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246 NEGLIGENCE. CAUSATION AND CONTRIBUTORY NEGUCENCE

defendant has been exonerated on the ground that the claimant's condu_C( amounted to a nom causa inteweniens. In Mc Kra’ v. Holland & Hannen & Cubitts (Scotland) Ud¹ the pursuer had suffered an injurv in an accident for which the defenders were liable and a? a result he occasionally l_0s( eon troi of his left leg which gave way under him. Some davs after thj_s accident he went to inspect a fiat which was approached by a steep stai_r between two walls and without a handrail. On leaving the fiat he started to descend the stair holding his young daughter by the hand and going ahead of his wife and brother-in-law who had accompanied him. Sud-denly he lost control of his left leg, threw his daughter back in order to save her, and tried to jump so as to land in an upright position instead of falling down the stairs. As a result he sustained a severe fracture of his ankle. The House of Lords agreed that the pursuer's act of jumping in the emergency in which he found himself did not break the chain of causa-tion, but that it had been broken by his conduct in placing himself unnecessarily in a position where he might be confronted by just such an emergency, when he could have descended the stair slowly and carefully by himself or sought the assistance of his wife or brother-in-law.

The basis of the decision of the House of Lords in this case was that the pursuer's conduct amounted to a nova causa interueniens because, even though it may have been foreseeable, it was unreasonable in the circum-stances.² If he had no reasonable altemafive to acting as he did his conduct would not have broken the chain of causation.⁴-^{3 4} But even where a reasonable altemative exists the court should be slow to stigmatise the claimant's behaviour as unreasonable merely because he does not take the course which is cheapest for the defendant. In Emeli v. Kensington and Chelsea and Westminster Health Authorihf** the defendants negligently per-formed a sterilisation operation on the claimant and she became pregnant again, though she did not discover this until 20 weeks into the pregnancy. The Court of Appeal rejected the argument that her refusal to have an abortion broke the chain of causation between the negligence and the child's birth. As Slade L.J. put it: "save in the most exceptional circum-stances, I cannot think it right that the court should ever declare it unreasonable for a woman to decline to have an abortion, in a case where there is no evidence that there were any medical or psychiatrie grounds for terminating the particular pregnancy."⁵

6.37 We have seen that the wilful conduct of a third party is morę likely to break the chain of causation than negligence on his part but that the defendant may be liable in respect of wilful acts the guarding against

^ich is the very foundation of his duty. There is a close analogy in the (pse of wilful conduct by the claimant. In Reeves v. Metropolitan Police ęornnii*^s,oner'" the claimant committed suicide while in police custody. fhe case was fought on the basis that he was sane at the time. A majority ₀f the House of Lords held that sińce the defendants owed the claimant

duty of care to prevent him inflicting harm on himself⁴⁷ it would be futile at the next step to go on to hołd that his voluntary decision to die broke the chain of causation.⁴⁸

Another possibility is that the defendant injures the claimant and the latter, because of depression brought about by the accident, commits suicide. Can the defendant be liable for his death? An affirmative answer was given in Pigney v. Pointer's Transport Sennces''¹ and the decision was a strong one because at that time suicide was a crime and the deceased was not insane within the M'Naghten Rules. The case was decided under Re Polemis but it is thought that the result might be the same under Tlie Wagon Moiind.⁵⁰

Contr i butoky Negligence⁵¹

If the claimant's injuries have been caused partly by the negligence of the 6.38 defendant and partly by his own negligence,⁵² then, at common law, the claimant can recover nothing. This rule of "contributory negligence" first appeared at the beginning of the nineteenth century, though the generał idea is traceable much earlier. The courts medified the defence of contributory negligence by the so-called rule of last opportunity. This enabled the claimant to recover notwithstanding his own negligence, if upon the occasion of the accident the defendant could have avoided the accident while the claimant could not. The authorities were confused, and confu-sion was madę worse confounded by the extension of the rule, in British Columbia Electric Ry v. Loach,⁵⁵ to cases of "constructive last opportunity".

“12000] 1 A.c. 360.

' The duty was conceded: sec para. 5.25, above.

Nor was mlniti applicable (para. 25.8, below); nor was the daim against pubłk policy (para 25.10, below) but there was a reduction for contributory negligence (para. 6.41, below).

*11957) 1 W.L.K. 1121.

'“See particularly Williams, "The Risk Prindple" (1961) 77 LQ.R 179 at 196: "Either the victim's suicide was a norma! reaction to his injuries, or it was abnormal. 11 it was normal, it should be taken as reasonably foreseeable it it was abnormal. it comes within the thin skuli rule as applied to psychiatrie States." In Cross v. Highlands and Islands EntcrjJrise 12(X) 11 I.R.LR. 336 Lord Mactadyen would have applied the thin skuli rule to a suicide case had the facts supported it. In AMP General Insurance Ltd v.

KTA |20011 NiSWCA 186 C was injured by D and becarne depressed. He suftered śtress from the conduct of his litigation against D and committed suicide. It was held that the depression leading to the suicide was not causally related to the initial injury and the claim failed. The court was divided on the position if it had been the initial depression which led to the suicide. Post-Wagon Motind claims in Canada have had varying results: Smarni r. lo (1979) 103 D.L.R. (3d) 451; Cotic v. Cray (1981) 124 D.L.R.

<3d) 641; Wright v. Damdson (1992) 88 D.L.R. (4th) 698.

Weir, Castbook on Tort (9th ed.), Chap. 5, s.l; Williams, Joint Torts and Contributory Negligence. The ęxpression should not be used to describe the situation where the combined negligence of Dl and D2 ^ inflicts injury on C (see Chap. 21).

Tlie burden of proving the claimant's negligence lies with the defendant: Heranger (Oioners) v. S.S.

Diamond (19391 A.C. 94 at 104. per Lord Wright; Fitzgerald v. lane |1989) A.C. 32.8 ¹ (19161 1 A.C. 719.

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11%9| 3 Ali E.R. 1021 (H.L.Sc.1. Weir, Castbook on Tort <9th cd.l. p. 236. Tlte San Onofre 119221 P. 243 Wiciami v. Cyril Lord Carpetś Ltd [1969] 3 Ali E.R. 1006.

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J1969] 3 Ali E.R 1621 at 1623. per Lord Reid.

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ⁿ A reseuer will not be regardcd as acting unreasonable because he takes a risk para. 25.16. belou

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11985] Q.B. 1012.

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[ 1985] Q.B. 1012 at 1024. Sec* also The Calliofh* 11970] W 172. maritimc collision caused bv negligence o* claimant and defendant ; claimant vessel sustaining further damage in tuming because of Chief Officer's negligence tuming; manoeuvre difticult but not unreasonable and did not break chain of causation defendant liable tor further damage, subject to further apportionment for conłributory negligence: para. 6.49, below.