Date: Wed, 26 Sep 2007 15:16

From: Robert Stevens

Subject: Mitigation and Contributory Negligence

Reeves is an important but different sort of case. (For those who don't know it, it concerns a claim based upon the suicide of a sane man in police custody, who was known to be a suicide risk, for the careless failure of the police to stop him. The claim was successful, although contributory negligence applied.)

On its face squaring McKew with Reeves presents a puzzle. Why should the claimant be completely responsible for foolishly deciding to walk down a staircase with no hand rail, whilst Reeves is seemingly not completely responsible for the deliberate decision to take his own life?

The answer cannot be based upon the police assuming responsibility for Reeves by having taken him into custody. They could not escape liability by making it quite clear upon detention that they would not be looking after him. Disclaimers will not work, which they would if it was a voluntary obligation.

I think the answer is that by seizing Reeves the police were exercising a privilege. Reeves, like everyone else, had a right against everyone not to be locked up. The police were exercising a privilege in detaining him against his will. That privilege was qualified: they fell outside it if they failed to exercise care with respect of Reeves' well being.

Put another way, identifying the right relied upon by the claimant is crucial.

RS

Quoting Harold Luntz:

Robert's emphasis on personal responsibility and my own collectivist instincts mean that we'll probably never agree. "Stupidity" is a pejorative term; we all do things from time to time that in retrospect we may think were "stupid". Such conduct should not necessarily be outside the scope of the defendant's liability. Sometimes even deliberate self-harm on the part of the plaintiff may fall within the scope of the defendant's liability without destroying the causal connection: Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360.

On the onus of proof issue, the NSW CA in Munce recognised that where the onus lies will seldom be significant once all the evidence is in (a point made in other cases, too). However, in those jurisdictions that do not enjoy the luxury of having dispensed with juries, how the jury is directed remains important. And both mitigation and contributory negligence have, I think, always been treated as defences, the onus of establishing which rests on the defendant.

Robert Stevens
Professor of Commercial Law
University College London

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