{"id":323,"date":"2020-12-06T04:42:37","date_gmt":"2020-12-06T04:42:37","guid":{"rendered":"http:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/?p=323"},"modified":"2020-12-06T04:42:37","modified_gmt":"2020-12-06T04:42:37","slug":"the-mentally-incapable-and-reasonable-foresight-in-the-english-tort-of-negligence","status":"publish","type":"post","link":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/the-mentally-incapable-and-reasonable-foresight-in-the-english-tort-of-negligence\/","title":{"rendered":"The Mentally Incapable and Reasonable Foresight in the English Tort of Negligence"},"content":{"rendered":"

The tort of negligence is concerned with the restitution of harm that was wrongfully inflicted upon the injured party. The tort\u2019s scope, determined by the ease with which a duty of care may be established, has varied immensely since Donoghue v Stevenson,<\/em> [1]<\/a> ranging from the lenient approach of Anns[2]<\/a> <\/em>to the far more stringent test in Caparo<\/em> Industries.[3]<\/a> Regardless, the conceptual perception of negligence has remained the same – there must be wrongfully<\/em> inflicted loss for liability to arise. Yet in the case of the mentally incapable, as this essay shall refer to those who would be deemed mentally unfit to stand criminal trial or who would otherwise be found of diminished responsibility for criminal liability, the tort of negligence does not account for their specific needs. Therefore, it actively discriminates against them. This essay will thus argue that the present law surrounding the tort of negligence and its interaction with the mentally incapable is wrong and indefensible, and will propose a new test which should be instituted to rectify this.<\/p>\n

 <\/p>\n

To begin with, the structure of a negligence action must be explored. First, there must be a duty of care; for this to exist, the defendant and claimant\u2019s relationship must be proximate enough that the former\u2019s negligence places the latter at a reasonably foreseeable risk of harm.[4]<\/a> Secondly, the defendant must breach their duty; this is assessed objectively,[5]<\/a> subject to certain exceptions, notably that professionals are judged against ordinary, competent members of that profession exercising that skill,[6]<\/a> although their action must have a reasonable and logical basis.[7]<\/a> The appropriate standard of care is guided by the following factors: the risk of harm,[8]<\/a> as assessed at the time of the breach;[9]<\/a> the seriousness of the potential injury;[10]<\/a> the cost of precautions;[11]<\/a> and the social value of the activity.[12]<\/a><\/p>\n

 <\/p>\n

Where a duty of care has been established and it is also evident that this duty has been breached, a causal link between the defendant\u2019s breach of duty and the claimant\u2019s harm must be proven. Causation is composed of two elements. Factual causation asks whether the defendant\u2019s negligence was a necessary precondition for the harm to occur, and, if so, whether it was its cause. If, on the balance of probabilities, the negligent act was responsible for the result, the defendant will be liable.[13]<\/a> Exceptions to this rule exist, such as where it is a matter of public policy,[14]<\/a> but the general rule regarding the balance of probabilities will normally apply. Legal causation, which determines the legal cause of the harm, must then be satisfied. This asks whether the harm was sufficiently proximate to the defendant\u2019s negligence and, if not, whether some intervening act breaks the causal link between the act and the result. Prior to The Wagon Mound[15]<\/a> <\/em>decision, the defendant would be strictly liable for all direct consequences arising as a result of their negligent act, regardless of their foreseeability;[16]<\/a> in The Wagon Mound<\/em>,[17]<\/a> however, it was instead decided that that liability could only arise for the foreseeable consequences of negligent acts, even where these consequences where directly the result of the defendant\u2019s negligence.<\/p>\n

 <\/p>\n

Clearly, culpability lies at the heart of this tort, and it arises when the defendant breaches the duty of care they owed the plaintiff. Civil liability stems from this culpability, but it must be proven that the harm suffered by the plaintiff probably arose as a result of the defendant\u2019s actions, and this harm must be sufficiently close to the action as to mean that the defendant should have foreseen it. Whilst this is an equitable approach as far as the mentally capable are concerned, it is totally inadequate for the mentally incapable.<\/p>\n

 <\/p>\n

The mentally incapable are just as responsible for their torts as a sane person,[18]<\/a> despite the archaic origins of this doctrine.[19]<\/a> Dunnage v Randall<\/em>[20]<\/a> illustrates this perfectly. Here, the estate of a paranoid schizophrenic was found liable on appeal for harm his nephew had suffered when trying to extinguish the fire that the deceased had ignited on himself during a psychotic episode. The court held that there would be no breach of duty, where the injury was sustained through \u201can unheralded, unexpected and unforeseen incapacitating attack\u201d.[21]<\/a> Despite expert evidence to this effect[22]<\/a>, this was not held to have occurred. The case was distinguished from Mansfield v Weetabix Ltd<\/em>[23]<\/a>, which would have absolved the defendant from liability, on the basis that it fell into existing precedent.[24]<\/a> Mansfield<\/em> concerned a lorry driver who, unbeknownst to him, was in a hyperglycaemic\u00a0state, causing him to drive into a building. He was not held liable since he had suffered a complete loss of control, meaning liability could not exist. This illuminates the court\u2019s approach to the issue of insanity – where any semblance of consciousness exists, regardless of how flawed it may be, there cannot be an argument that a reasonable foresight of the harm was impossible[25]<\/a>.<\/p>\n

 <\/p>\n

As the Dunnage[26]<\/a> <\/em>decision illustrates, the mentally incapable are held to a far stricter standard than the mentally capable where negligence is concerned. Indeed, it seems to completely depart from the foreseeability requirement established in The Wagon Mound[27]<\/a> <\/em>and instead returns to the strict liability instituted by Polemis.[28]<\/a><\/em> The deceased in Dunnage[29]<\/a> <\/em>could in no way be said to have foreseen the consequences of his actions, since this would have required a level of mental capacity he did not possess at the time the \u2018wrongful\u2019 act was committed. That is not to say that he did not owe the plaintiff a duty of care – he did, but his lack of capacity at the time the wrongful act was committed should have rendered the loss suffered by the plaintiff too remote to be recoverable. Instead, a de facto <\/em>standard of strict liability was enforced. This is manifestly unfair.<\/p>\n

 <\/p>\n

There are several potential remedies to this situation. The Mansfield[30]<\/strong><\/a> <\/em>judgement should be extended to include the mentally incapable, which would go against the Dunnage <\/em>ruling.[31]<\/a> Alternatively, a statutory amendment could be proposed to existing criminal legislation pertaining to the mentally ill, such as the Criminal Procedure (Insanity and Unfitness to plead) Act 1991, that would extend its scope to cover civil liability as well. Finally, a unique test could be instituted for civil liability if neither of the other measures were deemed satisfactory. The author would suggest the \u2018unhealthy mind\u2019 test, which asks whether the unlawful act stemmed from the unhealthy mind, should be used. These provisions would also include the proviso that, where the defendant was aware of their condition but did not take the steps necessary to control it, such as not taking any prescribed medication , they will fall into the awareness category identified in Roberts v Ramsbottom<\/em>,[32]<\/a> preventing the defence\u2019s use. The defendant would have to demonstrate that his or her actions were mainly as a result of their unhealthy mind[33]<\/a>, and that there was \u201can unheralded, unexpected and unforeseen incapacitating attack\u201d[34]<\/a>. This formula would exclude defendants who were voluntarily incapacitated, although problems may arise where long term effects of drug abuse, such as paranoia, are the reason for the wrongful act; I would suggest that, so long as it is established to be sufficiently remote from the prior voluntary actions, that such an attack should be accepted as competent to establish the defence. Thus, the test will protect those who cannot appreciate the risks of a breach of the duty of care, not those who chose not to.<\/p>\n

 <\/p>\n

In conclusion, it is clear that the mentally incapable are unjustly treated by the tort of negligence. Their inability to reasonably foresee the risks of their actions whilst incapacitated is not properly accounted for by the legal framework surrounding negligence, so in practice they are held to a higher standard than the ordinary, reasonable man. The author believes that, until this is rectified by one of the three proposed remedies[35]<\/a>, the mentally incapable will continue to be unfairly treated by the law.<\/p>\n

[1]<\/a> [1932] AC 562.<\/p>\n

[2]<\/a> Anns v Merton LBC <\/em>[1978] AC 728.<\/p>\n

[3]<\/a> Caparo Industries v Dickman <\/em>[1990] UKHL 2.<\/p>\n

[4]<\/a> Donoghue v Stevenson <\/em>[1932] AC 562 at 580.<\/p>\n

[5]<\/strong><\/em><\/a> Nettleship v Watson <\/em>[1971] 2 QB 691.<\/p>\n

[6]<\/a> Bolam v Friern Hospital Management Committee <\/em>[1957] 1 WLR 582. Since May v Petman Smith<\/em> [2005] UKHL 7, this has applied to all professions, rather than just medicine.<\/p>\n

[7]<\/a> Bolitho v City and Hackney Health Authority <\/em>[1998] AC 232.<\/p>\n

[8]<\/a> Bolton v Stone <\/em>[1951] AC 580.<\/p>\n

[9]<\/a> Roe v Ministry of Health <\/em>[1954] 2 QB 66 (CA).<\/p>\n

[10]<\/a> Paris v Stepney Borough Council <\/em>[1951] AC 367.<\/p>\n

[11]<\/a> Latimer v AEC Ltd <\/em>[1953] AC 643 (HL).<\/p>\n

[12]<\/a> Watt v Herefordshire County Council <\/em>[1954] 1 WLR 835.<\/p>\n

[13]<\/a> Barnett v Chelsea and Kensington Hospital Management Committee <\/em>[1969] 1 QB.<\/p>\n

[14]<\/a> Such as the Fairchild exception, established by Fairchild v Glenhaven Funeral Services <\/em>[2002] UKHL 22.<\/em> This exception applies to negligently caused mesothelioma.<\/p>\n

[15]<\/a> Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) No 1 <\/em>[1961] AC 388. This will be referred to as \u2018The Wagon Mound\u2019 throughout this essay.<\/p>\n

[16]<\/a> Polemis v Furness Withy & Co <\/em>[1921] 3 K.B. 560. This will be referred to as \u2018Polemis\u2019 throughout this essay.<\/p>\n

[17]<\/a> [1961] AC 388.<\/p>\n

[18]<\/a> As stated by Earl J in Williams v Hays <\/em>143 NY 442 (1894). Whilst this is an American case, it is still illustrative of the English law position.<\/p>\n

[19]<\/a> It originates from Weaver v Ward <\/em>(1616) Hob 134, 80 ER 284 (KB).<\/p>\n

[20]<\/strong><\/em><\/a> [2015] EWCA Civ 673.<\/p>\n

[21]<\/a> Ibid at 127.<\/p>\n

[22]<\/a> Ibid at 144.<\/p>\n

[23]<\/strong><\/em><\/a> Mansfield v Weetabix Ltd <\/em>[1998] 1 W.L.R. 1263. This will be referred to as Mansfield<\/em>.<\/p>\n

[24]<\/a> Ibid at 147. This precedent is Morris v Marsden <\/em>[1952] 1 All ER 925.<\/p>\n

[25]<\/a> As laid down in Morris v Marsden <\/em>[1952] 1 All ER 925.<\/p>\n

[26]<\/a> Dunnage v Randall <\/em>[2015] EWCA Civ 673.<\/p>\n

[27]<\/a> Overseas Tankship (n 16)<\/em>.<\/p>\n

[28]<\/a> Polemis (n 17)<\/em>.<\/p>\n

[29]<\/a> Dunnage <\/em>(n 28).<\/p>\n

[30]<\/a> Mansfield (n 25)<\/em>.<\/p>\n

[31]<\/a> Dunnage (n 28)<\/em>.<\/p>\n

[32]<\/a> Roberts v Ramsbottom <\/em>[1980] 1 W.L.R 823.<\/p>\n

[33]<\/a> Using the usual factual causation question of whether, on the balance of probabilities, the act was the reason for the result, laid down in Barnett (n 14)<\/em>.<\/p>\n

[34]<\/a> Dunnage (n 28)<\/em>.<\/p>\n

<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The tort of negligence is concerned with the restitution of harm that was wrongfully inflicted upon the injured party. The tort\u2019s scope, determined by the ease with which a duty of care may be established, has varied immensely since Donoghue v Stevenson, [1] ranging from the lenient approach of Anns[2] to the far more stringent […]<\/p>\n","protected":false},"author":492,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_s2mail":"yes","footnotes":""},"categories":[1],"tags":[],"class_list":["post-323","post","type-post","status-publish","format-standard","hentry","category-uncategorised"],"blocksy_meta":[],"_links":{"self":[{"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/posts\/323","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/users\/492"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/comments?post=323"}],"version-history":[{"count":1,"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/posts\/323\/revisions"}],"predecessor-version":[{"id":324,"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/posts\/323\/revisions\/324"}],"wp:attachment":[{"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/media?parent=323"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/categories?post=323"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.dundee.ac.uk\/dundeestudentlawreview\/wp-json\/wp\/v2\/tags?post=323"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}