation is established foreseeability is unnecessary. The Act does not define the scope of the damage, which is to be determined according to the usual principles of foreseeability. If it is suggested that the judge was wrong in approaching the matter of foresight from a viewpoint after 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 Israel World Foundation (New Zealand) Inc [1942] NZLR 600 was wrongly decided. It said that the duty in Murdoch 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 Mr Thomas Corr is recoverable by his dependent widow under section 1 of the Fatal Accidents Act 1976 in this action against his former employer. 2 Mr Corr was employed as a maintenance engineer by the appellant company (the employer), a manufacturer of light commercial vehicles. On 22 June 1996, then aged almost 31, he was working on a prototype line of presses which produced panels for Vauxhall vehicles. He was working, with another, 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. He would have been decapitated had he not instinctively moved his head. He was struck to the right side of 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. He remained disfigured, suffered persistently from unsteadiness, mild tinnitus and severe headaches, and had difficulty in sleeping. He also suffered from post-traumatic stress disorder. He experienced severe flashbacks which caused his body to jolt, and suffered *899 from nightmares. He drank more alcohol 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 the passage of time. He was referred to hospital for treatment for depression on 6 February 2002, and was admitted to hospital after taking an overdose of drugs on 18 February. He was assessed as being a significant suicide risk on 2 March 2002, and on 9 March it was noted that he had recurring thoughts of jumping from a high building. He was treated with electro-convulsive therapy. It was noted in his NHS care plan on 15 April that he felt life was not worth living and that he felt he was a burden to his family. On 20 May 2002 Mr Corr was examined by a clinical psychologist who noted that Mr Corr felt helpless and admitted to suicidal ideation. The psychologist diagnosed his condition as one of severe anxiety and depression. On 23 May 2002, while suffering from an episode of severe depression, Mr Corr committed suicide by jumping from the top of a multi-storey car park in which he had parked his car some hours earlier. A note which he left behind graphically illustrates the depth of desperation 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 mental and psychological condition at the time of his death. On the one hand, he had the capacity to manage his own affairs. His intellectual abilities were not affected. His appreciation of danger was not lessened. He was aware of the likely consequences of jumping from a high building. He acted deliberately with the intention of killing himself. He had from time to time since the accident thought of taking his own life but had hesitated because of the effect on his family. He understood the difference between right and wrong. He knew the nature and quality of his acts. He did not suffer from hallucinations. It would seem clear, had the question arisen, that his mental condition would not have met the M'Naghten test of insanity ( M'Naghten's Case (1843) 10 CL & F 200 ). On the other hand, at the time of his death Mr Corr was severely depressed. His depression had caused him to experience feelings of hopelessness. These became increasingly difficult to resist. A critical change took place in the balance of his thinking, when he stopped recognising these feelings of hopelessness as symptoms of his depressive illness, and instead they came to determine his reality. At the time of his suicide Mr Corr was suffering from a disabling mental condition, namely a severe depressive episode which impaired his capacity to make reasoned and informed judgments about his future. It was well known 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-year limitation 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 representative as claimant. She claims for the benefit of Mr Corr's estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and also for herself as a dependant of the deceased under the 1976 Act. The first of these claims has not been contentious. The second is a claim to recover the financial loss attributable 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 the significant points which are common ground *900 between them. First, the employer accepts that it owed 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 the effect of the decision of the House in Page v Smith [1996] AC 155 , which neither party criticises or invites the House to review. (The case is not of course authority for the medical premises on which it rests.) It is common ground, secondly, that the employer was in breach of its duty to Mr Corr and that this breach caused the accident on 22 June 1996. So much was admitted on the pleadings. It is common ground, thirdly, that as a consequence of this breach Mr Corr suffered severe physical injuries and mental and psychological injury for which, up to the date of his death, he could have recovered damages had he survived, and for which his personal representative is entitled to recover damages for his estate. It is agreed, fourthly, that the depressive illness from which Mr Corr suffered before and at the time of his death was caused by the accident. There was nothing in his background or history to suggest that he suffered in this way before his accident. Finally, it is common ground, as already 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's death was caused by a wrongful act, namely the employer's breach of duty. In the context of what is agreed, however, the real issue dividing the parties in this case, compendiously expressed, is whether, for one reason or another, the damages claimed by Mrs Corr under the 1976 Act are too remote. In this context both parties relied on Lord Rodger of Earlsferry's recent summary of principle in Simmons v British Steel plc [2004] ICR 585 , para 67, a summary which neither side questioned although they laid emphasis on different propositions. That opinion was given in an appeal from Scotland, but it was not suggested that the law in the two jurisdictions is now different in any relevant respect. The summary reads: These authorities suggest that, once liability is established, any question of the remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: McKew v Holland & 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 damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on 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 Camden London Borough Council [1981] QB 625 ; but see Ward v Cannock Chase District Council [1986] Ch 546 . (3) Subject to the qualification in (2), if the pursuer's injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate [1963] AC 837 , 847, per Lord Reid. (4) The defender must take his victim as he *901 finds him: Bourhill v Young [1943] AC 92 , 109110, per Lord Wright; McKillen v Barclay Curle & Co Ltd 1967 SLT 41 , 42, per Lord President Clyde. (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: 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 developed by Mr Cousins for the employer, which were that Mr Corr's suicide (1) fell outside the duty of care owed to him by the employer (the scope of duty issue); (2) was not an act which was reasonably foreseeable and therefore not one for which the employer should be held liable (the foreseeability issue); (3) broke the chain of causation and constituted a novus actus interveniens (the novus actus issue); (4) was an unreasonable act which broke the chain of causation (the unreasonable act issue); (5) was the voluntary act of the deceased, and so precluded by the principle volenti non fit injuria (the volenti issue); (6) amounted to contributory negligence (the contributory negligence issue). 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 81619 , para 9: There was no duty upon the employer to protect the deceased from self-harm. Mr Cousins pointed out that different duties arise in different situations but that, as Lord Hope of Craighead observed in Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 , 379, It is unusual for a person to be under a duty to take reasonable care to prevent another person doing something to his loss, injury or damage deliberately. Mr Cousins invoked the important principle of personal autonomy, illustrated by St George's Healthcare NHS Trust v S [1999] Fam 26 and recently upheld by the House in the criminal field in R v Kennedy (No 2) [2008] 1 AC 269 , to submit that if an adult of sound mind chooses, for whatever reason, to inflict injury upon himself, that is 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 our brother'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. Its breach caused him injury of both kinds. While he was not, at the time of his death, insane in M'Naghten terms, nor was he fully responsible. He acted in a way which he would not have done but for the injury from which the employer's breach caused him to suffer. This being so, I do not think his conduct in taking his own life can be said to fall outside the scope of the duty which his employer owed him. (2) The foreseeability issue 11 As Lord Rodger's summary, ante, para 8, makes clear, and despite the differences of opinion which formerly prevailed, it is now accepted that there can be no recovery for damage which was not reasonably foreseeable. *902 This appeal does not invite consideration of the corollary that damage may be irrecoverable although reasonably foreseeable. It is accepted for present purposes that foreseeability is to be judged by the standards of the reasonable employer, as of the date of the accident and with reference to the very accident which occurred, but with reference not to the actual victim but to a hypothetical employee. In this way effect is given to the principle that the tortfeasor must take his victim as he finds him. Mr Cousins submits that while psychological trauma and depression were a foreseeable result of the accident (and thus of the employer's breach), Mr Corr's conduct 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 in respect of both the duty and the recovery of damages: the suicide fell outside the employer's duty and was not reasonably foreseeable: judgment, paras 33 and 34(ii) and (iii). Dissenting in the employer's favour in the Court of Appeal [2007] QB 46 , Ward LJ drew a distinction, at para 57, between what was logically foreseeable and what was reasonably foreseeable, and concluded, at para 64, that the suicide was not reasonably foreseeable. Both the deputy judge and Ward LJ attached significance in reaching this conclusion, as I think mistakenly, to the personal qualities of the deceased. The majority in the Court of Appeal reached a different conclusion. Sedley LJ, at para 66, referred to the admitted fact that depression was a foreseeable consequence of the employer's negligence and to the uncontroverted evidence that suicide was a not uncommon sequel of severe depression. He described it, at para 67, as correct but irrelevant that the employer's duty did not extend to anticipating and preventing suicide. It was not the claimant's case that it did. But the law drew no distinction, for purposes of foreseeability and causation, between physical and psychological injury, and on the evidence, at para 68, the suicide of Mr Corr was grounded in post-traumatic depression and nothing else. Wilson LJ observed, at para 98, that the claimant did not have to establish that, at the date of the accident, the deceased's suicide was reasonably foreseeable. He did not accept the view of Spigelman CJ in AMP v RTA [2001] Aust Torts Reports 81 619 that suicide was a kind of damage separate 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 make a difference. It is a feeling which perhaps derives from recognition of the finality and irrevocability of suicide, 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 of applying established principles to the facts of the case before it. Here, the inescapable fact is that depression, 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 incumbent on her to show that suicide itself was foreseeable. But, as Lord Pearce observed in Hughes v Lord Advocate [1963] AC 837 , 857, to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable. That was factually a very different case from the present, but the principle that a tortfeasor who reasonably foresees the occurrence of some damage need not *903 foresee the precise form which the damage may take in my view applies. I can readily accept that some manifestations of severe depression could properly be held to be so unusual and unpredictable as to be outside the bounds of what is reasonably foreseeable, but suicide cannot be so regarded. While it is not, happily, a usual manifestation, it is one that, as Sedley LJ put it [2007] QB 46 , para 66, is not uncommon. That is enough for the claimant to succeed. But if it were necessary for the claimant in this case to have established the reasonable foreseeability by the employer of suicide, I think the employer would have had difficulty escaping an adverse finding: considering the possible effect of this accident on a hypothetical employee, a reasonable employer would, I think, have recognised the possibility not only of acute depression 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 a number of authorities, concluded [2007] QB 46 , para 49, that the chain of causation was not broken by 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 a concomitant of foreseeable physical harm, it is only if a break dictated by logic or policyor, of course, by evidenceintervenes that it is possible today to exclude death by suicide from the compensable damage where that is what the depression leads to. He expressed his conclusions in paras 8283: 82. To cut the chain of causation here and treat Mr Corr as responsible for his own death would be to make an unjustified exception to contemporary principles of causation. It would take the law back half a century to a time when the legal and moral opprobrium attaching to suicide placed damages for being driven to it on a par with rewarding a person for his own crime. Today we are able to accept that people to whom this 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 depressed individual beyond the pale of the law of negligence, the relationship of his eventual suicide to his depression becomes a pure question of fact. It is not a question which falls to be determined, as the deputy judge in significant measure determined it, by analogy with the duty of care resting on a custodian. Once liability has been established for the depression, the question in each case is whether it has been shown that it was the depression which drove the deceased to take his own life. On the evidence in the present 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 is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor's breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible. This is not the less so where the independent, supervening cause *904 is a voluntary, informed decision taken by the victim as an adult of sound mind making and giving effect to a personal decision about his own future. Thus I respectfully think that the British Columbia Court of Appeal (McEachern CJBC, Legg and Hollinrake JJA) were right to hold that the suicide of a road accident victim was a novus actus in the light of its conclusion that when the victim took her life she made a conscious decision, there being no evidence of disabling mental illness to lead to the conclusion that she had an incapacity in her faculty of volition: Wright Estate v Davidson (1992) 88 DLR (4th) 698 , 705. In such circumstances it is usual to describe the chain of causation being broken but it is perhaps equally accurate to say that the victim's independent act forms no part of a chain of causation beginning with the tortfeasor's breach of duty. 16 In the present case Mr Corr's suicide was not a voluntary, informed decision taken by him as an adult of sound mind making and giving effect to a personal decision about his future. It was the response of a man suffering from a severely depressive illness which impaired his capacity to make reasoned and informed judgments about his future, such illness being, as is accepted, a consequence of the employer's tort. It is in no way unfair to hold the employer responsible for this dire consequence 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 it is true that in some of the older authorities a finding of insanity was regarded as necessary if a claimant were to recover for loss attributable to suicide: see, for example, Murdoch v British Israel World Federation (New Zealand) Inc [1942] NZLR 600 , following McFarland v Stewart (1900) 19 NZLR 22 . I do not for my part find these cases persuasive, for two main reasons. First, so long as suicide remained a crime the courts were naturally reluctant to award damages for the consequences of 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 now no question of rewarding the consequences of criminal conduct, although it remains true that the more 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 line between conduct for which a defendant may be held criminally responsible and conduct for which he may not. In the civil field of tort there is no need for so blunt an instrument. Insane is not a term of medical 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 was responsible and, if so, to what extent. I agree with Sedley LJ that it would be retrograde to bar recovery 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 the pursuer as potentially breaking the chain of causation. No doubt there is room for a theoretical distinction between the two. But having regard to the reasons *905 I have given for holding the suicide of the deceased not to be a novus actus I would find it impossible to hold that the damages attributable to the death were rendered too remote because the deceased's conduct was unreasonable. It is of course true that, judged objectively, it is unreasonable in almost any situation to take one's own life. But once it is accepted, as it must be, that the deceased's unreasonable conduct was induced by the breach of duty of which the claimant complains, the argument ceases in my judgment 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 to which a victim, voluntarily and with his eyes open, consents. But it is not suggested that Mr Corr consented in any way to the accident and injury which befell him on 22 June 1996. It is an argument addressed only to his suicide. But that was not something to which Mr Corr consented voluntarily and with his eyes open but an act performed because of the psychological condition which the employer's breach of duty had induced. I conclude, again, that this is an argument which has no independent validity. (6) The contributory negligence issue 19 The employer pleaded contributory negligence in its defence, and it featured in Mr Cousins's submissions to the trial judge. The judge, however, made no finding, which he may have thought unnecessary since he was dismissing the claim. In the Court of Appeal [2007] QB 46 , Ward LJ referred to the defence of contributory negligence, observing, at para 8, that it had rightly not been the subject of much argument in the appeal. It may be inferred that he considered the defence to have little substance whatever the outcome of the appeal, an impression fortified by the omission of Sedley and Wilson LJJ, both of whom allowed the claimant's appeal and awarded her the additional damages claimed, to mention the point at all. In argument before the House, the issue was again raised, but addressed by both parties with extreme brevity. 20 I very much question whether it is appropriate for the House to conduct what is in effect an independent inquiry into a matter on which the courts below have made no findings and on which, to the extent that it raises any question of law, we have heard no more than cursory argument. I would for 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 the terms 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 the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just

Page 18

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 damage which ensued. *906 22 For reasons already given, I do not think that any blame should be attributed to the deceased for the consequences of a situation which was of the employer's making, not his. Consistently with my rejection of arguments based on novus actus and unreasonable conduct, I would similarly absolve the deceased from any causal responsibility for his own tragic death. I would accordingly assess his contributory negligence at 0%. That, in my opinion, reflects the responsibility of the deceased for his own 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 noble and 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 and learned friend, Lord Bingham of Cornhill and gratefully adopt his exposition of the facts of this sad case. 25 Mr Corr, the respondent's husband, was injured at work by the negligence of the appellant company, his employers. The accident he suffered could easily have killed him but in the event inflicted on him serious and disfiguring injuries to his head but left him alive. It is easy to understand that the repercussions of an injury of that character may have an enduring effect on the mental state of the victim, continuing after the physical effects are spent. So it was with Mr Corr. He became clinically depressed, bad-tempered and suffered from nightmares. He was treated with electro-convulsive therapy. All of this was, it is accepted, a result of the accident. Mr Corr also began to entertain thoughts of suicide. This, it is accepted, was a symptom of his clinical depression. On 23 May 2002, nearly six years after the accident, Mr Corr did commit suicide. In doing so he acted deliberately, aware of the consequences and with the intention of killing himself. The action which has now reached your Lordships' House is the action brought by his widow, Mrs Corr, under the Fatal Accidents 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 (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof The first question for decision, therefore, is whether Mr Corr's death by suicide was caused by the act, 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 and finality of an act of suicide and I have found it easier to consider the question by asking myself what the position would have been if Mr Corr's attempt at suicide had not been successful but instead had caused him serious and additional physical injuries to those he suffered in the accident at work. If the answer is that he would have been entitled not only to recover for his original injuries but also for the additional injuries caused by his attempted suicide, there is no reason that I can see why Mrs Corr should 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 to Fatal Accidents Act damages. The issue is whether his jumping from the top of the multi-storey car park 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 at work would not have happened, that but for the accident at work and the physical damage he suffered Mr Corr would not have become clinically depressed and that but for that psychiatric feature he would not have entertained suicidal thoughts or have attempted suicide. On a but for test, his jump from the 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 and questions the extent of those limits. As it is put in Clerk & Lindsell on Torts , 19th ed (2006), para 278: Where the defendant's conduct forms part of a sequence of events leading to harm to the claimant, and the act of another person, without which the damage would not have occurred, intervenes between the defendant's wrongful conduct and the damage, the court has to decide whether the defendant remains responsible or whether the act constitutes a novus actus interveniens ie whether it can be regarded as breaking the causal 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, the text 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 Mr Corr'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 the chain 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 reasonable foreseeability test. To ask whether it was reasonably foreseeable that an accident of the sort that injured Mr Corr might have psychiatric as well as physical consequences and, if it did have psychiatric consequences, whether those consequences might include suicidal tendencies and an eventual suicide would be unlikely, on the facts of this case, to result in an affirmative answer. The possibility of those consequences is clear. On the other hand, the likelihood of their happening, if judged at the time of the accident, seems to me to be remote. The evidence was that between one in ten and one in six persons suffering from clinical depression will commit suicide. There was, I think, no evidence as to the likelihood, in percentage terms, of persons suffering the sort of physical injuries that Mr Corr suffered developing as a consequence clinical depression, but I would be surprised if it were more than, say, 25%. So my expectation would be that the percentage of cases in which an accident of the sort that befell Mr Corr would lead to clinical depression and suicide would lie in the range of 24%. A statement that an outcome of this degree of likelihood was reasonably foreseeable would be to attribute to the adverb a less than helpful meaning. It would mean, I think, no more than that the *908 outcome was foreseeable as a possibility and was one for which the negligent employer ought to be held responsible. 29 Authority, however, discourages attempts to decide cases like the present by the application of a reasonable foreseeability test. The general rule is that in a case where foreseeable physical injuries have been caused to a claimant by the negligence of a defendant the defendant cannot limit his liability by contending that the extent of the physical injuries could not have been reasonably foreseen; 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 burn would cause cancer and that [the victim] would die. The question is whether these employers 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 of that 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 Page v Smith [1996] AC 155 did. In Page v Smith the House held that where physical injury was a reasonably foreseeable consequence of the negligence the defendant was liable for psychiatric damage caused by the negligence even though physical injury had not in the event been caused and whether or not psychiatric damage as a consequence of the negligence was foreseeable. As Lord Browne-Wilkinson put it, at p 182: In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his ME, was an eggshell personality. But that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage. Once such duty of care is established, 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 in the case of psychiatric injury. There is no difference in principle between an eggshell skull and an eggshell personality. Page v Smith , therefore, extended the rule as stated in Smith v Leech Brain & Co Ltd so as to include psychiatric injury. If a duty of care to avoid physical injury is broken and psychiatric injury is thereby caused, whether with or without any physical injury being caused, the negligent defendant must accept liability for the psychiatric injury. He must take his victim as he finds him. That this is so is a consequence of the House's decision in Page v Smith . That decision has been the subject of some criticism but not in the present case. If Mr Corr's psychiatric damage caused by the accident at work is damage for which his employers must accept liability, it is difficult to see on what basis they could escape liability for additional injury, self-inflicted but attributable to his psychiatric condition. If Mr Corr had not suffered from the clinical depression brought about by the accident, he would not have had the suicidal tendencies that led him eventually to kill himself. In my opinion, on the principles established by the authorities to which I have referred, the chain of causal consequences of the accident for which Mr Corr's negligent *909 employers are liable was not broken by his suicide. For tortious remoteness of damage purposes his jump from the multi-storey car park was not, in my opinion, a novus actus interveniens. Mrs Corr is entitled, in my opinion, to a Fatal Accidents Act claim against his employers. 30 But that is not an end of the issues that arise in this case. Section 5 of the 1976 Act applies where the deceased whose death has entitled the dependant to a Fatal Accidents Act damages action has died as the result partly of his own fault and partly of the fault of any other person. In that event the damages recoverable by the dependant are to be reduced to the same proportionate extent as damages recoverable in an action brought for the benefit of the deceased's estate would have been reduced under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 . Here, too, I find it easier to examine the issue by supposing that Mr Corr had not died from his jump but had merely, if that is the right word, added to his physical injuries. Would he have been entitled to recover in full for those additional injuries, or would there have been a proportionate reduction to reflect the fact that the jump had been his own deliberate decision? 31 Section 1(1) of the 1945 Act provides for the reduction of damages recoverable in respect of the negligence to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. This reduction does not come into operation unless there has been some fault on the part of the claimant, or, in a Fatal Accidents Act case, the deceased, that has been a contributory cause of the damage or the death, as the case may be. There is no doubt in the present case that both the employer's negligence and Mr Corr's act in jumping from a high building with the intention of killing himself were contributory causes of his death. The issue, to my mind, is whether Mr Corr's act can be described as fault within the meaning of that word in section 5 of the 1976 Act. Mr Corr's state of mind, his suicidal tendencies, had been brought about as a result of his employers' negligence. But he was not an automaton. He remained an autonomous individual who retained the power of choice. The evidence that clinical depression leads often to suicidal tendencies and that between one in ten and one in six persons succumb to those tendencies is evidence also that between nine in ten and five in six persons do not. Suppose, for example, that there had been people in the area on to which Mr Corr was likely to land if he jumped. If he had jumped 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 attributing fault to his action. Fault in section 4 of the 1945 Act includes: [any] act or omission which gives rise to 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 in disregard for the safety of others would have constituted fault for tort purposes, it is difficult to see why that same act of jumping with the deliberate intention of terminating his own life should not also be so regarded. If, in jumping, Mr Corr had both injured someone else and also himself, it would seem to me highly anomalous to hold him liable in negligence in an action by the third party but not guilty of fault 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 damages recoverable by Mrs Corr fall to be *910 reduced accordingly. The percentage reduction is very much a matter of impression, dependent on the view taken of the degree of responsibility for Mr Corr's death 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 v Comr of Police of the Metropolis [2000] 1 AC 360 . That was a case where a person known to be a suicide risk was being held in police custody and while in that custody succeeded in a suicide attempt. The police were held liable in negligence for allowing this to happen and the issue of contributory negligence arose. The House held that responsibility for the death should be apportioned equally between the police and the deceased. The employers in their written case submit that Mr Corr's responsibility for his own death should be taken to be much greater than the 50% responsibility attributed to the deceased in the Reeves case. My Lords, I do not take that view. Mr Corr's suicidal tendencies 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 extremely unpleasant therapy in an attempt, sadly unsuccessful, to be cured of them, but finally succumbed to them. I think, for the reasons I have given, that this is a case to which section 5 of the 1976 Act applies and that there must, therefore, be a proportionate reduction in the damages recoverable by Mrs Corr. But I do not regard the adjective blameworthy as an apt description, other than in a strictly causal sense, of Mr Corr's conduct in jumping to his death. I would attribute to him responsibility for his death of 20%. 33 For the reasons I have given I would dismiss this appeal on liability but support a direction that Mrs Corr'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 I would dismiss this appeal. But because of the importance of the issues raised I add some observations of my own. 35 It is common ground that the issues raised are different from those in the so-called custodian casesthat is, where an individual known to be a suicide risk is in the care or custody of a hospital, a prison, 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 of Police of the Metropolis [2000] 1 AC 360 . In Kirkham's case the claimant's husband hanged himself in Risley Remand Centre after the police had failed to warn the prison authorities that he was (as the police knew) a suicide risk. He was suffering from clinical depression and had previously attempted suicide more than once. The Court of Appeal upheld awards under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 , not reduced by an allegation of contributory negligence (an issue raised in the notice of appeal but not discussed at all in the judgments of the Court of Appeal). 36 In Reeves's case the claimant was the administratrix of a man who had hanged himself while in custody in a police cell. He was known to be a suicide risk (having made two previous attempts) but a doctor who *911 examined him at the police station a few hours before his death thought that he showed no signs of psychiatric disorder or clinical depression. This House upheld the majority of the Court of Appeal (Lord Bingham of Cornhill CJ and Buxton LJ, Morritt LJ dissenting) in holding the police liable but allowed the appeal on the issue of contributory negligence, directing a 50% reduction in damages (whereas the Court of Appeal had directed no reduction). The majority was however achieved only by the process explained by Lord Bingham, at p 198. In this House the issue of contributory negligence was discussed at some length in the opinions of Lord Hoffmann, at pp 369372, Lord Jauncey of Tullichettle, at pp 376377, and Lord Hope of Craighead, at pp 382385. 37 This appeal differs from the custodian cases in two important respects. The late Mr Thomas Corr was 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 various contractual, tortious and statutory duties, of which the most important for present purposes was to take reasonable care that he did not sustain personal injuries in the course of his work. Mr Corr did not suffer from depression, suicidal ideation or any other psychological disorder. There was no question 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 a result 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 to the circumstances in which psychiatric injury was actionable on its own, unaccompanied by bodily injury. 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 as ME), which although viral in origin seems to have been treated as on a par with what used to be called nervous shock. There is a much fuller discussion of the aetiology of ME in the judgments in the Court of Appeal [1994] 4 All ER 522 , where Hoffmann LJ observed that the distinguishing feature of psychiatric damage was its causation rather than its symptoms; it would include a miscarriage caused 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 sufficient to establish liability, if there is a breach of duty, for personal injury of any sort, including psychiatric injury (either on its own or in conjunction with physical injury). Lord Lloyd of Berwick, delivering the leading speech in the majority, stated, at p 188: In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different kinds of personal 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 been challenged before your Lordships. It provides a much *912 simpler test for judges trying personal injury cases, even if it sometimes results in compensation for damage in the form of psychiatric sequelae 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 reasonably foreseeable. 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 he drives 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 owes to such persons a duty of care to avoid such injury. In the present case the defendant could not foresee the exact type of psychiatric damage in fact suffered by the plaintiff who, due to his ME, was an eggshell personality. But that is of no significance since the defendant did owe a duty of care to prevent foreseeable damage, including psychiatric damage. Once such a duty of care is established, the defendant must take the plaintiff as he finds him. But the judge then took his eye off the essential principle in Page v Smith , and misdirected himself by reference 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 shock which he sustained in the accident. His severe depression produced feelings of hopelessness which became increasingly strong; they came to determine his reality; by the time of his suicide he was suffering from a disabling mental condition which (as the agreed statement of facts and issues records) impaired his capacity to make reasoned and informed judgments. But (as is also in the agreed statement) Mr Corr still had the capacity to manage his affairs; his intellectual abilities were not affected; he did not come within the definition of insanity (at best obsolete and probably never scientifically sustainable) found in the judges' answers to the second and third abstract questions put to 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 his life, despite the love and support which he was given, after as well as before his accident, by his immediate family. He must have known that his death would cause them enormous pain, but in his severely depressed state he felt that he was an even greater burden to them alive. Suicide was his decision, but it came from his feelings of worthlessness and hopelessness, which were the result of his 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 or policyor, of course, by evidenceintervenes that it is possible today to exclude death by 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 with the whole of the judgment of Sedley LJ, which is, I think, very much in line with the opinion of Lord Bingham. 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 the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and 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 sometimes called causal potency: Stapley v Gypsum Mines Ltd [1953] AC 663 , 682. These are not precise or mutually exclusive tests. I do not regard blameworthy as an appropriate term to describe Mr Corr's conduct when, with his judgment impaired by severe depression, he decided to end his life by jumping off a high building. That was his own decision, but it was nevertheless a natural consequence of the physical and mental suffering which he had been enduring since the accident. For my part, in agreement with Lord Bingham, I would make no reduction in the damages to be awarded under the Fatal 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 of Abbotsbury. 46 On the question whether the defendants are liable to the claimant in respect of the suicide of the late Mr Corr, I agree that the appeal should be dismissed for the reasons given in the opinions of Lord Bingham and Lord Walker. I also agree with Lord Neuberger's comments on Page v Smith [1996] AC 155 , 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 this issue has been treated at all stages in this case and on the basis of such material as is available, it is not appropriate to contemplate a deduction on that score in this House. But, I have considerable sympathy with the general approach taken by Lord Scott of Foscote in his opinion on this issue; and so, like Lord Neuberger, I prefer to leave open the possibility that such a deduction could be appropriate in circumstances of deliberate suicide committed in a state of depression induced by an accident. Lord Scott's and Lord Neuberger's observations in this respect are, I note, in accord with remarks 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 v Comr 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 cases such as Stapley v Gypsum Mines Ltd [1953] AC 663 , which are concerned with a defendant's failure to take care. But Reeves v Comr of Police of the Metropolis establishes that fault in section 1 of the Law Reform (Contributory Negligence) Act 1945 is wide enough to cover deliberate suicide. This was the 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 Lord Hoffmann'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 by the use of the word negligence in the expression contributory negligence) and 384 c . Lord Mackay of 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 Lynch would, although of sound mind, seek to commit suicide. But Mr Lynch's decision to commit suicide was 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 suicide were 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 in depression and anxiety not previously experienced, while Dr Paul McLaren, the consultant psychiatrist instructed by Mrs Corr, said in his reports that a critical change takes place in the balance of a sufferer's thinking, when they stop seeing the hopeless thoughts as symptoms of an illness and the depressive thinking comes to determine their reality and concluded that Mr Corr's capacity to make a reasoned and informed judgment on his future was impaired by a severe depressive episode in the hours leading up to his death. In these circumstances, there was a considerable case for the full recovery which the Court of Appeal awarded; this is also highlighted by Lloyd 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 not apparent that the issue of contributory fault raised in the notice of appeal, at p 285 f g , was actually pursued before the court in that case. 51 However, in my view, the existence of a causal link between an accident and depression leading to suicide, sufficient to make a defendant who is responsible for the accident liable for the suicide as one 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 expert evidence in another case. On the one hand, a person suffering from depression may be perfectly capable of managing his or her affairs in certain respects, but be caught ineluctably in a downward spiral of depressive thinking with regard to their own worth and future. On the other hand, a conclusion that a person suffering from depressive illness has no responsibility at all for his or her own suicide, and is in effect acting as an automaton, may be open to question in law, at least when the person's capacity to make a reasoned and informed judgment is described as impaired rather than eliminated. I agree with Lord Scott that, unless such a person could be described as an automaton, he or his estate could not expect to escape liability to a bystander injured by a suicide or suicide attempt. But this may not, I believe, by itself be conclusive on the issue whether such a person should bear part of any loss flowing from suicide or *915 an attempt as against a person responsible causally for the depression leading to the suicide or attempt. It may be right, not only to consider more closely with the benefit of expert evidence what is involved in impairment but also, as Lord Hope suggested in Reeves's case [2000] 1 AC 360 , 385 a , to identify differing degrees of impairment and responsibility. It may also be relevant if other factors were also operating on the claimant, independently of the accident and the consequent depression-for example, impending exposure 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 is necessary, may therefore make it appropriate not only to hold liable a defendant who causes an accident 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 which may 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 learned friends, Lord Bingham of Cornhill, Lord Scott of Foscote and Lord Mance. I agree with Lord Bingham that this appeal should be dismissed for the reasons that he gives, subject to two points which I should 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 invited the House to review it. At least for my part, I understood that was the position of the employer because, even if we had been persuaded that Page v Smith was wrongly decided, that would not have ensured the success of this appeal. I agree. Accordingly, not least in the light of the trenchant observations of Lord Goff of Chieveley in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455 , 473 d 480 f , I would not want to appear to prejudge any decision as to the correctness of the majority view in Page v Smith , if it comes to be challenged before your Lordships' House on another 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 common ground that Mr Corr's depression was the direct and foreseeable consequence of the accident for which the employer accepts responsibility, and that Mr Corr's suicide was the direct consequence of his depression. In these circumstances, it appears to me that the only issue on liability can be whether the fact that Mr Corr's suicide was his own conscious act at a time when he was sane should defeat the claim under the 1976 Act. Although that is expressed as a single issue, it can be characterised in a number of different ways in law, all of which have been dealt with by my Lord in ways that I cannot improve on. 56 It is accepted that Mr Corr's severe depression satisfied the requirements of a valid claim with regard to causation, foreseeabilty and remoteness, and was not excluded for any of the policy reasons mentioned by Lord Rodger of Earlsferry in Simmons v British Steel plc [2004] ICR 585 , para 67 in the passage quoted in para 8 of Lord Bingham's opinion. In those circumstances, I have difficulty in seeing how it could be said that suicide was not a reasonably foreseeable result, or even a reasonably foreseeable *916 symptom, of his severe depression. I accept that it can often be dangerous to deduce that, if each step in a chain was foreseeable from the immediately preceding step, then the final step must have been foreseeable from the start. None the less, once it is accepted that 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's suicide should not equally be the liability of the employer. It is notorious that severely depressed people not infrequently try to kill themselves: indeed, the evidence before us suggests that the chances are higher than 10%. While I would not attribute to a reasonable defendant, such as the employer in the present case, the knowledge that the likelihood of suicide attempts among severe depressives is higher than 10%, I would expect him to appreciate that there was a substantial risk of a suicide attempt by someone who suffers from severe depression, and that suicide attempts often succeed. 57 The second point which I wish to deal with is that of contributory negligence. I have reached the conclusion that, in this case, it would be inappropriate to reduce the damages awarded to Mr Corr on the basis of his contributory negligence. That is essentially because the point appears hardly to have been 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 to be 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 given that 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 the reasoning of Lord Scott and Lord Mance, I consider that a defendant such as the employer in this case could, in principle, succeed in an argument for a reduction in damages based on contributory negligence. In that connection, guidance is available from the decision of your Lordships' House in Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 , a case involving the question of whether the dependant of a Mr Lynch could recover damages from the police commissioner, in circumstances where Mr Lynch had committed suicide when in police custody, and if so whether those damages should 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 of his own fault and partly of the fault of any other person the damages he recovers from the other person shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage. Section 4 defines fault as negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, 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 fact that 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, Lord Hoffmann pointed out that *917 the defence of contributory negligence at common law was based upon the view that a plaintiff whose failure to take care for his own safety was a cause of his injury could not sue. One would therefore have thought that the defence applied a fortiori to a plaintiff who intended to injure himself.

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Lord Hoffmann then went on to examine and reject the arguments which had been put forward for questioning 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 Hoffmann disagreed [2000] 1 AC 360 , 372 d , on the basis that this was effectively to hold that the commissioner 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 of policy, not all of them consistent with each other, which reflect the complexity of life. An apportionment of responsibility as the court thinks just and equitable will sometimes require a balancing of different goals The apportionment must recognise that a purpose of the duty accepted by the commissioner in this case is to demonstrate publicly that the police do have a responsibility for taking reasonable care to prevent prisoners from committing suicide. On the other hand, respect must be paid to the finding of fact that Mr Lynch was of sound mind. I confess to my unease about this finding, based on a seven-minute interview with a doctor of unstated qualifications, but there was no other evidence I therefore think it would be wrong to attribute no responsibility to Mr Lynch and compensate the plaintiff as if the police had simply killed him. In those circumstances, he concluded that it was appropriate to hold Mr Lynch 50% contributory negligent, 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 is tortiously 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 deceased where he is of sound mind, but that it is inappropriate to attribute any contributory negligence to him where it can be said that he was not of sound mind. However, it seems to me that such an approach does 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 369 a , appears to me to be even more directly in point: The difference between being of sound and unsound mind, while appealing to lawyers who like clear-cut rules, seems to me inadequate to deal with the complexities of human psychology 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 applicable much more generally. It is often necessary to have a clear-cut decision: either someone is sane enough to plead to a criminal charge, to bring civil proceedings, to enter into a contract, or to avoid being detained, or he is not. However, it is only *918 realistic to accept that there are degrees to which a person has control over, or even appreciation of the effect and consequences of, his acts. It also 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 at some specific place on the spectrum. 64 In the present type of case, as I see it at least, a nuanced approach is appropriate, and the existence of a spectrum can and should be recognised. At one extreme is a case such as Reeves's case where (surprising though it might seem) the evidence was that Mr Lynch was of sound mind when 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 reached by Morritt LJ. None the less, your Lordships' House decided that there were, in reality, two proximate causes of the death, namely the negligence of the police and Mr Lynch's choice to kill himself and it was effectively impossible to say, at least on the facts of that case, that the suicide was more attributable 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 understanding were so overborne by his mental state, which had been caused by the defendant, that there could be no question of any real choice on his part at all, because he had effectively lost his personal autonomy altogether. In effect, in that type of case, the deceased does not really appreciate what he is 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 his suicide; 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 sound mind, can be said to have a degree of control over his emotions and actions, and will appreciate what he is doing when he kills himself. In other words, there will be cases where a person will have lost a degree 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 natural instinct for self-preservation has been overcome by an irresistible urge to die. However, if that analysis were correct, there would have been no contributory negligence in Reeves's case, because that 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 was suffering from a disabling mental condition, namely a severe depressive episode, [which] impaired his capacity to make a reasoned and informed judgment on his future. This seems to me to render the employer's case on contributory negligence plainly and significantly weaker than that of the commissioner in Reeves's case. However, Mr Corr's capacity was impaired rather than removed, a point emphasised by the fact that neither his intellectual abilities nor his appreciation of danger had been 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 the importance of personal autonomy, and would be inconsistent with the reasoning in Reeves's case, if we 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 the grounds of contributory negligence, where the deceased had taken his own life. The mere facts that his 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 more justify 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's personal 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, may well be 50% (as in Reeves's case); where it has been effectively wholly overborne, there will be no reduction. 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 relatively difficult question to answer, at least in many circumstances. 70 Almost any exercise which involves assessing the degree of contributory negligence must inevitably be somewhat rough and ready, and that is particularly so where one has to decide on the extent to which a person, whose mental capacity is impaired to a degree, is responsible for his own suicide. However, even bearing that in mind, and acknowledging the force of Lord Scott's view to the contrary, I am in agreement with Lord Mance in that I do not consider it appropriate for your Lordships to determine the appropriate degree of responsibility (if any) to apportion to Mr Corr for his suicide in the present case. The question does not seem to have been the subject of significant evidence or argument at first instance, and it was hardly touched on in argument in the Court of Appeal. Not only do I doubt whether it is possible to answer that question on the basis of the evidence and limited argument before us, and in the absence of any finding in the courts below; it would also be unfair on the claimant to consider a reduction in her damages on this ground as, for essentially the same reasons, she has not had a proper opportunity to deal with the question. It is not as if it is inevitable that there would have been some discount on this ground: it would be for the defendant to establish any 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 . MG *920

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

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