Dunnage v Randall UK Insurance Ltd
Vince poured petrol over himself. His nephew, the Claimant, struggled unsuccessfully to prevent him igniting it. Both were engulfed in flames. Vince died; the Claimant jumped to safety from a balcony but was seriously burned. Post-mortem, Vince was diagnosed as having suffered florid paranoid schizophrenia, with delusion beliefs that had dispossessed him of his own mind. A claim in negligence was brought against Vince's estate and insurer for damages. The insurance policy excluded cover for any acts by him that were wilful or malicious. The main issue was whether the standard required by his duty of care was objective or whether personal characteristics of the defendant could be taken into account.
The Court of Appeal unanimously held that no distinction should be drawn between physical and mental illness. For adults, whether a duty of care was breached was determined by the objective standards of a reasonable person. Unless a defendant can establish that his condition entirely eliminated responsibility – such as a fatal coronary thrombosis at the wheel, killing a pedestrian – he remained vulnerable to liability if he did not meet the objective standard of care (paras 114-115, 126). In that event, the defendant has done nothing to cause the injury and would thereby escape liability (paras 132-133). On the facts, Vince failed to exercise reasonable care. But the injury was accidental because he "had clearly lost control of his ability to make choices". Indeed, the lighter may have sparked accidently during the struggle. He did not intend to cause injury, was not acting wilfully or maliciously and was therefore liable to pay damages:
"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. The law takes the view as a matter of policy that everyone should owe the same duty of care for the protection of innocent victims. It would after all, in many cases, be open to a person who knows he has reduced abilities to take account of those abilities in what he does … 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."
Comment
This decision vividly illustrates the differing approaches of criminal and civil law to the concept of human responsibility. Had Vince attempted to kill his nephew, he may have been found not guilty by reason of insanity, with its subjective considerations. The law of negligence, by contrast, judges him objectively, despite his "absence of volition" being between 95% and 100%. Clearly there are different public policies at stake. Varying the standard according to their level of ability may introduce legal uncertainty. But holding the severely disabled to an objective standard – a standard that might for them be impossible to achieve – seems somewhat artificial. Moreover, to suggest that civil liability was Vince's price for freedom is hardly CRPD-friendly, to put it mildly.
