Dunnage v Randall & Anor, Court of Appeal - Civil Division, July 02, 2015, [2015] WLR(D) 287,[2015] EWCA Civ 673

Resolution Date:July 02, 2015
Issuing Organization:Civil Division
Actores:Dunnage v Randall & Anor

Neutral Citation Number: [2015] EWCA Civ 673

Case No: B3/2014/0832



His Honour Judge Saggerson


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/07/2015






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Mr Richard Spearman QC and Mr Stuart Nicol (instructed by Kitsons LLP) for the Claimant

Mr Michael Davie QC and Mr Peter Oliver (instructed by Keoghs LLP) for the Respondent

Hearing dates: 17th & 18th March 2015

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Lady Justice Rafferty:

  1. I have had the advantage of reading the judgments of Arden and Vos LJJ with each of whom I respectfully agree.

  2. On 24th February 2014 following a trial on liability in which the Claimant Terry Dunnage sought damages for negligence for his injuries, HHJ Saggerson dismissed the claim against the First Defendant estate of the Claimant's uncle Vincent Randall and the Second Defendant (``the Insurer''). The Insurer provided household cover for sums for which Vince became legally liable in damages for accidental bodily injury, and assumed control of the defence. The trial was conducted entirely on the papers. Throughout this judgment I have adopted the Judge's style and referred to the Claimant's uncle as ``Vince''.

  3. A précis of events on 14 October 2007 reveals that in his kitchen the Claimant, a rescuer, was extremely seriously burned to face and body as a result of Vince pouring petrol over himself. He struggled unsuccessfully to prevent Vince igniting the petrol, and both were engulfed in flames. Vince died at the scene, the Claimant jumped to safety from a balcony. Vince post-mortem was diagnosed as having suffered florid paranoid schizophrenia.

  4. The Claimant's case was that Vince despite his incapacity owed him a duty of care and mental illness was no bar to recovery of damages. Vince did not intend the Claimant harm, rather it was a consequence of his unsound mind and was accidental. The claim was founded on section 3 of the Policy issued to Vince's widow, which provides:

    ``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.''

  5. The Claimant contends that the Judge was wrong when he (a) held that an individual who acts as a result of insane delusions satisfies the objective standard of the ordinary reasonable person, (b) equated unwilled acts resulting from physical causes or third party intervention with willed acts directed and controlled by a conscious mind which is confused, disordered or disorientated, (c) found that because Vince's mental illness was extreme, the case did not need consideration within the wider context of tortious liability of the mentally ill and (d) paid no regard to broader issues of policy and justice.

  6. The Claimant now puts the question raised 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 ``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?''.

  7. The Respondent Insurer's case was that there was no cover under the Policy since Vince was not legally liable to the Claimant, and for other reasons based on the wording. It pleaded:

    i) Vince's actions were deliberate and/or wilful and/or malicious, alternatively reckless, and did not cause ``accidental bodily injury'' within the meaning of the Policy.

    ii) If accidental the injury was an accident in the course of threatening and/or actual unlawful violence by [Vince], excluded by implication from cover.

    iii) Vince's actions were wilful and/or malicious within the meaning of the Policy, and liability was excluded.

    iv) Vince acted deliberately and formed an intention to cause wilful and malicious harm, simultaneously acting involuntarily and without control of his actions, the consequence of insane delusions. Vince was not personally or legally responsible for that harm by reason of his mental incapacity, so that (i) he was not negligent and not otherwise liable and (ii) had no legal liability in damages and no right of indemnity.

    v) In breach of the general conditions Vince did not take all reasonable steps to prevent loss, damage or accident, and/or was reckless, and therefore had no claim under the Policy.

    vi) It would be contrary to public policy to allow recovery under the Policy in respect of the harm.

    vii) Because Vince's mental incapacity did not prevent his actions from being deliberate and the harm from being intentional, any liability was not covered by the Policy. Alternatively were he not so unsound of mind as to preclude legal responsibility those actions were non-accidental and/or wilful and/or malicious.

    viii) Any liability arose from accidental bodily injury to Vince - namely (a) mental disease, paranoid schizophrenia and/or (b) the infliction of injury and death by Vince upon himself - excluded under s3.

  8. Having given short shrift to the citing of no fewer than 77 authorities articles, texts and policy discussions which were nevertheless agreed as not directly determinative, the Judge decided Vince's legal liability could be determined without regard to broader considerations, since, due to his extreme mental illness, his actions were involuntary.

    Events of 14th October 2007.

  9. Vince unknown to his family had made suicide attempts in the months prior to his death. On 14th October 2007 unannounced he visited the Claimant at the latter's home. The Claimant's partner Natasha Butler described Vince as unusually agitated and making allegations against the Claimant. Reassurance seemed to have a calming effect. Neither the Claimant nor Miss Butler, although finding Vince's suspicious speculations tedious, was concerned for their personal safety.

  10. Vince went out announcing that he would retrieve a copy of Autotrader from his car. He returned without the magazine but with a petrol can and a cigarette lighter. He put the can on the table. Suddenly and unexpectedly he began demanding the Claimant and Miss Butler tell him the truth about who was following him and what was happening to him. He was convinced Miss Butler had been talking about him on the telephone. He accused her and the Claimant of playing a part in his (Vince's) stepson's imprisonment. She had become the Claimant's partner and the pair had moved to Devon so as to ``stitch him up''. He accused the Claimant of theft and of using their friendship to keep enemies close.

  11. As he became angrier he knocked over the open can whilst rolling the lighter trigger. He said ``Tell me the truth or we are all going to go up''. In an angry exchange with the Claimant he became increasingly incoherent and repetitive and after some moments said ``It's too late, I don't want you to tell me anything'', stood and poured the petrol over himself. The Claimant tried to grab the lighter and was splashed with petrol. In a struggle both men went to the floor and as the Claimant tried to drag Vince outside the latter ignited the lighter. The Claimant, badly burned, kicked free and jumped from the balcony. Vince died at the scene.

  12. The medical experts criticised the care he had received, the diagnosis of paranoid schizophrenia not reached in life but plainly indicated on a review of evidence available to health professionals. The Judge, impressed by the courage and selflessness of the Claimant, paid tribute to him. I echo his admiration.

    The structure of the judgment.

  13. In issue was whether those suffering mental illness owe a duty of care and if they do whether it is to be judged by the objective standard.

  14. The Judge formulated the duty of care owed by an adult social visitor to the Claimant's home as including ``...reasonable care in respect of [his] voluntary actions to avoid creating the risk of causing foreseeable injury to [others]''. The claim he said turned on whether Vince's acts were voluntary.

  15. He considered that factors determining whether a duty is recognised include whether it is fair just and reasonable to impose one in all the circumstances: Caparo v Dickman [1990] 2 AC 605 (``Caparo''). He found no justification for exempting Vince from the objectively defined duty. Any adjustment to reflect his mental frailty lay within a next step in the legal process. Were Vince's mechanical actions wholly involuntary he could not be in breach of the duty, by reason of its not including involuntary acts. No-one, he said, is subject to a duty of reasonable care in respect of acts he could not, or could not reasonably be expected to, control unless the situation included actionable voluntary behaviour, for example deciding to drive when aware of the risk presented by illness.

  16. The other approach was from the standpoint of the standard of care. A visitor's voluntary actions should be measured objectively. He quoted from Carrier v Bonham (2001) QCA 234 (``Carrier''), infra, before concluding that there are good reasons for preserving the objective approach to duty (reasonable foreseeability) and to standard (reasonable care) in respect of the mentally ill, particularly since an objective approach left a margin for those behaving involuntarily.

  17. He summarised his reasons thus: No measurement of the actions of the ordinary prudent person suffering mental illness justified a qualified standard, as was the case with children; the abilities of those suffering mental illness to intend foresee or appreciate the consequences of or to control their actions are likely to be infinitely various; the objective standard emphasises that there is no general exemption from liability for a person mentally...

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