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The Scope of Negligence Liability of Those Suffering From Mental Illness - Richard Spearman QC, 39 Essex Chambers & Stuart Nicol

09/10/15. Dunnage v Randall and another [2015] EWCA Civ 673, [2015] All ER (D) 49 (Jul)

In a judgment handed down on 2 July 2015, the Court of Appeal stated how, in accordance with English law, the tort of negligence strikes a balance between individuals who by reason of mental illness have no rational control over their actions and persons who are injured by such actions.

The facts of the case were striking and horrific. In October 2007, the claimant (C) was visited in his home by his uncle (V) with whom he had been on good terms, but who was diagnosed post-mortem as having suffered florid paranoid schizophrenia. C, a rescuer to whom both the judge and the Court of Appeal paid tribute, was extremely seriously burned as a result of V pouring petrol over himself. C struggled unsuccessfully to prevent V igniting the petrol with a lighter that V was holding, and both men were engulfed in flames. V died at the scene. C survived by jumping to safety from a balcony.

Following a trial on liability in February 2014, the judge dismissed the claim on the basis that due to his mental illness, V's acts were involuntary and that V therefore had no legal liability to C. His Honour Judge Saggerson held at [34]-[35] that “[V’s] physical, mechanical actions on this occasion were driven by an overwhelming, irresistible impulse brought about by his florid psychotic state at the time he set the fire which state also deprived him of any ability to consider the nature and consequences of what was happening. In other words, his capacity to think and act rationally and independently was wholly eliminated from the time he took the petrol can out of his car” and that, although V was subject to a duty of care to C which exposed V to potential liabilities for his voluntary acts, “By reason of the extreme nature of the manifestation of his mental illness, [V] was not acting voluntarily and accordingly is not within the scope of the duty neither is he in breach of that duty. Furthermore, voluntary or voluntarily informed acts were not the cause of the events that lead to the damage.”

There was no previous decision of the Court of Appeal which considered the tortious liability of those suffering from mental illness. C argued that this topic raised difficult issues of legal policy, which involve striking a balance between, on the one hand, fair and just criteria of legal responsibility, and, on the other hand, the protection of the legitimate interests and expectations of people in general and the victims of injury caused by mentally disabled persons in particular. C contended that (1) V owed him a duty of care and that V's mental illness was no bar to recovery of damages, (2) the applicable standard of care was that of the ordinary reasonable person, and not a modified standard that took account of V's individual characteristics, (3) V did not intend the claimant harm, rather the harm was a consequence of V's unsound mind and was accidental, and (4) the claim therefore came within section 3 of the policy of household insurance obtained by V’s widow, which provided: “We will indemnify...your family against all sums which you become legally liable to pay as damages for...accidental bodily injury...to any person...in the circumstances described in the contingencies.”

C formulated the principal questions raised by the appeal as “What is the liability of a person suffering from mental illness for an act which is on the face of it negligent and a tort?” or, more narrowly, as “Is a person suffering mental illness to the extent that his actions are entirely directed by his deluded and deranged mind liable in damages to a person injured?”

In substance, the Court of Appeal accepted C’s arguments. In summary, the Court held (1) there is no justification for treating mental and physical illnesses differently, (2) what matters is the effect of the illness (specifically whether it entirely eliminates fault or responsibility for the injury caused because it means that the defendant did nothing to cause it), (3) an adult who suffers from mental illness is required to meet the objective standard of the ordinary reasonable person, not a modified standard which takes account of that mental illness, and (4) on the facts, unwell though he was, V was not divested of responsibility for his acts which occasioned injury to C and did not meet that standard.

The Court of Appeal held that, as is also true in the case of physical illness, mental illness can act as a bar to the recovery of damages where it entirely eliminates fault or responsibility for the injury caused because it means that the defendant did nothing to cause it. In the words of Vos LJ at [131]-[133]: “only defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be excused. It is only defendants in that category that have not actually broken their undoubted duty of care. The actions of a defendant, who is merely impaired by medical problems, whether physical or mental, cannot escape liability if he causes injury by failing to exercise reasonable care....What then does it mean to say that a medical condition entirely eliminates any fault or responsibility for the injury? It simply means that the defendant himself did nothing to cause the injury...In my judgment, however, at all intermediate stages where the defendant does something himself he risks being liable for failing to meet the standards of the reasonable man.”

So far as concerns the facts of the case, the Court of Appeal held that the Judge had come to a conclusion that was not open to him. Rafferty LJ said at [106]: “Did Vince do an act, when he doused himself in petrol? Of course he did. He used his hands and at least one arm to raise direct and upend the opened can. He elected to take it from the table, to move it through an arc and to position it so that liquid would come from its neck. Those were choices he made.” Referring to the judgment below at [34], Vos LJ said at [135]: “It is the use of the word “rationally” that concerns me. A person can still be acting if he acts irrationally; indeed, it is a matter of regret that even the most intelligent in our society sometimes do act irrationally. Nobody would suggest that they should be excused from liability for their negligence whilst so acting.” Arden LJ said at [145]: “when the experts say that [V] did not have control over his acts, they meant that he did not have rational control over his actions. They are not saying that he had no physical control over his actions. In my judgment the judge should have treated paragraph 84 [of the joint report] as resolving any doubt about the nature of [V’s] control over his actions. His mind, albeit deluded, directed his actions. References in their reports to his conduct being involuntary had to be read in that sense.”

So far as concerns recovery under the insurance, Arden LJ held at [156] and [157]: “The critical matter is whether the injury suffered by [C] was accidental bodily injury. In my judgment, the injury was accidental because on the evidence [V] had clearly lost control of his ability to make choices and therefore he could not be said to have intended to cause injury to [C]” and “For the same reason, [V] cannot be said to have been wilful or malicious within the exclusion for wilful or malicious conduct.”

So far as concerns the question of the policy of the law, Arden LJ explained at [153]: “The objective standard of care reflects the policy of the law. It is not a question of the law discriminating unfairly against people with physical or mental illness. The law takes the view as a matter of policy that everyone should owe the same duty of care for the protection of innocent victims. It would after all, in many cases, be open to a person who knows he has reduced abilities to take account of those abilities in what he does … There will be hard cases, as this case may be one, where a person does not know what action to take to avoid injury to others. However, his liability is no doubt treated in law as the price for being able to move freely within society despite his schizophrenia.”

Richard Spearman QC and Stuart Nicol, instructed by Kitsons, acted for the claimant.

Richard Spearman QC is a barrister at 39 Essex Chambers. He has a wide ranging practice and has appeared in many high profile and reported cases, including five cases in the House of Lords, and numerous cases in the Court of Appeal and all divisions of the High Court, as well as advising on and appearing in litigation overseas and in commercial, media and sport arbitrations. He has argued cases in the Court of Appeal concerning freezing injunctions, civil fraud, tracing, disclosure, arbitration, police powers, negligence, contracts, insurance, defamation, copyright, confidence, data protection, and personal injuries.

Stuart Nicol is a barrister who is a sole practitioner (formerly a tenant at 13 King's Bench Walk). He has been practising for almost 20 years and specialises in commercial and civil law, including insurance law where there are indemnity issues and catastrophic injury claims where there are psychiatric issues.

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