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Date: Fri, 29 Feb 2008 17:58
From: Michael Jones
Subject: Corr v IBC [2008] UKHL 13
I too wondered, on reading Lord Scott's comment at [31], whether the House of Lords would have considered the employers responsible for harm to others caused by Corr's choice of method of suicide. Logically, if they can foresee his suicide while he remains responsible for his actions, they can also foresee that his method of suicide may harm others while he remains responsible for his actions. I suspect, however, that this would be a step too far in the causal chain for their Lordships (there is no logical reason for this, only gut instinct as to where to draw the line, which, I suspect, is what most judges resort to with these long causal chains). Or maybe they would conclude that it is foreseeable that he would commit suicide while exercising reasonable care for the safety of others, but it is unforeseeable that he would commit suicide negligently ...
You can deal with it through duty, of course. Do the employers owe a duty of care to prevent harm to third parties caused by a mentally competent, responsible adult, as a consequence of his choice and method of implementation of an act of suicide? Just asking the question seems to me to provoke the response, no.
One English High Court case touches on with this. In White v Lidl UK GmbH [2005] EWHC 871 the claimant's wife committed suicide following a deterioration in her mental state following an accident that caused minor physical injuries (defendant's car park crash barrier went through her car windscreen, missing her head by inches). The suicide was 6 months after the accident. Claimant developed PTSD, depression and pathological grief disorder following the suicide. Hallett J held that there was no duty owed by the defendants to the husband. The sequence of events was held not to have been foreseeable, even with hindsight. The case is explicable (and therefore distinguishable from the hypothetical case of physical injury to a third party) on the basis of the artificial rules applied to claims for psychiatric harm in the UK (applying different tests to 'primary' and 'secondary' victims - which was the analysis adopted by Hallett J). It is also distinguishable from Corr on the foreseeability issue, since the physical injuries sustained by the wife were far less serious than those sustained by Mr. Corr, so that arguably her suicide was not reasonably foreseeable at all.
Michael
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Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX
Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: DAVID CHEIFETZ
Sent: Fri 29/02/2008 16:00
To: Mårten Schultz
Subject: Re: VB: OGD : Corr v IBC [2008] UKHL 13
Corr shows a problem inherent in apportionment formula of the "just and equitable having regard to the claimant’s share in the responsibility for the damage" form where the relevant factors may have nothing to do with relative blameworthiness, indeed may have no relationship to causal criteria.
What would the House have done on the apportionment issues had it also had to deal with an action by a third person injured as the result of Mr. Corr's jump if that person had sued both Corr and the employer? Lord Neuberger wrote, at para. 51, in relation to the contributory fault apportionment issue: "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". Does that mean, for argument's sake, that if the Corrs were extremely wealthy, the apportionment would be closer to comparative blameworthiness than if the family needed money? If the Corr were not insured for liability to the third person and the family did not have assets, so that the third person's damages award would come out of the Corrs' damages, that would affect the contributory fault apportionment and the contribution apportionment? Similarly, if Corr was insured for liability, that too would affect in some fashion?
The analytical problem that would be avoided under regimes where the apportionment is in the degree of fault determined by the comparative blameworthiness, which is supposedly take into account only the causative conduct relevant to fault.
An interesting angle on the novus actus finding in the British Columbia action the House of Lords referred to is that, in BC, contributory fault on the part of the injured person means the tortfeasor is liable proportionally, only, not solidarily (jointly) with another tortfeasor should there be more than one. As it happened, there was only one tortfeasor in that action so the judges wouldn't have had the issue of solidary liability, if the judges wanted to find the deceased's conduct didn't break the chain and allow some recovery. Since there was only one tortfeasor, had the action succeeded with deceased's conduct only contributory fault, the family recovery would have been reduced by the full percentage. The defendant would have paid only its "share". So, the BCCA was able to duck the quandary all aspects of the quandary of how to apportion in regime where apportionment is based on relative blameworthiness, only, and that compares (so we claim) only the extent to which each person's misconduct departed from the applicable standard of conduct for that person. So, I suppose the answer is that one looks at the act which is the deceased's fault - the jump, the manner of driving - and not the motive for the act. That means the fact the motive was suicide is irrelevant.
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