Can there be contributory negligence in suicide cases?

A successful, or even unsuccessful, attempt at taking one's own life will have a devastating impact on the family of the individual involved.  On some occasions, the individual had recently sought medical advice and consequently a clinical negligence claim may be brought against the individual practitioner/institution responsible for that care. A recently reported case grappled with the difficult issue of whether a defendant in this situation can successfully establish that the individual is contributorily negligent.

Background

On 27 March 2019, Mrs Justice Whipple handed down her Judgment in PPX (a protected party by his brother and litigation friend, BLF) v Dr Ravinder Aulakh [2019] EWHC 717 (QB). Sadly PPX had suffered a serious neurological injury as a consequence of an attempted suicide on 20 May 2012.  He, through his brother and litigation friend, BLF, alleged that his GP, Dr Aulakh, was negligent in the treatment afforded to him at a consultation on 25 April 2012.  In essence, he argued that he should have been referred urgently to the local mental health services, and had this been the case, he would not have tried to commit suicide on 20 May 2012, thereby avoiding his injuries.

Judgment

Somewhat unusually, neither the claimant nor the defendant gave oral evidence at the hearing. However, having considered the evidence available, Mrs Justice Whipple found that the claimant did not disclose current suicidal thoughts and planning during the consultation and consequently a referral to mental health services was not mandated.  In addition, she found that causation was not established.

In those circumstances she was not obliged to address the issue raised by the defendant that the claimant should be held in part responsible for his injury, but she did so.

She was directed to the case of Reeves v Commissioner of the Metropolis [1999] 3 All ER 897 where the deceased was found contributorily negligent after he committed suicide whilst thought to be of sound mind, and damages were reduced by 50%.

Mrs Justice Whipple also had regard to Corr (Administratix of Corr, deceased) v IBC Vehicles Limited [2008] 2 All ER 943. Here, Lord Neuberger acknowledged that it is not as simple as assessing whether an injured person is of sound mind (where it could be appropriate to reduce damages by up to 50%) or unsound mind (where it would be inappropriate to attribute any contributory negligence to him). Instead, there exists a spectrum when assessing an individual's psychiatric state. The Court must then assess the extent to which the injured person's autonomy has been overborne by the impairment to his mind attributable to the defendant.

In the instant case, Mrs Justice Whipple considered that his autonomy was overborne to an extent by his mental health condition, one of its manifestations being impulsivity which is what caused him to attempt to take his own life. However, she also viewed his attempted suicide as an autonomous act, by a person with capacity, designed to occur at a time when his ex-wife was aware of what was happening. Mrs Justice Whipple consequently placed the claimant in Lord Neuberger's middle category where the answer lies somewhere between the two extremes. She concluded that had the claimant's claim been ultimately successful, she would have assessed the claimant's own contribution at 25%.

Practice Points

There are very few personal injury or clinical negligence cases where the issue of contributory negligence has been addressed by the Court, but this recent case highlights that a finding can be made. Defendants should carefully consider the mental state of the individual at the time of the event and whether s/he was of sound mind or on the spectrum between sound and unsound mind. Contributory negligence remains a sensitive and difficult issue in suicide/attempted suicide and should remain as such; there will be a number of cases where it is not appropriate to raise this. However, PPX is a reminder that in the right case, contributory negligence should be pleaded and could substantially reduce a damages award.