How mad must you be, not to be responsible for your actions?

Dunnage v. Randall & UK Insurance Ltd [2015] EWCA Civ 673, 2 July 2015 – read judgment

This is an extraordinary case, and one which goes deep down into why the law of wrongs (or torts) makes people compensate others for injury and losses, whereas the criminal law may decide that a crime has not been committed.

Imagine this. Your uncle (Vince) arrives in your home. He is behaving very hyper. Unbeknownst to you he is in the middle of a florid paranoid schizophrenic episode. He suddenly announces that he will go and fetch a copy of Autotrader from his car. He returns without it, but with a petrol can and a lighter. He sits down and becomes all aggressive and paranoid about you and your partner. He knocks over the petrol can and starts rolling the lighter trigger. After more incoherent accusations by him (e.g. “Why have you got my Hoover?”), you try to drag him clear to save him, but he ignites the lighter. You are badly burned and jump off the balcony. You are very brave. Vince dies at the scene.

You (the man with the dog) sue Vince’s estate, except you don’t really, because you are really suing his household insurers.

You try to pursue a tightrope between arguments. Vince may have been mad-ish, but not that mad, so that he is still civilly responsible for his actions. But the household policy only applies to “accidental” injury, and excludes wilful or malicious actions. So he cannot have been too sane and capable of deliberate and malicious actions.

The judge disallows your claim, on the basis that Vince lacked volition. The Court of Appeal allows it. Why?

Psychiatrists advised in the case but did not give evidence, because they reached written agreement. Part of the struggle the CA had was that the agreement was set out in answers to voluminous questions, but the gist was that Vince was not of sound mind. He was so delusional that he was not in control of his actions. He was not capable of forming a rational intention to carry out a reasoned deliberate act.

Rafferty LJ set out the law of insanity. As all law students know, you cannot be guilty of a crime if you are insane (think the M’Naghten rules), in that you do not know that what you are doing is wrong. But the civil cases are a little more complicated, as her tour d’horizon of domestic and Commonwealth cases makes clear.

The Claimant argued that all he had to show was that Vince had failed to measure up to the standard of the reasonable man. There was a mind governing Vince’s actions, albeit that it was deranged. This argument was essentially accepted by the CA.

The Defendant said that Vince had neither the ability to make an informed and reasoned decision nor the ability to control his own actions.

The CA riposted that the answer in the criminal courts had no purchase on the answer to the present problem.

The judgments are long, but perhaps the most useful passage is in the judgment of Vos LJ at [130] –

…is there some principle that requires the law to excuse from liability in negligence a defendant who fails to meet the normal standard of care partly because of a medical problem. In my judgment, there is and should be no such principle. The courts have consistently and correctly rejected the notion that the standard of care should be adjusted to take account of personal characteristics of the defendant. The single exception in respect of the liability of children should not, I think, be extended.

The judge had erred. He decided that Vince’s capacity to think and act rationally was “wholly eliminated” one he had taken the petrol out of the car. But, as Vos LJ pointed out, a person can still be acting if he acts irrationally [135] –

indeed, it is a matter of regret that even the most intelligent in our society sometimes do act irrationally. Nobody would suggest that they should be excused from liability for their negligence whilst so acting.

Arden LJ thoughtfully added at [153]

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.

So the CA found no difficulty in deciding that Vince fell below the proper standard expected of him by the law of negligence.

Now to the insurance policy point. The CA had to consider whether the injury suffered by the claimant was accidental bodily injury. Arden LJ concluded:

In my judgment, the injury was accidental because on the evidence Vince had clearly lost control of his ability to make choices and therefore he could not be said to have intended to cause injury to the claimant.

So not only liability was established, but also liability falling within the scope of the applicable insurance policy.

Conclusion

Our man with the dog committed a brave (and probably instinctive) act to save both his uncle and himself from a conflagration, which left him grievously injured. The CA was plainly right to limit the circumstances in which a defendant can say that, I might have been driving badly, but I was ill or mad at the time. I recall a case many years ago in which a man dying of a heart attack kept on driving, in circumstances where it was obvious to the car behind that (a) something was wrong but (b) there was enough use of the steering wheel until, alas, he went round the corner and collided with my client’s husband. The case was quite rightly settled on favourable terms.

We are quite right to have serious arguments in such cases as to whether there is criminal liability, but we should be very sparing of the circumstances in which illness, mental or physical, can excuse the tortious liability which should otherwise apply.

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