Duty of Care - Police liability for cell suicide.

Reeves v Commissioner of Police of the Metropolis

(1999) The Times, 16 JulyHouse of Lords

The Facts

Lord Hoffmann said that on March 23, 1990 Martin Lynch hanged himself in his cell in Kentish Town Police Station. He had been remanded in custody on charges of fraud and was also under investigation for handling stolen vehicles.

He had made two previous attempts at suicide in cells at magistrates' courts. After the first incident the police noted on his record that he was a suicide risk.

When he was brought back to the police station after the second attempt he was seen by a doctor. She found no evidence of mental disturbance but gave instructions that as a suicide risk, he should be frequently observed.

At about 1.57pm a policeman looked through the open hatch in the cell door and saw Mr Lynch lying on his bed. A few minutes later he used his shirt as a ligature to hang himself by pushing it through the wicket hatch and securing it to the door. He was found by another policeman at 2.05pm. Despite attempts at resuscitation, he died a week later.

Sheila Reeves, who had lived with Mr Lynch for some years and had a child by him, sued the Commissioner of Police of the Metropolis under the Fatal Accidents Act 1976 for negligently causing Mr Lynch's death.

The trial judge held that the police owed Mr Lynch a duty to take reasonable care to protect him from committing suicide while in custody, and that they had been in breach of that duty by failing to shut the wicket hatch, but that the breach of duty by the police did not cause Mr Lynch's death.

He was of sound mind and his judgment was not impaired, and the sole cause of his death therefore was his deliberately killing himself.

The judge thought the result could be expressed by the Latin maxim volenti non fit injuria or that his suicide was a novus actus interveniens.

On the assumption that the death had been caused partly by the fault of the commissioner and partly by the fault of Mr Lynch, the judge assessed Mr Lynch's responsibility in accordance with section 1(1) of the Law Reform (Contributory Negligence) Act 1945 at 100 per cent. He held that if the action had succeeded he would have assessed the damages at £8,690.

The Court of Appeal, by a majority, allowed Sheila Reeves's appeal and awarded damages in the full amount assessed by the judge.

Leading Counsel for the Commissioner argued that the deliberate act of suicide while of sound mind was a novus actus interveniens which negatived the causal connection between the breach of duty and the death.

He relied on the general principle that the free, deliberate and informed act or omission of a human being intended to exploit the situation created by a defendant, negatived causal connection.

The Lords said that there was an exception to that undoubted rule in the case in which the law imposed a duty to guard against loss caused by the free, deliberate and informed act of another.

It would make nonsense of the existence of 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.

Leading Counsel for the Commissioner accepted the principle when the deliberate act was that of a third party but said it was different when it was the act of Lynch himself, and deliberately inflicting damage on oneself had to be an act which negatived causal connection with anything which had gone before.

The Lords said that that argument reflected the individualist philosophy of the common law. People of full age and sound understanding must look after themselves and take responsibility for their actions.

That philosophy expressed itself in the fact that duties to safeguard from harm deliberately caused by others were unusual and a duty to protect a person of full understanding from causing harm to himself was very rare indeed.

But once it was admitted that this was the rare case in which such a duty was owed, it seemed self-contradictory to say that the breach could not have been the cause of the harm because the victim caused it to himself.

The difference between being of sound and of unsound mind, while appealing to lawyers who liked clear-cut rules, seemed inadequate to deal with the complexities of human psychology in the context of the stresses cause by imprisonment.

The duty was a very unusual one arising from the complete control which the police or prison authorities had over the prisoner, combined with the special danger of people in prison taking their own lives.

Leading Counsel for the Commissioner also suggested that the principle of human autonomy might be infringed by holding the commissioner liable; that autonomy meant that every individual was sovereign over himself and could not be denied the right to certain kinds of behaviour, even if intended to cause his own death; and that on that principle if Mr Lynch had decided to go on hunger strike the police would not have been entitled to administer forcible feeding.

The Lords said that autonomy did not mean that Mr Lynch would have been entitled to demand poison or that the police would not have been entitled to control his environment in non-invasive ways calculated to make suicide more difficult.

If that would not infringe the principle of autonomy, it could not be infringed by the police being under a duty to take such steps. In any case, that argument really went to the existence of a duty which the commissioner admitted, rather than to causation.

On the question of contributory negligence under section 1(1) of the 1945 Act, the Lords said that because the police were under a duty to take reasonable care not to give Mr Lynch the opportunity to kill himself, the common sense answer to the question whether their carelessness caused his death was "Yes".

Because Mr Lynch also had responsibility for his life, the question whether he caused his own death was "Yes". Therefore, both causes contributed to his death and the Act provided the means of reflecting that division of responsibility in the award of damages.

Cases in which a defence of contributory negligence failed against child plaintiffs who had injured themselves by taking opportunities to play with dangerous things which the defendants had carelessly left unguarded had no application here.

It was because children were without full understanding of the dangers they were running that it would not have been just and equitable to attribute responsibility to them.

In the present case it would be right to apportion responsibility between the commissioner and Mr Lynch in accordance with the 1945 Act and the correct assessment was to apportion it equally.

The Decision

Authorities, such as the police or prison service, who were entrusted with holding prisoners in custody had a duty to take reasonable care to prevent them from harming themselves or committing suicide.

When there was a breach of that duty and a suicide occurred the authorities were not entitled to rely on the defences of volenti non fit injuria or novus actus interveniens in an action for negligence brought by the estate of the deceased.

However, when a prisoner of sound mind committed suicide by taking advantage of a breach of duty by the authorities, the amount of damages awarded against the authorities would be reduced in accordance with the Law Reform Contributory Negligence Act 1945 to take account of the prisoner's responsibility in causing the loss by his own intentional act.

The House of Lords so held, Lord Hobhouse dissenting on causation, when allowing an appeal by the defendant, the Commissioner of Police of the Metropolis, to the extent of reducing the damages by half, from the Court of Appeal.

That court had allowed an appeal by the plaintiff, Mrs Sheila Reeves, joint administratrix of the estate of the deceased, Martin Lynch, from a dismissal at Central London County Court on June 19, 1996, of sheila reeves's claim on behalf of the deceased's dependants.

Comment

The last issue of Police Journal discussed two cases of a similar nature, viz, the duty to come to aid of fellow officer, Costello v Chief Constable of Northumbria Police, (1998) The Times, December 15 Court of Appeal.

Here it was discussed that for public policy reasons the police were under no general duty of care to members of the public for their activities in the investigation and suppression of crime: Hill v Chief Constable of West Yorkshire [1989] 1 AC 53. But that was not an absolute blanket immunity and circumstances might exceptionally arise when the police assumed a responsibility, giving rise to a duty of care to a particular member of the public.

The second case concerned the duty of Care Police owed informants,a duty of confidentiality, Swinney and Another v Chief Constable of Northumbria Police (No 2) (1999) The Times, May 25 QBD.

The first plaintiff ( Mary Kathleen Swinney) gave to the police information relating to the possible identity of a murder suspect, for use in the course of the murder investigation, on the basis that they would take all reasonable steps to ensure that the information was not disclosed more widely than was necessary for the purpose of the police inquiry.

Reeves centres on the "Tort" of Duty of Care, Tort is a Norman-French word simply meaning "Wrong". Since this is an important case on police liability the principle is discussed briefly; however; only some of the major headings are covered.

In Anns v Merton London Borough [1978] A.C. 752, 758 Lord Goff suggested that the duty of care principle is used more to identify where liability is not imposed than the reverse. There are in fact many more situations where a duty of care is imposed than not. There is considerable difficulty in creating new duties, but no doubt that this sometimes happens. Major examples are the liability of a manufacturer to the customer - Donoghue v Stevenson [1932] A.C. 562; duty of a person entrusted to give advice - Hedley Byrne & Co. v Heller & Partners Ltd [1964] A.C. 465.

In Donoghue v Stevenson Lord Atkin spoke of duty to one's neighbour and the identification of the neighbour. "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour."

In Anns v Merton Lord Wilberforce suggested that the neighbourhood criterion should be tested by 'proximity' ie if the plaintiff and defendant were so 'proximate' that the defendant could clearly foresee that his carelessness might damage the plaintiff then the duty of care would be implied. But there then could be cases where this implication should be restricted.

In the 'Yorkshire Ripper' case relatives of a victim sought redress against the police for inefficiency amounting to negligence. This was struck out (House of Lords approving) as disclosing no cause of action. (Hill v Chief Constable of West Yorkshire [1989] A.C. 53)

McLoughlin v O'Brian [1983] 1 A.C. 410 - after a road accident a mother saw dead and injured members of her family in hospital, and suffered nervous shock. The House of Lords held that a duty of care was owed to her but gave differing reasons. Lord Bridge's explanation that 'reasonable forseeability' is the test in this as other cases is likely to prevail.

"Negligence is the omission to do something which a reasonable man ..would do." Who is the reasonable man? It is not a question of identifying him but of placing the reasonable man in the shoes of the defendant and asking whether he would have behaved as the defendant did. In other words it is an objective test. But in some cases this is absurd e.g. a learner driver is expected to drive as well as the reasonable man - the ordinary competent driver: Nettleship v Weston [1971] 2 Q.B. 691.

The question is frequently 'what would the reasonable man have foreseen?' and the answer must vary from judge to judge.

The courts impose the standard of the reasonably professional person where professional skills are demanded and the defendant is a professional person.

Wilsher v Essex Area Authority [1987] Q.B. 7430 pinpoints some of the difficulties. Allowance is made for the inexperience of the practitioner, but that relates to his post (junior not expected to be as competent as consultant) not to his personal level of ability.

"General and approved practice" seems to be the normal criterion. This does not require the institution of all known modern techniques, but a reasonable awareness of the norm.

The magnitude of the risk is also a determining factor, and the courts do not seem to have ignored personal attributes in applying this rule. In Paris v Stepney Borough Council [1951] A.C. 367 the House of Lords held that goggles should have been provided for a one-eyed man even though the risk was small for sighted people - not calling for the provision of goggles.

It has now been held that the existence of the presumption does not shift the burden of proof to the defendant (Ng v Lee [1988] R.T.R. 298 - Privy Council).

A.VOLENTI NON FIT INJURIA/CONSENT (NO Injury can be done to a consenting person)

1. P cannot recover for injuries which D causes negligently where he has freely assumed or consented to a known risk of harm and thereby abandoned any claim to compensation.

2 .The defence, commonly pleaded by employers in the nineteenth century in answer to claims for personal injury brought by employees, has now virtually disappeared from that context since Smith v. Baker 1891 However, it is now sometimes pleaded in the context of claims by participants or spectators injured at sporting occasions, and occasionally in motor vehicle accident cases.