A Short Note on Mansfield Dunnage and Precedent PDF

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Mansfield, Dunnage and precedent in the Court of Appeal (Civil Division)

1. The Court of Appeal (Civil Division) in case A is bound by a ruling on a point of law that is part of the ratio decidendi (Ratio Decidendi- The reason) of a previous decision of the Court of Appeal (Civil Division)1 in case B that cannot properly be distinguished on the ground that the facts are materially different. There is case law that could be used however the material facts are different and therefore it is a novel case.m

2. To this rule there are some recognised exceptions, the leading authority on the matter being Young v Bristol Aeroplane Co.2 These include3 (1) that there are conflicting rationes on the point in two (or more) previous Court of Appeal decisions (cases B and C). Here the Court of Appeal in case A may choose the ratio it prefers and overrule the one it does not. Case law shows various reasons for dealing with such cases and hence the Court of Appeal can choose which to follow and which to overrule.

(2) the decision in the Court of Appeal in case B may be impliedly overruled by a subsequent decision of the House of Lords or Supreme Court.4 Decision can be overrules by house of lords and supreme court.

(3) the decision of the Court of Appeal in case C has been given per incuriam (in ignorance) of an applicable statutory provision or binding case.5 1 Or earlier court of the same standing. 2 [1944] K.B. 718. 3 These are the main exceptions. There is much case law on the exact scope and operation of these exceptions and whether there are further exceptions. 4 An example here is CN v Poole BC [2017] EWCA Civ 2185, [2018] 2 W.L.R. 1693. Here the Court of Appeal declined to follow the decision of the Court of Appeal in D v East Berkshire Community NHS Trust [2004] Q.B. 558 on the ground that it had been impliedly overruled by decisions of the House of Lords in Mitchell v Glasgow City Council [2009] 1 A.C. 874 and the Supreme Court in Michael v Chief Constable of South Wales [2015] UKSC 2, [2015] A.C. 1732. 5 Morelle v Wakeling [1955] 2 Q.B. 379, 406. For example, in Bonulami v Secretary of State for the Home Department [1985] Q.B. 675, the Court of Appeal held that it was not bound by an earlier decision in which the statutory bar against the Court of Appeal (Civil Division) hearing an appeal in a “criminal cause or matter” had been overlooked by both the court and the counsel involved in the case. 1

3. Turning to the law of negligence, the core principle applicable when determining whether there has been a breach of duty is that the defendant (D) must conform to the standard of an ordinary reasonably person undertaking the activity in question. In Nettleship v Weston,6 Lord Denning M.R. said:7

“In the civil law if a driver goes off the road on to the pavement and injures a pedestrian, or damages property, he is prima facie

(Prima facie- at first glance)

liable.

Likewise if he goes on to the wrong side of the road. It is no answer for him to say: ‘I was a learner driver under instruction. I was doing my best and could not help it.’ The civil law permits no such excuse. It requires of him the same standard of care as of any other driver. ‘It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’: see Glasgow Corporation v. Muir [1943] A.C. 448, 457 by Lord Macmillan. The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity….”

Accordingly, a learner driver was held to the standard of a reasonably competent and experienced driver.

4. In Mansfield v Weetabix Ltd,8 a lorry belonging to Weetabix Ltd failed to take a sharp bend and crashed into the shop belonging to Mr and Mrs Mansfield, causing extensive damage. The lorry was being driven by Mr Terence Tarleton. At the time, but unknown to him, Mr Tarleton was suffering from a malignant

6 [1971] 2 Q.B. 691. 7 At 699. 8 [1998] 1 W.L.R. 1263. 2

insulinoma9 that resulted in a hypoglycaemic state10 in which “the brain was starved of glucose and unable to function properly”.11 Collins J. held the defendants liable in negligence.12 He found that T’s ability to drive properly was impaired because of hypoglycaemia, but that it was highly unlikely that he had at any stage been completely unconscious. (He was not completely unconscious) He also found that T was conscientious and would not have continued to drive if he had been aware that his ability to do so had been impaired. (If he knew, he would not have continued to drive)

T had manoeuvred the lorry through a 40 mile journey although

there had been three instances of erratic driving on the way, including collision with the rear end of a trailer. A police officer who saw him at the scene of that collision thought that he was behaving strangely. Then, as the lorry approached the bend, it was going too fast:

“Mr Tarleton was seen to be wrestling with the steering wheel in an attempt to negotiate the bend, and a short skid mark left in the roadway showed that he had braked at the last moment.”

5. Collins J. applied the High Court decision in Roberts v Ramsbottom.13

In Roberts,

D drove his car and was involved in an accident. Unknowingly he was suffering from a stroke that impaired his driving, but he retained partial control of his

9 A rate form of tumour of the pancreas. 10 ie low blood-sugar. 11 per Leggatt L.J. at p.1265. 12 Unfortunately there seems to be no transcript of this judgement available. 13 [1980] 1 W.L.R. 823. Collins J. was not technically bound to follow Roberts as a matter of binding precedent, as it was the decision of another High Court judge. But he was happy to accept it as good law. The current position as to precedent here was summarised as follows by Lord Neuberger P in Willers v Joyce [2016] UKSC 44, para.[9]: “So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of coordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Secretary of State for the Home Dept [2012] EWCA Civ 741, [2012] 4 All ER 94, [2013] 1 WLR 63 (at [59]).” 3

actions. (Collins J applies the principle that because he didn’t know, he could not be held liable) Neill J. found D liable on the basis, first, that D was not an automaton. Here Neill J. applied the rule applicable in criminal law that in such circumstances the defendant would only escape liability

“if his actions at the relevant time were wholly beyond his control. The most obvious case is sudden unconsciousness. But if he retained some control, albeit imperfect control, and if his driving, judged objectively, was below the required standard, he remains liable.”14 (Neill J says that he could only be exempt if he had a total loss of control as a result of his illness.

In criminal law this is referred to as a defence of “automatism”. D was also found liable on the alternative basis that he had made a statement at the time that he had “felt queer” before starting to drive, and so should have been aware of his unfitness to drive. Goes back to the idea that if there is previous knowledge of such an occurrence the person should not perform that particular activity.

On the first point, Leggatt L.J. in the Court of Appeal in Mansfield asserted15 that Neill J. was wrong: “In civil cases that [ie automatism] is not the test”. He did, however, approve the outcome in Roberts on the alternative ground mentioned above. Leggatt L.J. says that since it is a civil case rather than a criminal one, the idea of automatism is rendered invalid.

What was the correct test in a civil case? On this, Leggatt L.J. said:16

14 Neill J. at p.832. 15 p.1266. 16 p.1266. 4

“In my judgment the standard of care Mr Tarleton was obliged to show in these circumstances was that which is to be expected of a reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive. To apply an objective standard in a way that did not take account of Mr Tarleton’s condition would be to impose strict liability. But that is not the law.” Said that the standard he was held to was meant to be that of a reasonable man unaware but due to the fact that the reasonable standard is objective, the appeal was allowed.

Accordingly, the appeal was allowed.

6. In considering cases of illnesses that affect D in performing some action that damages C it is clear from the authorities that it may be necessary to consider the facts at two stages:

(1) the events leading up to the act of which complaint is made, including the decision of D that he or she will do the act in question and presumably have the capacity to do so safely;

(2) the act itself. First, what were the circumstances that led the defendant to making that decision and performing that action and what were the consequences of the action itself.

On the facts of Mansfield, at both stages (1) and (2) T was completely unaware that his driving was impaired; at both stages (1) and (2) T remained partially in control of his actions. It can be inferred that he was aware he was driving, but not that he had a reduced ability to drive safely. (This is equivalent to the first view of the facts in Roberts v Ramsbottom.17)

17 [1980] 1 W.L.R. 823. 5

7. It is also clear that there would also be a good defence in civil law if D at stage (2) were suddenly and completely incapacitated in a way that could not be foreseen at stage (1). In this situation D’s actions are regarded as involuntary.18 There is no suggestion in Mansfield that there should not be a defence if D was found to be completely incapacitated or “in a state of automatism” as regards his or her physical actions at stage (2) and had not been negligent at stage (1). 19 The point being made by Leggatt L.J. was that the defence in civil law was broader than that in criminal law.

8. Accordingly Mansfield stands for the proposition that there is good defence in the civil law of negligence if either (1) D is completely incapacitated at the time of the act in question and there has been no prior negligence (a defence implicitly recognised obiter) or (2) D is completely unaware that his or her ability is partially impaired both before and at the time of the act in question (part of the ratio of the case). On the facts, it appears that (1) was not established (because Mr Tarleton was not completely incapacitated), but the court found that (2) was. (It is clear that the criminal law only recognises defence (1).) Here Mr. T did not fit in the first criteria but fit the second one however criminal law only views the first as a defence.

9. This brings us to the decision of the Court of Appeal in Dunnage v Randall.20 Here, Vincent Randall (VR) visited the house of Terry Dunnage (TD), his nephew.

18 In such cases D suddenly becomes completely unaware of what he or she is doing. In other words he or she is physically unable to control his or her actions (eg. as a result of a sudden attack by a swarm of bees, which is often given as an example of circumstances given rise to a defence of automatism). 19 This is illustrated by the decision in Waugh v James K Allen Ltd [1964] 2 Lloyd’s Rep.1, HL (Sc), where an accident was caused when a lorry driver had a sudden heart attack while driving. It was not suggested that there was liability in respect of the driving at the moment of the accident; the focus of attention was on whether the driver had been negligent in driving when he felt unwell. The House of Lords held that he was not; he had been entitled to ascribe feeling unwell to the unpleasant conditions in the factory he had just visited and not to an incipient heart attack. In other words, this case was only argued on the issue of prior negligence. 20 [2015] EWCA Civ 673, [2016] Q.B. 639. 6

VR was suffering from florid paranoid schizophrenia. He brought a petrol can and cigarette lighter into the house. He made various accusations against the TD. VR became angrier and increasingly incoherent. He then stood and poured the petrol over himself. TD intervened to stop him but VR ignited the petrol. This caused severe burns to TD. VR died at the scene. The diagnosis of paranoid schizophrenia was “not reached in life but plainly indicated on a review of evidence available to health professions.”21 The Court of Appeal concluded that the law of negligence imports an objective standard of care. A medical problem would only excuse in the case of

“defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be excused…The action of a defendant, who is merely impaired by medical problems, whether physical or mental, cannot escape liability if he causes injury by failing to exercise reasonable care.”22

For Arden L.J., “the sole issue… is whether Vince’s conduct was involuntary for the purpose of the legal rule excluding negligence liability for involuntary conduct.”23

On the facts, it was clear that VR knew what he was doing with the petrol and lighter and that it was dangerous. His mental illness provided an (irrational) motivation for those dangerous acts. Accordingly, VR’s estate was liable.24 Therefore, his illness only provided an irrational motivation for the things he did however, he understood what he was doing was potentially dangerous.

21 Rafferty L.J. at para.[12]. 22 Vos LJ at para.[131]. 23 Para.[141]. 24 The court also held that the liability was covered by an insurance policy of the second defendant, UK Insurance Ltd. 7

10. Mansfield v Weetabix25 was cited by counsel for the insurers for the proposition that “it was right to define fault to take account of the defendant’s actual incapacity.”26 Furthermore, “Vince would not have been aware of his propensity to cause harm (Mansfield)”.27 Rafferty L.J summarised Mansfield briefly as standing for the proposition that

“there was no reason why the disabling event should absolve him from liability for damages where it was gradual, provided he was aware of it”.28

Her Ladyship did not state in terms why this decision did not bar a finding for the claimant. It can perhaps be inferred that it was because, on the facts, VR was aware of his propensity to cause harm in a way that Terrence Tarleton was not. Vos L.J. did not mention Mansfield. Arden L.J. regarded Mansfield as distinguishable as that case concerned an “unforeseen episode during the journey which causes him to lose control of the vehicle”.29 Waugh v James K Allen Ltd30 “illustrates the same principle”.31 Perhaps the difference is that Mr. Tarleton was unaware of the potential danger whereas in the case of Randall there was an understanding that he could have been harmed.

“Neither party suggests that Vince should have known that he was susceptible to this form of attack, but there is no parallel with Mansfield and this case because Vince was never in possession of the petrol can and lighter in the claimant’s flat in circumstances when he had performed his duty of care.” There was no way the defendant would have known whether he would perform this type of attack and neither side suggests this point.

25 [1998] 1 W.L.R. 1263. 26 Michael Davis QC and Peter Oliver, [2016] Q.B. 639, 643. 27 See Rafferty L.J. at para.[92], summarising counsel’s arguments. 28 Para.[48] (emphasis added). The words “or should have been are” can be regarded as implicit. 29 Para.[147]. 30 N.19 above. 31 Para.[147]. 8

This suggests that the ground of distinction is that while there were two distinct stages that needed analysis in Mansfield32 there was only one stage here. It is indeed the case that VR had not behaved negligently prior to the event in question. For example, it was not the case that he had known or ought to have known that he might at some time in the future be affected by delusions that would cause him to act dangerously, and seek help or take precautions to prevent this happening. However, it is not explained why that is a material difference.33 There is no way the defendant would have known his condition would have resulted in him acting in this way and therefore in this sense, he did not act negligently prior to the incident.

11. It is submitted that the cases can be reconciled on their facts on the following basis. In Mansfield, T was not aware, and had no reason to be aware, at both stages (1) and (2), that his driving (because of his incapacity) was dangerous beyond the dangers inherent in ordinary careful driving. In Dunnage, VR was fully aware of the dangerousness of his deliberate actions at stage (2). The Court of Appeal in Dunnage did not cast doubt on the approach in Mansfield on its own facts. No problem of precedent arises to the extent that the cases are clearly distinguishable on their facts. The two cases are different so there is no problem of precedent. With Mansfield, there is no way it could have been prevented and there is no way the act itself was intentional. In Dunnage, although the defendant did not know, the act could have been prevented.

12. Can the propositions of law in the two cases be reconciled? The difficulty arises in this way. Dunnage can be read as saying that only involuntary conduct arising 32 See above. 33 Cf the criticisms of J.Goudkamp and M.Ihuoma, “A tour of the tort of negligence” [2016] P.N. 137,139-140. They argue that Arden L.J. “misunderstood the key issue in Mansfield”, which was not about prior fault but “whether the employee was required to reach the standard of the reasonable unimpaired driver at the time of the collision or whether the reasonable person was to be imputed with his condition.” It is submitted that this criticism is correct, but that it fails to take account of the point the VR could not have benefitted from the Mansfield rule anyway as he must have been fully aware of the dangerousness of his actions (cf Rafferty L.J.’s position, above. 9

from mental incapacity excuses.34 All are agreed that complete incapacity at stage (2) excuses. The Court of Appeal in Mansfield held that complete unawareness of the dangerousness of impaired conduct also excuses. So the crucial questions become (1) whether this latter situation is properly also to be labelled as “involuntary conduct” and (2), if it is not, whether it should nevertheless be recognised as giving rise to a defence. As to the first point, to label the conduct “involuntary” is self-evidently odd given that it is clear that Mr Tarleton understood that he was driving his lorry. The Court of Appeal in Dunnage overall clearly adopted a narrower, and indeed orthodox, version of the concept of “involuntary”. But that leaves point (2). But the important point is that these questions did not arise on the facts of Dunnage, where VR must have been fully aware of the dangerousness of his actions. Accordingly, if Dunnage is to be read as saying (1) that only involuntary conduct excuses; and (2) that complete unawareness of the dangerousness of impaired conduct does not amount to involuntary conduct, then the cases conflict. But as this issue did not arise on the facts of Dunnage this view would be obiter and the ratio of Mansfield should prevail. It is only where the rationes of two cases conflict (not obiter dicta) that the relevant Young v Bristol Aeroplane exception arises.35 (...