Dunnage v (1) Randall (2) UK Insurance Limited [2015] EWCA Civ 673

Facts

The Claimant (C) was a young man who sustained extreme burns as a result of the actions of his uncle (V).

V visited C at his home. C’s partner described V as being unusually agitated that day, though neither she nor the C were concerned for their safety. V announced that he would retrieve a magazine from his car. He left the house, returning without the magazine, but with a petrol can and a cigarette lighter.

V began to make a number of wild accusations and steadily became angrier and more incoherent. V then knocked over the open can of petrol and began to roll the lighter trigger. C attempted to calm V down, however V then poured petrol over himself. C attempted to grab the lighter and in doing so was splashed with petrol. Both men fell to the floor whereupon V then ignited the lighter. C was badly burned, but managed to jump from the balcony. V died at the scene.

Post-mortem, medical experts diagnosed V as suffering from florid paranoid schizophrenia with delusional beliefs that had dispossessed him of his own mind.

A claim in negligence was brought against V’s estate and insurer for damages. The insurance policy only applied to ‘accidental’ injury and therefore excluded cover for wilful or malicious acts.

Issues

In the County Court the central 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.

The Judge formulated the duty of care owed by a visitor to the C’s home as including ‘reasonable care in respect of [his] voluntary actions to avoid creating the risk of causing foreseeable injury to [others]’. He did not find any basis for exempting V from the objectively defined legal duty. Instead, he held that were V’s actions wholly involuntary he could not be in breach of the duty of care. He said that no one is subject to a duty of reasonable care in respect of acts he could not control unless the situation included actionable voluntary behaviour.

He concluded that:

‘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 led to the damage.’

Further, however, it was held by the Judge that the insurer was not able to rely on the argument that the injury was not accidental. The injury would therefore not be excluded under the policy had the claim against V’s estate succeeded.

Judgment

The issue on appeal was whether a person could be liable in negligence when they were suffering from a mental disorder. The case was considered by Arden, Rafferty and Vos LJJ.

It was held that there was no principle that required the law to excuse a defendant from liability in negligence where he failed to meet the normal standard of care because of a medical problem. Case law demonstrated that the courts have consistently rejected the idea that the standard of care should be adjusted to take account of the defendant’s personal characteristics. Further, the exception applicable to children should not be extended.

In one key passage of the judgment Vos LJ stated (at paragraph 131):

‘In my judgment, 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.’

He went on to say that it is only where the defendant can properly be said to have done nothing himself to cause the injury that he escapes liability. Where the acts were directed by the Defendant’s mind, in spite of the deranged state of the mind of the Defendant, liability must follow.

Both Rafferty and Vos LJJ found it unhelpful to engage with terminology such as ‘volition’, ‘will’ and ‘personal autonomy’. In the County Court the Judge had found that, so long as incapacity removed rational motivation, there was no liability. However, as the Court of Appeal concluded, no one would suggest that an irrational action more generally should remove liability. There was a distinction between an irrational act and an involuntary act. It was only where an act was wholly involuntary that there was no responsibility.

The Court of Appeal decided that the issue was simply whether the Defendant measured up to the objective standard of care. When the experts said that V did not have control over his acts, they meant that he did not have rational control over his actions. They were not saying that he had no physical control over his actions. . His illness did not excuse him from needing to take the care of a reasonable man.

The Court of Appeal held that V’s estatewas liable. Further, the liability was found to be covered by the insurance policy.

Comment

This case provides a useful discussion of the basic principles of tort law.

The objective standard is a cornerstone of the concept of the duty of care. A finding that V was not liable would have constituted a radical break with authority. Some may find it artificial and inflexible to hold an individual as clearly disabled as V to an objective standard. However, diluting the objective standard would introduce a great deal of legal uncertainty. In particular, it would present a difficulty in defining the standard of the reasonable mentally ill person against which to judge the acts (or omissions) of a defendant suffering from a mental illness.

The case also demonstrates the different public policy considerations in play within the criminal and civil law. In the criminal courts it is possible that V may have been found to be not guilty by reason of insanity. Civil liability has different considerations at stake. The law of tort exists to compensate victims of wrongful conduct and not to punish. As Lady Justice Arden put it (at paragraph 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…. 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.