Kirkham v CC Greater Manchester Police [1990] 2 QB 283 Court of Appeal

Mr Kirkham was an alcoholic and suffered from depression. He had made a two suicide attempts on 6th Jan 1980. He was admitted to hospital but discharged himself the following day. When he arrived home his wife prevented him from drinking and he became violent and started smashing furniture. The police were called and arrested him. His wife informed them of his suicide attempts and discharging himself from hospital and it was agreed that he should be remanded in custody for his own safety. However, the police failed inform the prison authorities that Mr Kirkham was a suicide risk. He committed suicide whilst on remand at Risley Remand Centre. His wife brought an action based on the negligence of the police in failing to pass on the information. The Police raised the defences of volenti non fit injuria and ex turpi causa.

Held:

The claimant was successful. The defence of volenti non fit injuria, although normally would apply where a person of sound mind were to take their own life, had no application where a person of unsound mind took their life.

The defence ofex turpi causawas not limited to illegal acts but extended also to immoral acts. The court applied the public conscience test and concluded that to allow the claimant to succeed would not affront the public conscience, or shock the ordinary citizen.

Lord Justice Lloyd:

Where a man of sound mind injures himself in an unsuccessful suicide attempt, it is difficult to see why he should not be met by a plea of volenti non fit injuria. He has not only courted the risk of injury by another; he has inflicted the injury himself. In Hyde v. Tameside Area Health Authority, the plaintiff, who had made an unsuccessful suicide attempt, brought an action for damages against the Health Authority alleging negligence on the part of the hospital staff. Lord Denning doubted whether a defence of volenti non fit injuria would be available in such a case "seeing that [the plaintiff] did not willingly injure himself - he wanted to die". I find that reasoning hard to follow. Any observation of Lord Denning is, of course, entitled to great weight; but the observation was obiter, since the court held that the hospital staff had not been negligent. Moreover we were told by Mr Foster, who happened to have appeared for the plaintiff in that case, that the point was never argued.

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. There should be no distinction between a successful attempt and an unsuccessful attempt at suicide. Nor should there be any distinction between an action for the benefit of the estate under the Law Reform Act and an action for the benefit of dependants under the Fatal Accidents Act. In so far as Pilcher J. drew a distinction between the two types of action in Pigney v. Pointers Transport Services Ltd. 1957 2 All E.R. S07, I would respectfully disagree.

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 Dr Sayed, whose evidence the judge accepted, said that Mr Kirkham was suffering from clinical depression. His judgment was impaired. If it had been a case of murder, he would have had a defence of diminished responsibility due to disease of the mind.

I have had some doubt on this aspect of the case, in the light of Dr Sayed's further evidence that, though his judgment was impaired, Mr Kirkham knew what he was doing. But in the end I have been persuaded by Mr Foster that, even so, 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.

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