Last reviewed 7 July 2021
Barrister Robert Spicer reports on foreseeability and the standard of proof required in cases of alleged suicide.
Analysis from the Office for National Statistics in 2017 considered English suicide rates broken down by occupation, and confirmed the strong link between suicide and certain types of occupation. Low-skilled manual labourers are three time more likely to take their own lives than the national average. Nursing staff, primary school teachers and agricultural workers are also at an increased risk of suicide. Job insecurity, zero-hour contracts and workplace downsizing are contributory risk factors.
Employers have a legal duty to provide a safe working environment for employees. This includes a duty to address any issues which may cause workers to have suicidal thoughts, including workplaces stress, bullying and harassment.
There are no reported cases of employers having been prosecuted under health and safety legislation where a worker has taken their own life because of workplace pressures.
The recent case
In the recent case of R (on the application of Maughan) v HM Senior Coroner for Oxfordshire (2020), the Supreme Court gave guidance on the standard of proof required in alleged suicide cases.
The facts, in outline, were that in July 2016 M died at Bullingdon Prison by hanging in his prison cell. At the inquest the coroner decided that the jury could not reach a conclusion of suicide because it could not be sure beyond reasonable doubt that M had intended to kill himself. He asked the jury to make a narrative statement on a balance of probabilities. The jury stated that M had a history of mental health issues and, on a balance of probabilities, he intended to hang himself and increased vigilance would not have prevented his death.
M’s brother brought judicial review proceedings, arguing that the coroner had been wrong to apply the civil standard of proof and should have applied the criminal standard of proof. The High Court dismissed the application and stated that the standard of proof for inquest conclusions was the civil standard.
The Court of Appeal dismissed the appeal and M’s brother appealed to the Supreme Court.
The appeal was dismissed. The Court ruled as follows.
The standard of proof for all conclusions at an inquest was the balance of probabilities.
An inquest is not a criminal proceeding.
If a criminal standard of proof is required, suicide is likely to be under-recorded. Societal attitudes to suicide have changed and the role of inquests has developed to be concerned with the investigation of deaths, not criminal justice.
In the case of Kiani v Land Rover Ltd (2006), K worked as a cleaner at LR’s factory. He was found dead in a sub-floor coolant tank which was managed by employees of C, another company. K had died of asphyxia and was found relatively uninjured.
K’s son claimed compensation from L and C in respect of his father’s death. At first instance it was found that both LR and C had been in breach of the Workplace (Health, Safety and Welfare) Regulations 1992. Their defence, that K had probably committed suicide, was rejected. The court found that K had fallen into the tank through a hatch which had been left open, despite evidence from a health and safety expert who stated that he could not imagine a situation where K could have passed through the hatch without suffering appreciable injuries.
LR and C appealed to the Court of Appeal. That court dismissed the appeal and made the following points.
The court at first instance had been entitled to take the view that suicide was less than probable. It took the view, on the evidence before it, that K could have accidentally fallen into the tank.
It was clear that the court at first instance had taken the evidence of the health and safety expert into account. He had not stated that death by accidental means was impossible.
Another example of the relationship between health and safety and suicide is the case of Corr v IBC Vehicles Ltd (2006). C was struck on the head by a panel of sheet metal in his workplace. Almost six years later he committed suicide by jumping off the top of a multi-storey car park. His widow claimed compensation from his former employers.
They admitted liability for the workplace incident but denied liability for the suicide. The main issue was that of foreseeability. It was argued on behalf of C’s widow that she did not have to prove that suicide was reasonably foreseeable, but only that physical or psychiatric injury was foreseeable.
The claim failed and the High Court stated the following.
Given the description of the deceased as a happy, well-balanced family man, ambitious in his work and with no psychiatric problems in the past, it was plain that his suicide six years later, or at all, would not have been reasonably foreseeable.
The suicide was not reasonably foreseeable to the employer. As a matter of law, reasonable foreseeability of the suicide must be established by a claimant.
On appeal, this decision was reversed on the following grounds:
The harm on which the claim was founded was depression, which was admitted to be a foreseeable consequence of the employer’s negligence.
Suicide was not an uncommon result of depression.
There was no cause other than depression for the employee’s suicide.
The employers were liable to pay compensation both for the physical damage done to the deceased and for the depression which he suffered as a result.
There was no prior ground of legal logic and no surviving ground of legal policy for excluding suicide from the compensatable consequences of actionable negligence.
To cut the chain of causation and to treat the employee as responsible for his death would be to make an unjustifiable exception to contemporary principles of causation.
If liability was established for the depression, the question in each case became whether it had been shown that it was the depression which drove the employee to take his own life. Here, it clearly was.
Employers need to be aware that the Supreme Court decision in the Maughan case appears to have modified the standard of proof in alleged suicide cases.
The legal duty of employers in relation to workplace issues which may contribute to suicides may now be easier for prosecuting authorities to establish.
The civil liability of employers in relation to workers who take their own lives may also be subject to a lower standard of proof.