“He feels helpless. He admitted to suicidal ideation.”
“30. … reasonable foreseeability is central to both the extent of the duty of care and to the question of remoteness of damage. The argument put forward on behalf of the claimant in my judgment seeks to by-pass the question of foreseeability of the type of loss which occurred in this case, namely death by suicide. ”
“32. … Mr Foy Q.C. raised an alternative argument in his Closing Submissions namely that if foreseeability of suicide had to be established it could be established on the facts of this case. He referred to the evidence of Dr McLaren that those who suffer with severe depression had a one-in-six to a one-in-ten chance of committing suicide. That argument seems to me to be an argument based on hindsight rather than foresight as at the date of the accident. 33. Given the description of the deceased as a happy, well-balanced family man, ambitious in his work and with no psychiatric problems in the past it is plain to me that his suicide six years later (or at all) would not have been reasonably foreseeable to the defendant.”
“(i) The Defendants were in breach of their duty to take reasonable care towards injury to the Deceased. That duty did not extend to a duty to take care to prevent his suicide. (ii) The Deceased’s suicide was not reasonably foreseeable to the Defendants and as a matter of law reasonable foreseeability of the suicide must be established by the claimant, both in respect of duty and the recovery of damages. (iii) The damages sought to be recovered in relation to the suicide falls outside the scope of the Defendant’s duty of care as I have found it to be.”
“The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. If a working definition of ‘personal injury’ is needed, it can be found insection 38(1) of the Limitation Act 1980 : “Personal injuries’ includes any disease and any impairment of a person’s physical or mental condition …”
“Medical science has also demonstrated that there are other injuries the body can suffer as a consequence of an accident, such injuries not being demonstrably attributable directly to physical injury to the plaintiff. Injuries of this type may take two forms. First, physical illness or injury not brought about by the chain of demonstrable physical events, but by mental or emotional stresses, i.e. by a psychiatric route. Examples are a heart attack or a miscarriage produced by shock. In this case, the end product is a physical condition although it has been brought about by a process which is not demonstrably a physical one but lies in the mental or nervous system. The second form is psychiatric illness itself which is brought about by mental or emotional stresses, i.e. by a psychiatric route. … 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 M.E., 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.”
“This philosophy [the individualist philosophy of the common law] expresses itself in the fact that duties to safeguard from harm deliberately caused by others are unusual and a duty to protect a person of full understanding from causing harm to himself is very rare indeed.”
“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. On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury.” “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. On the whole people are entitled to act as they please, even if this will inevitably lead to their own death or injury.”
“The duty of care should not be framed as being a duty only with respect to particular kinds of consequence. This “scope of the duty” or “scope of the risk” approach which asks “what kind of harm was it the defendant’s duty to guard against” at best conflates inquiries that it is clearer to keep separate and at worst encourages circular reasoning. It is preferable to keep “duty” as the issue that considers general concerns relating to whether the obligation of care should be recognised between the parties and without regard to the consequences of breach in the particular case. Where it is owed, the scope of the duty is simply to act reasonably in the circumstances. The breach analysis considers what reasonableness entails in the circumstances. Cause-in-fact provides the link between the breach and C suffering actionable damage. Finally, “scope of liability” then considers which of the stream of consequences of the tort that happened on this particular occasion should be judged to be within the scope of D’s liability.”
“On formal questionnaires, there is evidence of clinically significant anxiety and depression, and continuing stress arising from the accident itself. Mr Corr’s ongoing psychological complaints, particularly reliving the accident, heightened arousal, and avoidance behaviour, are consistent with a post-traumatic stress disorder. Although he has been helped by counselling, he is still struggling to cope with daily life, particularly his work.”
“At the present time, despite the above treatments, Mr Corr continues to be significantly distressed as a direct consequence of the material accident.”
“26. He said he was stuttering and starting to ‘lose it’ in January 2002. He said that he then took an overdose, wanting to end it all. ... 30. Although he has apparently improved since his breakdown, Mr Corr is more depressed now than when he was previously examined in February 2001. He stated that ‘I’m useless’ and ‘I feel just everything’s gone’. He has no interest and no enthusiasm in his normal activities. Nothing is enjoyable now. He has lost his sense of humour. Everything is an effort. He complained that he is unable to plan or think about the future. He said he cannot think at all. He is indecisive. He cannot concentrate. He has no motivation. His appetite is poor, and his wife has to make him eat. He consumes quantities of chocolate and junk food. His sleep is disturbed and he wakes exhausted and in a sweat. He may get up during the night for a cigarette. He then stays in bed until the last minute before taking his children to school. He may then go back to bed when he returns home. He feels helpless. He admitted to suicidal ideation. He said he is still taking anti-depressants, although he could not recall the name. … 33. These scores [on scales for measuring depression] are consistent with more severe anxiety and depression than last time. … 38. At the present time, he remains depressed, with some suicidal thoughts.”
“He has had recurrent thoughts of jumping off a high building → feels thought of family is preventing him to do so.”
“His symptoms worsened lately since December last year leading to feelings of uselessness and hopelessness with suicidal ideations.”
“I therefore consider that, on the balance of probabilities, Mr Corr’s suicide was a consequence of the material accident, the injuries sustained, and his profound difficulties in coping thereafter.”
“4.2 On the balance of probabilities, the evidence points to Mr Corr having suffered symptoms of a severe depressive episode … in the days before his death. Mr Blunden, in his report of23 May 2002 , gives a very clear description of the objective signs of a severe depressive episode, which he observed in Mr Corr when he saw him on22 May 2002 . In earlier phases of his illness Mr Corr had recorded suicidal ideation, including suicide by jumping, associated with thoughts of hopelessness. He had reported struggling to challenge these thoughts, but as his depression deepened in the days and weeks before his death, this hopelessness became more difficult to resist. In such conditions 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. 4.3 This hopelessness, which was present because Mr Corr was suffering from a disabling medical condition, namely a severe depressive episode, impaired his capacity to make a reasoned and informed judgement on his future and this disturbance in his thinking led directly to his suicide.”
“Q. Is it your view that Mr Corr’s state of mind at the time of his suicide can be fitted into the definition of sanity in the M’Naghten Rules? A. I’m not sure that it can, particularly in relation to the issue of whether or not the act was right or wrong. I’m not sure how one could apply that test in a situation such as this. It is my view that when Mr Corr stood on the edge and took the decision to jump, that he knew what the consequences of that would be and that he would die as a consequence. But it is also my view that the history, the clinical descriptions and the information contained in the suicide note all indicate that he was suffering from depression and that the depression had distorted his thinking, particularly through the generation of hopelessness and that distortion led to his suicide. … Q. Can I ask you this, what do you understand, as it were, putting yourself, as far as you can, into Mr Corr’s mind at the time of his suicide, were his reasons for it? A. In my view, Mr Corr was experiencing significant emotional distress as a result of the depression. The evidence for that comes from the suicide note, and also from the clinical description of his mental state when he was admitted to hospital in February 2002 and treated for the severe depressive episode. In the admitting records it refers to him having had thoughts of committing suicide through jumping and also having the thought which challenged that, of concerns about the effect it would have on his family. Mr Corr was then treated for the severe depressive episode with anti-depressants and electro-convulsive therapy, which is a treatment usually reserved for patients with severe depression, particularly where there is a strong and immediate suicide risk, and the records suggest that in the days before his suicide that his mental state may have been deteriorating and getting worse. … in his suicide note Mr Corr refers to, I think the sentence is: ‘I can’t think or do any more.’ He also describes himself as being like a shell inside, which is a common description of the experience that suffers with severe depression have. It may also be the case that Mr Corr’s presentation was influenced by his desire to conceal his intent, which again is not unusual in cases like that. Individuals will describe a feeling of almost relief once they have made a decision to complete suicide and the act is not always done in a state of heightened agitation or impulsivity, but nevertheless, the combination of intense internal suffering and hopelessness, which leads to the belief that situations can never improve, creates the impasse and the decision to suicide. Q. And finally this. Is there a relationship between PTSD, which it appears Mr Corr suffered from, and the depression? A. There is a very clear relationship between the two, and depression is recognised as a common complication of traumatic stress reactions. The rates vary between 50% and 80% of sufferers of PTSD, which persist and is complicated, and those individuals are at significant risk of developing depressive episodes. Mr Foy: And finally, Dr Jacobson, in his letter of9th September 2003 … says … “The accident led to chronic fluctuating psychiatric disorder, which gave him a long term suicide risk.”
“Q. And I think you fairly accepted a few minutes ago, that Mr Corr would have known what the consequences of jumping from the building would be? A. Yes, I believe he jumped with the intention of killing himself. Q. Yes. So when he jumped he would have been aware of the consequences, but nevertheless acted deliberately? A. Yes. That’s correct.”
“Q. You do not; you could not have suggested during Mr Corr’s lifetime that he was unable to tell the nature or quality of his act. Agreed? A. Yes. Q. Or that he was unable to tell right from wrong? A. Yes.”
“There are descriptions in the records of Mr Corr struggling with irrational thoughts, and describing his thinking as fluctuating, and that is certainly the experience with depression, where there will be times when ideas of hopelessness become so strong and powerful, that they dominate one’s decision-making. The records describe Mr Corr battling against such thoughts during the course of his last depressive episode. … The suicide arises because one perceives one’s current state as unbearable and with the distorted thinking of depression, sees no hope of that getting better.”
“Mr Foy: And do you see in this that Mr Corr was suffering a different condition at the time of his suicide to that which had been the position in the previous few months? A. No. It is a common and recognised complication of severe depression that between 1 in 6 and 1 in 10 sufferers will kill themselves. In my opinion, there is a clear sequence between the physical injuries, the traumatic stress disorder, the depression and the suicide. Mr Foy: Finally, just this, you were taken to … your report dealing with the suicide attempt in February and the medical officer’s assessment sheet that he had recurrent thoughts of jumping off a high building, thoughts of family is preventing him to do so. What was it, do you think, that caused those concerns about the family to be overcome, what was the, what was in his mind? A. I think the severity of the depression increased and in particular his sense of hopelessness, which led him to believe there was no way in which treatment could alleviate his suffering and enable a recovery, and that hopelessness was the, in my opinion, the ultimate cause of his suicide.”
“It is reasonably clear that when the deceased hanged himself he was not insane under the M’Naughten Rules. I should infer that the deceased must have known what he was doing when he took his own life and must have known that what he was doing was wrong. To put the matter in ordinary language, the deceased took his life in a fit of depression brought about by a condition of acute anxiety neurosis induced by the accident and injury which he had sustained eighteen months earlier. On these facts I have to make up my mind whether the suicide of the deceased constituted a novus actus interveniens which serves to break the chain of causation between his injury and his death, or whether upon the ordinary principles which cover remoteness of damage in cases of tort, the death of the deceased man was caused by the injury he received due to the defendants’ lack of care for his safety. I have no doubt on the evidence that the deceased would not have committed suicide if he had not been in a condition of acute neurotic depression induced by the accident. In this sense the injury which he sustained in the accident was a causa sine qua non of the accident. It is equally clear that the immediate cause of his death was that he hanged himself in a fit of acute depression. That he might do this was clearly a matter which could not reasonably have been foreseen by the defendants. … I have next to consider whether the fact that the deceased took his own life at a time when he was, as I find, sane under the M’Naughten Rules debars his widow and administratrix from successfully prosecuting her claim against the defendants under the Fatal Accidents Act on the ground of public policy. … I prefer to base my decision on the grounds already stated, namely, that the deceased’s irrational and no doubt felonious act in taking his own life did not break the chain of causation between his accident and his death.”
“ In my view the law is clear. If a man is injured in such a way that his leg may give way at any moment he must act reasonably and carefully. It is quite possible that in spite of all reasonable care his leg may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender’s fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender’s fault or the disability caused by it.”
“On the first question, Mr Pannick relied upon the general principle stated in Hart and Honoré, Causation in the Law, 2nd ed. (1985), p. 136: "the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by a defendant, negatives casual [sic] connection." However, as Hart and Honoré also point out, at pp. 194-204, there is an exception to this undoubted rule in the case in which the law imposes a duty to guard against loss caused by the free, deliberate and informed act of a human being. It would make nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss.”
“It is necessary to find not merely that there has been suicide, not merely at the time of the suicide that there was some depression and some delusions, but you must find that the condition of the man was such that the accident disabled him from exercising a judgment, and in that sense caused the accident. If you find merely that in consequence of the accident he is brooding in fear of poverty, or in distress, or in a mental condition which is consistent with the condition of a person not suffering from the accident, there you do not find and are not entitled to draw the inference that his mind has become so unhinged as to dethrone his power of volition and in that sense there is no proof and no necessary connection between the accident and the suicide.”
“35. … but it is now more readily recognised that in causation, said to be a question of fact though tempered by value judgements and infused with policy considerations because with a view to allocating legal responsibility (March v E and MHStramare Pty Ltd(1991) 171 CLR 506 ), an intentional act even of the person wronged may not break the chain of causation. The intentional act may be part of the chain of causation … Insanity is a concept of varying content, and the true enquiry (if the validity of any such enquiry be assumed) is into the worker’s mental state so that it might be found whether his suicide should be regarded as an intentional act. The test of dethronement of the power of volition has been adopted, and it does not necessarily turn on insanity. The law recognises in context not involving insanity that the will may be overborne or subjected to such influences that, although the act is deliberate, it is not regarded as the actor’s intentional act. In the context of duress, for example, Lord Simon said that duress “deflects, without destroying, the will of one of the contracting parties” (Director of Public Prosecutions for Northern Ireland v Lynch[1975] AC 653 at 695) …”
“The plaintiff, in my opinion has succeeded in proving that her husband was so insane at the time he committed suicide as to be criminally irresponsible for his act, and therefore it has been proved, in my opinion, in fact (i) that the defendant’s negligence was the direct cause of the injury; (ii) that the injury was the direct cause of the insanity; (iii) that the insanity was the direct cause of the death; and therefore that the wrongful act of the defendant caused the death of the deceased.”
“Courts have long been rather reluctant to recognise suicide as a proximate consequence of a defendant’s wrongful act. … Generally speaking, it has been said that act of suicide is viewed as an “independent intervening act which the original tortfeasor could not have reasonably [been] expected to foresee.” … Exceptions to the general rule have been recognised where a decedent was delirious or insane and either incapable of realising the nature of his act or unable to resist an impulse to commit it.”
“What is determinative of liability in the case under appeal is that when Mrs Wright 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. Accordingly her suicide must be taken as a novus actus interveniens such that it cannot be said that her death was a reasonably foreseeable consequence of the wrong doing. In my opinion, on the evidence before us, the taking of her life cannot reasonably be considered an incident within the purview of the risk created by the defendants when the motor vehicle accident occurred.”
“The learned trial judge here clearly adopted the common sense approach to the issue of causation. There was ample medical evidence to support his finding that the accident caused – “contributed in a material way to” – the depression. As he put it, “the depression would not have occurred but for the deceased’s accident-caused injuries”
“30. Actions involving the deliberate infliction of self-harm should generally be regarded as “independent and unreasonable” and as of breaking the sequence of events that may otherwise constitute a causal chain for the purpose of attributing legal responsibility.”
“As a matter of value judgement, is it just to hold the defendant legally responsible for an injury to the plaintiff which, though it can be traced back to the defendant’s wrongful conduct, was the immediate result of unreasonable action on the part of the deceased?”
“200. As the depression and the suicide were not a continuation of the depression which the deceased suffered following his back injury, it seems to me that the cross-examination which brought about the suicide was a novus actus interveniens.”
“32. … Once it is recognised that the first principle is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible, the metaphysics of causation can be kept in their proper place: of themselves they offered in any event no hope of a solution of the problems which confront the courts in this and other areas. … 33. So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible? The nature of his duty (here, the common law duty of care) is relevant; causation, certainly, will be relevant - but it will fall to be reviewed, and in truth can only be understood, in light of the answer to the question: from what kind of harm was it the defendant's duty to guard the claimant? … Novus actus interveniens, the eggshell skull, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any liable defendant's responsibility for the loss and damage which the claimant has suffered.”
“ But in the present case Mr Kirkham was not of sound mind. True, he was sane in the legal sense. His suicide was a deliberate and conscious act. But … Mr Kirkham was suffering from clinical depression. His judgment was impaired. … though his judgment was impaired, Mr Kirkham knew what he was doing. But … he was not truly volens. Having regard to his mental state, he cannot, by his act, be said to have waived or abandoned any claim arising out of his suicide. So I would reject the defence of volenti non fit injuria.”
“Their Lordships conclude this part of the case with some general observations. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is “direct”
“The grand rule on the subject of damages is, that none can be claimed except such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrongdoer.”
“Now in the present case if it were held to be established that the deceased had received a comparatively moderate injury through the negligence of the defenders and had thereafter had become depressed and worried because of fear for his future working capacity or physical health and then had committed suicide under the influence of such depression and worry no doubt it might be inferred that the suicide was consequent upon that injury and the result of it, in the sense that but for the injury the suicide would in all probability not have occurred, but it does not follow that such a result could properly be described in the ordinary course of language as the ‘natural and direct’ result of the initial injury so as to make the delinquent liable in damages to the dependents of the deceased for the suicide. In the present case not only is there no proof of injury to the skull or brain but there is no physical connection between the initial injury (assuming it to have been caused by the defender’s negligence and the assumed suicide.”
“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 … (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 … (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 … (4) The defender must take his victim as he finds him … (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 ...”
“[40] … Experience, particularly over recent years, has shown that post-traumatic stress syndrome is a not uncommon sequela of injuries sustained in a motor vehicle accident. The foresight of a reasonable person in this day and age must encompass the possibility, perhaps even the likelihood, of psychiatric illness – depression – following on from physical injuries sustained as a result of negligence. … [42] Then … the depressed person may ‘do what depressed persons are apt to do, namely, to attempt suicide’. If depression is foreseeable then it is difficult to conclude that suicide as the result of that depression is not foreseeable. Unless the evidence points to some other factor as being a more significant cause, but for it the suicide would not have occurred, the tortfeasor will be liable.”
“So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.”
“Sometimes, depending on the circumstances, personal injury as a type of damage may need to be broken down further, distinguishing between personal injury arising from one particular cause and personal injury arising from another.”
“There is good evidence that some sorts of accident claims have risen (from a relatively low base) and that the overall cost of personal injury settlements have gone up. But there is virtually no reliable evidence about the number of bogus or exaggerated claims or whether they constitute a grave (or increasing) problem.”
“… I am just a shell of a person it must be horrible for you to have me this way… I can’t think or do anything anymore….Eileen thanks for keeping me alive for so long.”
“Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both.”
“Regret, fear for the future, frustration at the slow pace of recovery and anger are all emotions that are likely to arise, unbidden, in the minds of those who suffer injuries in an accident such as befell the pursuer. If, alone or in combination with other factors, any of these emotions results in stress so intense that the victim develops a recognised mental illness, there is no reason in principle why he should not recover damages for that illness.”
“It may be appropriate to recognise the deliberate infliction of self-harm as a separate kind of damage – distinct from both personal injury and psychiatric harm – for foreseeability purposes. That does not need to be decided in the present case.”
“So I would be inclined to hold that where a man of sound mind commits suicide, his estate would be unable to maintain an action against the hospital or prison authorities, as the case might be. Volenti non fit injuria would provide them with a complete defence… But in the present case Mr Kirkham was not of sound mind. True, he was sane in the legal sense. His suicide was a deliberate and conscious act. But … Mr Kirkham was suffering from clinical depression. His judgment was impaired… I have had some doubt on this aspect of the case, in the light of [the] further evidence that, though his judgment was impaired, Mr Kirkham knew what he was doing. But in the end I have been persuaded … that, even so, he was not truly volens.”
“This brings me to the first of the three arguments which the commissioner has advanced in his defence, which is volenti non fit injuria. I do not see how that principle can be applied to a case where the loss, injury or damage was caused by the deliberate act of self-harm which the defendant was under a duty to take reasonable care to prevent. The situation would be different if a defendant who was under a duty to prevent the plaintiff from sustaining injury by accident or negligently was faced with a claim for damages arising from an injury which the plaintiff, in full knowledge of the risks, had done to himself deliberately. It might then be said that he had voluntarily assumed the risk of injury.”
“Depression caused by the physical effects of an injury (and what flows from the depression) is a radically different thing from depression caused by litigation about the consequences of that injury in damages (and what flows from that depression).”
“Suicide, while deliberate, may often (but not always) be the product of a will so overborne or influenced by the worker’s circumstances that it should not be regarded as an intentional act breaking the chain of causation. Insanity is not a necessary step to this result.”