A TRIAL WITHOUT WITNESSES: THE PRACTICAL CONSEQUENCES: DUNNAGE -v- RANDALL

The Court of Appeal decision today in Dunnage -v- Randall [2015] EWCA Civ 673 is one of those seminal cases that every tort law student will have to read.  Here we look at the case and the procedure. In particular the consequence of the fact that the parties relied on written expert evidence. The Court of Appeal felt able to determine the case on the basis of the evidence and held there was no need to remit the matter for a further hearing.

THE CASE

The claimant was seriously injured when rescuing his uncle.  The uncle was  in the process of pouring petrol over himself. The claimant tried to prevent him lighting the petrol but the uncle succeeded at both were engulfed in flames. The claimant was seriously injured, his uncle died. The uncle suffered from florid paranoid schizophrenia.

THE ISSUES

The judge held that the uncle  (“Vince”)was not liable because

“By reason of the extreme nature of the manifestation of his mental illness, Vince was not acting voluntarily and accordingly is not within the scope of the duty neither is he in breach of that duty. Furthermore, voluntary or voluntarily informed acts were not the cause of the events that led to the damage. This result is no different than would have been the case had Vince fallen as a result of a stroke and knocked [Terry] into the flame of the kitchen gas hob or had Vince been pushed into Terry by a violent third party with the same result”

THE DECISION OF THE COURT OF APPEAL

The Court of Appeal held that Vince was under a duty of care which he breached.

1. 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: that is whyMansfield was decided the other way from Morriss. 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.

PROCEDURE

The trial was unusual in that no evidence was called. There was, however, a lot of legal citation.

1. Having given short shrift to the citing of no fewer than 77 authorities articles, texts and policy discussions which were nevertheless agreed as not directly determinative, the Judge decided Vince’s legal liability could be determined without regard to broader considerations, since, due to his extreme mental illness, his actions were involuntary”
   

   THE CONSEQUENCES OF THE EXPERTS NOT  BEING AT COURT

1. A further area which concerns me is that the experts allowed a small margin at the end of “complete elimination”. Once there is introduced any qualification of 100% impairment, as there is for example by use of the adverb “probably”, difficulties flow. Where is any line to be drawn? At 99% impairment? At 95% or 90%? What is the lowest percentage to which the court could descend before its findings were affected? Unless a defendant can establish that his condition entirely eliminates responsibility – I avoid use of “fault” so as to emphasise my point – he remains vulnerable to liability if he does not meet the objective standard of care. It is the entirety of the elimination which drives this conclusion, and once that entirety is eroded or diminished, he is fixed with the standard. The evidence was that Vince’s responsibility came very close to complete elimination, but the experts stopped short of finding that it was complete.
2. Vince was protected from liability if he did nothing. If, akin to the man holding a knife whose arm was gripped by another and directed, Vince had no part to play in his physical acts, he would escape liability, as contemplated in Corr. Likewise, had he been in a state of automatism or were he a sleepwalker.
3. Here, however, Vince’s condition amounted to a position far less stark. There is what to me is a troubling proliferation of terms in play, in the judgment and the evidence of the experts. Whilst I understand the motive behind the 26 questions to the latter, the distillation of what counsel thought emerged from a consideration of the authorities has contributed to a scattering of nouns and adjectives which leaves me unconfident in the foundation for the judge’s conclusion.
4. At least the questions I have set out should have been put to at least one of the experts in oral evidence. In my view the wrong ones were posed or the right ones not included. (Counsel’s application to call the experts was refused in interlocutory proceedings before a different judge.). That said, ours is an adversarial system in which parties identify the questions for experts and the courts proceeds accordingly.
5. Here, in reliance upon two Joint Statements and agreed responses to twenty-six questions, the Judge reached a conclusion which on my analysis was not open to him. I would allow the appeal.

THE CONSEQUENCES ON APPEAL

Lord Justice Vos agreed that the decision of the trial judge should be overturned and stated:

1. I have considered carefully whether this is a conclusion we can reach in the face of the existing expert evidence. It seems to me that we can. It is true that the judge might have been assisted if he had heard oral evidence from the experts. Though the parties had agreed on such a course, it was rejected by HH Judge Madge at a pre-trial hearing on 7^th June 2013. But the parties adduced the evidence they each thought necessary to support their case and we operate an adversarial system. In those circumstances, we must do the best we can on the evidence that the parties adduced. On the basis of that evidence, I have clearly concluded that Vince acted in breach of his duty to take reasonable care not to injure the claimant.

Similarly Lady Justice Arden stated.

In the result I would allow this appeal. I do not consider that this court should remit the matter to a hearing at which the experts could give further evidence which would enable them to clarify the equivocation to which I have referred. The parties were content that the court should decide the matter on the basis of their reports. They must have intended the court to resolve any difficulties of interpretation. At a pre-trial hearing a different judge had excluded cross-examination but neither party appealed against that order. The parties must therefore be taken to accept the joint report as the totality of the experts’ evidence. Now that the trial has taken place and been concluded on the basis of that expert evidence, this court is entitled to make its findings on the basis of that evidence