Kirkham v Chief Constable of the Greater Manchester Police

A custodian who knows that a person presents a suicide risk owes a duty to take reasonable steps for that person's safety. That duty includes communicating material information when custody is transferred to another authority.

A deliberate suicide does not establish volenti non fit injuria where mental illness has impaired the person's capacity to make a balanced decision, particularly where preventing the self-inflicted act was the purpose of the duty. The defence of ex turpi causa is not confined to crime. Its application depends on public policy and whether granting relief would affront the public conscience. In a claim arising from suicide by a person whose mind was impaired, the court held that relief would not do so.

Kirkham v Chief Constable of the Greater Manchester Police concerned the suicide of a remand prisoner at Risley Remand Centre. The police knew of his recent suicide attempts and clinical depression, but failed to complete the POL/1 form that would have informed the prison authorities of that risk.

Tudor Evans J in the Queen's Bench Division, Manchester District Registry found the police liable. He held that, had the information been communicated, the deceased would probably have been placed under closer supervision and his suicide prevented. The claim was brought for the estate under the Law Reform (Miscellaneous Provisions) Act 1934 and for dependants under the Fatal Accidents Act 1976.

The Chief Constable appealed against liability and quantum. The central issues were duty, causation, volenti non fit injuria, and whether ex turpi causa or public policy barred recovery.

Disposition

1. The Court of Appeal unanimously dismissed the appeal on liability and quantum.

2. Lord Justice Lloyd held that, although the common law imposes no general duty to act positively, the police assumed responsibility when they took the deceased into custody. That responsibility included communicating information material to his well-being on his transfer to prison custody. Reliance could be inferred. Lord Justice Farquharson likewise held that a person lawfully holding another in custody must take reasonable steps against foreseeable harm, particularly where a specific risk has been identified.

3. The trial judge was entitled to find that the failure to communicate the suicide risk caused the death. On the evidence, proper information would probably have resulted in placement in the hospital wing and supervision sufficient to prevent suicide.

4. The defence of volenti non fit injuria failed. Although the act was deliberate, clinical depression had impaired the deceased's judgment so that he was not truly volens. Farquharson LJ added that the defence was inapt because the self-destructive act relied on was precisely the act which the duty required the police to prevent.

5. The court rejected the proposition that decriminalisation of suicide under the Suicide Act 1961 automatically determined ex turpi causa. The true inquiry was whether granting relief would affront public conscience. In the light of changed attitudes to suicide and the deceased's impaired mental condition, allowing the claim would not do so. The court respectfully disagreed with Lord Denning MR's contrary dicta in Hyde v Tameside Area Health Authority.

6. There was no basis to disturb the trial judge's assessment of life expectancy or dependency. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): dismissed the Chief Constable's appeal on liability and quantum: [1990] 2 QB 283.

• High Court, Queen's Bench Division, Manchester District Registry (Tudor Evans J): found the police liable for failing to communicate the deceased's suicide risk to the prison authorities. Citation not stated in the judgment.